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This is to certify that the

dissertation entitled
WAYS OF THINKING ABOUT LAW IN FOUR NINETEENTH—

CENTURY BRITISH NOVELS: ORLEY FARM, PAUL CLIFFORD,
THE WOMAN IN WHITE, FELIX HOLT
presented by

Deborah B. Luyster
has been accepted towards fulﬁllment

of the requirements for

PhD degree in Engl 1811

 

 

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Date August 8, 2001

 

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WAYS OF THINKING ABOUT LAW
IN FOUR NINETEENTH-CENTURY BRITISH NOVELS:
ORLEY FARM, PA UL CLIFFORD, THE WOMAN IN WHITE, FELIX HOL T
By

Deborah B. Luyster

AN ABSTRACT OF A DISSERTATION
Submitted to
Michigan State University
in partial fulﬁllment of the requirements
for the degree of
DOCTOR OF PHILOSOPHY
Department of English
2001

Professor James Hill

ABSTRACT
WAYS OF THINKING ABOUT LAW
IN FOUR NINETEENTH-CENTURY BRITISH NOVELS:
ORLEY FARM, PA UL CLIFFORD, THE WOMAN Ev WHITE, FELIX HOLT
By

Deborah B. Luyster

Novels participated in the intellectual debate over reform of the laws and the legal
system in nineteenth-century Britain. From a law and literature perspective, they are most
informative for the humanitarian and political concepts the characters and the narrators
express about how the law operates in society, how the law and the legal system should
be changed, and the inﬂuence of history upon representations of the law. These expres-
sions of the law “as it is” and the law “as it ought to be,” the real and the ideal, incorpo-
rate thinking that includes the inﬂuence of Sir William Blackstone’s Commentaries on
the Law of England and Jeremy Bentham’s arguments for radical reform. They also re-
veal thinking about the law that connects to natural law theory, legal realism, positivism,
and theories of evidence.

Two of the novels, Anthony Trollope’s Orley Farm and George Eliot’s Felix
Holt, The Radical, are novels written in the literary tradition of realism. Wilkie Collin’s
The Woman in White stretches the expectations of the realistic novel that its representa-
tions will be of the law as it is to the sensation novel subgenre that includes aspects of the

underworld of Victorian society including crime, deceit, treachery, and near anarchy.

Collin’s use of a legal framework demonstrates a closer account of the law as it is and its
limitations than Trollope and Eliot. Paul Clzﬁ‘ord by Bulwer-Lytton also attempts to
demonstrate the law “as it is,” while using an idealistic style to underscore his message
that includes thinking about the law as it “ought to be.”

Finally, because they are written by artists dependent on their imaginations, each
novel urges a similar dependence on the imagination in law. Thus, thinking about law
progresses to imagining about law as the novelists imagine an improved legal system,
methods in which the imagination should work in the system’s daily operation, and ways

to circumvent the legal judgment rendered in each novel.

C0pyright by
DEBORAH B. LUYSTER
2001

To Tinkerbell who supplied the energy to make dreams come true.

ACKNOWLEDGEMENTS

This project has been a long time coming. Throughout the years of study and
research and during more than a few diversions along the way, Dr. James Hill, the chair
of my guidance committee, has been patient, attentive, always helpful in his suggestions
and encouragement, and most kind. To him I owe much thanks. I also would like to thank
the members of my committee Dr. Judith Stoddart, Dr. James Seaton, and Dr. Victor
Paananen for their wise guidance and for expending so much time in reading the drafts
and presenting suggestions. Throughout my studies for this project, the support and
understanding from my former colleagues in the English Department at Kalamazoo
College also has sustained me. I am forever grateful to them for their assistance and for
the high standards of scholarship they exempliﬁed and encouraged me to emulate. I also
thank my family—parents, husband, and stepdaughter—for their understanding of my

other life as I pursued my degree.

vi

TABLE OF CONTENTS

INTRODUCTION 1

CHAPTER 1
THINKING ABOUT LAW IN ANTHONY TROLLOPE’S ORLE Y FARM 14

CHAPTER 2
THINKING ABOUT LAW AS A UTILITARIAN PHILANTHROPIST:
BULWER-LYTTON’S PA UL CLIFFORD 90

CHAPTER 3
THINKING ABOUT PROOF IN WILKIE COLLINS’ THE WOMAN UV WHITE 148

CHAPTER 4

THINKING ABOUT LAW’S HERITAGE AND LAW AND MORALITY IN
GEORGE ELIOT’S FELLX HOLT, THE RADICAL 226
CONCLUSION 307

WORKS CITED 330

vii

Introduction
Thinking about Law Through Literature

The focus of this study can be reduced to what I call metathinking or thinking
about the thinking about law revealed in four nineteenth-century British novels. This
thinking about law within the novels is distinguished, at least for my purposes, from what
we might consider what the law or legal system does in the novel. To me, these novels
are working texts that in their various expressions of thinking about law raise more issues
and ask more questions about what the law and the legal system are and what they ought
to be than a textbook. The expected progression of this thinking presented in a work of
the imagination is to extend the thinking about the thinking about law exhibited in the
novels to imagining something beyond the present to another way of thinking about law.

Members of the public have more thoughts about the legal system and lawyers
than any other government institution or profession. Everyone has an opinion about law-
yers and what the law and courts should do. The reasons for this public involvement are
too extensive for this discussion, but a ftmdamental reason must be because the law and
the legal system are so pervasive in their lives. The Anglo-American system of jurispru—
dence exists in a paradoxical relationship with public opinion. On the one hand, the sys-
tem protects an exoteric language and maze of complicated procedures not that dissimilar
from what Dickens described in Bleak House (1853). The legal profession represents its
educational institutions and bar membership as exclusive communities. The public sus-
tains this elitism through its susceptibility to what appears to be the mystery and tricks of
the law and the awe, respect, and perhaps intimidation its courtrooms, customs, and tradi-

tions intentionally impose. Therefore, the public adopts a view like Tommy Trounsem’s

in George Eliot’s Felix Holt, The Radical that “you’d better not be meddling wi’ things
belonging to the law, else you’ll be catched up in a big wheel and ﬂy to bits.” No one and
nothing is immune from the inescapable force of the law. “[I]t’s no use being deep,”
Tommy says, “cause you can never know the law. And there’s times when the deepest
fellow’s worst frighten ” (379).

On the other hand, most people are amateur lawyers, thinking they know almost
as much about law and the courts as those trained in the profession. These impressions
are unavoidable considering the appropriation of legal education by nonlawyers in high
school civics classes, college political science classes, and the news media. The ubiqui-
tous new breed of lawyers subsisting as talking heads on television and radio talk shows
and attempting to condense the complexities and intricacies of the law to a few minutes
of commentary contribute to this impression as well. The popularity of the legal system
and lawyers as a framework or as subjects in ﬁction and ﬁlm and television dramatiza-
tions also shapes the public impression about the law and the legal system.

Conspicuous for its absence on both sides of this paradox is an identiﬁcation or
sorting out ﬁ'om public opinion and other impressions of the law of the reality and mean-
ing they manifest. Using law in literature to sort out and name the thinking about law the
literature depicts, exposes varying and sometimes contradictory ways of thinking about
law and prompts comparisons to the readers’ own thoughts about law and the legal sys-
tem.l Reading these “legal ﬁctions” helps readers discover different ways of thinking
about law and to think more about their own thinking. Our expectations of the law and
the legal system and our efforts to improve them so they are more accessible, comprehen-

sible, and more capable of rendering justice from both a legal and a substantive view will

be more viable if instead of becoming lawyers or amateur lawyers we become more like
amateur legal philosophers. We can make the law and the legal system more our own if
we ﬁgure out what our thoughts and comments about the law indicate about our views of
the law or what we think the law is and what we think it should be.2 This does not mean
that everyone must associate themselves with some school of legal philosophy. It means
contemplating about what law means to each of us, understanding that meaning, and
thinking about how it ﬁts into what the law is and what the law could be.

The law and literature movement encompasses both law in literature and law as
literattn‘e.3 Very simply and brieﬂy stated, the former analyzes literary texts for what they
say about law, how legal issues work the plot, or how the legal system and the text inter-
act in manipulating people’s lives and perspectives. The latter division of this interdisci-
plinary study, among other things, applies literary analysis to legal discourse and texts or
demonstrates how literary techniques can take part in legal interpretation.4 Additionally,
an appreciation of the literary tradition arguably seeps through the disciplinary line to in-
troduce another point of view in legal thinking, writing, and decision-making.

Nineteenth-century British novels are rich mines for law and literature explora-
tions. The obvious predominance in the texts of law, as a subtle undercurrent in the char-
acters’ lives and as a controlling force and an instrumental vehicle, perhaps is unmatched
in the literature of any other period or country—the contemporary explosion of unrealis-
tic portrayals of lawyers and trials in American popular ﬁction included. The place of law
in British literature during its rise as an empire afﬁrms the argument of many scholars
that law and literature are in many ways intertwined human activities. Although the

works of Charles Dickens are the comparative models for so many inquiries into aspects

of all nineteenth-century novels including his depiction of the legal system, I intend to
examine some works of his contemporaries whose novels are not considered so fre-
quently for what they say about the interaction of law and literature or for their depiction
of ways of thinking about law.

I will examine Paul Cliﬁrord (1830) by Edward Bulwer-Lytton, Anthony Trol-
lope’s Orley Farm (1860), The Woman in White by Wilkie Collins (1860), and George
Eliot’s Felix Holt, The Radical (1866). My interest is mainly in the ways the characters,
which includes the narrator in some instances, think about law and where the novel
places the legal system in the hierarchy of social institutions. Additionally, I intend to ex-
plore how the texts treat legal reform proposals (both changes in the law and changes
within the legal system), which dominated so much of England’s intellectual climate
from the 18203 to the 18603. Finally, these texts of literary ﬁction have something to say
about the imagination and the role it can play in law.

Trollope and George Eliot are novelists in the realist tradition. The Woman in
White is also a realistic novel but of a subgenre known as the sensation novel. In contrast,
Paul Clijford is an idealistic novel with elements of the romantic. These differing catego-
ries allow for some comment on the limits and potential in imagining the real and ideal
when literature integrates thinking about law. Sometimes the orientation to the present of
realism leaves us with thinking about law as an inﬂexible force that must be contended
with as it is. However, the looking ahead of idealism sometimes cannot persuasively

imagine an improved legal system without bordering on a utopia or fantasy.

My study begins with Trollope’s Orley Farm because of the four novels included
in this study it is the most patently about law, lawyers, the trial process, those who are
subject to the law, and those who use the law for their beneﬁt. Additionally, more than
any other novel discussed herein, it illustrates different modes of legal thought—its place
in the characters’ lives, its purpose in society, its role in the national structure. It most
comprehensively incorporates many ways of thinking about law, including the valoriza-
tion in Anglo-American jurisprudence of its ties to the early days of civilized England.
These many views about the law and the legal system are signiﬁcant not only for what
they tell us about nineteenth-century thinking about law and the ways the Victorians ap-
proached reform; they are equally important in thinking about law and resistance to
change in the legal system today.

The realistic strength and power in Orley Farm is the novel’s realistic portrayal
of the operation of law and the legal system and its delineation of different approaches to
thinking about law and the legal system—what it is or ought to be, what it does accom-
plish, and what possibly it should accomplish according to society’s expectations. Some
of the characters in the novel are representative of speciﬁc modes of legal thought or cer-
tain aspects of such thinking—manual law theory, positivism, realism, and utilitarianism.
My treatment of Orley Farm is not only an approach in accordance with the three foci
previously listed, but also a foundational explanation of some diﬁ’erent ways of thinking
about English jurisprudence for reference in the subsequent novel studies.

In Orley Farm, the narrator’s confession of sympathy for the deceitful Lady Ma-
son and his appeal to temper tendencies for harsh judgment leads to thinking about the

role of sympathy in legal judgments. In doing so, we must consider ﬁrst whether triers of

fact and law can reposition their thinking beyond their own experiences to imagine realis-
tically the consequences of their decisions on others considering the pluralistic experi-
ences of the members of society they judge. If so, we must consider whether a sympa-
thetic imagination combined with legal reasoning results in just legal determinations eq-
uitably applied or whether it inserts an additional risk of arbitrary decision-making into
the judicial process.

As the ﬁrst Newgate novel the signiﬁcance of Bulwer-Lytton’s Paul Cliﬁ’ord ap-
pears obvious. We anticipate the novel’s attack on the English criminal laws and penal
system since the subgenre’s title refers to a House of Correction, and we are not disap-
pointed in that respect, although the penal system is not the major focus. The novel also
parallels many of Jeremy Bentham’s criminal law reform proposals and evinces the per-
during inﬂuence of that lawyer and philosopher on the legal reforms of the nineteenth
century. More importantly, we also ﬁnd a complex and thoughtful explication of the af-
fect of the laws upon the lower classes and of the reasons for crime and an argument sup-
porting Benthamite legal reforms.

Unlike many of the social reform novels that followed Paul Cliﬁ’ord, which as
novels of realism could not extend beyond the real of the present, Bulwer-Lytton’s ideal-
istic novel imaginatively presents the future implementation of the solutions to the pre-
sent problems depicted. The problems the novel deﬁnes and describes are the reactionary
upper class legislating harsh sentences—particularly the death penalty—for an increasing
number of criminal offenses and the lower class living in what seem to be circumstances
over which they have little control. The solutions the novel presents are changes in the

laws and individual benevolence. Then the novel describes a world in which those solu-

tions Operate. We also ﬁnd in Paul Cliﬂord an admission of the harmful inﬂuence of
imaginative literature on certain impressionable readers. Nevertheless, the novel itself
cormters this admission by becoming an example of how literature can direct readers to
self-improvement and good conduct. The novel is signiﬁcant for considering possible so-
ciological reasons for criminal conduct, proposing means of rectifying the causes of
criminal activity, and attempting to imagine how the joint cooperation of law reform and
individual benevolence as an ideal works when implemented.

Although published at the same time as Trollope’s Orley F arm and only a few
years before Eliot’s Felix Holt, The Radical, Wilkie Collins’ The Woman in White does
not directly address legal reform. However, its emphasis on legal determinations of fac-
tual proof is certainly an observation on the soundness of existing theories of evidence
and the legal system’s burden of proof. As a sensation novel, it presents a secret under-
world of crime and anarchy thriving in Victorian society. To make the unthinkable appear
real it supposedly mimics the method of presenting evidence at a trial. The motivating
factor behind the form of the narrative and the resort to several forms of self-help by the
narrator derive from his inability to obtain legal recourse against the novel’s villains. He
alleges his story was not told in the courtroom because of the law’s strict rules of factual
proof and the excessive costs to pursue a claim, which prompts thinking about the factors
that deny many individuals access to legal remedies. Additionally, The Woman in White
raises questions about whether the legal process is capable of determining truth. That
thinking incorporates theories of evidence including the part imagination can play in ac-
cumulating and presenting evidence, the presentation of testimony like a story and other

forms of legal narrative, and the self—authenticating devices relied upon by writers of both

literary and legal texts. In its claim to truthfulness, The Woman in White mocks the
cause/eﬂ’ect connections of Enlightenment thinking. Because the novel demonstrates that
the representation of truth remains elusive in law and in literature, it eﬁecﬁvely moves
closer to the real than novels in the tradition of realism. The novel also raises questions
about self-help as a viable alternative to the legal process.

George Eliot’s Felix Holt, The Radical invokes thinking about law’s relationship
to social change and whether law should reﬂect social change or become its catalyst. It
also is a curious blend of the humanistic and political concepts of law. Felix Holt, The
Radical is a novel wrapped around legal issues, not focused on them. Those legal issues
include the law of real property and inheritance, the extension of the ﬁanchise through
the ﬁrst reform bill, and Felix’s trial for homicide. In looking back to the past and inheri-
tance, the novel, like Orley Farm, initiates thinking about the Anglo—American legal sys-
tem’s reliance on its heritage and its resistance to change that is so much the message of
Sir William Blackstone’s Commentaries on the Laws of England. Nineteenth-century re-
formers challenged this adherence to continuity, arguing that reform was necessary to
correct injustices, not an organic gradual progress through time. Bentham and John Aus-
tin also challenged that part of the inherited tradition that assumed Christian natural law
was a necessary part of manmade or positive law. Though not a reformer, Eliot removes
God ﬁ'om natural law and makes it secular. Her novel suggests that natural law is external
to and precedes positive law formation. In fact, despite law’s prominence in the novel’s
setting and the novel’s criticism of lawyers, the legal system is ultimately inconsequen-
tial. Human beings must improve themselves through the law-like conduct of morality,

the results of which will be reﬂected in a slow-growing improvement and development.

As the novel suggests, the conscience of natural law thinking produces a con-
sciousness of others exhibited through a sympathetic imagination about what others think
and feel. That imagination looks beyond the present to thinking about the future conse-
quences of individual acts upon others. Esther Lyon, who represents this realistic novel’s
attempt to imagine and represent the ideal, possesses this sympathetic imagination. Her
acts for the welfare of others inspire similar conduct in her community. The sympathetic
imagining of consequences would naturally become a part of the legal system under this
ideal because the legal system would reﬂect the improved society attained through Eliot’s
version of secular natural law.

Consistent with what we have seen in the previous novels, the novelist comments
on the participation of the imagination in the novel. According to Eliot’s novel, the
imaginative process of writing a realistic novel requires a sympathetic imagination. Oth-
erwise, the imagination of the author does not correspond to daily life. A realist must
write with a sympathetic imagination both to depict what is real and to inspire good con-
duct in others.

The cautious approach to legal reform in both Orley F arm and Felix Holt coin-
cides with the movement of thinking from the early part of the century to the mid-
Victorians. The early decades of the century witnessed sharp class distinctions and hostil-
ity toward the upper class. Political power rested in the upper class despite the rise of the
middle class. In addition, a faceless mass of uneducated workers in industry, agriculture,
mines, and domestic service survived on meager incomes in harsh living conditions. The
1832 Reform Bill, amendments to the Poor Laws, and repeal of the Corn Laws paciﬁed

and dissipated some discontent, while the failure of Chartism evinced the inability of the

workers and the poor to mount an effective, result-producing protest. Optimism about
reform from the 18303 became disenchantment or disillusionment in the 18603. Simulta-
neously, economic prosperity, resulting in higher wages and better food, stilled the com-
plaining voices of the workers and the poor (though not eliminating the disparities and
living conditions they had complained about) and the receptivity toward reform in soci-
ety. Without any signiﬁcant change in the political dominance of the nobility and gentry
and the inequalities of class structure, a culmination of factors stiﬂed more extensive re-
form to the legal system. In this way, Trollope and Eliot’s novels realistically represent
Victorian society’s current thinking about legal reform.

In selecting these novels I knew I would ﬁnd thinking about similar areas of the
law in each novel, the trial process, the laws of inheritance and real property, reform of
the laws and the legal system, and other points of view about law ﬁom the novels’ appro-
priations of law and the legal system in various degrees as a framework or backgrormd. I
did not expect to ﬁnd even more signiﬁcant integration of law and literature in each novel
in addition to the obvious connections. I am referring ﬁrst, to what appears as connec-
tions between the legal and literary imagination in the novels, and secondly, to the novel-
ists’ irnaginative assumption of authority beyond the law and the legal system.

