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Abstract
This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.
Acknowledgement
Many thanks to Tara Ghoshal Wallace for the numerous fruitful conversations that became the spark for the ideas in this essay.
Notes
1. Walter Scott, Letters on Demonology and Witchcraft [1830] (London: George Routledge & Sons, 1884), p. , 164.
2. Ibid., 207.
3. Ibid., 230.
4. Ibid., 130.
5. Wolfram Schmidgen, “Picturing Property: Waverly and the Common Law,” Studies in the Novel 29, no. 2 (1997): 191.
6. Ibid., 200.
7. Daniel Cottom, “Violence and Law in the Waverly Novels,” Studies in Romanticism 20, no. 1 (1981) 65.
8. Joan Garden Cooper, “Scott's Critique of the English Treason Law in Waverly,” Scottish Studies Review 4, no. 2 (2003): 22.
9. Edward Coke, Institutes of the Laws of England [1628–44] (London: E & R Brook, 1797).
10. Matthew Hale, “Considerations Touching the Amendment or Alteration of Lawes,” in A Collection of Legal Tracts Relative to the Law of England, ed. Francis Hargrave (Dublin: E. Lynch, 1787), 254.
11. James Boyd White, Acts of Hope: Creating Authority in Literature, Law, and Politics (Chicago, IL: University of Chicago Press, 1994, 129.
12. Ibid., 135.
13. William Blackstone, Commentaries on the Laws of England: Of Public Wrongs [1765–69], ed. Robert Malcolm Kerr (Boston, MA: Beacon, 1962). 3.
14. Ibid.
15. Ibid., 4.
16. Ibid., 479.
17. Ibid., 497.
18. Ian Ward, “The Jurisprudential Heart of Midlothian,” Scottish Literary Journal 24, no. 1 (1997): 27. Ward goes on to apply this insight to The Heart of Midlothian, which he concludes is “both a negative critique of law and positive critique of the constitution”; ibid., 32. Jeanie's efforts to secure Effie's pardon for conviction under a naturally unjust law, while nonetheless refusing to commit perjury on her behalf, represent, for Ward, the paradox of going beyond the formal law while remaining within its legality; ibid., 32.
19. Karl Shoemaker, “The Problem of Pain in Punishment: Historical Perspectives,” in Pain, Death, and the Law, ed. Austin Sarat (Ann Arbor, MI: University of Michigan Press, 2001), 17–18.
20. Ibid., 36.
21. Simon Devereaux, “The Abolition of the Burning of Women in England Reconsidered,” Crime, History and Societies 9, no. 2 (2005): 3.
22. Daniel Defoe, Moll Flanders [1722] (New York: Penguin, 1987) 226.
23. Blackstone, Commentaries on the Laws of England, 88–9.
24. The Laws Respecting Women as they Regard their Natural Rights (London: J. Johnson, 1777), 344.
25. Hume notes here that this punishment at common law was rendered moot by statute after the abolishment of burning in the Treason Act of 1790. David Hume, Commentaries of the Law of Scotland Respecting the Description and Punishment of Crimes, Volume 1 (Edinburgh: Bell & Bradfute, 1797--1800), 470.
26. Editorial dated June 24, 1788.
27. Devereaux, “Abolition of the Burning of Women,” 4. Devereaux urges an increased attention to the effect on popular opinion of the moving of the burning spectacle from Tyburn back into the city at Newgate, with its disagreeable effects on the crowded neighborhood, and the personal lobbying of the sheriffs of London and Middlesex who were forced to oversee the executions.
28. Laws Respecting Women, 344.
29. Devereaux, “Abolition of the Burning of Women,” 7.
30. Ibid.
31. The Groans of Newgate, Sorrowful Lamentation, and Last Farewell to the World, of the Unfortunate Malefactors, Who are to be Executed on Wednesday next, upon a Scaffold erected at the Debtors Door, Newgate. Also, the sorrowful Lamentation of Phoebe Harris, who is on the same Day to be burnt at a Stake for Coining [London, 1786] (Guildhall Library, B'side 22.115), cited in Simon Devereaux, “The Abolition of the Burning of Women in England Reconsidered,” Crime, History & Societies 9, no. 2 (2005): 79; The True and Remarkable Lives and Adventures of David Clarey, under Sentence of Death in Newgate, for Setting Fire to his House. And Catherine Heyland, condemned to be burnt at a stake, for Coining [London, 1790] (Cambridge University Library, 2708 50.d.3.), cited in Simon Devereaux, “The Abolition of the Burning of Women in England Reconsidered,” Crime, History & Societies 9, no. 2 (2005): 80.
