The Life of Ludwig van Beethoven, Volume III

by Alexander Wheelock Thayer

An Appeal to a Higher Court

This petition was filed on January 7, 1820; three days later the Appellate Court commanded the Magistracy to file a report of the proceedings had before it, together with all minutes and documents. The Magistracy complied on February 5, citing its decision of September 17, 1819, and defending its action on the grounds that (a) Beethoven, owing to his deafness and his hatred of the mother of the ward, was incapable of acting as guardian; (b) the guardianship belonged to the mother by right of law; (c) the commission of an act of infidelity against her husband in 1811, for which she had suffered punishment, was no longer a bar; (d) none of the alleged “injurious disturbances and interferences” had been definitely set forth or proven:

If under injurious disturbances we are to understand that the mother is desirous to see her child once every 14 days or 4 weeks, or to convince herself about the wear and cleanliness of his clothing, or to learn of his conduct toward his teachers, these can appear injurious only in the eyes of the appellant; the rest of the world, however, would find it amiss in a mother if she made inquiry concerning her child only once a fortnight or month.

Answering the second charge, the magistrates urged that the appellant seemed to ask of the mother and other guardian that they themselves educate the boy in the sciences. For this not even the appellant was fitted, at least he had not demonstrated such a fitness; he had left the preparation for the higher studies to others and this the mother and guardian could also do, having, indeed, a better plan, which was to send the boy to the R. I. Convict, where he would surely make better progress at smaller expense. Ad tertium, the failure of the boy to advance in his classes could not be laid to the mother or guardian, but must be charged against the appellant, who had taken the boy away from his studies for the university after two months, kept him at home three months, and sent him to another institution of learning at the end of June; naturally enough he lost a school year.

The Court of Appeals demanded a more explicit report, which the Magistracy filed on February 28, taking advantage of the opportunity to review the proceedings had before the Landrecht from the beginning, and to make severe strictures on the conduct of Beethoven in filing an exhibit (F) with his petition in support of which no evidence was offered, though because of it the Landrecht was asked to exclude the mother from the guardianship which belonged to her under the law. Again we quote:

This exclusion can have nothing for its foundation except the misdemeanor of which the mother was guilty in 1811, for all the rest contained in appellant’s exhibit F is unproven chatter to which the Landrecht could give no consideration, but which gives speaking proof of how passionately and inimically the appellant has always acted, and still acts, towards the mother, how little he recks of tearing open wounds that were healed, since after having endured punishment she stood rehabilitated; and yet he reproaches her with a transgression for which she had atoned years before, which had been pardoned by the injured husband himself who petitioned for leniency in her sentence and who had declared her capable and fit for the guardianship of his son in his last will and testament, directing that the son be not taken away from his mother. Regardless of this the appellant last year, certainly not in the interest of the boy’s welfare, inasmuch as we have excellent educational institutions here, but only to pain the mother, to tear the heart out of her bosom, attempted to send him out of the country to Landshut. Fortunately the government authorities, acting on information derived from this court, frustrated the plan by refusing a passport.

Depravity of Karl’s Mother

Let us try now to take a dispassionate view of the case as thus far presented in the pleadings and documents. Not only the law of nature but the laws of the land justified the mother in asserting her right to look after the physical well-being of her child and seeking to enforce it. Dr. Bach seems to have impressed that fact upon Beethoven, wherefore he declares his willingness in the bill of appeal to associate her with himself in the guardianship to that extent. That the Magistrates displayed unusual, not to say unjudicial zeal in her behalf while defending their own course is indubitable; but we are in no position to judge of the propriety of their course, which seems to have been in harmony with the judicial procedure of the place and period, least of all to condemn them, so long as it was permitted them so to do, for having made a stout resistance when their acts were impugned in the appeal to the higher court. The “Exhibit F,” filed in the proceedings before the Landrecht, has not been found and its contents can only be guessed at from the allusions to it in the documents. Obviously it contained aspersions on the moral character of Madame van Beethoven, and it may have been, nay, probably was, true that they were unsupported by evidence and therefore undeserving of consideration in a court either of law or equity. Perhaps they were not susceptible of legal proof. It has been thought that Beethoven felt some hesitancy in flaunting evidence of his sister-in-law’s infamy in the face of the world,[27] but he certainly showed no disposition to spare her in his letters, nor did he hesitate to accuse her of unmentionable things by innuendo. In a Conversation Book of this year (1820) he writes of her that she was “born for intrigue, accomplished in deceit, mistress of all the arts of dissimulation.” On the other hand, it is singular that the Magistrates in their final effort to justify their course have nothing to say about the present moral standing of the woman whose legal and natural rights they claimed to be upholding. Were they in ignorance of what we now know, namely, that her conduct had not only been reprehensible in 1811 (though condoned by her husband) but continued so after her husband’s death? Schindler says that she gave birth to a child while the case was pending, and that is confirmed by a statement of Nephew Karl’s widow,[28] that in her old age Madame van Beethoven lived in Baden with this illegitimate daughter, who was also a dissolute woman.