As I will discuss in the concluding chapter, successful lawyers and judges know
the valuable role the imagination plays in law from constructing pleadings and arguments
to styling statements of fact.5 What I have found most interesting is the ways in which
each novel in varying degrees attaches the literary imagination to the legal imagination.

In Trollope’s Orley F arm, the narrator appeals to readers to moderate their judg-

ment against Lady Mason by imagining themselves in a Similar situation. The novel’s

10

conclusion extends that judicial leniency to the society of the novel and, by implication,
to judging the narrator’s representation of reality. Bulwer-Lytton’s brief description of
Paul Clifford’s life in America helps readers imagine a future world in which law reform
has reduced some of the circumstances that turn men to crime. The novel also becomes
an example of how imaginative productions, such as the novel, can be used for persuasive
purposes or to positively inspire the imagination of others. Collins shows how receptivity
to the inferences drawn from the imagination leads to provable facts capable of meeting
the legal system’s burden of proof. His novel also shows how the conditioning of the
imagination through narrative can inﬂuence the way the recreation of actual events are
told like a story during the presentation of evidence at a trial. Eliot’s appeal is for an
imagination that continues what the slow grth of nature and history has demonstrated.
It envisions an improved legal system consistent with social improvements that occur in
an “organic” social progression. Just as the imagination of a novelist in the realist tradi-
tion must portray reality, so should the legal imagination, according to Eliot’s argument.
It should not be based on romantic ideals that contain false expectations and result in re-
forms that cause social disruption rather than improvement.

In each novel, we also see how the disposition of each criminal’s case extends be-
yond the law. In other words, the novelist assumes the legal judgment normally reserved
for the courts.6 Lady Mason is acquitted at her trial even though she is clearly guilty. The
sympathy the reader is asked to extend her is supposed to soften the fact that she and her
lawyers have twice made a sham of the trial process. Paul Clifford, the good-hearted and
longtime leader of a gang of highwaymen, is saved from the gallows by a petition for le-

niency. Then he subsequently escapes from his transportation colony. His criminal com-

11

panions avoid imprisonment as well. The Woman is White is a bit more complicated, but
the two individuals the narrator seeks to inﬂict revenge upon do receive what he per-
ceives as their just deserts, although outside the legal system. Those responsible for their
deaths, the Italian Brotherhood and Hartright, are unpunished. A third party credited for
these dispositions, Providence, is untouchable. Unlike the previous two novels, in
Collins’ novel we do not see basically good people who through circumstance and poor
judgment ﬁnd themselves tried for criminal offences. We ﬁnd instead three near lawless
individuals in a test of endurance and wit. Hartright, who as the narrator presents himself
superﬁcially as morally superior, emerges victorious. The reward for his efforts is up-
ward mobility and ﬁnancial security. In Felix Holt, The Radical, a four-year prison term
for manslaughter is commuted through a pardon, although Felix’s guilt is clearly proven.
The existence of these two factors, the merger of the legal and literary imagina-
tion and the assumption of an imaginative authority that supplants the legal judgment,
takes thinking about the thinking about law in these novels to another level. The ﬁrst
level contains the obvious explications from the characters or narrator on the law and le-
gal system previously mentioned. The second level is the artistic or imaginative thinking
about the law from the novel itself. In my conclusion, I will discuss what I see as parts of
this second level. The ﬁrst part of that second level, the merger of the legal and literary
imaginations, pushes thinking about the thinking about law I have identiﬁed in the novels
to imagining about law. Thus, ways of thinking about law moves to methods of imagin-
ing about law. The second part of the second level concerns the authority of the imagina-
tion over law revealed in each novel’s blatant overturning of the legal depositions de-

picted in each novel and the implications these imaginary successions to the law raise.

12

Notes

1 Throughout this discussion, the terms “law” and “legal system” will be used in-
terchangeably to refer to the system of positive or manmade laws under which the Eng-
lish nation is governed and the process under which the laws are administered through the
courts.

2 I refer to some of the ways of thinking about law as legal movements or schools,
branches of legal philosophy, legal theory, or jurisprudence studies. The terms increas-
ingly seem to overlap and are used synonymously rather than within distinct deﬁnitions.
Though this discussion uses these categories to explain ways of thinking about law, their
use does not imply that the title restricts the identiﬁcation to theory or philosophy or
schools of j urisprudence.

3 Gary Minda includes law and literature as one of the interdisciplinary move-
ments of the late twentieth century in Postmodern Legal Movements: Law and Jurispru-
dence at Century ’3 End.

4 This is in addition to the close reading and critical thinking skills that are the
obligatory tools of both students of law and of literature of every age and stage of devel-
opment.

5 James Boyd White in The Legal Imagination describes judges as determining
what the stories they hear legally mean (243). One of the best discussions on imagination
in law is found in White’s book.

6 This argument derives from Alexander Pettit’s “Sympathetic Criminality in the

Mid-Victorian Novel” and will be discussed more extensively in the following chapters.

13

Chapter 1
Thinking About Law in Anthony Trollope’s Orley Farm

In its extended, behind-the-scenes treatment of “The Great Orley Farm Case” (1;
ch. 1)1 Anthony Trollope’s Orley F arm (1862) becomes a complex and multifaceted ac-
count about the different ways in which individuals think law or the legal system func-
tions in society and about their expectations of the adjudicatory process. Following the
mid-Victorian realistic literary tradition, the novel attempts to detail the legal system’s
operation through a criminal proceeding and the events surrounding it. In doing so, the
novel also represents the legal and extralegal factors inﬂuencing the process of adjudica-
tion. Through the lawyers and judges and other participants in the case and those drawn
into its widening circle for other reasons, the text demonstrates the many ways people
perceive law and the legal system. In fact, the intensity of the novel and its framework
thrives on the various ways of thinking about law rather than the plot’s conﬂicts and suc-
cession of events.

During a time of rapid political, social, and economic change, Orley Farm appro-
priately engages in the continuous debate about the modem application of law’s heritage
of traditions and customs, about its association with natural law, about legal reform, and
about legal empiricism versus legal theory. Its participation is not through philosophical
thinking, but through the characters from a range of social, political, and economic levels,
who, without labeling their perceptions of the legal system, show in their words and ac-
tions their views about law in their society. By examining these perceptions and the na-
ture of the characters who propound them, we ﬁnd that the law and the legal system do

not sit securely on a pedestal of authority and neutral autonomy and that their roles of de-

14

termining truth and rendering justice can be negotiated by extralegal inﬂuences.

Lady Mason, whose isolated and late night act of forgery so that her son would
become a landed gentleman and the two trials that followed provide the framework for
thinking about law, embodies the novel’s often repeated version of the warning, “He that
touched pitch shall be deﬁled therewith.”2 The quotation prescribes against consorting
with evildoers for fear of committing wrong as well (Mullen 400).3 The phrase’s negative
application in Orley Farm applies to maintaining reputation by avoiding those who are
from a lower class or those thought disreputable. Its positive application is that exposure
to experience forces self-questioning and changes long-ingrained beliefs. In other words,
as George Levine states in The Realistic Imagination, as a mimetic writer, Trollope de-
scribes the eﬂ‘ect of experience on individuals (10). The novel’s multiple subplots, all
shadowed by the pending trial, support the realism of the saying. After this a posteriori
emphasis, the narrator encourages a reconciliation of the legal and moral experiences of
the novel through the abstract principles of sympathy and mercy. This reconciliation
merges the gentleness of “tempering” with the harshness of “shom” in the narrator’s ref-
erence to the tempering of the wind for the shom lamb. It derives from a feeling of sym-
pathy for Lady Mason’s desperation so that judgment against her is moderated. That tem-
perance in judgment extends to those she has affected and to the novel’s narrator for his
realistic representation. Furthermore, it foreshadows some contemporary proposals for
implementing justice.

The narrator states on the opening page of the novel that the case is “intimately
connected with certain legal questions which made a considerable stir in our courts of

law” (1. ch. 1). The reference is to Lady Mason’s legal difﬁculties, but the questions ex-

15

tend beyond the Orley Farm case as the identiﬁcation of some of these legal questions
herein will show. The novel identiﬁes three primary approaches to thinking about law
with some related variations: Von Bauhr and Felix Graham’s reform utOpia derived from
the abstractions of logic or “great endeavors for the amelioration of [the world’s] laws
and the perfection of its judicial proceedings” (136; ch. 17) with its aspects of Jeremy
Bentham’s utilitarianism, Sir Peregrine Orme’s simple absolutism and idealism combin-
ing positive law, natural law or morality, and national heritage, and the realism and em-
piricism of the practitioners Mr. Fumival, Mr. Chaffanbrass and Mr. Dockwrath who,
contend with the complexities and contradictions of the law and all the social, political,
and ideological factors inﬂuencing its operation. The latter three men also introduce a
resituating of lawyers ﬁ'om elite gentlemen of letters to hardworking businessmen intent
on earning a living.

That we can paint today a similar picture of the conﬂicts and questions about law-
yers and the legal system as Trollope did almost a century and a half ago is a factor in
evaluating the novel’s realistic success. As Andrew Wright states in Anthony Trollope:
Dream and Art, “Trollope the high Victorian has gradually given way to Trollope the
novelist for our time—more modern than he could have foreseen, more pertinent to the
way we live now than many readers have understood” (1). Novelistic realism means that
ﬁctional representations are plausible or conceivable to readers’ frames of reference, their
experiences, and observations. As if forgetting the motivation of realism to portray life as
accurately as possible, critics mistakenly cite Trollope’s details of the world of law as
indicia that he viewed the legal system as terribly ﬂawed and its lawyers blinkered advo-

cates seeking only their clients’ interests and their own fees without restraint.4 Reading

16

the novel closely and critically with strict attention to the multiple narrative voices, re—
veals the overall depiction of the operation of law as descriptive, not evaluative. Specula-
tions on the novelist’s views of the legal system and lawyers should be conﬁned to Trol-
lope’s nonﬁction, including The New Zealander, an emulation of Carlyle’s Condition of
England pronouncement, and Trollope’s Autobiography, rather than drawing them from
his ﬁction, particularly the treatment of law and lawyers in Orley Farm. 5 The countering
and mix of positions in legal thought as well as the interrogative nature of the narrator
provide insuﬁicient evidence to argue that Orley Farm is Trollope’s indictment of law
and lawyers in whole or in part.6 The text is the best evidence to discuss the representa-
tion of both the operation of law and methods of thinking about it. From this observation
and weighing of the textual evidence, which becomes for readers their experiential view
or their touching of pitch, the readers, like the characters in the novel, gain a realistic and
ultimately troubling perspective on law’s position as an authority in the hierarchy of so-
cial institutions.

The early pages of Orley Farm signal that the novel’s focus is neither Lady Ma-
son’s guilt or innocence of forging a codicil to a will nor her conviction or acquittal of a
charge of perjury. A much greater issue underpinning all thinking about law in the novel
is the failure of a verdict to represent the truth. In the initial chapters of the novel the nar-
rator brieﬂy summarizes the events leading up to the present time of the novel when Lady
Mason learns that a local solicitor, Samuel Dockwrath, has discovered evidence disputing
the codicil that gave her son, Lucius Mason, title to the property known as Orley Farm.

Next, the novel delves into the diversity of thinking about law. The novel’s

prominent members of the bar attend an international congress on law reform in Bir-

17

mingham. Nineteenth-century Britain was a time of many legal reform movements. The
various examples of thinking about law are in effect different attitudes about law reform.
Although reform is the catalyst for the conference, the legal representatives from the
prominent countries tend to expound upon the worth of their own systems as examples of
reform for other countries, whose representatives, in turn, defend the merits of their legal
establishments. Most prominent are: the French codiﬁcation that in its logic supposedly
justly answers all legal problems; the abstract reasoning of German idealism; the Ameri-
can criticism of the English system as outdated with ineﬂ‘ectual practices and traditions;
and the British bar who are undisturbed by what is perceived to be a discrepancy between
the moral sanctions of their private lives and the lack of any moral restraints in the prac-
tice of law. Additionally, the conference juxtaposes its theoretical emphasis against the
practical experience of the English bar in attendance, some of whom will participate in
Lady Mason’s trial. According to James Kincaid in The Novels of Anthony Trollope, the
novel shows law reform as having “two equally ineffective stances against the decay of a
civilized community,” abstract principles or theory and relativistic empiricism emphasiz-
ing practice, vicious opportunism, and the commercial (80).

The only speaker at the conference described in detail is the German Von Bauhr,
whose reform proposals are inaccessible because the English bar members do not under-
stand German;7 but one describes it as “The old story, going to show that the same man
might be judge, advocate, and jury” (131; ch. 17). Nevertheless, the German lawyer, sit-
ting alone in his room smoking a pipe, reﬂects on what he perceives as a great success.
His pipe dreams “seemed to lift him lightly from the earth into an elysium of justice and

mercy at the end of which is a bust of himself on the tallest pedestal with an inscription

l8

stating ‘To Von Bauhr, who reformed the laws of nations.”’ His elysium was “not wild in
its beauty, but trim and orderly in its gracefulness” (136; ch. 17).

A young barrister attending the conference, Felix Graham, is the English Von
Bauhr. Instead of practicing law, he writes “poetry for periodicals and politics for the
penny papers” (138; ch. 18). Admitting that he found Von Bauhr unintelligible and sleep
inducing, Graham says such speakers “must be endured before any improvement is made
in anything” (135; ch. 17). He claims to have felt some essence of meaning in the Ger-
man’s lecture. Graham left Oxford without a degree because of his unpopular opinions on
religious subjects and, after being called to the bar, “he would not labor on the same
terms with other men, or make himself subject to the same conventional rules.” Instead,
he believes “general great rules of the world” should govern (138; ch. 18) because “laws
and their management have nothing to do with making people honest” (140, ch. 18). Al-
though, as Mr. Chaffanbrass, the star of the Old Bailey, says, Graham rejects belief in the
Bible (131; ch. 17), his great rules echo the Ten Commandments.

Graham’s great rules theory also contrasts the spirit of the Enlightenment to the
British common law system. The young barrister’s individual effort at improvement such
as walking before breakfast which “proves that the man can make an effo ” (140; ch. 17)
and his benevolent work at “moulding”8 an ideal wife from a girl he has supported since
she was young represents the ﬁrst step in the Enlightenment belief in “human beings’
ability to perfect themselves and their society” (Holman 175). His rejection of the con-
ventional for great rules reﬂects the “Enlightenment faith in human rationality and the
existence of discemable and universally valid principles governing human beings, nature,

and society.” And his disbelief in the Bible follows the Enlightenment’s opposition to

19

“spiritual authority and revealed religion” (Holman 176). Graham’s biggest complaint is
the common law’s protection of the accused through a presumption of innocence that al-
lows defendants and their attorneys to hide behind a front of innocence until a verdict de-
termines otherwise. He argues that lawyers should protect the innocent client and defend
the guilty client from “possible innocence” and “not [become] the protector of his prob-
able guilt” (141; ch. 18). However, he does not explain how lawyers can practice his the-
ory by determining a client’s guilt or innocence short of a direct question, an anathema to
the British bar, “men very unlike their German brethren, men who thought that guilt
never should be asked to tell of itself’ (91; ch. 12). Although Graham could not under-
stand Von Bauhr’s speech, he is sure that they share a common bond “though it may not
yet have reached our sublime understandings” (141, ch. 18).

German legal thinking in the nineteenth century consisted of two movements:
German Historicism and Von Bauhr’s abstract logical reasoning, which argued for codi-
ﬁcation of laws like the code developed in France (Walker 521). Friedrich Savigny, the
most prominent of the German Historians, argued that if law is the spirit of the people,
then the spirit was reﬂected in their customs. Looking backward to historical precedents
and explanations identiﬁed these customs and traced law’s evolution in society (Lloyd
252). This derivation of law ﬁ'om customs and traditions is very similar to Sir William
Blackstone’s theory on the common law described in his Commentaries on the Laws of
England (1765-69).9 Abstract logical reasoning relates to the legal reform proposals of
philosopher and lawyer Jeremy Bentham (1748-1832)lo whose works created “a solid
juridical foundation” for much of law reform in the early nineteenth century (Lloyd 99).

His thinking also stemmed from Enlightenment philosophy. Bentham’s utilitarian code is

20

the equivalent of Von Bauhr’s trim and orderly elysium as opposed to the wild garden of
the English legal system.

Legal scholar Thomas Grey argues that in the nineteenth century, British law, or
the “tangle of customary English common law,” was “a jungle of irrational customs,
prejudice, and superstition hidden behind a false front of pretended reason [. . .] epito-
mized by the Commentaries of Sir William Blackstone” (808). Bentham, Grey says,
“sought to clear away the tangle of customary English common law and construct in its
place a code designed on the Principle of Utility, every provision of which was rationally
aimed at attaining the greatest happiness of the greatest number” (808). Graham’s reform
arguments resemble Grey’s description: “Those practices in which we most widely depart
from the broad and recognized morality of all civilized ages and countries are to us the
Palladiums of our jurisprudence” (141; ch. 18). He also drinks a systematic approach
based on his conventional rules would eliminate injustice and create perfection. Never-
theless, the conference’s reform missions fail to pierce the English barristers’ resistance
to change. They are defended in the conference’s concluding speech by the “divine
wrath” (142; ch. 19) of Thomas Furnival, a barrister known for his depth and expertise in
common law litigation of all kinds.

Mr. F urnival will lead the defense for Lady Mason. For practical Englishmen like
Mr. Furnival, who have ploddingly and tirelessly worked their way up from poverty to
prosperity and professional prominence, the conference is Vox et praeterer nihil (130; ch.
17 ) or voice and nothing else (Mullen 39). The Greek translation of the conference
leader’s surname, Boanerges, is a loud-voiced orator and is the same surname Jesus gave

to James and John, as the sons of thunder (Mullen 49).11 Mr. Furnival says the German

21

abstractions ignore the element of human nature. His response to Von Bauhr’s suggestion
of one man possessing all three elements of justice’s checks and balances—judge, advo-
cate, and jury—is, “If men were machines, and if you could ﬁnd such machines perfect
at all points in their machinery. [ . . .] Machines don’t have hearts” (131; ch. 17).12
Knowing his own long hours making a living as a barrister, he agrees with another lawyer
that in the past members of the profession would not shame themselves attending such
lengthy lectures on theories and would have remained at work.

However, Mr. F unrival is working in Birmingham on Lady Mason’s case as well
as defending the English Bar. Twenty years previously, he represented Mrs. Mason in a
civil action contesting a codicil to the will of Sir Joseph Mason, Lady Mason’s deceased
husband. That contest was initiated by Joseph Mason, Esq. of Groby Park, the son of Sir
Joseph’s ﬁrst marriage. At stake was the property that Lady Mason and her son must sur-
render if Joseph Mason prevailed. The young widow testiﬁed that she wrote both the will
and the codicil as her husband’s attorney, the gout-ridden Jonathan Usbech, dictated the
document to her in her husband’s presence. She also said that the since deceased attorney
along with two others witnessed Sir Joseph’s signature. Joseph Mason was never satisﬁed
with the verdict against his interest; the loss of additional land and income became his
persistent affliction.

