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Abstract
This article discusses an example of the mutual influence of law, culture and politics, within the modes of the gothic and the sublime. In the context of eighteenth and early nineteenth-century English laws of adultery and of child custody, suppression of the woman’s interest was technically justified by the existence of certain formal requirements, or certain presumptions; the resulting environment corresponded to a key trope of the “gothic” novel. That suggests the closeness of the link between such laws, some of which really originated in gothic law, and the development of the literary gothic, generically fascinated by ancestry and fraught with anxiety about the family, sexuality, and power. The core of the argument is an analysis of two texts which relate to a specific example, the rhetoric of the “criminal conversation” adultery action. Charlotte Dacre’s notorious novel of 1806, Zofloya, or the Moor, can be read as a reaction, which takes its rhetoric of social damage to a catastrophic extreme. The public letter of crim con “victim” Caroline Norton on the Infant and Child Custody Bill of 1839 attempts the opposite, to reconcile the law’s atavism with enlightened ethics and to imagine a sublime resolution without catastrophe.
Notes
1. Boddington v Boddington, 1797. The Trial of Mr Benjamin Boddington for Adultery with his Cousin, the Wife of Mr Samuel Boddington […] at the Sessions House at Clerkenwell (London, 1797), British Trials 1660–1900 (Cambridge: Chadwyck-Healey, 1990)
.2. William Blackstone, Commentaries on the Laws of England, Book I. 5th ed. (London, 1762), p. 7.
3. Leslie Moran, ‘Law’s Diabolical Romance: Reflections on a New Jurisprudence of the Sublime’, in Law and Popular Culture, Current Legal Issues 2004, volume 7 (Oxford: Oxford University Press, 2004), pp. 226–242
.4. Horace Walpole, The Castle of Otranto, in Three Gothic Novels, Mario Praz, ed. (London: Penguin, 1968), p. 124
.5. Fred Botting, Gothic (London: Routledge, 1996), p. 23
.6. Commentaries Book III, 12th edition ‘with the last corrections of the author’ (London,1793-5), p. 268.
7. See Commentaries Book III, supra note 6 at 267.
8. For discussion of this, see Peter Goodrich, Languages of Law (London: Weidenfeld and Nicolson, 1990), eg p. 214
; also Sue Chaplin, ‘“Written in the Black Letter’: the Gothic in/And the Rule of Law,” 47 Law and Literature 8 (Spring 2005) .9. Charles-Louis de Secondat Montesquieu, Spirit of the Laws, 1748
, trans. 1750, Thomas Nugent (London: George Bell and Sons) vol.I, pp. 162–3 . Quoted in Gothic Documents: a Sourcebook, Robert Miles and Emma J. Clery, eds. (Manchester: Manchester University Press, 2000) .10. See Blackstone, supra note 2 at 340.
11. William Blackstone, Commentaries on the Laws of England, Book I, 13th edition (London: 1800), p. 164
.12. See Commentaries Book III, supra note 7 at 99.
13. See Blackstone, supra note 2 at 238.
14. Id., at 456.
15. Id., at 456.
16. Id., at 7.
17. See Commentaries Book III, supra note 7 at 267.
18. I have argued elsewhere that this substitution of a set of ideological conventions for the woman’s real point of view, at the centre of such a public, well-reported performance of law’s attitude to marriage, enabled the reactionary English law to hold off the progressive reforms that the enlightenment natural-law theories of contract might otherwise have encouraged during the late eighteenth-century. “The Silent Woman in the Criminal Conversation Trial and her Displaced Defences” (forthcoming).
