By Mitchell Clark – Partner | Personal Injuries

Whistler’s Mother is visiting Australia.  One of the most recognisable and iconic paintings in the world is on exhibit at the National Gallery of Victoria.  The title of the painting is “Portrait of the Artist’s Mother”, painted in 1871.  Some say that this painting, albeit a masterpiece is a party piece.  It’s as though the portrait of his mother is declaring a generational war, pocking fun at the staid 19th-century elders and their puritan severity.  It’s the first time that this large and imposing painting has traveled to Australia on loan from Parish.   Whistler MotherIn later life the American artist, James Whistler moved to London and his painting style became increasingly impressionistic and even abstract with a definite mix of influences that included Japanese art that had become popular through trade with Asia.   The technique of his paintings involved using oil pigment thinned until it was the consistency of water. 139 years ago this July, Whistler sued England’s eminent art critic John Ruskin for defamation of character which lead to the most famous Court case in art history.  How did this come about?

Ruskin had published a critique of one of Whistler’s “Nocturne” paintings which were part of a display in a newly opened gallery in London, accusing Whistler of asking “200 guineas for flinging a pot of paint in the public’s face”.  Ruskin’s response to the painting is the definitive rejection of modern art as fraud, because the painting was highly impressionistic, and arguably was the birth of modern art.  Since the painting was largely a black canvas with an image (some say luscious and sexy) of sparks cascading through the night air over the Thames River during a fireworks display.  Historians view the Court case as a contest between traditional art (where the subject of a painting was distinct and recognisable) versus modern art (where paintings focused more on structure and harmony without any specific subject matter). The painting was left deliberately abstract.  Whistler was more interested in the contrast of light against dark rather than in representing a detailed depiction of the landscape.  So, Whistler sued Ruskin for £1,000 which was an enormous amount of money at that time, plus coverage of his court costs.

Whistler NocturneWhistler’s Lawyer argued that a painting was about nothing but itself and that what matters was its formal structure and harmony, not subject matter.  In contrast, Ruskin believed art should have a moral force.  The Trial also heard legal arguments about the rights and duties of a critic.  For example, whether it was proper that a critic should be free to announce his feeling genuinely held about a painting even if that feeling was negative towards the painting itself.


During the Trial, Whistler referred to the painting as “an artistic arrangement”.  It was an “arrangement” of contrasting and sympathetic colours rather than a “realistic” depiction of the scene.  Whistler then took Ruskin’s critique as a personal affront.  He felt that it was not just his talent as an artist that was cast in question but his sincerity as an artist.  On the other hand, it can be said that Ruskin’s words are as precocious as Whistler’s painting.  In a way, an art was being born that the world never expected.  Ruskin recognised Whistler’s audacity.  He saw that this was an art in defiance of all expectation, whose enemy was expectation, and that it would be both aggressive to the general public and dissociative of aesthetic order.  Interestingly, with hindsight, art lovers now celebrate the painting, “Nocturne in Black and Gold: The Falling Rocket” for its abstraction and for the way that it anticipates 20th-century drip paining and action painting, such as the works of Jackson Pollock.

The heart of this dispute may also be said to be money.  This painting was the only one of the 8 listed for sale in the exhibition catalogue.  Ruskin was standing up against what he felt was the commercialisation of art.  In an ironic twist, the conservative Ruskin was actually foreseeing the future in the way that art is now considered a “product” subject to hefty consumption and capitalisation.

The Trial of Whistler -v- Ruskin was held on 25th and 26th November in 1878 in the Court of Exchequer Division at Westminster.  The presiding Judge, Baron Huddleston was noted to have a  “fondness for humorous asides”.  Ruskin, famously earnest and somewhat humourless, failed to appear at the Trial due to ill-health but his defence Counsel John Holker, played up to the Court room atmosphere of hilarity. Ruskins Barrister

In one famous exchange during the Trial, Ruskin’s Barrister asked Whistler how long it took him to “knock off a picture”.  The Lawyer’s use of this colloquial expression (“knock off a picture”) was an attempt to undermine Whistler’s professional reputation and also to highlight the perceived absurdity of the Court case to the jury, meaning to say in effect that the claim should not have been made by Whistler in the first place.  After Whistler replied that the painting had been made in two days, the Barrister submitted that it was unreasonable for Whistler to ask for 200 guineas (a large amount at that time) for only two days’ labour.  Whistler dramatically replied, “I ask it for the knowledge that I have
gained in the work of a life time”.

WhistlerWhistler won the case, but the jury awarded only an insulting farthing in damages, which was the smallest coin in the realm (equal to ¼ of a British penny).  The Judge also declined to award costs in favour of Whistler.  While Ruskin’s friends had paid his legal expenses, Whistler went bankrupt covering his own.  The Nocturnes paintings brought into the Court upside down and lampooned in the press, were rendered unsaleable. Ruskin, far from gloating was appalled.  He resigned his professorship at Oxford because he felt his very right to be a critic had been denied by the British legal system.

As the Judge stated, criticism itself had been placed on trial when Whistler took out his claim against Ruskin: “Consider the duty of the critic, it is of the very last importance that the critic, having mind enough to form his judgement, should have strength to express it”.

RuskinThe Court case and its associated controversy settled nothing.  It did however kick-start a trend which has continued expeditiously into current times of an artistic person delighting in art as ephemeral public performance.  You might say such “art” doubles as an incendiary glitch, with the goal of a million social media hits, as blazing as fireworks, such as those depicted in Whistler’s famous “Nocturne painting”.