In Birmingham, Mr. Furnival tries to deﬂect a second trial by convincing his col-
league Mr. Round, who represented Joseph Mason during the ﬁrst controversy, to con-
tinue that representation in the second rather than hand it over to his more ambitious son:
“Mr. Round was a good-natured old fellow, and if the case could be inveigled out of his

son’s hands and into his own, it might be possible that even the real merits should avail

22

nothing” (135; ch. 17).

Mr. Furniv ’s “constan[cy] at his work in season and out of season” (75; ch. 10)
despite obtaining ﬁnancial security and social standing and even though it risks the stabil-
ity of his marriage reﬂects his view of his occupation as does his compliment to Mr.
Round’s son as “an exceedingly good man of business” (133; ch. 17). Though Mr. Furni-
val would not recognize him as such, his compatriot. in this belief is Mr. Dockwrath who
is less discreet about making money and does not euphemize his intent with Mr. F urni-
val’s phrase, “man of business.” Instead, Dockwrath says frankly to Matthew Round, “As
a professional man, of course I expect to be paid for my work;-and I have no doubt that
you expect the same” (127; ch; 16).

Mr. Dockwrath’s less than subtle pragmatic view of the profession as a means to
earn an income is most obvious during a confrontation with a group of traveling salesmen
at an inn. Expanding the meaning of commercial, Mr. Dockwrath insists he is entitled to
beneﬁt from the accommodations of an inn’s commercial room, speciﬁcally provided for
the comfort of traveling salesmen who are the bulk of the inn’s business. The word
‘commercial’ is “extremely difﬁcult to deﬁne” he says. But “in the broadest, strictest, and
most intelligible sense,” he is a commercial gentleman because “[i]n this enterprising
country all men are more or less commercial.” (43; ch. 6).

The senior of the commercial men, Mr. Moulder, declares Mr. Dockwrath’s inter-
pretive strategies “gammon” (43; ch. 6). Mr. Moulder is “a stickler for the rights and
privileges of his class” (41; ch. 6) deﬁned by a commercial code that mimics and paro—
dies the legal system in its references to “the custom of the country” and “the rule of the

case” of past disputes (42; ch. 6). David Skilton writes in the introduction to the Oxford

23

edition of Orley F arm: “Once the world of the ‘commercial gentlemen’ has been set up,
with its own rules, conventions and morality, it can be used for comparison with the legal
world. The standards of commercialism, which the ideal Trollopian reader and most of
the well-to-do characters in the novel must regard as ‘vulgar’, are subsequently seen to
underline the practice of advocacy as well” (xii).

After winning a begrudging admission to the group, Mr. Dockwrath challenges
their rule of equally dividing the dinner bill among them because he does not want to pay
for wine he did not consume. As if the commercial men were lawyers like himself, “his
legal mind could not bear to be beaten: and “[t]he spirit of litigation within him told him
that the point was to be carried.” For authority, Mr. Dockwrath cites the “law of the land”
which supercedes “the laws of any special room” (69; ch. 9). The solicitor, who now calls
himself “a commercial lawyer” (73; ch. 9), prevails in the dispute because the innkeeper
forces a compromise, knowing “it would be a dangerous and probably an expensive pro-
ceeding to thrust out the attorney by violence” (73; ch. 9). In other words, Mr. Dockwrath
succeeds because of the fear of the law rather than through his legal skills in convincing
the commercial men or the innkeeper of the merits of his position.

Mr. Furnival and Mr. Dockwrath represent a tension between the lingering traces
of lawyers as gentlemen trained in the law as part of their duty as members of the upper
class so they could serve in Parliament and act as county magistrates and the men for
whom the practice of law was a means to support their families. Although earning money
has been the common struggle of both men, Mr. F urnival, as a well-known London bar-
rister, has successfully mimicked the upper class and gained admission to their homes. In

contrast, Mr. Dockwrath, though “a very sharp attorney” (38; ch. 6) who succeeds ﬁnan-

24

cially and professionally as a solicitor in a small town, has not obtained gentleman status.
Both men contribute to the uncertainty about whether the profession belongs to the world
of business or the world of the upper class. Despite Mr. Furnival’s years of sacriﬁce to
obtain ﬁnancial security and social acceptance that to a born gentleman would have been
automatically granted, he willingly defends at the conference that historical tradition that
arbitrarily made his climb more arduous. Later, suppressing his own superior legal abili-
ties and extensive experience, he treads gingerly around the condescension and legal in-
eptness of Sir Peregrine Orme, a county magistrate and head of an upper-class family
who befriends Lady Mason. However, he eagerly fans any sentiment from Mr. Round’s
ﬁrm that Mr. Dockwrath is beneath their respect. Although, Mr. Dockwrath insists he is
entitled to the privileges of a commercial man at the inn, he intimidates them as a lawyer
when a confrontation arises and breaks down the blurring of the business and legal
worlds he previously established.

Mr. Dockwrath confronts this hierarchy of class within his own profession during
a meeting with young Mr. Round in his ofﬁce to discuss the evidence supporting Joseph
Mason’s claim. Round and Crook, a prestigious ﬁrm despite a feeling among the profes-
sionals that their skills were not the highest during the ﬁrst Orley Farm case, “in the ordi-
nary course of business would have had no personal dealings with a man as Mr. Dock-
wrath” (123; ch. 16). To them he is pitch. Again, Mr. Dockwrath is determined that “he
would transact business only on equal terms” (124; ch. 16). Nevertheless, Matthew
Round maintains the distinction to his professional detriment, antagonizing one who
could be helpful to his client’s case, by speaking rudely and reﬁrsing to shake hands.

Even so, Mr. Dockwrath forces Mr. Round’s acknowledgement that the country solicitor

25

is “every bit as much an attorney” as he is ( 127; 16).

Mr. Chaffanbrass, the renowned criminal lawyer, combines the commercial aspect
of the profession with an ethical obligation. His duty to the client paying his fee is as in-
ﬂexible as Sir Peregrine’s code of honor as a gentleman from a long line of honorable
men. On the one hand, this duty coincides with assuring that the checks and balances of
the legal system properly ﬁmction despite any opinion of the client’s guilt or innocence.
One of the two judges in the novel, Judge Staveley, tells Graham that once he takes a
case, even if he changes his opinion about his client’s innocence, he “must go on [. . .] as
a matter of course” (59; ch. 48). Even with this advice, Chaffanbrass feared Graham’s
self-righteousness would result in turning Lady Mason over to the prosecution. On the
other hand, this duty is tied to an obligation to render the results paid to obtain and there-
fore, on law as a business. “If you’re paid to bring a man off not guilty, can’t you bring
him off if you can?” Mr. Moulder asks (165; ch. 61). No clients would retain an attorney
who did not represent them enthusiastically or return for future representation after dis-
covering that the attorney gives up their cause during the trial. Inevitably, Chaffanbrass
and Graham clash. At the trial’s end, Mr. Chaffanbrass tells Graham that he “is too great
for this kind of wor ” and that Graham should leave the profession. After Graham agrees
and says nothing more Chaffanbrass continues: “If a man tmdertakes a duty, he should do
it [. . . .] [E]specially if he takes money for i ”(290; ch. 75). He shares the same position
as Mr. Moulder, who says after applying an Adam Smith or Bentharrrite laissezfaire
template to the legal system: “They’re paid for it; it’s their duties; just as it’s my duty to
sell Hubbles and Grease’s sugar. It’s not for me to say the sugar’s bad, or the samples not

equal to the last. My duty is to sell, and I sell;-and it’s their duty to get a verdict” (165;

26

ch. 61 ). Mr. Moulder, as Geoffrey Harvey writes, applauds the “commercial underpin-
ning of the law” (102).

Ethics have little consequence in determining the placement of the legal profes-
sion on the social ladder. Mr. Chaffanbrass and Mr. Dockwrath are guilty of no ethical
misconduct; yet they are not admitted into fashionable homes and the narrator calls Mr.
Chaﬂ‘anbrass the guardian of the “not-guiltiness of the public” (267 ch. 34) and “a dirty
little man” (267, 268 ch. 34). In contrast to the veiled damnation of Mr. Chaffanbrass, the
narrator takes pains to point out that Mr. Dockwrath’s chief motive is not revenge, even
though his anger led him to explore the records of Lady Mason’s previous attorney after
Lucius Mason ended his long-term tenancy of some of the Orley Farm land. Instead, the
narrator says the attorney possessed “professional energy, and an ambition to win a cause
that ought to be won—eSpecially a cause which others had failed to win” (121; ch. 16).
Later, Mr. Dockwrath refuses a bribe, initiated by Mr. Furnival, to nrisplace or destroy
the evidence, and he declines to bet with Mr. Moulder upon the outcome of the case. He
is no more manipulative in generating pre-trial publicity against Lady Mason than Mr.
Furnival is in creating appearances favorable to her. In fact, Mr. Furnival exhibits more
questionable conduct than Mr. Dockwrath. In addition to the bribe attempt, Mr. Furni-
val’s talent is so fomridable that he engages in a lucrative system that bought up the best
attorneys for one side to prevent their neutralizing each other as opponents: “Legal gen-
tleman are [. . .] quite as often bought off as bought up” (75; ch. 10). Furthermore, he has
no compulsion against helping Lady Mason rob Joseph Mason of Orley Farm: “In the
way of his profession he could do many a thing at which [. . .] an honest man might be

scandalized if it became beneath his judgment unprofessionally” (316; ch. 40). And he

27

lies to the jury. “You know as well as I do,” he tells them, “that she [Lady Mason] has not
been guilty of this terrible crime” (256; ch. 72).

This discussion of the lawyers, Graham, F urnival, Chaffanbrass and Dockwrath
reﬂects a movement from lawyers as gentlemen and as men of letters to lawyers as ac-
tively involved in earning an income in the same way as middle-class tradesman and
commercial men. Compared to the other three lawyers, Graham retains more remnants of
a man of letters with his professional writing and his scholarly nature. However, by the
end of the novel his future father-in-law is urging him to give up his writing and think
more about being a better lawyer so he can increase his income. The other three men
demonstrate few literary or scholarly tendencies. In fact, the narrator mentions several
times Mr. F urnival’s lack of time to read the classics and suggests that if he had it would
have helped him resolve his domestic difﬁculties. Whereas the gentlemen lawyers of the
upper-class worked within and for the community in which they resided, the commercial
men/lawyers form a community in themselves that is separate from the community in
which they live and of their clients. Thus, their clients are not ﬁiends and neighbors, but
customers of their services and sources of income. ‘3

According to Carol Lansbury in The Reasonable Man: Trollope ’3 Legal Fictions,
in the eighteenth century law and the classics were valuable “in the making of a gentle-
man” (14) and that Blackstone enforced this concept when he wrote in the Commentaries
that “a competent knowledge of the laws of that society, in which we live, is the proper
accomplishment of every gentleman and scholar; an highly useful [. . .] part of liberal and
polite education” (1. Intro. 5-6). “The country gentleman,” Lansbury writes “knew it was

as much his duty to serve as a magistrate as it was to preserve foxes” (14).” By the nine-

28

teenth century, as Trollope’s lawyers evince, not only was knowledge of the law no
longer vested in an elite group, it had established ties to a repugnant group, that of com-
merce.

One of the strongest adherents to the old system because of the ideal he attributes
to it, not because of any proven merits, is Sir Peregrine Orme, Lady Mason’s neighbor
and friend. Sir Peregrine Orme, Edith Orme, his daughter-in-law and the widow of Sir
Peregrine’s only child, and Perry Orme, Mrs. Orme’s son, live near-by at The Cleeve, the
family’s ﬁfteenth-century ancestral home. While Felix Graham seeks a secular utopia of
inﬂexible universal rules in law, Sir Peregrine considers universal rules of religious mo-
rality as ensconced in law. Furthermore, the many references to his chivalrous behavior
and code of honor make him a throwback to the Arthurian legend. His thinking about law
and reliance on the past creates his greatest challenge to his concept of proper conduct
when he learns of Lady Mason’s guilt, much as when King Arthur learned of Guinevere’s
adultery.ls

Sir Peregrine is proud of his heritage and a gentleman in his eye must have
equally traceable ancestry in the “world’s history” (22; ch. 3). Wealth and land ownership
without antecedents are insuﬁicient for his gentlemanly standards, so his former
neighbor, Sir Joseph Mason, “did not rank high” in his estimation (22; ch. 3). His ﬁrst
concern is protecting the purity and sacredness of his son’s widow from the touch of any
of life’s pitch. She is his ideal of womanhood. At past seventy, Sir Peregrine, like Mr.
Moulder, “was a little old fashioned” (23; ch. 3) and resists the science-based reforms in
farming methods Lucius Mason supports, even though it would increase the productivity

of his land.

29

The knight’s strict practice of accepting the word of another until “full proof had
come home to him that it was entirely unworthy of credit” (23; ch. 3) and never trusting
the offender again reﬂects his inﬂexibility. Learning of the pending charge against Lady
Mason, the idealist abstractions of the conservative traditionalist and the radical reform-
ist, Sir Peregrine and Graham, ﬁnd themselves allies in arguing that the legal system
should protect such an innocent and that no lawyer as a gentleman would advise Joseph
Mason to prosecute her. “All that is moonshine,” counters the voice of experience, Mr.
Furnival. Judge Staveley adds that no such “professional chivalry” exists (149; ch. 14).
Sir Peregrine’s astonishment “that an innocent person can [. . .] be in danger in this coun-
try” is to Mr. Furnival “poetic chivalry” and “not the way of the world” (203; ch. 26). In
other words, protected from the reality of the world and experience by his ﬁxed ideas,
heritage, isolated estate, and social position, Sir Peregrine has no concept of the actual
operation of law.

Without Mr. F umival’s critical and experiential perspective, Sir Peregrine re-
sponds with his conservative conventions and engrained faith. He is conﬁdent of Lady
Mason’s innocence simply because she is such a proper woman, beautiful in demeanor
and appearance, and in need of help, while her persecutors are so foul and unseemly. So
he “might be her knight and bear her scathless through the fury of this battle,” he decides
to marry her despite her lower social status. “With God’s help he would put on his ar-
mour at once for the ﬁght” (279; ch. 36). As Dennis Lloyd writes in The Idea of Law,
“for the medieval knight war and ﬁghting represented the only worthwhile activity of the
ruling order of society” (113). To himself and others Sir Peregrine stood on “a noble ped-

estal” (278, ch. 36). A nineteenth-century Don Quixote who thinks he is competent to

30

advise both Lady Mason and her legal cormsel, his interference in Lady Mason’s case
hampers Mr. Furnival’s work and almost jeopardizes her defense. Sir Peregrine believes
that “[a]n English judge and an English jury [. . .] [are] the Palladium of discerning truth”
(122; ch. 56) and that morality, law, and nationalism all combine to determine right from
wrong.

Such thinking about law and morality derives from natural law theory, the idea
that morality must be an essential part of law. To Sir Peregrine, natural law principles
govern the British legal system and determine the truth."5 According to Conrad Johnson
in the Philosophy of Law traditional natural law doctrines support an “immutable order of
justice, of right and wrong and of good and evil” that everyone is capable of knowing.
Most natural law theorists would argue that man-made law must be derived from natural
law and include the “necessary connection thesis” between law and justice. At ﬁrst Sir
Peregrine excludes any thinking other than his own about law, resisting with an air of su-
periority any attempt by lawyers such as Mr. Furnival and Judge Staveley to explain how
the law actually operates. As Sir Peregrine learns, natural law most often describes how
some believe the law ought to be, not how the law is. When he must accept Lady Ma-
son’s guilt, Sir Peregrine turns to the natural law claim that through reason he can dis-
cover right conduct and apply it to concrete problems (Johnson 3). He spends much time
alone in the latter part of the novel in rational reﬂection on the quandary imposed by
Lady Mason’s deceit, his love for her, and her goodness in saving him from a disgraceful
marriage.l7

Sir Joseph Mason, the late “city-knight,” as Sir Peregrine refers to the non-

inherited title (279, ch. 35) incorporated the drinking of the upper class as a member of

31

the rising middle class of merchants. Knowing the beneﬁts accrued to established fami-
lies with extensive and known ancestry, he “was burdened with an ambition to establish a
family as the result of his success in life” (1 1, ch. 2). His elements of chivalry and a re-
spect for history and tradition derive ﬁ'om this burden. In his rise from poverty to wealth,
Sir Joseph adopted the ways of an English country gentleman and established his ﬁrst
family, most speciﬁcally his son, Joseph Mason, in the style of the upper-class children.
He promised his ﬁrst son to leave him Orley Farm and he intended to honor his word as
he knew, like Sir Peregrine, a gentleman should. Though Joseph Mason spoke ill of his
father, he recognized him as “not a man to break his word” (13; ch. 2). In distributing
through his will his property to his oldest son, Sir Joseph followed the practice of landed
families since the law of primogeniture centuries ago. Although Sir Joseph’s thinking
about law was as an instrument for him to do with his property as he wished, his last will
and testament showed that he used the law to support the customs and traditions of the
country that the upper class revered and protected.

According to Blackstone’s Commentaries, primogeniture began in England in the
eleventh century to preserve titles of nobility as well as to prevent the splitting of estates.
Dividing estates among heirs impaired the division of military services and duties among
tenants. Furthermore, if younger sons could live off their inherited lands, they would not
enter other employments required for the strength of the country, such as the military,
trade, and the church (2.14.3 215). Primogeniture established a system of continuity, sta-
bility, and order thought necessary for maintaining a nation. By the nineteenth century, it
coexisted with other laws that recognized a landowner’s right to distribute his property as

he saw ﬁt and allowed landowners to avoid primogeniture by providing for other forms

32

of property distribution in a will. In 1905 while holding the same post as Blackstone at
Oxford as Vinerian Professor of English law, A. V. Dicey wrote: “The paradox of the
modern English land law may be thus summed up; the constitution of England has, whilst
preserving monarchical forms, become a democracy, but the land law of England remains
the land law appropriate to an aristocratic state” (qtd. in McMaster 15).

Joseph Mason’s views are not that different from Sir Peregrine’s in his revengeful
attitude of “never forget and never forgive” (49; ch. 7), his inﬂexibility, and his percep-
tion that the law and morality are enmeshed with nationalism: “It is dreadful to think that
in this free and enlightened country so abject an offender should have been able to hold
her head up for so long without punishment and without disgrace” (251; ch. 32). Blood
feuds still thrive in Joseph Mason’s mind, but he uses the courtroom as the modern place
for battle and to obtain revenge. Civilized societies form laws to end the settling of dis-
putes through violent self-help and to maintain stability and order. A nineteenth-century
Shylock, Mason, as the text twice says, must have his pound of ﬂesh. In an oblique refer-
ence to legal reforms that have reduced the sentences for criminal offenses, he longs for
the former stricter penalties so that Lady Mason if convicted would serve more than
twelve months in prison (215; ch. 67). Mason cannot understand that obtaining just de-
serts for the oﬂmder and returning to the injured what is owed as he deﬁnes justice, is
not legal justice. When he is asked to take possession of the property and waive any
claim to the twenty years of lost proﬁts to which he is entitled he tells the lawyers “N oth-
ing shall make me tamper with justice” (302; ch. 78).