19. Mary Wollstonecraft, A Vindication of the Rights of Men, in a letter to the Right Honourable Edmund Burke: occasioned by his Reflections on the Revolution in France…2nd ed. (London: Johnson, 1790), p. 100
.20. See eg. Kate F. Ellis, The Contested Castle: Gothic Novels and the Subversion of Domestic Ideology (Urbana: IL and Chicago, 1989)
.21. David Punter, Gothic Pathologies—the Text, the Body and the Law (London: Macmillan, 1998), p. 5
.22. Kosovsky-Sedgwick’s proposition that gothic narratives frequently feature the presence of some “absolute, often institutional” prohibition on communication, which isolates the individual: Eve Kosovsky-Sedgwick, The Coherence of Gothic Conventions (London: Methuen , 1986), pp. 14, 17
.23. Matthew Lewis. The Monk, Christopher Maclachlan, ed. (London: Penguin, 1998), eg. p. 234
.24. See Commentaries Book III, supra note 7 at 267.
25. William Blackstone, Commentaries on the Laws of England, Book I, 12th ed. (London: 1793–5), p. 33
.26. Charlotte Dacre, Zofloya or The Moor (1806), Kim Ian Michasiw, ed. (Oxford: Oxford University Press World’s Classics, 1997), p. 7
. Page references in parenthesis in the text refer to this edition.27. Adriana Craciun, Fatal Women of Romanticism (Cambridge: Cambridge University Press, 2003), p. 111
.28. Markham v Fawcett, 1802, Thomas Erskine, Speeches of Thomas Lord Erskine: with a Memoir of his Life, Edward Walford, ed. (London: Reeves and Turner, 1870), p. 175
.29. See Boddington, supra note 1 at 7.
30. Such speeches gave wide circulation and legal authority to this as the ideal of male desire. It is clearly related to the aesthetic ideal analysed by Edmund Burke in 1757, though the economic motivation of this legal action makes it interestingly different here, since sticking too closely to Burke’s idea of an inherent imperfection and weakness could only bring down the price: Erskine clearly knew what to leave out. See James T. Boulton, ed., A Philosophical Enquiry into the Origin of Our Ideas on the Sublime and the Beautiful (Oxford: Blackwell, 1987), eg. p. 116
: “the beauty of women is considerably owing to their weakness, or delicacy, and is even enhanced by their timidity, a quality of mind analogous to it.” It is also related to the literary ideal which reaches its zenith in the popularity of “The Angel in the House” in Coventry Patmore’s mid nineteenth-century poems.31. Charles Phillips, The Most Eloquent Speech of Mr Phillips in the Case of Guthrie v Sterne for Adultery (London: William Hone, 1816)
, p3. This seems to be closer to Burke’s idea that the frailty of female beauty is the very quality which is its strength, because of the manner in which it positively attracts masculine appreciation and protection. In Burke’s formulation, “highest” female beauty “almost always carries with it an idea of weakness and imperfection”; See Bolton, supra note 30 at 110.32. “… and now to death devote” is Milton’s completion of the line. Paradise Lost, Book IX, lines 900–1.
33. See Walford, supra note 28 at 188.
34. See Boddington, supra note 1 at 4–5.
35. See Hockenhull Smith (forthcoming), supra note 18.
36. See Dacre, supra note 26.
37. Id., at 12.
38. See Michasiw, supra note 26 at xxvii.
39. The Annual Review and History of Literature, 1806, vol. 5, p. 542; quoted in Michael Gamer, “Genres for the Prosecution: Pornography and the Gothic”, PMLA, vol. 114, 1043–1054, October 1999.
40. See Dacre, supra note 26 at 51.
41. Id., at 124.
42. Id., at 29.
43. Id., at 67.
44. Id., at 67.
45. Sigmund Freud, The Interpretation of Dreams, Richie Robertson, ed. (Oxford: Oxford University Press, 1999)
.46. See Dacre, supra note 26 at 125.
47. Id., at 128.
48. Knowles v Gambier, 1757. An Account of the Trial of Lieutenant Gambier for Adultery with the Wife of Admiral Knowles, in the King’s Bench […] before Lord Mansfield. British Trials, no. 57.
