Legal Others: The Knowledge of National Community in Nineteenth-Century British Legal Theory and Wilkie Collins’s Man and Wife

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Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Geoffrey Baker is an associate professor of humanities (literature) at Yale-NUS College. Currently completing a monograph on the relationship between belief and evidence in the nineteenth-century novel, he is the author of The Aesthetics of Clarity and Confusion: Literature and Engagement since Nietzsche and the Naturalists (Palgrave 2017) and Realism’s Empire: Empiricism and Enchantment in the Nineteenth-Century Novel (Ohio State UP 2009).

Notes

1 The words from Medea translated by Kovacs as “understand” and “rule of law” are forms of episteme (ἐπίστασαι) and nomos (νόμοις). In the Greek tradition alone, in addition to Euripides one could quickly mention Odysseus’ incrementally repeated question in The Odyssey “Alas, to the land of what mortals have I now come? Are they cruel, and wild and unjust?” (Homer 1998, 6.119-121), Herodotus’ critical elaboration of different civilizations’ legal practices in a text often said to be the first historiographical work in Europe, or Paul’s letter to the Romans, in which he distinguishes “the Gentiles” as those who “have not the law [νόμον]” (Romans 2:14).

2 I am grateful to Daniel Novak for bringing this work of Gaskell’s to my attention, and to other fellow panelists and audience members for their helpful comments when I presented an earlier version of this essay at a 2016 conference in Düsseldorf organized by the Modern Language Association.

3 Farmer is quoting the Rachel Wright case from J. Burnett’s A Treatise on Various Branches of the Criminal Law of Scotland (1811). I discuss a few other Scottish treatises later, but see also J.H.A. MacDonald, A Practical Treatise on the Criminal Law of Scotland (1867), and its constant elaborations of distinctions between England’s and Scotland’s laws, including doubts about legitimacy of English verdicts in Scotland (especially in the chapter on “Jurisdiction”).

4 According to this introduction, of additional literary interest is the reminder that Robert Louis Stevenson was so “strong[ly] attract[ed]” by the story that he co-wrote a play on it, Deacon Brodie, or the Double Life, in 1892 that may also have served, the editor speculates, as a template for Dr. Jekyll and Mr. Hyde.

5 As one of the judges involved in the case is also named Erskine, I refer to the counsel for the defense after this as the Dean of Faculty instead, and this is in keeping with how the trial transcripts refer to him.

6 This appears to happen earlier in Scottish treatises, as a chronology of them suggests. If Mackenzie’s 1678 work offers more commonalities and points of comparison and influence—recall his inclusive subtitle—Hume in 1797 already emphasizes the differences more powerfully, and that trend continues. Several larger historical events help to contextualize this movement, including the Act of Union in 1707 (which merged Scotland with England and yet importantly left the Scottish legal system and some other institutions independent); Jacobite risings later in the eighteenth century; and a series of 1746 laws designed to criminalize aspects of Scottish identity and heritage.

7 It must be acknowledged that the trend in treatises toward more consistently noting differences, rather than similarities, between English and Scottish legal systems as the nineteenth century progresses, is not an absolute one. William Mawdesley Best’s Principles of the Law of Evidence (1849), for example, cites Scottish cases alongside English ones just as Gilbert had in the eighteenth century, with no further comment on them (e.g. 424), thus suggesting a parity between the realms. Best’s own background mirrors this; according to Allen’s entry on him in the Dictionary of National Biography, Best was (probably) born in Scotland, educated in Ireland, and admitted to the bar via Gray’s Inn in London.

8 The term “loose” is used by the character Sir Patrick Lundie to describe “the Scotch law” in Man and Wife (Collins [1870] 2008, 523), but I have borrowed “looseness” from Dougald MacEachen’s essay on Collins and British law (see 127). Scottish jurists would, perhaps not surprisingly, have disputed this characterization of their use of witnesses. Burnett notes in 1811 that “Although parole testimony must be the chief and ordinary mean of proof in crimes, it appears that our law has, from the earliest periods, shewn an extreme caution as to the admissibility of witnesses, and even a jealousy of this species of evidence” (388, emphases in original). And Scottish discussions of English treason law frequently call attention to a disturbing looseness of English law, namely the fact that one witness was deemed sufficient to prove numerous particulars about a defendant against a capital treason charge. One detects a measure of alarm in Archibald Alison’s (1832) comment that “All these articles of proof, though decisive of the case, may be proved by a single testimony” (619).

9 The phrase “mere belief” has a very long history in discussions of evidence and related matters, especially as distinct from more solidly, empirically grounded forms of knowledge. (This distinction, if not the exact phrasing, are key to British empiricist philosophy.) This is how Starkie clearly uses it, and one sees it as well in John Maynard Keynes’ Treatise on Probability in 1921 (9) and Susan Haack’s recent (2014) Evidence Matters: Science, Proof, and Truth in the Law (5).

10 Other scholars—Husemann in particular—have indeed acknowledged that Collins’s critique of marriage laws is not confined to those of Scotland, but I would emphasize the manner in which this might throw Scots marriage law into sharper relief by virtue of its differently depicted standards of evidence (cf. Husemann 2009, 71).

11 Husemann’s (2009) extended discussion of “savagery” and “wildness” in depictions of Scots and Scotland in the novel is particularly illuminating (80, 83). These aspects of the imagining of Scottish space relate to the legal and cultural critique, yet they also enable the entire fiction; the ambiguities of Scottish law and terrain provide the possibility for the narrative itself, as the plot is generated by these uncertainties. See Franco Moretti’s discussion of such spaces in Atlas of the European Novel 1800-1900 (London: Verso, 1999), for example, or my analysis of their function in Trollope’s Palliser novels in Realism’s Empire: Empiricism and Enchantment in the Nineteenth-Century Novel (Ohio State UP, 2009).