These descriptions of afﬁliations to the past in thinking about law and land owner-

ship indicate how at the time Lady Mason forged the codicil inherited traditions extend

33

the implications of her act beyond breaking the law. Lady Mason’s action is four-pronged
in its implications: it violates a criminal law against forgery; it interferes with the legal
right of a property owner to dispose of his property freely; it breaks the conservative
chain of continuity sought to be established through Sir Joseph Mason’s disposition; and
threatens the authority and domination of the landed gentry and their heritage because the
upper class are the main adherents to that practice not only because of their status, but
because they are the majority landowners. Her twenty years of possession shatters the
presumptions of obedience to law imposed by that class and its unwritten presumptions
of honor and truth. Joseph Mason sometimes appears angrier at the theft of his class-
centered birthright than he is at being displaced from possession. In her threat to the
dominant class, Lady Mason ranks with Mr. Dockwrath and with Felix Graham.
Certainly, an element of fairness argues on Lady Mason’s behalf. She was the
young daughter of a bankrupt tradesman when the wealthy Sir Joseph Mason, who was
45 years older, married her while settling her family’s debts. The only point of contention
in their three-year marriage was Sir Joseph’s refusal to more than moderately provide for
their infant son, Lucius. Sir Joseph’s ﬁrst-bom son, was already wealthy and in posses-
sion of the larger Groby Park property. He did not need Orley Farm to make a living.
Though she was acting to beneﬁt her son and not herself directly, the law allowed Lady
Mason no participation in ownership or distribution of her husband’s property, just as it
gave none to her son as the second-bom son.18 Both primogeniture and the freedom land-
owners had to dispose of their property were patriarchal constructs; the reason for the
former had ceased to exist and the latter caused much inequity. Lady Mason resorted to

her own form of self-help in forging the codicil to obtain some element of equality in the

34

division of property and, ironically, to insure herself and her son a place, though among
its lower ranks, in the class that perpetuated these inequities.

Instead of breaking down class boundaries as Mr. Dockwrath tries to do, Lady
Mason seeks security in the upper class. But, unlike the members of the upper class who
are reticent to discuss money, she shares with Mr. Dockwrath, the commercial man Mr.
Moulder, Mr. Furnival, Mr. Chaffanbrass, and even the respected Judge Staveley a prag-
matic understanding of money. In what appears a denial of personal responsibility, Lady
Mason blames her tradesman family for teaching her “to love money, wealth, and prop-
erty” rather than mph and elements of life less tangible. Even though she grew up
thinking “money and riches [. . .] were everything,” she claims not to have sought it out,
accepting Sir Joseph’s generosity to her but not asking for more until her son was born
and she learned to love something else. “What could I do for the only thing that I had
ever called my own?” she asks Mrs. Orme. (157-58; ch. 60). The answer to the young
mother was to provide for him ﬁnancially, the something that was “everything” in her
mind however she could.

Dennis Lloyd’s warning about linking law and morality describes the thinking
about law of ﬁrst Sir Peregrine and then Lady Mason: “when the law contain[3] a mass
of meaningless archaisms and was a machine of harsh repression, a theory identifying
law and morals in this close manner [is] liable to lead either to a reactionary claim by
those it beneﬁted that the law was the acme of reason and perfection, [as epitomized in
Sir Peregrine] or to its total rejection by the oppressed on the grounds that it oﬁ‘ended the
ﬁrst principles of nattual justice [as demonstrated by Lady Mason]” (102). The law irn-

Pedes Lady Mason’s purpose, the success and social standing of her son. Her actions

35

throughout the novel accord with her cOnviction that the law can be thwarted by deceit:
ﬁrst the forgery, then the pretense of innocence and the false statements at the ﬁrst trial,
followed by twenty years of maintaining the deceit. Up to and through the second trial
that deceit actively continues and it is actively rewarded. As the defendant in a criminal
trial, Lady Mason is entitled to the prosecution’s burden of proof. In England, at the time
of the novel, defendants did not testify on their own behalf, so she could not swear falsely
again. However, she intends to counter the prosecution’s evidence through another kind
of testimony, her continued deceitful appearance of victimized innocence, a passive
countenance aggressively maintained. The narrator describes early in the novel her
adeptness at not allowing “her cormtenance to be a true index of her mind” (36; ch. 5).
Moreover, she has many supporters in this facade, some willing, others unsuspecting of
their complicity, but all blackened from this encounter with pitch.

As the second trial approaches, Lady Mason never proclaims her innocence or
denies her guilt except when she pleads not guilty in comt, which is a formality, a state-
ment not made under oath, and represents an assertion that the prosecution must prove
the charge or charges more than a protest of innocence. She simply maintains a quiet,
though anxious, innocent demeanor, building upon her reputation and her association
with the best people in the neighborhood. From the judge’s statements following her ﬁrst
trial, she knows that her courtroom conduct contributed to her success, she vows to “still
ﬁght against her foes—still show to that court, and to the world that would then gaze at
her, a ﬁ-ont on which guilt should not seem to have laid its hideous defacing hand” (179;
ch. 63). When at the trial, she removes her veil and stares down Joseph Mason with “a

look of modest but yet conscious intelligence, those around her hardly dared to think that

36

she could be guilty” (192; ch. 64). She encourages the collusion of her supporters. During
a break in the trial, she knows that “to maintain by her demeanor the idea in men’s minds
that she might still possibly be innocent—that was her work. And therefore, in order that
those two young men [her son and young Peregrine Orme] might still think so, she ate
and drank as she was hidden” (218; ch. 68).

Although Lady Mason needed no instructions on the signiﬁcance of extralegal
factors, Mr. Furnival “told her [. . .] that she was so to carry herself as not to let people
think that she was doubtﬁrl about the trial” (8; ch. 41). The barrister is not beyond deceit
of his own to frustrate the law. When his attempts at convincing Mr. Round not to take
the case are unsuccessful, he tries to convince young Round that the case is without
merit. In addition to the bribery attempt of Mr. Dockwrath, he considers pretrial publicity
to inﬂuence the jurymen: “[I]t might be possible they should be imbued with a favorable
bias on the subject [ . . .] .” He thinks of spreading the word that Lady Mason “was an
injured woman” and that “the great people of the neighborhood” support her (198; ch.
25).

Others attempt to inﬂuence public opinion as well. Mr. Dockwrath “was not slack
in propagating his view” (162; ch. 61). Lady Staveley, Judge Staveley’s wife and one of
Fumival’s great people of the neighborhood, visits Orley Farm because “[she] well un-
derstood [. . .] that the greater part of the advantage to be received from her kindness
would be derived from its being known at Hamworth that the Staveley carriage had been
driven up to Lady Mason’s door” (150; ch. 20). When attending Christmas church ser-
vices, Sir Peregrine’s attention to Lady Mason as she entered The Cleeve pew in view of

the Hamworth community was “with as much deference as though she had been a duch-

37

ess” [. . .] (193; ch. 25). Others also Imderstand extralegal inﬂuence during the trial.
Dockwrath “knew also how men’s minds are unconsciously swayed by small appear-
ances” (222; ch. 68). Judge Staveley, referring to Graham’s recovery from a hunting ac-
cident, jokes, “1 almost think I should keep my arm in the sling till the assizes were over,
by way of exciting a little pity” (144; ch. 58). Lady Mason’s solicitor, Mr. Solomon
Aram, investigates the potential jury panel to eliminate any men ﬁ'om Hamworth because
“a prophet is never a prophet in his own country” (171; ch. 62).

The energy of these manipulations to sway public opinion and the jury offers an-
other view of thinking about law—that trial results and judicial decisions are not com-
pletely based on the law or evidence presented in a neutral, objective atmosphere. In-
stead, subjective appearances, though having nothing to do with guilt or innocence, are a
powerful force. Mr. Moulder wants to bet on the verdict because he knows that no jury
will rule against “a handsome woman like Lady Mason” over “such a low scoundrel as
Dockwrath” (289; 77). Contrary to Graham and Sir Peregrine’s arguments, decisions of
the court and verdicts of the jury do not correlate to truth or moral notions of right and
wrong. One of the elements of the legal philosophy called legal realism is that extralegal
inﬂuences, especially those upon judges, determine the outcome of cases. In his chapter
on legal realism in A Companion to Philosophy of Law and Legal Theory, Brian Leiter
explains that adherents of legal realism emphasize the impact of personal bias, social and
cultm'al heritage, psychology, and other factors on judges. The same factors inﬂuence
juries. Legal realism is closely related to behavioral psychology in that it considers “the
causal relations between input (facts and rules of law) and output (judicial decisions)”

Realists eschew a priori theories and are rule skeptical because they argue that the stimu-

38

lus of facts and observations in the context of the adjudicator’s other inﬂuences such as
psychology, personality, and social determinants decide the result not nrles (Leiter 261-
279). Mr. Chaffanbrass, who certainly knew the way of the world in trial matters, says he
is more concemed about judges than juries and jokes that the best judge is one who is
tired or deaf. The inﬂuence of extralegal elements in legal decision making, as L. J.
Swingle suggests in Romanticism and Anthony Trollope, show that “truth and value may
be merely human constructs rather than objective entities that lie waiting to be discovered
by human beings” (15).

Despite the efforts to sway public opinion, support for Lady Mason cools after her
engagement to Sir Peregrine because the upper-class community thinks she is opportrmis-
tically taking advantage of his goodness. An additional implication is that though she
may be acceptable as a friend to the upper strata of society, she is not acceptable to marry
into it. The engagement is so abhorrent that the upper-class members of the community
begin to question the wisdom of associating themselves with a woman who could become
a convicted felon. Even Mr. Furnival, who says he can tolerate and do much questionable
conduct, decides he cannot allow Lady Mason to disgrace Sir Peregrine. Sir Peregrine
and Lady Orme are left to be most touched by Lady Mason’s pitch. They eventually must
contend with having publicly beﬁiended and supported a ﬁaud and with the challenge the
experience brings to their upper-class self-conﬁdence and standards. The variety and
number of references from so many speakers to this biblical maxim, especially from Sir
Peregrine, certiﬁes its signiﬁcance to the text. Lady Mason referred to the saying in ad-
monishing Lucius that it would be dangerous to try to silence Mr. Dockwrath’s public

campaign and he ironically responds, “the pitch had already touched him and that he was

39

deﬁled” (155; ch. 20). Sir Joseph’s children “in every turn and twist which they took,
looked to do something towards washing themselves clean from the dirt of the counting
house” (11; ch. 2) of their father. Felix Graham can join with the criminal defense team
of Mr. Chaﬂ'anbrass and Mr. Aram and not be blackened if he is conﬁdent of having “jus-
tice and truth” on his side (58; ch. 48). After joining with the two Old Bailey men and
determining with more certainty Lady Mason’s deceit, Mr. Furnival “felt he was soiling
his hands by dirty work” (301; ch. 38). Dockwrath tells young Peregrine Orme not to let
his family “be too thick with Lady Mason [. . .] (157; ch. 20). Lady Staveley honors her
husband particularly because he had not “dahh1e[d] with Parliament, politics, and dirt”
(144; ch. 19). Sir Peregrine’s most prized achievement is his reputation as a man “who
had lived with clean hands and with clean people around him” (151; ch. 59).

But toward Mrs. Orme the dictum is directed most often, if not excessively, and
its application to her most interesting. For Sir Peregrine, she is “a sacred thing to be
guarded by a shrine,-to be protected ﬁ'om all contact with the pollutions of the outer
world” (47; ch. 47) and he must “save his daughter from ﬁrrther contact with a woman
such as this” (36; ch. 45). Mrs. Orme’s only allusions to the biblical warning are to deny
that association with Lady Mason will “stain her” (45; ch. 47) 171; ch. 62). With such
declarations Mrs. Orme assumes a much more active role in the novel as she manipulates
her father-in-law and Lady Mason’s fates. Although Sir Peregrine agrees with Mrs. Orme
that they should not become informers, his “conscience told him that in taking such a line
of conduct, he himself would be guilty of some outrage against the law by aiding a crimi-
nal in her escape. He had heard of misprision of felony; but nevertheless, be allowed his

daughter-in-law to prevail” (46; ch. 47).19 The emphasis here is on the old man’s submis-

40

sion to Mrs. Orme. The baronet consents to Mrs. Onne’s plan that they would work to-
ward Lady Mason’s acquittal if she would show her repentance by telling Lucius he must
give up Orley Farm after the trial. With “cunning” (47; ch. 47), Mrs. Orme keeps from
the servants Lady Mason’s distress after her confession and limits all intercourse between
the former lovers to messages passed through her. She furthers the deceit by orchestrating
a scene upon Lady Mason’s departure ﬁ'om The Cleeve after a lengthy visit in which Sir
Peregrine escorts Lady Mason from the house and places her in the carriage to show the
servants that, in Mrs. Orme’s words, “he still respects and esteems” her (102; ch. 53). She
accompanies Lady Mason timing the three days of trial to emphasize the high regard in
which the community’s great people hold the accused.

In the name of love, ﬁiendship, and Lady Mason’s Christian salvation and be-
cause they feel an obligation to her for withdrawing from what would have been a dis-
graceful marriage, the Ormes act according to their own code of laws. Without Lady Ma-
son’s permission or knowledge, Sir Peregrine offers to the senior Mr. Round a compro-
mise, the property in exchange for the dismissal of the charge.20 Furthermore, in relation
to Orley Farm, Joseph Mason and Sir Peregrine both contend that to deprive a man ﬁ'om
what was his own was robbery and “justice must be done” (36; ch. 45). Mrs. Orme’s
conviction that Lady Mason must tell Lucius and make him give up the property even if
she is acquitted becomes constant harping. Like Lady Mason, Sir Peregrine and Mrs.
Orme want to thwart the law through deceit and win Lady Mason's acquittal. But they are
also Von Bauhr’s three parts in one—the judge, advocate, and jury—orchestrating as
much as they can the outcome of the trial, the life of Lady Mason and her son after the

trial, and, most importantly, the property’s surrender.

41

From the time Lady Mason enlists his help, Mr. Furnival also is Von Bauhr’s dis-
ciple. Mr. Furnival acts beyond his usual barrister’s duty because he has become the ma-
chine of judge, advocate, and jury, much like Mrs. Orme. But his heart prevents him from
being the perfect machine discussed at the conference. The problem Mr. Furnival epito-
mizes is the ambiguity of the word “heart.” He prides himself on his loyalty to his clients
and the enthusiasm of his battles in court for causes that gained his sympathy. Such is the
heart that a perfect machine lacks. However, representing a client with whom one’s heart
is involved romantically impairs professional judgment and should be absent in the attor-
ney/client relationship. That F urrrival’s maniage has become dull and his wife a recluse
and near Virago, who will not enjoy the material beneﬁts of his prosperity or learn the
social skills to join him in the society he now ﬁ'equents, facilitates the situation. Lady
Mason’s unusual charms and beauty are no secret, and those with a discerning eye know
of Mr. Furnival’s crush. In consenting that Mr. Furnival should be the lead attorney Mr.
Chaﬂ’anbrass says subtly, “My heart is not in it, as yours is” (268; ch. 34). This is not to
say Mr. Chaffanbrass lacks energy in litigation; his zeal is well known. He means that he
does not have Mr. Fumival’s personal feeling. Those emotions for Lady Mason skewer
Mr. Furnival’s thinking in all of the roles of Von Bauhr’s trinity. As the jury, Mr. Furni-
val’s extralegal manipulations are motivated by his desire to obtain more than an acquit-
tal. He wants the world to believe in Lady Mason’s innocence after the trial is over. As an
advocate, he worries that his growing belief in Lady Mason’s guilt diminishes his ability
to represent her enthusiastically. As a judge, he resists or answers falsely any question
regarding his opinion of her guilt, because if he answered it honestly he would then be

lying if he said in court that she was innocent.

42

Contrary to usual procedure in which a barrister is briefed by a solicitor and sim-
ply appears to try the case on the day of trial, Mr. Furnival “was to rmdertake the whole
legal managemen ” (266; ch. 34) of Lady Mason’s case and “giving to it time that other-
wise would have turned itself into heaps of gold” (301; ch. 38). After listing the extrale-
gal factors that should support an acquittal—the lack of public sympathy for Joseph Ma-
son, the support of the best people in the neighborhood, the public opinion of Lady Ma-
son, her innocent demeanor, and her twenty years of possession-Furnival organizes the
“legal phalanx” (193, ch. 65) that will represent Lady Mason. Mr. Chaffanbrass and Mr.
Aram are the strongest among the barristers and solicitors respectively in criminal de—
fense work. Felix Graham also joins the team. Mr. Furnival thinks Mr. Chaffanbrass can
“know almost by instinct, whether an accused person was or was not guilty” (270; ch.
85). Mr. Chaﬂ‘anbrass and Mr. Aram know that Mr. Furnival has hired them because
Lady Mason is guilty.

Yet, unlike Mr. F urnival, their belief in guilt or innocence has no bearing on their
representation. Mr. Chaffanbrass’ most effective answer to criticism of his zealous de-
fenses of the guilty is that he has “made the Crown lawyers very careful as to what sort of
evidence they would send up to the Old Bailey” (170; ch. 62). In doing so, he serves an
important part in the system of checks and balances inherent in the trial process. He keeps
Von Bauhr’s trinity separate so the judge, advocates, and attorney can monitor each other
and not succumb to F urnival’s confusion of loyalties. Judge Staveley’s question to the
sanctimonious Graham indicates Mr. Chaﬁ‘anbrass’ importance, “Does it not occur to you
that we should be very badly off without such men as Chaffanbrass and Aram?” (95; ch.

53).

43

Mr. Chaffanbrass’ thinking about law centers on procedural due process, most
particularly the confrontation of one’s accusers through examination of the witnesses.
This process is most aptly described by Mr. Moulder to his friends: “There’ll be one fel-
low that will make you tell it his way ﬁrst, and another fellow’ll make you tell it his way
afterwards” (165; ch. 61). As part of the triumvirate, the judge can comment on the evi-
dence in closing instructions as he did in Lady Mason’s case “blowing aside the froth of
Mr. F urnival’s eloquence, and upsetting the sophistry and false deductions of Mr. Chaf-
fanbrass”(279; ch. 76). The judge also can curtail abusive lawyers during their examina-
tions. Finally, the jury acts as a check in their ability to observe and understand the tactics
of the advocates. “The jury are not such fools as to take all that for gospel,” Mr. Dock-
wrath tells Joseph Mason (277; ch. 75). When all parts of the system function properly—
competency of counsel for both sides, no judicial error, and no jury misconduct—legal or
procedural justice results.