49. See Dacre, supra note 26 at 128.
50. Id., at 133.
51. See Phillips, supra note 31; the sentimental discourse of the Erskine-admirer, Charles Phillips, counsel in Guthrie v Stern, 1816, as quoted earlier: “the female form has been held a patent direct from the divinity, bearing in its chaste and charmed helplessness, the assurance of its strength, and the amulet of its protection.” This had proved very successful in court, and Philips was so pleased with it that he published it; though his speech was reviewed savagely as “wild, incoherent rhapsody” and markedly inferior to Erskine, in the Edinburgh Review 1816, vol. L, p. 8; see A Letter from Charles Phillips Esq., to the Editor of the Edinburgh Review, in defence of his speech in Guthrie v Stern, for Adultery; to which is prefixed the critique, verbatim, on Mr Phillip’s speech, from the Edinburgh Review no. L, with a preface; 5th Edition (London: W. Hone, 1816).
52. Lord Hardwicke’s Marriage Act of 1753 shifted marriage from the control of individuals and families and brought it within the regulation of the state.
53. Virginia Woolf, “Professions for Women.” The Death of the Moth and other Essays (New York: Har-court Brace 1942), 236–8
.54. See Dacre, supra note 26 at 226.
55. Id., at 156.
56. See Simon Critchley’s philosophical discussion of the interconnectedness of the concepts in “Unworking Romanticism;” in Simon Critchley, Very Little… Almost Nothing. Death, Philosophy, Literature (London: Routledge, 1977), pp. 85–96
.57. Dacre herself, had been affected by marital separation as an infant: her father divorced her mother under Jewish law in 1785 in order to marry a dowager countess (Dacre was born in 1782). Dacre was also in an unconventional union at the time of writing Zofloya: she “bore the first of three children” by the married editor of the Morning Post in this year. Paul Baines, “Byrne, Charlotte (1782–1825).” Oxford Dictionary of National Biography, H.C.G. Matthew and Brian Harrison, eds. (Oxford: Oxford University Press, 2004)
. The unconventionality of her own emotional life suggests at least that it is inadvisable to take the novel’s conservative and judgmental statements at face value.58. As Robert Mighall has argued, the temporal and geographical settings of gothic tales should be read as significant, rather than dismissed as imprecise displacements of merely psychological relevance. Robert Mighall, A Geography of Victorian Gothic Fiction (Oxford: Oxford University Press, 1999)
, pp.xii–xiv. The fifteenth-century seems an appropriate placement for the unenlightened politics of patriarchal marriage, which employs a biblical essentialism which sidesteps modernization, and could be thought to be more at home in the remote catholic past than at the start of the nineteenth-century in progressive Britain.59. The Times, 23 June 1836. Counsel for the plaintiff was Sir William Follet. For a brief, lively account of the trial see Alan Chedzoy, A Scandalous Woman (London: Alison and Busby, 1992), pp. 9–22
.60. The Separation of Mother and Child by the Law of Custody of Infants Considered (London, 1838); anonymous, but identified as being by Norton.
61. James O. Hoge and Jane Marcus, “Letter to the Queen on Lord Chancellor Cranworth’s Marriage and Divorce Bill,” Selected Writings of Caroline Norton (Delmar: Scholars Facsimiles and Reprints, 1978), p. 145
.62. For the narrative of her own custody struggle, See Chedzoy, supra note 59 at chapter 21.
63. Thomas Weiskel, The Romantic Sublime: Studies in the Structure and Psychology of Transcendence (Bal-timore: Johns Hopkins University Press, 1976), p. 11
.64. Hugh Blair, Lectures on Rhetoric and Belles Lettres
, 1783, Lecture III, in The Sublime, a Reader in British Eighteenth-century Aesthetic Theory, Andrew Ashfield and Peter de Bolla, eds. (Cambridge: Cambridge University Press, 1996), pp. 13 , 17–19.65. Id., at 15.