32. Edmund Burke, Reflections on the Revolution in France [1790], ed. L. G. Mitchell (Oxford: Oxford University Press, 1993), 71.
33. Ibid., 75.
34. Burke, Reflections on the Revolution in France, 76. In her response to Burke in A Vindication of the Rights of Men ([1790] in A Vindication of the Rights of Woman and A Vindication of the Rights of Men, ed. Janet Todd [Oxford: Oxford University Press, 2009]) and A Vindication of the Rights of Woman ([1792] in A Vindication of the Rights of Woman and A Vindication of the Rights of Men, ed. Janet Todd [Oxford: Oxford University Press, 2009]), Mary Wollstonecraft likewise links the idea of chivalry to that of the political order, but only to critique both. For Wollstonecraft, chivalric practices through which men demonstrated their adoration solely served to weaken women, encouraging them to behave helplessly and then wind up wholly alone when their youth and charms faded. Wollstonecraft likens these helpless women to the nobility of the Ancien Régime, likewise weakened by coddling and representative of a contrived and harmful social and political order.
35. Clare Simmons asserts that “Marmion presents a pattern for medievalist reading through its persistent juxtaposition of past and present in the main narrative, the annotations, and the dedicatory epistles”; Clare A. Simmons, “Medievalism and the Romantic Poet-Editor in Scott's Marmion,” Poetica 39 (1993): 94.
36. In a related discussion of the relationship between Scott's narrative structure and penal systems, Leland Monk asserts that The Heart of Midlothian is influenced in its disciplinary practices and narrative design by the idea of the prison; Leland Monk, “The Novel as Prison: Scott's The Heart of Midlothian,” Novel (Spring 1994): 287.
37. Irene Basey Beesemyer, “‘The Vision of Enchantment's Past’: Walter Scott Rescripts the Revolution in Marmion,” Scottish Studies 1, no. 1 (2000): 65.
38. Indeed, Nancy Goslee has argued for an identification between Scott the poet and Marmion the knight as ambivalent heroes with problematic loyalties, noting that Scott's “need for a […] commercial success with Marmion points strongly to the idea that Marmion's forgery is a literary as well as literal act” and that his “deliberately chosen loyalty to the Union and its culture conflicts with an earlier, intuitive loyalty to Scotland and specifically to the border country”; Nancy Goslee, “Marmion and the Metaphor of Forgery,” Scottish Literary Journal 7 (1980): 85–6.
39. Walter Scott, Ivanhoe (New York, NY: Modern Library, 2001) 5.
40. Ibid., 5.
41. Amy Witherbee, “Habeas Corpus: British Imaginings of Power in Walter Scott's Old Mortality,” New Literary History 39, no. 2 (2008): 355.
42. Ibid., 363–4.
43. Scott, Ivanhoe, 242.
44. Ibid., 249.
45. Scott, Letters on Demonology and Witchcraft, 56–7.
46. Scott, Ivanhoe, 244.
47. Ibid., 245.
48. Ibid., 253.
49. Ibid., 251.
50. Ibid.
51. Ibid., 255.
52. Thomas Hobbes, Leviathan: Or the Matter, Forme, and Power of a Common-Wealth Ecclesiasticall and Civill [1651], ed. Ian Shapiro (New Haven: Yale UP, 2010).
53. Scott, Ivanhoe 254.
54. Scott, Ivanhoe 405.
55. John Locke, Second Treatise of Government [1690], ed. C. B. MacPherson (Indianapolis: Hackett, 1980).
56. Ibid., 408.
57. Ibid., 406.
58. Ibid., 409.
59. Ibid., 407.
60. Ibid., 421.
61. Ibid., 426.
62. Ibid., 421–2.
63. Ibid., 422.
64. Ibid., 423.
65. Ibid., 415.
66. Ibid., 438.
67. Ibid., 425.
68. Ibid., 429–30.
69. Ibid., 427.
70. Ibid., 500.
71. Ibid., 501.
72. Ibid., 504.
73. Ibid., 509.
Additional information
Notes on contributors
Erin L. Sheley
Erin Sheley is a Visiting Associate Professor of Law at the George Washington University, where she is also a doctoral candidate in English literature. Her scholarship on the relationship between criminal harm and narrative has appeared in a wide range of law reviews and peer-reviewed publications.