For others, reliance on procedural due process avoids taking responsibility for the
faults of the system. Graham thinks more like some nonprofessionals than a lawyer.
Nonlawyers think in substantive terms or “right results” which may not equate to proce-
dural justice (Friedman 1603). Their concentration is on the verdict, not the process. Ifa
guilty defendant in a criminal trial such as Lady Mason were acquitted, Graham would
argue that justice lost. To Chaffanbrass, the acquittal of a guilty person does not mean the
system failed as long as procedural due process or procedural fairness succeeded. In fact,
the fairness of the process may actually prevent the coinciding of the guilt or innocence
of the accused with the verdict, particularly where the evidentiary rules may exclude in-

criminating, but tainted because improperly obtained, proof. R. E. Megarry, writing about

44

legal justice or perfect law and substantial justice or perfect justice in Lawyer and Liti-
gant in England says that “Perfect justice would demand an inquisition into the whole life
and behavior of each party that would leave each crippled ﬁnancially and the court ex-
hausted. Perfect law would rigorously exclude all save the subject matter of the suit” (qtd.
in McMaster 60).

The three-tiered system of checks and balances and perhaps a questionable extra-
legal inﬂuence contributes more to Lady Mason’s acquittal than vigorous trial perform-
ances. The question never asked during the trial certainly had bearing on the verdict. Al-
though, the narrator ﬁ'equently mentions the strict rule against asking clients directly
about their guilt or innocence, that question is not the most signiﬁcant question never
posed in the novel. Instead, the question never asked during the trial is of the witness
Bridget Bolster. She is not questioned about whether the single document she remembers
signing was a will.21 While a servant-girl to the Masons, she was one of three witnesses
to the signature of Sir Joseph. Matthew Round tells Mr. Dockwrath and Joseph Mason
that her statement is that Mr. Usbech told her that the document was about a partnership.
That would conﬁrm Mr. Dockwrath’s argument that only one document was signed and
that it was not a codicil, but the partnership agreement he found in Mr. Usbech’s papers.
Her statements provided Mr. Round with conﬁrming evidence to pursue Joseph Mason’s
case. Even Mr. Funrival knows that “Round would not go on with it if that were not all
true” (269; ch. 35). At the trial Bolster says Mr. Usbech explained the “nature of the
document,” but it was not signiﬁcant to a young girl (247; ch. 71). Later, at a gathering in
the Moulder’s home she says she knows what she signed “wasn’t the old gentleman’s

will” (291; ch. 78). When an outraged Mr. Moulder challenges her present statement

45

against her prior testimony, she answers, “I wasn’t asked” (292; ch. 79). That Mr. Us-
bech’s explanation was not signiﬁcant to her does not mean she is ignorant of what she
did and did not sign. This line of questioning was not pursued during her testimony. The
direct questions should have been phrased, subject to the rules of evidence, to elicit what
she did know.

The prosecution bears the responsibility of eliciting these details from this witness
during the prosecution’s case in chief. The defense attorneys would not ask this question
unless they were assured her reply would help their case. Another question never asked is
one of which the examiner does not know the answer before it is asked. A cross-examiner
should know the answer to every question before asking it. Mr. Chaffanbrass, who ques-
tioned Bolster, had every reason to believe that if she were asked if the document she
signed were a will that she would say no. That answer would harm, not help, his client’s
interests. Only Graham would support the defense posing the question because it com-
plies with his idea of defense attorneys contributing to the determination of truth and the
exposure of guilt. Why the junior counsel for the prosecution, Mr. Steelyard, who ques-
tioned Bolster for the prosecution, did not ask the question is unclear. It would be the
duty of Matthew Round as the solicitor in the case to instruct him on the testimony of
each witness, and Mr. Round clearly knew that Bolster could testify that the document
was not a will.

To pursue this mystery requires a backward look to the ﬁrst trial, the civil action
contesting the will brought by Joseph Mason against Lady Mason. We know that much of
Lady Mason’s success was in the “manner in which she gave her evidence” (13: ch. 2)

prompting the judge to remark “that there could be no possible reason for doubting her

46

word” (4; ch. 1). Remembering the case twenty years before the second trial, Mr. Furni-
val recalls that even then he had suppressed a passing thought that Lady Mason was
guilty. But he had defended Lady Mason and triumphed in her victory while “through it
all, he had felt that Round and Crook had not made the most of their case” (93; ch. 12).
Crook and Rormd in the ﬁrst trial also were Joseph Mason’s solicitors and had briefed the
case to the barrister who represented him at the trial, Mr. Bennet.

At the international conference, the elder Mr. Round tells Mr. Furnival that after
the ﬁrst trial he overrode his partner, Mr. Crook, who was managing the case, saying he
would not waste the ﬁrm’s time or his client’s money in pursuing an appeal. He tells Mr.
Furnival no evidence impugned the will and the property was not that valuable for such a
contest anyway. His decision was in direct opposition to his client’s wishes, but not nec-
essarily unethical since lawyers have a duty not to pursue frivolous law suits and are duty
bound to advise their clients against pursuing actions in which chances of succeeding are
slim. Mr. Round also objects to what appeared to him as Joseph Mason’s seeking revenge
against Lady Mason in the ﬁrst case as well as the second: “We should have nothing to
do with such as matter as that, you know,” he says to Mr. Furnival. “It’s not our line”
(133; ch. 17). Mr. Ftunival thinks if the older attorney handled the second case and not
his son, once more the ﬁrm might not “make the most of their case.” Both Joseph Mason
and Mr. Dockwrath also think something was amiss in Round and Crook’s ﬁrst represen-
tation of Joseph Mason. Mr. Chaffanbrass also says he remembers thinking that “Round
and Crook were rather slow” (269; ch. 35).

Young Round accepts the case even though he dislikes Mr. Dockwrath and, like

his father, ﬁnds Joseph Mason distasteful. From his ﬁrst contact with Mr. Dockwrath,

47

Matthew Round objects to any co-cormsel arrangement and insists that the country solici-
tor reﬁ'ain from any work on the case. Neither will he discuss the ﬁrrn’s work in the ﬁrst
case as if he fears what else Mr. Dockwrath might discover. The younger Round makes it
clear to Mr. Furnival that he would be happy if Bolster’s testimony favored Lady Ma-
son’s innocence. After talking with Bolster and learning that her testimony supports J o-
seph Mason’s position, “His feelings were on that side (Lady Mason’s), though his duty
lay on the other” (255; ch. 33). Furthermore, Matthew Round assists in arrangements fa-
vorable to Lady Mason’s comfort at the arraignment to avoid “all publicity or outward
scandal” (97; ch. 53).

Lady Mason receives help from other unexpected sources as well. The chief
prosecutor’s opening statements “did not seem to lean very heavily upon Lady Mason”
(217; ch. 68), as if lacking the heart or energy needed for a strong prosecution. Sir Rich-
ard Leatherham, the solicitor-general, did show another kind of heart as he “with appar-
ent mercy [. . .] attempted to mitigate the iniquity of the deed” (218; ch. 68) by referring
to Lady Mason’s circumstances at the time of the offense and while mentioning the
yormg baby Lucius Mason, now a man in the courtroom, a tear stood in his eye. The case
turned on the testimony of John Kenneby and Bridget Bolster—“It is a case that depends
altogether on evidence; one young lawyer said to another” (240; ch. 71)-—and whether
Mr. Furnival and Mr. Chaﬂ’anbrass can weaken their testimony. The defense had no wit-
nesses to contradict the prosecution’s witnesses. But Sir Richard’s performance is de-
scribed as “his very second-rate part of eliciting the evidence in chief’ (241; ch. 71). The
absence of the details of Sir Richard’s closing arguments restricts evaluation of his per-

formance completely.

48

Furthermore, Sir Peregrine’s visit to the senior Mr. Rormd offering to arrange a
settlement places Mr. Rormd in a very precarious ethical situation. We also ﬁnd Mr.
Rormd, the lawyer who allegedly kept the secret of Sir Peregrine’s visit, and Mr. Furni-
val, the lawyer who had said he did not mind if his assistance of Lady Mason meant
“robbing Joseph Mason of his estate” (316; ch. 40), after the trial working together in the
surrender of the property to Joseph Mason “desirous of having the matter quietly ar-
ranged and with this view were willing to put up with much” (301; ch. 78).

Even if the question were asked, we cannot state with certainty that the verdict
would have been diﬁerent if the question had been asked or if the prosecutors appeared
more eager for a conviction. The text provides no conclusive evidence that prosecutorial
leniency interfered with their zeal or that their conduct was part of any collusion or that
the question intentionally was never asked of Bolster. Still, enough information exists to
argue that the verdict in opposition to the truth was not entirely the result of her dream
team of lawyers. At least in part, it stemmed from the prosecution not meeting its burden
of proof for some inexplicable reason and the operation of procedural due process. This
episode reveals how easily the truth can be frustrated during a trial and how erroneous it
is to suppose, knowing the rules of evidence and both the legal and extralegal contribu-
tions to the rendering of a verdict, that a court of law determines truth.

Still, trust in the truth of legal verdicts is pervasive as evidenced in the shock of
Mr. Moulder and his ﬁiends when they learn Lucius Mason has relinquished Orley Farm.
The subplot of Mr. Moulder and his associates is one concentric circle in the rippling ef-
fect of Lady Mason’s legal difficulties in the community. It also provides a simplistic

view of positivistic legal thinking. Mr. Moulder’s connection to the case, other than his

49

confrontation with Mr. Dockwrath, is through his brother-in-law, Kenneby, who was em-
ployed as Sir Joseph’s clerk and whose name appears on the disputed document as a wit-
ness to its signing. He was so shaken as a witness during the ﬁrst trial that the judge
commented on his lack of credibility. Mr. Moulder is a bit of an epicurean, concerned
about the proper preparation of his food and drink and enjoying the little group of friends
and business associates that visit his home, where the discussion is ﬁequently about the
latest news of Lady Mason. Considering the group the narrator refers to “the modern phi-
losophy of the Moulders, pigs out of the sty of Epicurus” (192, ch. 24).

Trollope is prone to demonstrate his classical readings, but not gratuitously. The
stout Mr. Moulder’s inclinations to the immediate pleasure of food and drink and his un-
concem about an afterlife are two of the better known points of Epicurean philosophy
(Honderich 240). The narrator’s comment refers to those disciples of Epicurus who after
the Greek philosopher’s death ignored his tenets of moderation and overindulged in sen-
sual enjoyment. According Lloyd, the Epicurean method of thinking also “might be re-
garded in modern terminology as a positivist approach” (95). Both share secular, an-
titeleological, and rational humanistic views. Jeremy Bentham’s utilitarianism, an early
form of positivism, might be viewed as incorporating the Epicurean pursuit of happiness.
However, Bentham objected to the association of utilitarianism with Epicurus. In An In-
troduction to the Principles of Morals and Legislation (1789),22 he accused the enemies
of his radical philosophy, the moralists and the religionists, as uniting against a “common
enemy, the partisan of the principle of utility, whom they joined in branding with the odi-
ous name of Epicurean” (19). Lucius Mason’s intent to apply his scientiﬁc learning to-

ward increased agricultural production so that more of the population could be fed and,

50

according to his argument, increase their intellectual development also coincides with
utilitarian notions of maximizing human happiness.23

Bentham’s utilitarian phiIOSOphy provided the appropriate climate for legal posi-
tivism, not the logical foundation (Lloyd 99-100). Two aspects of utilitarian thinking
emerge in legal positivism: the distinction between natural law’s “law as it ought to be”
and positive law’s “law as it is,” and the treatment of law as a science (Lloyd 100). Like
natural law theory, legal positivism broadly includes many theories, but all focus on law
as a composition of man-made rules without any necessary connection to morality.
(Coleman and Leiter 234, 241). Instead, positivist thinking adheres to a ‘separation the-
sis” (Johnson 5). It also provides a neutral analysis of law without considering what is
good, right, or just (Johnson 5). However, legal positivism insists upon an agreed-upon
method of validation of law. Laws must be anchored by a legislative organ which can
trace its authority to something that legitimates it and the legal system such as a constitu-
tion accepted by the people through their continued adherence to it (Fletcher 33). John
Austin’s nineteenth-century deﬁnition in A Positivist Conception of Law followed Ben-
tham’s preliminary thinking. He wrote that positive law is a command or duty the viola-
tion of which results in sanctions (F einberg 32).

With his simplistic, but positivist, view of law and law-like social forms, Mr.
Moulder acts according to what he sees as a duty and he does not question the rightness
or wrongness of the law concerning the cross-examination of witnesses or his silence
about the quality of his employer’s goods in the commercial world. He deﬁnes a jury trial

as “the fairest thing that is” and validates it as “the bulwark of the British Constitution”

(168, ch. 61). As indication of the public’s acceptance, his fellow commercial man

51

Snengkeld says “Nobody needn’t care for what’s said to them in a court” (291; ch. 7 8).
However, Mr. Moulder’s thinking strays ﬁ'om legal due process thinking in his
exaltation over Lady Mason’s verdict and resembles more closely Sir Peregrine’s ideal-
ism: “If a jury of her countrymen don’t make a woman innocent, what does?” (290, ch.
78). That neither he nor his friend Snengkeld could accept the subsequent news that Lady
Mason was guilty after Lucius relinquished Orley Farm exposes the paradox. The equa—
tion of truth to the disposition of a case is a continuing issue in the novel and recalls the
previous discussion about Bridget Bolster’s testimony. According to Coral Lansbury, the
failure to ask Bridget Bolster the most important question indicates that “lawyers could
provide only partial truths” but the more powerﬁrl narrator can “reveal the whole truth to
the reader” (83). Her statement requires a caveat. She is correct in recognizing that the
nrles of evidence exclude certain evidence that may assist in determining truth. Addition-
ally, not properly phrasing a question can prevent the introduction of facts that lead to the
truth. However, no promise exists that narrators of novels in the tradition of realism pro-
vide the whole truth or all the facts needed by the reader to fully judge the accuracy and
objectivity of the realistic depiction. Lansbury’s statement ignores narrative manipulation
or assumes that literary realism is not subject to the bias and prejudices of the narrator,
just as opponents of legal realism assume that judges are capable of rendering objective
truth. Neither is the assumption valid that the more facts and details realist novelists pro-
vide makes them greater expositors of the truth. Trial attorneys contend with the tension
between their duty to clients and an adherence to truth in presenting or excluding facts.
Realist narrators contend with a duty to the art of ﬁctional reality or the appearance of

truth in telling the story and the limitless boundaries of the imagination. The objective of

52

both legal advocates and literary advocates of realism is to persuade readers of their ve-
racity so that readers, judges, and juries accept the advocates’ versions of reality. That
objective necessitates decisions regarding the use or omission of facts and skillfully con-
cealing or justifying their manipulative choices.

Lansbury also argues that “the law establishes a society that bears only passing
resemblance to reality but retains the power to impose this ﬁctitious version of reality
upon people” (84-85). However, those who view the law realistically reject this notion of
imposition and do not expect the legal process to realistically represent reality. The real-
ity presented during litigation is a diﬁemnt pursuit from literary realism. Litigation does
not intend to represent every detail but only the elements necessary to meet or counter the
burden of proof. Furthermore, although determining truth and rectitude of decision is the
ideal sought, the law is a not a failsafe method of convicting the guilty and acquitting the
innocent. A verdict of guilty means that a jury has found that the prosecution has met its
burden of proof, not that the defendant in fact committed the crime. That is why at one
time early in the case Mr. Furnival not only sought an acquittal, he also wanted the world
to know Lady Mason’s innocence. He understood the difference between a legal verdict
and the verdict of public opinion. Similarly, as Sir Peregrine loses faith in the system, he
wants the world to know of Lady Mason’s guilt despite the verdict. Only if Lucius relin-
quished the property would this be accomplished. Mr. Furnival and Sir Peregrine recog-
nize the distinction between the realities of both worlds. The reality of the legal system,
as the novel shows, is that a verdict should not be assumed to correspond with a reality
external to the system.

Graham objects to the rules of procedure, evidence, and ethics that to him conceal

53

the truth. His connection to Bentham is not so much as a positivist, but as a reformer of
the confusion of the common law and archaic practices. They share the formalist belief
that the law can be systematized and answers derived from logical reasoning. Bentham
ridiculed the state of English law and attacked the complacency of the legal profession
and the ruling class in England (Lloyd 101). Furthermore, Graham is unable to view the
legal system realistically or to condone any part of it that does not meet his idealistic
standards. He does not think he has “omitted any duty which he owed to his client” by
not vigorously cross-examining a witness because he ﬁnds such browbeating abhorrent
and counter to eliciting truth. Although he terms himself “unﬁt” for the duty he has un-
dertaken in defending Lady Mason (225; ch. 69), he really means he considers himself
above the duties of trial practice. His hypocritical rationalization is that he could not “put
his heart to the proof of an assertion in the truth of which he had no belief” (225; ch. 69).
That his successful arguments on Lady Mason’s behalf on the admission of testimony
from the ﬁrst trial and his successful cross-examination of a prosecution witness about
Lady Mason’s testimony at the ﬁrst trial equally contribute to concealing the truth do not
trouble him. He differentiates the latter as “referring to facts which had really occurred”
even though those facts, the contents of the sworn statements of Lady Mason, were false
and the belief in her credibility at the ﬁrst trial was based on her counterfeit countenance.
The yOtmg barrister not only prefers rationalization and logic to experience and
empirical evidence, he ignores experience. At this point, he differs from Bentham, whose
“work combined an empiricist approach with a rationalism that emphasized conceptual
clarity and deductive argument”(Sweet 2). Graham disparages Mr. Chaffanbrass while

admitting he has never seen the lawyer at work in the Old Bailey. Judge Staveley says

54

Graham’s admission is shameful because one intending to succeed “cannot have too wide
an experience in such matters” (200, ch. 66). Graham’s quest to determine Lady Mason’s
guilt concentrates on extralegal inference, the opinions of others and hearsay, which dur-
ing the course of the novel change from unreserved support to restraint. Graham ends his
project of “moulding” an ideal wife, not because he learns the inadequacy of theory un-
supported by experience, but because he ﬁnds a woman, Judge Staveley’s daughter, even
closer to his ideal. He thinks the reformists’ position is strengthened by the absence of
any argument that effectively concludes the reform debate, an example of his reliance on
the endless words of the conference debating a priori theories and his continued failure to
look for objective, empirical proof. But he ﬁnds an opponent in Baron Maltby, the judge
hearing Lady Mason’s case, who tells him:

Arguments on such a matter [law reform] are worth nothing at all. A man
with what is called a logical turn of mind may prove anything or disprove any-
thing; but he never convinces anybody. On any matter that is near to a man’s
heart, he is convinced by the tenour of his own thoughts as he goes on living, not
by the arguments of a logician, or even by the eloquence of an orator. (229; ch.
69)

Almost twenty years later one of America’s greatest jurists, Oliver Wendell
Holmes wrote, “The life of the law has not been logic: it has been experience” (5).
Holmes partly was responding to the conceptualism method Dean Christopher Columbus
Langdell introduced at Harvard University Law School in the early 18703. Langdell also
introduced the casebook method still dominating law school education that emphasizes

ﬁnding “logically correct answers tluough the application of abstract principles derived

55

from cases or precedents” (Minda 13). The dean viewed law as “a transcendental object
or transcendental subject rmaﬁ’ected by social and economic context” (Minda 14). Lang-
dell’s conceptualism also countered the “darkness of the ancient common law” and ad-
hered to “the spirit of Enlightenment [. . .] in the omnipotence and liberating potential of
reason and science to penetrate the essential truths of legal relations (Minda 16).