But there are many anomalous things to the studious mind in the proceedings which we are reporting, which differ greatly from anything which could happen in a court of chancery or probate in Great Britain or America to-day. It is certainly repugnant to our present legal ethics that having filed a petition to reverse the action of one court Beethoven should not only have written private letters to a judge of the court of review, pleading his case on personal grounds, but that his counsel should have advised him to visit members of the higher court to present arguments in his behalf. But, no doubt, this was consistent with the customs of Austria a century ago; and it is what happened. Beethoven writes to Karl Winter, an Appellationsrat, and his lawyer tells him to engage him and one of his colleagues, Schmerling, in conversation on the subject. Perhaps Winter himself questioned the propriety of the proceeding, for in a Conversation Book somebody, who had evidently acted as messenger in the delivery of the letter, writes: “I gave it to Herr v. Winter; he kept me waiting and then said that he could give no answer, nor involve himself in a correspondence.” The letter in question was written on March 6. In it Beethoven says that he had prepared a memorial which he would place in his hands in a few days. From the outline given it is plain that the memorial contained a review of the case since the death of Beethoven’s brother. It had been prepared, said Beethoven, “believing that I owed it to myself to expose the falsity of the many slanders which have been uttered against me and to lay bare the intrigues of Madame van Beethoven against me to the injury of her own child, as also to place in its proper light the conduct of the Magistrates’ Court.” He charges that the Magistrates had summoned the widow and her son to a hearing without his knowledge and, as his nephew had told him, he had been urged and led on by his mother to make false accusations against him. He had also forwarded a document which proved the wavering and partisan conduct of the Magistrates. He repeats the charge about his nephew’s failure to advance in his studies and adds that the boy had had a hemorrhage which, had he not been on hand, might almost have cost him his life. These things were not attributable to Herr Tuscher for the reason that the Magistrates had given him too little support and he could not proceed with sufficient energy—this the writer could do in his capacity of uncle, guardian and defrayer of expenses. He asks that if it becomes necessary he and his nephew be examined, cites his expenditures to keep the boy two years in an educational institution, saying that he had received nothing from the widow in nearly fourteen months but would continue to pay the cost unselfishly in the future, and had set apart 4,000 florins which was on deposit in bank and was to go to his nephew on his death. Moreover, he had expectations from his relations with the Archbishop of Olmütz, etc.

The case was prepared shrewdly, carefully and most discreetly by Dr. Bach, who seems to have exerted an admirable influence on Beethoven at this crisis. The nature of his advice may be learned from the communication of Bernard in one of the recorded conversations. Bernard is writing, and evidently giving the result of a consultation with Dr. Bach. The Court of Appeals would ask another report from the Magistrates and on its receipt would adjudge the case. Nussböck, who Dr. Bach said was willing, should voluntarily retire from the guardianship. Beethoven was asked as to the appointment of Tuscher; had he resigned permanently or only temporarily in favor of Tuscher, the better to accomplish the nephew’s removal from his mother? In what manner had Tuscher abdicated, and had the Magistracy informed Beethoven of the fact? It was necessary, said the adviser, to proceed with moderation in all things so as to avoid the appearance of malice, and the mother should not be assailed if it was at all avoidable, stress being laid only on the fact that as a woman she ought not to have the direction of the education of a boy of Karl’s age, not having the requisite fitness. It would also be necessary for him, in case he were asked, to state his readiness to defray the cost of the boy’s education in the future and this, if the worst came to the worst, might be followed by a threat to withdraw wholly from his care. Reproaches might be made against him concerning the period when he had the boy with him, the priests having taken to meddling in the matter, and it would be well in the future not to take the boy to public eating-houses where he would be observed and scandal fomented.