66. Caroline Norton, A Plain Letter to the Lord Chancellor on the Infant Custody Bill (1839), Perry Willett, ed. (Bloomington: Library Electronic Text Resource Service, Indiana University, 1996), p. 53
.67. Patricia Yaegar, “Toward a Female Sublime,” Gender and Theory: Dialogues on Feminist Criticism, ed. Linda Kauffman (Oxford: Oxford University Press 1989), pp. 191–212
.68. See Punter, supra note 21 at 10.
69. Slavoj Zizek, For They Know Not What They Do: Enjoyment as a Political Factor (London: Verso, 2002), pp. 242–3
.70. See Norton, supra note 66 at 1 and 3.
71. Id., at 8.
72. Id., at 11.
73. Id., at 5.
74. Id., at 9–10.
75. When the Norton case is mentioned by name and in more detail in the final section of the letter, the strategy is the same, but paper-thin.
76. See Zizek, supra note 69 at 230.
77. Lawrence Stone suggests that behind the façade of ‘patriarchal absolutism exhibited when cases came before the common law courts’, private negotiations were often handled with more delicacy and liberality. See Lawrence Stone, The Road to Divorce: A History of the Making and Breaking of Marriage in England, 1530–1987 (Oxford: Oxford University Press, 1992), p. 174
.78. Norton was not the first to publish this revelation. This presumption that the right to custody rests with the father had been elliptically portrayed by Mary Wollstonecraft in the plot of her novel Maria, in which Maria’s baby is abducted from her own arms by her husband’s agent; and Maria is then incarcerated in a private asylum. It is implicit in the novel that both the abduction and the incarceration are permitted by the law, though perhaps the fiction is not clear enough. Norton’s more emphatic real-life version explicitly lays out the extent of the law’s partiality, in decided cases.
79. See Norton, supra note 66 at 4–5
80. Id., at 9. Her position demonstrates well the operation of the mystique of power. It is implicit in Hobbes, but Zizek too reminds us that no matter how unsatisfactory or flawed the incidental bearers of authority may be, the spirit of the institution maintains the subject’s internal trust because the power dwells in the form, not in the bearer. Where the law is concerned, injustices will be received by the faithful subject with a trust that they would be remedied “if only it was known.” See Zizek, supra note 69 at 250.
81. Id., at 99.
82. Id., at 24.
83. Id., at 5.
84. The stronger individualism of the crim con action’s logical structure is striking, and identifies this action as the one with the “rogue” element. It was in fact working to break down the power of the patriarchal family edifice, as it facilitated divorce.
85. Id., at 100.
86. Id., at 97.
87. Kieran Dolin, “The Transfigurations of Caroline Norton,” 30.2 Victorian Literature and Culture, 520 (2002)
.88. Though private, out-of-court negotiations were often less absolute; see Stone, supra note 77 at 174. Norton, like Wollstonecraft, was concerned to show what it was possible for a husband to do, with the law’s protection.
89. It would be difficult to imagine anything more indicative of her central social position than the later usage in 1847 of an allegorical portrait of her to represent “The Spirit of Justice” in decorative frescoes; in no less than the rebuilt Chamber of the House of Lords; see Dolin, supra note 87 at 512–14.
90. Hegel’s Science of Logic, W.H. Johnson and L.G. Struthers, trans. (London: Allen and Unwin, 1966), vol 2
. Quoted in Zizek, supra note 69 at 37.91. See Hegel, supra note 90 at 70.
92. Peter Goodrich, in Pierre Legendre, Law and the Unconscious, Peter Goodrich, trans. (London: Mac-millan, 1997), p. 15
.93. Stone credits her influence in both the passage of the Child Custody Act in 1839 (See Stone, supra note 77, p. 178), and in the passage of the Marital Causes Act in 1857, which abolished the criminal conversation action (Id., at p. 373). However, he suggests that her persuasive pleadings were channelled through influential friends, like her “mouthpiece in parliament,” Lord Lyndhurst, and he gives no weight at all to her own public voice.