Conceptual legal thought included logical positivism among its many jurispruden-
tial themes to develop a less political and more objective understanding of law and cul-
ture. The signiﬁcance of the baron and Holmes’ criticism of abstract theorizing centers on
theory’s lack of an experiential basis or, as Graham demonstrates, its unwillingness to
buttress or commingle philosophical speculation with empirical observation (Lloyd 95).
Unlike realism, positivism fails to consider what Lloyd calls “’ﬁrst order’ or primary
facts consisting of the actual behavior of legal ofﬁcials, judges and others (including or-
dinary private citizens) in relation to these complex legal rules” (110). Holmes’ thinking
was a precursor to legal realism. In the sentence before the previous quote he stated: “The
felt necessities of the time, the prevalent moral and political theories, intuitions of public
policy, avowed or tmconscious, even the prejudices which judges share with their fellow-
men, have had a good deal more to do than the syllogism in determining the rules by
which men should be governed” (5). Realists likewise are hostile to “systematic theoriz-
ing” (Leiter 261) and argue “theorizing ought to be continuous with and dependent upon
empirical inquiry in the natural and social sciences” (Leiter 264).

Legal realism never received the prominence in Great Britain it did in the United
States during the 19203 and 19303 (Duxbury 94), but the debate between Graham and the

baron indicate legal realist thinking was not absent from English jurisprudence. By mid-

56

century its presence was minimal in America, yet realism never completely retired to the
shelves of legal history. Signiﬁcantly, recent postmodern legal thinking, such as Critical
Legal Studies and the Law and Literature movement, have incorporated elements of legal
realism in support of their arguments. In reviewing Minding the Law, a recent book by
Anthony Amsterdam and Jerome Brmrer on how culture shapes legal discursive practices,
Chris Rideout comments on the authors’ efforts “to demonstrate that more is at work in
lawyering and judicial processes than anyone would have ever thought” (11. pag.). Am-
sterdam and Bruner argue legal results “are inﬂuenced by how people think, categorize,
tell stories, deploy rhetorics, and make cultural sense as they go about interpreting and
applying rules, requirements and theories” (qtd. in Rideout n. pag.). Trollope’s Orley
Farm successfully demonstrated this proposition almost a century and a half ago.
Although the baron dismisses Graham’s theoretical abstractions, he uses verbal
abstractions in his charge to the jury, particularly regarding the testimony of the wit-
nesses: “He never spoke of them as though they had been live men and women [. . .]”
(278; ch. 75),24 but resembled more a scientist talking about the objects of his research.
This dehumanization distances the law and evidence ﬁom human activity. The narrator
intrudes to criticize such ill treatment of men and women who give their time without pay
to tell what they know about the case. A distant, impersonal discourse, although thought
by some as more authoritative, situates law as an autonomous activity that adjudicates
from a position of neutrality and objectivity. At the same time, the baron reminds the jury
to rely on the evidence, the empirical, as presented to them and not the rhetorical diver-
sions of the lawyers and other extralegal inﬂuences such as the attack on Mr. Dockwrath

as revengeful and having an interest in the outcome of the case, which was irrelevant to

57

the issue of Lady Mason’s credibility at the previous trial. Thus using neutral word
choice, the baron imposes on the jury a method of thinking so that they can render a
judgment based on their neutral and obj ective determination of the facts and not subj ec-
tive emotions and biases. Bentharn’s legal reform proposals included an examination of
legal language. According to British legal scholar H. L. A. Hart, Bentham “insisted on a
precise, morally, neutral vocabulary for use in the discussion of law” (lxxiv). Bentham’s
separation of the descriptive ﬁ'om the evaluative in language coincided with his applica-
tion of a scientiﬁc method to law. Hart says that Bentham’s concern about legal language
“is perhaps the central feature of his thought which has led to his classiﬁcation as a legal
positivist” (lxxxv).

The brief picture of Baron Maltby and the more enlarged picture of his fellow
member of the bench, Judge Staveley, show two men who simultaneously juggle in their
careers elements of both abstract and empirical thinking which seems to coincide with
what Bentham supported. According to Bentham scholar F. Rosen, Bentham’s “writings
combine in a distinctive way a critical rationalism and empiricism with a conception of
gradual reform [. . .] (xxxi). As James Kincaid suggests, neither form of thinking alone is
suﬂicient: “The abstractions of law violate the very basics of life by treating what is
complex, dynamic, and intuitive as if it were simple, ﬁxed, and rational” (80). On the
other hand, the men of experience who rely on empiricism, Chaﬁ'anbrass, Aram, and
Furnival, show that it can be vicious, motivated by fee and duty to the payer, and not
concerned with guilt or innocence but with obtaining what the client wants (81).

Absolutism in either way of thinking brings the heartbreak and disenchantment of

Sir Peregrine, the ineffectiveness and lack of respect from the legal community of Gra-

58

ham, and the mental and marital discord of Mr. Furnival. The scorn for Mr. Chaffanbrass’
heartlessness and Mr. Moulder’s gluttony are also reﬂections of their too narrow visions.
Sir Peregrine’s idealism is a sad parody that mocks the chivalric myth. Even though Lady
Mason saves him from the ultimate disgrace of marriage, the public still knows about the
engagement ﬁ'om his own crowing: “his own disgrace sat very heavy on him” (123; ch.
56). At ﬁrst, instead of rising from the experience of the fall from his pedestal, he clings
to his mythic code, embittered at her dishonesty, but ﬁxated on his promise to help and
his obligation to her. From his fallen view, the world or the pitch, is “too hard for him”
(103; ch. 53) because it destroys all the simple, lofty abstractions of right and wrong and
the authority of the law and its truth ﬁnding that he rmwaveringly adhered to without test-
ing or reﬂection. “It was strange,” the narrator says, “how that old man should have lived
so near the world for seventy years, should have taken his place in Parliament and on the
bench, should have rubbed his shoulders so constantly against those of his neighbors, and
yet have retrained so strong a reliance on the purity of the world in gene ” (122; ch. 56).
Theories that claim a necessary connection to law and morality like Sir Peregrine’s natu-
ral law cannot “demonstrate that their moral judgments are validated by an objective
moral order” according to Conrad Johnson. “Instead they leave us with vague and often
conﬂicting general precepts such as ‘Do good and avoid evil,’ and then base the validity
of these precepts on nothing more than an appeal to our institutions” (4).

The world’s intervention also curbs Graham’s reform enthusiasm, though his ex-
perience is certainly not as tragic. No one shares his view other than perhaps Von Bauhr.
In his talk and thinking on reform, he stops short of explaining how his theories can be

implemented in practice. He cannot move beyond criticism of the existing system to fea-

59

sible solutions and his responses to disapproval of his reformist attitude are without
depth. After the baron’s lecture, Graham can only reply “Some one will have a mission to
reform our courts of law, and will do i ” (229; 69). Most importantly, when the epitome
of experience, Mr. Chaffanbrass, confronts him, he remains mute and rationalizes that
“his answer would have been ready enough had there been time or place in which to give
it” (280, ch. 75). The conﬂict between theory and practice “paralyzes him,” according to
Robert Polhemus in The Changing World of Anthony Trollope (86). Graham’s eloquence
is in his writing from which he obtained “considerable success and suﬁicient pecuniary
results” (138; ch. 18). Judge Staveley threatens even this achievement because the judge
wants him to spend less time writing and more time developing a law practice so Graham
can improve his legal reputation, expertise, and ability to make a living as a future son-in-
law. His Imion with the Staveley family changes Graham ﬁ'om the “moulder” to one
whom others attempt to “mould.” Graham is marrying the judge’s daughter who lets Gra-
ham know she respects her father’s judgment, but adds that Graham can do as he likes.
The novel’s ending leaves to speculation whether Graham manages to earn a living prac-
ticing law as well as persisting in his reform writing.25 Judge Staveley suggests he “take
the world as he ﬁnds i ” and learn to live in it while he is mending it (142; ch. 61).26
Felix Graham and Sir Peregrine may agree on certain standards of right and
wrong about the law, “an implied afﬁliation between the reformers’ dreams and inherited
ideals” (Dolin 115), but their consensus comes from different arguments. Sir Peregrine
exhibits a “conservative fear of change” and Graham a “liberal recognition that all is not
well in the present system” (Dolin 116). But Sir Peregrine’s stagnancy and obsession

With an unblemished existence indicates an underlying “anxiety to repeat the greatness of

60

the past,” while Graham’s paralysis and silence represents “nristrust of abstract models of
the futtue state” (Dolin 116). As such, both remain ineffectively locked in the present.

Although Mr. Furnival stands at the other end of the theory/practice debate, he too
is locked in the present, thinking little of history represented in his past attachment to his
wife or of the future represented in his questionable domestic living arrangements and
personal reputation or in his professional standing resulting from his increased laxity to-
ward ethical conduct. His professional commitment and reliance on experience without
reﬂection or self-examination serve him well until he becomes “dreadfully buffeted about
both as regards his outer man and his inner conscience” by Lady Mason’s case and mari-
tal discord. In addition to his work habits, he is immoderate in his temper, his alcohol
consumption at his club, and his ﬂirtations with women. Using another classical refer-
ence, the narrator twice refers to lines ﬁ'om Odes 11. iii of the Roman poet Horace re-
minding Delius that “the equal mind should be sedulously maintained when things run
well, as well as when they run hardly.” He says Mr. Furnival “might also have remem-
bered had time been allowed him to cultivate the classics” (78 ch. 10). Ultimately, Mr.
Furnival reconciles with his wife, saying he will spend more of his time at home with her,
and professionally his reputation survives Lady Mason’s case. Unlike at the conclusion of
the ﬁrst trial twenty years ago when be celebrated her victory and comrrriserated with her
on Joseph Mason’s greed, he avoids Lady Mason during and after the trial.

The narrator reconciles Lady Mason’s successful forgery and compounding of the

deceit by distancing her from mainstream society as well. Her ability to avoid the law’s
consequences for more than twenty years and through two trials strikes many as other

worldly—a dark world not publicly acknowledged, but inspiring private fascination and

61

amazement. Far from an ordinary Victorian woman, she dresses fastidiously in black and
impresses others as “clever” and “uncommonly pretty” (269; ch. 35). Her chameleon-like
countenance and manipulations, described by the narrator and unobserved by those
around her, enforce her connections to a supematural force. The possibility that Lady
Mason is guilty and what her accomplishment entailed awes Mr. Furnival and the narra-
tor pushes his thoughts of Lady Mason’s forgery from “terrible” to “wonderful “ (126;
ch. 13). Mr. Dockwrath refers to the discovery of her guilt as “wonderful facts” (126; ch.
16).

Mrs. Orme considers Lady Mason’s endurance and unfaltering innocent pretense
during the second trial “almost awful” (154; ch. 60). Joseph Mason’s face is “almost
black with horror” (60; ch. 8) when he learns about the newly discovered evidence from
Mr. Dockwrath. After Lady Mason’s confession to Sir Peregrine “the fact itself was so
wonderful, that he had hardly as yet made even that all his own” (37; ch. 45). The narra-
tor says Mrs. Orme, whose hand is offered to help Lady Mason, “might not know how
imminent, how close the danger” (154; ch. 60). The group in Mr. Moulder’s home, upon
learning of the transfer of Orley Farm to Joseph Mason, is struck “as the conviction grew
upon them that a great and mysterious crime had been committ ” (295; ch. 77).

Victorian society and the narrator cannot couch Lady Mason’s deed in terms other
than an aberration or the sensational. Her actions must be viewed as abnormal. No other
explanation exists to reconcile their acceptance of a criminal among them and prevent
their submitting to the realization that monsters resembling themselves and their manners
exist and thrive in their safe and tidy world. To honestly face what she has done threatens

the visible world of order and stability since it demonstrates how easily society can be

62

shammed, illustrates the elusiveness of truth, and exposes the legal system’s inability to
enforce its laws, protect the continuity of family inheritance, and insure landowners’ in-
dependence to convey their property. Unlike the sensation novel subgenre of the same
period as Orley F arm in mid-Victorian England, which confronts the unthinkable and
shows it actively engaged at all levels of society, realism exposes the unthinkable and
then suppresses it through isolating it as something uncommon or anomalous.

The sense of the supematural attributed to Lady Mason becomes associated with
the demonic. After threatening to transfer Orley Farm herself to their son the dying Sir
Joseph, according to Lady Mason, “bade me beware of my soul” (153; ch. 60). In the de-
velopment of the novel, Lady Mason’s act seems to grow from a crime to a Faustian pact
with the devil committed in the blackness of night while her husband is dying. Even for
her “It was a matter of wonder [. . .] that her guilt had sat so lightly on her shoulders”
(105; ch. 53). Before Mrs. Orme, Lady Mason drops her pretense and withers to a
wretched and tormented ﬁgure. Ever since the forgery “a black unwelcome guest, the
spectre of conring evil” (105; ch. 53) had haunted her. After her confession, the spectre is
“Nearer to her, and still nears” (105; ch. Ch. 53), imposing upon her mentally and physi-
cally. To redeem herself she says she “would now give away her existence;--ay her very
body and soul” (105; ch. 53).

A spectre does come to Lady Mason in daily visits and twenty-four hour shadow-
ing of her every movement during the days of the trial. Mrs. Orme, another woman
dressed in black, intends to exorcize the evil from Lady Mason. She demands that Lady
Mason repent and confess to Lucius so that he will give up Orley Farm. Forgiveness and

Lady Mason’s salvation are conditional on releasing the property. Mrs. Orme’s body Ian-

63

guage near Lady Mason is intimidating and suffocating. She sits “so close that that she
might look into her face and watch every movement of her eyes (152, ch. 60). On her
knees before Lady Mason, she holds her with both hands, then begins “pressing Lady
Mason’s hand, pressing against her knees” (158; ch. 60) while urging repentance. The
battle for Lady Mason’s soul is with Mrs. Orme: “She whose life had been so innocent,
so pure, and so good, could look into the inmost heart and soul of the other woman whose
career had been supported by the proceeds of one terrible life-long inequity” (153: ch.
60). Lady Mason’s pact was not with the devil twenty years previously, but with Mrs.
Orme before the trial.

The narrator repeatedly refers to Mrs. Orme as a better woman and to her purity
and innocence during her increased association with Lady Mason before the trial. The
repetitions are as obtrusive as Sir Peregrine’s allusions to his daughter-in-law as an angel
and his fears that she be tainted by pitch. Her dismissal of his concerns and her actions
defy what the narrator and Sir Peregrine say about her. She cannot be stained by her con-
tacts with the outside world because, notwithstanding her isolation since her widowhood
twenty years before, her actions reveal she is as worldly, if not more so, than Lady Ma-
son. Both women are implicated in insinuations to the wisdom of the serpent and the in-
nocence of the dove. No secrets exist between the two women; any barriers to conduct
because of Mrs. Orme’s elevated social stature are eliminated by “equal friendship” (154;
ch. 60).

The terms of the pact are the preservation of Lady Mason’s secret and assistance
in her pretense of innocence so that she has a chance at acquittal, provided Lady Mason

tells Lucius of her guilt and he gives up the property. Mrs. Orme becomes Lady Mason’s

64

guard to insure Lady Mason does not breach the agreement. We are told that Mrs. Orme’s
word to Sir Peregrine “has been law to him” (24; ch. 3), and she obviously expects that
same homage from everyone else. Her justiﬁcation for her concentration on the other
woman’s conduct is Lady Mason’s salvation. Forgiveness must be withheld until Lady
Mason repents and complies with the agreement. Lucius Mason must be told before the
trial ends because, should it end in an acquittal, Lady Mason might continue the deceit.
On the night before the last day of the trial Mrs. Orme “declared that the story should be
told at once” (261; ch. 73) and she “was sufﬁciently anxious to perform the task [. . .]”
(260: ch. 73). After its completion and the total annihilation of the young man’s past, pre-
sent, and future and his removal from the gentlemanly Orme world, Mrs. Orme “could
now wish for an acquittal with a clear conscience; and could as it were absolve the sinner
with her own heart, seeing that there was no longer any doubt as to the giving up of the
property” (264; ch. 73). The act of restitution accomplishes what the trial did not. “Even
should the jury acquit her,” Sir Peregrine says, “she must declare her guilt to the world”
(236; ch. 70) via the conveyance. Two of the highest members of the community selec-
tively determine the dissemination of truth—Lady Mason’s fraud is exposed; their
knowledge concealed.

Later, Mrs. Orme blocks a forgiving Sir Peregrine’s renewed desire to marry Lady
Mason: “It would be wrong to yourself, sir. [. . .] It is the fact she did that thing. We may
forgive her, but others will not do so on that account. It would not be right, that you
should bring her here” (307; ch. 79).27 Sir Peregrine is willing to violate the social laws
and rettun to the fold the birthright thief with tmconditional forgiveness as Esau forgave

his brother in the story of Rebekah. Here his Christian natural law moral code gained

65

through his self-reﬂection has overcome his social prejudices and conventions. At his
farewell Sir Peregrine would take Lady Mason home with him but says it cannot be, “She
who loves you so well, has told me so” (310; ch. 79). Mrs. Orme’s unshakeahle law inter-
feres. Robert Polhemus writes that “the security of a ﬁxed moral code” comes with a
price because it “inhibits the freedom of the individual to act independently and to be his
own judge of human circumstances” (81). Sir Peregrine succumbs to Mrs. Orme’s confu-
sion of morality with social prudery and self-interest. It “condemn[s] him to utter misery
for the rest of his life” knowing that the “same conventions and laws which he had al-
ways before accepted without question” now destroyed him as they had others in the past
(Polhemus 81).

Mrs. Orme operates from mixed motives, all of which reduce the law to a secon-
dary status. She is attractive, has an unblemished reputation since her widowhood, and
possesses the esteem of anyone of any importance in her community. She is also very
spoiled, and narrow-minded. The law and its lawyers are beneath her. The narrator says
she is “a good churchwoman, but not strong, individually, in points of doctrine” (41; ch.
45). Instead, she follows what she thinks is her conscience and “her own dealings with
her Savior” (41; ch. 45). She maintains an irnpregnable self-conﬁdence and engages in
little self-reﬂection that might lead her to modifying her conduct toward Lady Mason.
Bentham wrote in An Introduction that such standards of right and wrong signify only the
adherent’s disposition unsupported by an external standard: “the mischief common to all
these ways of thinking and arguing [. . .] is their serving as a cloak and pretense, and ali-
ment, to despotism” (28)28 Mrs. Orrne’s claims of Christian compassion, love, and charity

may be sincere, but she is too intolerant, ignorant, and selﬁsh to comprehend how she

66

hypocritically enacts them. She shuns the Jewish lawyer Aram by ignoring the offer of
his arm as assistance and refuses to show the greatness of The Cleeve carriage outside the
corutroom. Moreover, her claims do not correspond to her unconcem about the exiled
mother and her son with little means of support. Her so-called Christian benevolence has
strict parameters. She exhibits what Polhemus says is “the human tendency to throw a
cloak of morality around self-interest, to become oblivious to the connection between
what one thinks is right and what will beneﬁt one” (87). Referring to what he labels as
“pious cant” in some of Trollope’s novels, Patrick Brantlinger says “it allows for an un-
blinking acknowledgment of injustice which neither affrrms it nor seeks to change i ”
(209).

These interests are ﬁrst exposed when Lady Mason before her confession to Sir
Peregrine tells Mrs. Orme she must break her engagement. Mrs. Orme does not try to
change Lady Mason’s mind even though she knows the pain it will bring to her father-in-
law. Her son opposes the marriage, she always yields to his wishes, and she thinks ﬁrst of
her son, as Lady Mason thought ﬁrst of hers. As a protective mother, Mrs. Orme must
prevent a marriage between Sir Peregrine and Lady Mason because it would taint the pu-
rity of the class Sir Peregrine represents and leads, and it would impair young Peregrine’s
own marriage prospects. “[H]ow would it aﬁ’ect his hopes if it were known that you at the
time had married a lady whose misfortune made it necessary that she should stand at the
bar in a criminal court?” Lord Alston, Sir Peregrine’s ﬁiend, asked (25; ch. 43). Harvey
also suggests that Mrs. Orme’s acts are more than class preservation because they protect
her son’s ﬁnancial interests. Sir Peregrine does not intend to beneﬁt Lady Mason ﬁnan-

cially through marriage. However, his grandfather was not an extremely wealthy man and

67

did not use his lands to their ultimate potential. A successﬁrl marriage for young Pere-
grine must be a woman with money. In fact, his grandfather already has calculated the
money gained if Peregrine married into the Staveley family. The reputation of Lady Ma-
son in his family tree might prohibit such chances. Excluding Lady Mason preserves
yormg Peregrine’s opporttmity and his birthright.

Additionally, Lucius’ continued occupation of Orley Farm after the trial would
condone Lady Mason’s disregard for the traditions of the upper class and for the law. As
Dolin explains the situation, “the law of inheritance [. . .] seeks to reconcile continuity
and change, for the inevitable changes in the constitution of family and society caused by
death are addressed with a view to preventing the breakdown of order and custom.” Dolin
interprets the laws of inheritance as minimizing change, because even though a person
dies, his property lives on. Lady Mason’s appropriation of Orley Farm interferes with this
continued life and breaks down order and custom (116-17). If Lucius remained in posses-
sion of the farm, it also would condone an act that the law has failed in two opportunities
to rectify. Moreover, it would permit one without proper antecedents as well as property
to be a gentleman in a gentlemen’s world. Lucius Mason’s standing as a gentleman al-
ready was tenuous because his father’s wealth and title were not inherited but acquired.
Once he loses the material indicia of status, nothing remains to support his position.

Acting mainly alone, Mrs. Orme conﬁ'onts the subversive, not necessarily evil,
force that Lady Mason represents and succeeds at preventing any pitch from blackening
the partitions of her social class or jeopardizing any laws that it has created for its protec-
tion and continued donrination. Harvey argues that Mrs. Orme capitulates to commercial-

ism. However, it is more than a ﬁnancial concern that we see in the lawyers and the

68

commercial men. This commercialism leagues with social Darwinism, acted out in a card
game called commerce played in the Staveley household, in which the winner must kill
oﬁ‘ all competitors and in Mr. Funrival’s statement that “in a combat with the devil one
must use the devil’s weapons” (302; ch. 33). In the same way, the social status quo in the
novel disposes of any threats or renders them ineffective. The subversive Lady Mason
and her son, who wants to revolutionize agriculture production, are exiled. Similarly, the
new bendable iron furniture of one of Mr. Moulder’s associates, Mr. Kantwise, is not du-
rable and those who respect quality wooden furniture shun it. Mr. Dockwrath suﬂ’ers de-
feat and ﬁnancial devastation in his own subsequent litigation with Joseph Mason over
what Mr. Dockwrath claimed was a contract to lease Orley Farm. Graham’s reform en-
thusiasm is restrained by love and his father-in-law’s demand that be support his wife.
Harvey also says that Mrs. Orme’s demeanor cloaks a “squalid self-interest”
(106). According to George Levine in “Can You Forgive Him? Trollope’s Can You F or-
give Her? and the Myth of Realism,” Trollope’s ﬁction “is dominated by a social myth:
even if one knows society’s rules of decorum, gentlemanliness, and order to be wrong
and repressive in any given situation, those rules are essential to society’s survival.” Fur-
thermore, as Mrs. Orme’s actions indicate and as Levine argues, “that survival is the ul-
timate value because the well-being, even the identity of all people is dependent upon it”
(8). In effect, all classes are complicit in this survival policy because as Harvey writes, it
protects “their cherished illusions” which “rest upon a fragile social consensus” (16)
clearly identiﬁed in Orley F arm. Mr. Moulder’s satisfaction with his nation as the best
that is, not the best possible, and his greatcoat story based on the purchasing power of his

commercial class epitomizes this adoption of the upper-class ideology. He claims that it

69

is not injustice that he can aﬁ‘ord to buy a greatcoat against the winter and others perish
because they cannot: “I say it’s a grand thing to live in a country where one can buy a
greatcoat” (166; ch. 61). Whether the social illusions Mrs. Orme has preserved will con-
tinue depends on the inheritors of the upper-class tradition who at the conclusion of the
novel exhibit little potential for thinking beyond their own immediate needs. Augustus
Staveley and Peregrine Orme show scant promise of success. Augustus as a lawyer and
the heir of a rich man has not demonstrated the work ethic of his father, and spends much
of his time in ﬂirtations. Young Orme at the conclusion of the novel reacts childishly to
Madeline Staveley’s rejection of his marriage proposal by ignoring his duties in taking
over as manager of The Cleeve for Sir Peregrine and leaving for big game hunting in for-
eign lands.

Mrs. Orme’s actions in one respect demonstrate society’s response to reality’s ex-
posure of threatening forces to the “light of day,” a phrase the narrator and other charac-
ters ﬁequently use referring to law’s ability to expose truth. Yet other factors, not law,
forced Lady Mason’s revelation of guilt. Once exposed, as in many other Victorian nov-
els, the perpetrator of darkness must be alienated. She leaves with her son to a foreign
country. At the same time, the reality of this expulsion identiﬁes another monster, one
much more life threatening and powerful because of it social acceptance. That monster is
the upper class denial of individual independence, inﬂexible adherence to empty state-
ments of right and wrong, unwillingness to compromise, harsh pragmatism, and decep-
tive masquerade of righteousness and benevolence. Some might argue that the Anglo-
American legal systems have been appropriated for the same purposes.

Nevertheless, the narrator’s depiction of experience’s stark reality does not end

70

with a pessimistic and frightening view of this Methuselah-like Goliath’s survival. The
narrator articulates a theory, using the transcendental abstraction and mediating experi-
ence of sympathy. The narrator has laid the groundwork for this emotion in the charac-
terizations of the individuals in the novel and in the involvement of the narrator as a char-
acter as well.

Few writers on Trollope fail to mention the novelist’s multi-dimensional charac-
ters. His characters are “mixed” according to David Skilton, “neither wholly good nor
wholly had” (139, Anthony TroIIOpe and His Contemporaries). The appearance of incon-
sistency in characterization is proof of these mixed characters. Mrs. Orrne’s conduct
stems from the rutlrlessness of self-interest and the kindness of Christian charity despite
its misinterpretation. Graham’s strict idealism is cormtered by his love for Madeline
Staveley. Sir Peregrine releases himself from his inherited conventions but cannot de-
prive his daughter-in-law and grandson of their beneﬁts. Mr. Dockwrath is ambitiously
aggressive and brash. He also is sincere in wanting the Orley Farm case ended in favor of
the innocent victim. Joseph Mason’s ﬁxation for Lady Mason’s punishment is juxtaposed
against his genuine sense of being wronged and the narrator’s statement that “he was not
a bad man” (49; ch. 7). The characters’ mixed motives are the products of the mixed ele-
ments of their identities. A3 a narrative intrusion in the novel states, “All our motives are
mixed” (121; ch. 16). The novel’s mixed characters with nrixed motives contribute to the
novel’s realism. True to the realist literary tradition, the novel contains no single-minded
heroes.

In addition, we learn to appreciate the multi-sided aspect of events from the dif-

ferent perspectives the various characters bring to it, most obviously in the varying inter-

71

pretations of Lady Mason’s forgery. The diverse perspectives coincide with the manner
in which a trial might present more than one version of an incident. As Mr. Moulder ex-
plains to his brother-in-law on his pending testimony, “You’ll have to tell your story in
their way; that is, in two diﬁ’erent ways” (165: ch. 61).29 Throughout the novel, the narra-
tor is a good advocate, knowing the details of the client’s case and working to learn or
imagine the opposition’s story equally as well.

A3 L. J. Swingle writes, the narrator is “a dramatic character” and “an active par-
ticipan ” (109) who “becomes one sort of character or another, as occasion warrants”

( 107). As an active participant in the novel, the narrator is no different from the other
characters in exhibiting mixed motives and contradictions. Swingle argues that the narra-
tor goads the reader “into thinking about things in unfamiliar ways” (107). Truly, the nar-
rator’s comments on the legal system and lawyers provoke reassessments of assumptions
about them. The narrator is realistic and participates as a realistic storyteller subject to
extra-narrative inﬂuences. The narrator’s reminder that the account is ﬁction in the refer-
ence to “all persistent novel readers” (10; ch. 2) and use of multiple perspectives and nar-
rative voices argue against any assumptions that the narrator represents Trollope’s views
because readers have no way of knowing which of these views and voices belong to the
novelist.

Sometimes the authoritative third person distant and supposedly impartial story-
teller pauses as another voice intrudes and attempts to weight one side of the evidence.
These intrusions are subjective Opinions beyond the scope of the evidence which readers
should reject from factual considerations, such as this comment on the international con-

gress: “I am inclined, myself, to agree with Felix Graham that such efforts are seldom

72

absolutely wasted” (136; ch. 18). The direct aside here seems harmless because it is eas-
ily identiﬁable, using honestly the ﬁrst-person pronoun and obviously changing voice.
Swingle writes that this type of intrusion recognizes that others might think differently
(109). Its subtle danger is its persuasiveness for this statement and others to come based
on the relationship of trust and credibility developed between the narrator and reader
through such an aside. Although it admits the narrator’s subjectivity, it should be taken as
a warning about the narration’s objectivity. More dangerous is rhetoric that creates diver-
sionary red herrings, an example of which is the bracketing of Mr. Chaffanbrass together
with a hired assassin “for truth and honesty to their customers” (278; ch. 76). The com-
parison of the tensions and ethical demands in a lawyer/client relationship to criminal
hired killers is unfair and ignores the professional responsibilities of a barrister. It is in-
ﬂammatory and easily absorbed into readers’ psyches without reﬂection and directs
thought, rather than provokes thought in the manner that Swingle identiﬁes. Even more
dangerous are the rhetorical questions that assume its contents are proven and undisputa-
ble facts: “How long will it be before we shall recognize that the other kind of torture
[cross-examination] is equally opposed to truth and civilization?” (245; ch. 71). Finally,
indirect intrusions sometimes blend so subtly into the text that they are unnoticed. Read-
ers are unable to distinguish when the thoughts of a character end and the thoughts of the
narrator begin. For example, after Lady Mason’s ﬁrst visit to Mr. Fumival’s chambers he
sits alone thinking about what she had told him. He already suspects her guilt and thinks
“How terrible that would be’ (102; ch. 13). With that thought and in the same paragraph,
the speculations seem to leave Mr. F urnival and become the voice of another escalating

on these thoughts so that terrible becomes “wonderful” (102; ch. 13).

73

If the best evidence for judgment of the realistic representation is the text, the nar-
rator’s participation must be included in the evaluation. Like lawyers, the narrator recog-
nizes the effectiveness of rhetorical language. The rhetorical persuasiveness of Trollope’s
literary realism lessens the distance between literary discourse and legal discourse. Sig-
niﬁcantly, the narrator adapts in part similar deceitful devices used to shade the truth that
the lawyers in the novel are condemned for using. Employing the devices does not dimin-
ish the novel’s realism; it emphasizes the realism of the evasiveness of truth and the skill-
ful art of concealing or shaping it. Dolin points out how the narrator’s reference to Mil-
lais’ illustration of Lady Mason is equivalent to a barrister asking the jury to look upon
the person charged (1 l 1). That request may be to provoke scorn, or, in Lady Mason’s
case, sympathy. Swingle writes that reading the novel becomes a cognitive experience for
the reader because it “provoke[s] serious and skeptical meditation upon the question of
judging things accurately” (15). According to Swingle, the “Trollopian narrator [. . .] is
an artistic construct” (95). That construct is an advocate intent on persuading through
marshalling narrative and commentary and manipulating evidence and action (111). The
advocate is so intent because, as James Kincaid argues, “The reader is the ﬁnal judge. He
must be convinced of the reality of the art, whatever reality in fact may be” (48). Deter-
miners of guilt or innocence in a trial also must be persuaded of the reality of the advo-
cate’s position whatever the reality in fact may be.

Although the narrator has devoted much persuasive energy toward the realism of
his art, the narrator supplies a sort of cushioning factor in case there are doubters. The
plea for sympathy in the concluding pages looks backward to the preceding incidents and

characters and is a manipulative tool to reduce any harsh judgment against the novel’s

74

attempt at realism. Because for the narrator reality includes mediating sympathy, all the
narrator’s persuasive devices work toward convincing readers of that integration. In the
concluding pages of the novel, the narrator confesses that as he has “told her story” sym-
pathy for Lady Mason “has grown upon myself till I have learned to forgive her, and to
feel that I too could have regarded her as a friend.” The implication is that in the process
of reading sympathy should grow within the reader as well. The narrator gently eases
Lady Mason from community ostracism to community inclusion, beginning with an
apology for what is “perhaps [. . .] a fault” in asking readers for sympathy toward “a
woman who had sinned as to have placed her beyond the general sympathy of the world
at large.” The narrator enforces this appeal to sympathy, reminding readers they are not
so different from Lady Mason by turning their thoughts to themselves and their own ex-
periences when it seemed “that all was over” and “there was nothing left but to die” (312;
ch. 79). Readers must be irretrievably captured when he invokes the image used at least
twice before in the novel and tmderlying much of its developmental techniques: “God
does temper the wind to the shom lam ” (312; ch. 79).30

Only the most cynical and heartless reader could turn away from such an appeal.
Tempering or mercy becomes the soothing ointment to cruel experience, not only for
Lady Mason, but equally desired by readers. The narrator deftly defuses Lady Mason’s
otherness and relocates her as one sharing the same world as the readers who are suscep-
tible to the same desperation. The realism of the artist, apRoberts argues, “maintains our
sense of fellow-feeling with his characters” so that the readers/observers recognize their
commonality with the characters and “pity follows as an extension of self-pity” (191).

Furthermore, the narrator’s appeal for readers’ sympathy and reﬂection produces such a

75

tolerant and reﬂective atmosphere that it avoidably participates in readers’ judgment of
the novel’s realism.

The reference to God’s involvement in the tempering of the wind can be viewed
in several ways. It reminds readers of divine mercy in judgment, something they seek as
well. It is also something they wish to be like, to show the godliness within them. As the
narrator moves from the tempering to asking readers to remember or imagine themselves
in a like experience, the concept of sympathy becomes earthly and places the responsibil-
ity of judgment on readers. That judgment extends from the events of the novel to the
novel itself and its narrator. In effect, the narrator makes it almost impossible for readers
to judge the story harshly. The insertion of the sympathetic appeal effectively calls upon
the emotions, and away from any objective evaluation of the narrative for its realism.

A second view of the divine reference is that the narrator relies on intervention or
deus ex machina to ease the harsh earthly existence of human beings rather than imposes
the responsibility on them to make things better. In this sense, readers may feel sympa-
thy, as the narrator does, but do not have to do or perhaps are powerless to do anything
about the conditions that ultimately provoked their sympathetic emotions because only a
transcendental force can or should rectify them. With this view, sympathy is merely
something that reminds readers of their humanity. It lessens the acuteness of experience,
and, as Patrick Brantlinger suggests, contributes to injustice because sympathy becomes
another factor masking injustice. It does not initiate human action to cure the injustice.

In a third way of considering the narrator’s invocation of sympathy, Alexander
Pettit explains in his article, “Sympathetic Criminality in the Mid-Victorian Novel, “that

literary portrayals until the mid—nineteenth century severely punished their criminal char-

76

acter in accordance with “the dominant punitive ideology of early Hanoverian England”
(281). In contrast, mid-Victorian literature tended to present a “sympathetic criminal”
evincing an “authorial assumption of the once-sovereign right to judge and to punish
criminal behavior in a manner not strictly answerable to the existing legal code” (Pettit
281). The relationship between the mid-century author and reader makes this divergence
possible according to Pettit. That relationship depends on the successful use of the imagi-
nation by the author in activating the imagination of the reader through the realistic novel
tradition. Without this relationship, the trust in and credibility of the narrator in attempt-
ing truthful representation, the reader would not accept this lenity (281-282). This shared
sympathy also is facilitated by “the Victorian infatuation with the ‘psychology’ of the
oﬁ’ender” (Pettit 282) in the same way that legal realists are concerned with behavioral
psychology of participants in the legal system. Pettit argues that because of the social sci-
ence approach the criminal became a statistic whose crime was a product of the environ-
ment that produced it. Mid-Victorian novels described the commission of a crime as anti-
thetical, not endemic, to the dramatic world. For this reason, criminal acts are sensational
and, as Pettit points out, descriptions of crimes occur in the past or offstage (287). The
particulars of the actual deed become less important than the circumstances surrounding
it, often showing the criminal as victimized, not “incorrigibly deviant” (Pettit 290). Orley
Farm exhibits this in Lady Mason’s account of her victimization by her family and bus--
band. She is not a complete reprobate. In fact, the suggestion is that under different cir-
cumstances she would have been a much different person. The criminal as victim inspires
sympathy as demonstrated by the narrator’s confession.

Pettit also argues that, “the dynamic of sympathetic criminality offered by the

77

novel [. . .] carries the implication of communal and individual rehabilitation: the stuﬁ‘ of
ﬁnal chapters and epilogues” (296). Trollope’s ﬁnal pages do not offer a sense of reha-
bilitation, just a sense of restoration, though not necessarily tmscathed, after a threatening
upheaval conquered at an enormous expense of energy. The social hierarchy survives af-
ter uniting to expunge the offenders (Mr. Dockwrath and Lady Mason) or to neutralize
them (Graham). The descriptions of broken hearts—both Peregrines, of lost members of
the community—Lucius and Lady Mason and Mr. Dockwrath, of the possible rendering
ineffective any reformist thinking—Graham, of isolation and despotism—Mrs. Orme, of
continued sense of injustice—Joseph Mason, of simply accepting the alleged bounties of
one’s plate without reﬂection——the Moulders, and resigned moderation—Mr. Furnival
resemble more the debris remaining after a battle than rehabilitation. This conclusion ex-
tends the sympathy the narrator felt for Lady Mason to the community she as pitch has
touched.

The movement item the single lamb to an entire ﬂock takes the reader back to
Pettit’s statement of treating criminal behavior outside of the existing laws. In this way,
Lady Mason’s acquittal despite her guilt does not shock the reader because of the sympa-
thy aroused for her. The novel does not subvert the law without an excuse for doing so. In
the same way readers look with more leniency upon those upholding the injustices of the
existing property and inheritance laws and the injustices imposed by class structures and
religious tyrants. Without denying Lady Mason’s responsibility for her deception, readers
are conscience ﬂee to judge her less severely. Without lessening distain for the self-
righteousness, power, and manipulation of the upper class, readers can feel sympathy for

their struggles, stasis, and decay. Similarly, the struggles of the other characters warrant

78

sympathy. The narrator’s arousal of sympathy hour this interpretation directs thinking
away ﬁ'om change to acceptance with sympathy of the way life must be.3 '

Pettit identiﬁes the arousal of sympathy through the criminal as pointing toward
juridical reform (282). Certainly the sympathy aroused in Orley F arm for the struggles of
many of the characters, not just Lady Mason, could prompt considerations of legal reform
in combating class discrimination and patriarchal constructs. This is a fourth view of the
implications of sympathy which has more positive consequences so long as sympathy
does not cloud judgment or blunt sensitivity to injustice and reminds readers of their ac-
cormtability for injustices and their duty to rectify them. Thus, using a delineation from
Robin West’s Caring for Justice, the humanistic improvement of the existing system be-
comes the political changing and reforming of the existing system.

The narrator’s intrusions identify some speciﬁc areas where reform is necessary.
The narrator attacks the process of cross-examining witnesses so that like Kenneby, they
are completely confused about what they remember and they are humiliated in court and
ridiculed by the judges. The narrator also argues that witnesses in general need more re-
spect and should be treated as human beings rather than scientiﬁc objects. Through Gra-
ham, the narrator criticizes the legal system for protecting the guilty and allowmg them to
avoid the truth.

Following one of Mr. Moulder’s statements of national pride and praise for the
legal system, the narrator admonishcs the commercial man’s uncritical stance: “I would
have it of the best if that be possible” (168; ch. 61). Dolin suggests that the narrator’s en-
couragement to strive for something greater “is to temper idealism with pragmatism” or

in other words, “to regard Von Bauhr’s dream with suspicion while recognizing as com-

79

placent the English Bar’s defence of its ‘bread and butter’” (119). Dolin’s tempering im-
plies negotiating the extremes of radical reform and maintaining the status quo to some-
thing in the mediating middle. Brantlinger argues that the mid-Victorian contentment
with the best that was currently possible rather than achieving the best possible (224)
made them reluctant to consider reform. His view suggests the continuing merit of Ben-
tham’s attack in Fragment on Government (1776) “which challenged the complacent
view of the eighteenth century that British society, government, and law had attained as
great a perfection as could be hoped for” (Prall 588). Viewed this way, the narrator seems
to adopt Bentham’s position in criticizing Mr. Moulder and incorporates a political ele-
ment into the novel.

Reform and a desire for the best instead of the best possible at the time can be
motivated by sympathy. At the least, the continued appeals to readers’ emotions of some
social reform novels dispel to some extent the feelings of complacency while simultane-
ously arousing indignation. Trollope’s novel is not a novel of social reform. However, as
Swingle correctly stated, it provokes a re-examination of a reader’s thinking and that as-
pect gives it increased value as a realistic novel. Ideally, readers could develop some of
its statements about law and the legal system into thinking about what might make the
trial process more able to determine truth while still protecting the rights of the accused,
what a justice that mediates both procedural and substantial justice might look like, and
what might make the laws of property and inheritance more equitable for wives and chil-
dren.

The narrator’s introduction of a sympathetic element in judging if extended to le-

gal judging also forces more thinking about legal decision-making. Bentham detailed

80

how judges were obligated “to impersonate the parties’ expectations” and “role play”
(Polloczek 100). Judges, according to Bentham in Comment on the Commentaries, should
consider both precedents and their personiﬁcation of the parties’ expectations when
reaching a decision (Polloczek 98). Judges cannot perform these personiﬁcations without
a form of sympathy for the parties in which judges place themselves imaginatively in the
position of each party and allow themselves to reﬂect on that imaginative view when they
make decisions.

Some current legal scholars in fact advocate an overt infusion of sympathy into
the legal system, particularly at adjudication. In Poetic Justice: The Literary Imagination
and Public Life, Martha Nussbaum argues that reading realistic literature teaches “the
ability to imagine the concrete ways in which people grapple with disadvantage” (xvi).
Her argument includes linking Bentham’s utilitarianism as illustrated in Charles Dickens’
Hard Times to the current cost-beneﬁt analysis approach of the law and econonrics
movement. Both ways of thinking, she says, fail to incorporate human emotions into their
foundations and evaluations. This thinking treats human activity as predictable like Mr.
Furnival’s machines without hearts. Nussbaum argues that in addition to summoning
powerful emotions, good literature “inspires distrust of conventional pieties and exacts a
frequently painful confrontation with one’s own thoughts and intentions” (5). It also re-
veals, as Trollope makes clear, “a more complex vision of human life” (8). Nussbaum
suggests that the result of the sympathetic or empathic perspective obtained from the
imaginative association through reading, is better judging within the restraints of legal
reasoning (82). While legal realists argue that extralegal factors unknowingly affect deci-

sion-making, Nussbaum argues that judges should actively take into account extralegal

81

factors and consider the social realities of their cases. She proposes that the imaginative
perspective formed from reading literature contributes to the ability to imagine what
those social realities are like and the consequences of reformed justice. In short, the ex-
perience of reading realistic literature substitutes for actual experience. Sympathy is not
associated with reminders of past actual experiences, which Trollope provokes in readers,
but of past literary experiences. This might be one way of moving outside of one’s cul-
tural limitations in attempting to imagine what the lives of others might be and what the
consequences of judgment might be.

Reviewing Nussbaum’s book, law professor Robin West in effect argues that
Nussbaum’s a priori logic is unsupported by empirical facts. Despite the merits of Nuss-
baum’s assertions, she claims it is not obviously true that “reading realistic novels bones
the capacity for imaginative fancy [sympathy]” or that “the capacity for imaginative
fancy improves” the sense of justice (1 863). One of West’s fears is that excessive sympa-
thy may privilege the individual over the group (1858). This would be counter to utilitar-
ian arguments and what some view as the premise of the law and econonrics movement.
However, West wrote in an article titled “Econonric Man and Literary Woman” that
“knowledge of the subjectivity of others, gained and pursued through metaphor, allegory,
narrative, literature, and culture—is a peculiar sort of knowledge, but it is absolutely es-
sential to any meaningful quest for justice, legal or otherwise” (133). This knowledge of
the heart she argues leads to a sense of self, of the other, and of union with the commu-
nity necessary to attain meaningful justice. One of the premise’s of West’s book Caring
for Justice, is that “justice must be caring if it is to be just, and that caring must be just if

it is to be caring” (24). Her discussion refers to actual cases in which she identiﬁes

82

missed opportunities for caring and just decisions. She also imagines situations in legal
problem solving where she attempts to show that applying caring obtains justice.

However, the theory of both scholars is not for institutional changes based on
sympathy, empathy, and justice, but individual changes within the institution. Suppos-
edly, a sufﬁcient amount of individual changes inﬂuences the institution. But such re-
formist theories to thinking about law and justice will come only after strong persuasive
arguments that extend beyond individual acts of sympathy or caring to group consensus
and active cooperation and it must begin in legal education, not after lawyers have passed
the bar or ascended to the bench. Law and literature studies as part of all law school cur-
ricula, among other things, could facilitate such thinking. Furthermore, to accept the
premise that literature can positively aﬂ’ect legal thinking, must by necessity accept that
some literature can negatively ﬂeet legal thinking as well. Lawyers and law students
must read their novels as critically as they read their cases.

Yet, we need not rely solely on scholarly theories to reform the legal system.
More concrete examples currently operate as indicia of thinking about law with sympathy
and caring. For example, the movement toward mediating conﬂicts and alternative dis-
pute resolution programs that recognize the human and social factors of the parties works
toward legal and personal closure rather than supposedly neutral and objective decisions
achieved after the trauma of adversarial courtroom battle. Another recent development
that allows caring into the judicial process is a trend by some courts to decide that an
apology to those injured is not an admission of liability. These rulings allow parties in
personal injury or wrongful death cases to treat each other with compassion and sensitiv-

ity without fear of jeopardizing their case (Keeva 64). The increase in Access to Justice

83

programs acknowledges the inequities and inaccessibility of the legal system to minori-
ties and those of limited income and education. In court opportunities for victim impact
statements and witness support programs give voice to those who until recently received
little oﬂicial notice because crimes were against the state and witnesses were simply parts
of the trial machine, sometimes without a heart, manipulated by advocates. The Plain
English movement seeks to make legal language a discourse rmderstandable outside as
well as within the legal community. Reconsiderations of theories supporting capital pun-
ishment laws and mandatory sentencing structures, now that practice has shown them de-
ﬁcient, signify the system’s sometimes willingness for self-examination particularly
when public support demands it.

These are examples of theory and practice working together within the legal sys-
tem to improve the legal system. Although they are far from radical reform and actually
perpetuate the existing system, they still struggle for broad acceptance. They also do not
delve deeper into the sources of the problem they address. However, in their intent, they
accept the touching of pitch in its positive aspect of the interconnectedness of individual
experience with the community. That acceptance of the interconnectedness of the indi-
vidual to others incorporates the human emotions of sympathy and caring. They verify

thinking about law as both a human activity and about human activity.

84

Notes

I Page numbers refer to the 1981 Dover edition. Chapter numbers are included to
facilitate reference to other editions and are cumulative rather than restarting at the be-
ginning of the second volume. The novel was published originally as two volumes of
forty chapters each in December 1861, and September 1862, after release in twenty
monthly installments from March 1861, to October 1862 (Mullen 367).

2 Apocrypha, Ecclesiasticus 13:1.

3 John W. Clark in The Language and Style of Anthony Trollope notes the ﬁe-
quency of Trollope’s use of this Biblical maxim in his novels (167).

4 See John N. Hall, Trollope A Biography (246, 332); R. D. McMaster Trollope
and the Law (8, 10, 30, 49, 67, 158); Coral Lansbury, The Reasonable Man: Trollope ’s
Legal Fiction (157); David Skilton, Introduction, Orley F arm, Oxford ed. x; Geoffrey
Harvey, The Art of Anthony Trollope (15); Keiran Dolin, Fiction and the Law: Legal Dis-
course in Victorian and Modernist Literature (100).

5 Trollope was the son of a failed barrister. John N. Hall states in his biography of
Trollope that Orley Farm is “Trollope’s most extended treatment of the law in a long list
of solicitors and barristers (214). Trollope’s novels describe eleven jury trials and more
than one hundred lawyers, according to Hall (156).

6 Orley Farm, Trollope’s eleventh novel, vies with The Eustace Diamonds (1873)
and Mr. Scarborough ’3 Family (1883) in claiming the most legal characters and legal is—

81168.

85

7 German philosophers adhered self-consciously to the German language in their
writings thinking it possessed a particular aﬁinity to philosophical thinking (Honderich
308).

8 This is Trollope’s spelling.

9 Hereinafter the Commentaries.

'0 We might speculate that Bentham is the model for Von Bauhr. His writing style
is thought by some to be difﬁcult to tmderstand and at his death he directed that his body
he embalmed, dressed, and placed in a chair. It is now on view at University College,
London.

” Trollope’s reference to Lord Boanerges is thought to be an allusion to Lord
Henry Brougham (1778-1868) a legal reformer and promoter of similar conferences. He
also gained fame for his zealous representation of Queen Caroline in 1820 during which
he threatened to expose the king’s prior marriage to a Catholic and for his statements
about the inﬂexible duty of advocates to their clients (McMaster 11, 60-1; Mullen 49,
370). Brougham also was a Bentham disciple (Sweet 1).

‘2 This statement appears to be a reference to the criticism of utilitarian thinking
for treating human beings as if they were machines without emotions.

‘3 My thanks to Dr. Judith Stoddart for inspiring this thinking about the changing
legal profession.

‘4 Lansbury also mentions, without citing a source, that in the nineteenth-century
lawyers thought less of Blackstone and more of protection against civil servants, “who

seemed bent on being more lawyerlike than the lawyers” (15).

86

15 Margaret King in “Trollope’s Orley Farm: Chivalry Versus Commercialism”
discusses the novel as a conﬂict between the rapidly emerging commercial world seen
through the materialism of Lady Mason, her family, Sir Joseph, and others and the estab-
lished British tradition with its remnants of feudalism and medieval practices most obvi-
ous in Sir Peregrine, but in Felix Graham and others as well.

16 Sir Peregrine recalls eighteenth-century thinking in which, according to Lans-
bury, “Blackstone and the Bible protected a man ﬁ'om the dangers of this world and the
fears of the ne ” (14).

'7 Most of this discussion of natural law is explained in more detail in Joe
Feinberg and Hyman Gross Philosophy of Law and Conrad Johnson Philosophy of Law.

'8 Her precedent is not law, but a misinterpretation of the biblical story of Re-
bekah in the book of Genesis, who helps her son Jacob steal the birthright of his brother,
Esau. Ironically, the prosecutor also recalls this story to Lady Mason’s favor in his open-
ing statements.

’9 Misprision of a felony is concealing a felony committed by another but without
any previous concert that would make the concealer an accessory before or after the
criminal act (Black 1015).

20 Sir Peregrine’s visit to Mr. Round also places the attorney in ethical jeopardy
by discussing the case outside of the presence of Lady Mason’s attorneys and by making
the offer which is an indirect admission of Lady Mason’s guilt. Mr. Round’s promise that
their words will remain conﬁdential because of his “esteem and respect” for Sir Pere-
grine’s character also is in direct contradiction to his client’s best interest. Sir Peregrine,

though a man of character and high standing willingly accepts that promise without con-

87

SII

sidering the jeopardy to Mr. Round’s reputation or the unfairness to the real property
owner.

2' Trollope uses will and codicil synonymously even though the latter is actually
an addition or revision of the former executed at a subsequent time. It does not succeed or
revoke the will, but becomes part of the will.

22 Hereinafter An Introduction.

23 Interestingly, according to Fred Rosen in his introduction to An Introduction
John Stuart Mill’s version of utilitarianism considered the association with Epicurus a
positive aspect and “sought to link utilitarianism with a larger philosophical tradition in-
cluding Epicurus, Socrates, Plato, and Aristotle” (lxiv).

2’ Minda writes that this third person “way of talking and thinking about law is
known as the ‘formal style of conceptual legal thought” predominant in Langdell’s writ-
ings (14).

25 For an optimistic view of Graham’s future as a reformer see Dolin at 119-20.

26 According to Dolin, “To mend the world while living in it is to acknowledge
the need to balance the aspiration for improvement with the desire for continuity” (115).

27 Of this denial, Harvey writes that “after a great inner struggle, Sir Peregrine has
courageously succeeded in revaluing the moral outlook of a whole lifetime and has bro-
ken free of the imprisoning attitudes of Victorian mythology” but Mrs. Orme “strenu-
ously invokes them afres ” (106).

28 See also Conrad Johnson, Philosophy of Law

29 The mixed characterizations and multiple perspectives demonstrate “a lack of

faith in universal predetermined rules” according to Lansbury (42).

88

30 This quote from Lawrence Sterne’s A Sentimental Journey appears in two other
Trollope novels, Barchester Towers and The Last Chronicle of Barset (Clark 167).

3 1 Many Trollope scholars have identiﬁed the sympathetic currents in his novels
and the devices that move them. R. D. McMaster writes that sympathy is the impetus for
presenting all sides of an issue (6). The narrative and commenting narrator provoke sym-
pathy by forcing readers to imagine, according James Kincaid (43). Geoffrey Harvey
states that Trollope’s mixed characters demand sympathy and judgment and inspire com-
passion (94). Writing about a tradition of compassion in novels, James Gindin deﬁnes
compassion as “a matter of emphasis, an attitude that kills the void left by all the codes,
guides, and formulae that are inadequate for human experience” (154). Orley Farm ful-
ﬁlls Gindin’s description of “the novel of compassion” in its reliance on “a density of
social characterization, a completeness in describing man and his environment, both to
demonstrate the world’s complexity and to ﬁll the space left by the lack of a universal
truth” (155). Pettit wisely cites Janice Carlisle’s references to the lessons of sympathy in

mid-century novels in the ﬁrst chapter of The Sense of an Audience.

89

Chapter 2

Thinking about Law as a Utilitarian Philanthropist:

Bulwer—Lytton’s Paul Cliﬂord:

Some of Jeremy Bentham’s most prominent criticisms about the law are depicted
through the characters and rhetoric of Edward Bulwer—Lytton’s Paul Cliﬂord (I830). The
Benthamite afﬁnities include: criticisms of the harshness of the criminal laws inherited
from the eighteenth century, the circumstances and environmental inﬂuences that moti-
vate criminal behavior, the parallels between society’s elite—politicians, government of-
ﬁcials, and lawyers—and a gang of thieves, and indictments of society’s rampant deceit
and fraud, especially in the charade of public conduct and language abuse. Bulwer-Lytton
attempts through Paul, who is a victim of circumstances and the law, to present a human-
istic picture of Bentham’s complaints. In order to present convincingly Bentham’s argu-
ments for legal reform, the novelist must ﬁrst expose the upper class whose members
make and enforce the laws. Attacking the legal system means also denouncing its reliance
on custom, tradition, and the Common Law, its inherited thinking from Sir William
Blackstone, and urging legislative reform.

Additionally, Paul Cliﬂord mixes thinking about Benthamite law reform with an
undercurrent of thinking about an evaluative theory of the novel This creates an interest-
ing interchange that moves from the real or the “as is” to the ideal or the “ought to be” in
both law and literature. F urtherrnore, the novel’s format—ﬁrst describing problems and
then proposing practical solutions—borrows from Bentham’s expository strategy. The
harsh laws and strict sentencing, which seem clearly to be for the beneﬁt of the wealthy,

are deﬁned. Utilitarian legal reform is the proposed solution. Novel reading becomes a

90

problem when it gloriﬁes crime and inﬂuences vulnerable minds. Paul copied in his ca-
reer as a highwayman behavior he had read about as a boy in a novel. The answer to con-
cerns about the novel’s negative inﬂuence is utilitarian as well. Ifnovels can negatively
inﬂuence, they can positively inﬂuence. The solution to the problem of the novel’s inﬂu-
ence is to ensure that it is put to its best use. However, just as Bulwer-Lytton’s novel
shows that legislative reform is not the complete solution to the problem because it must
be combined with acts of individual benevolence, the novel itself must become more like
a book of jurisprudence that merges the “what is” or the real with the ideal or “what
ought to be.”

In this discussion I intend to show how closely the novelist followed Bentham’s
thinking and incorporated it into his ﬁctional account. The novel works at showing why
Bentham thought legal reforms necessary and how he intended they should be imple-
mented. The extensiveness of the incorporation of Bentham philosophy into the novel
indicates that Bulwer-Lytton knew and attempted to understand the philosopher’s mes-
sage regarding legal reform. The value of this study is discovering how the novelist suc-
cessfully and convincingly incorporated Benthamite thinking into a ﬁctional text and the
methods in which Bulwer-Lytton adopted Bentham’s writing style and rhetorical strategy
to heighten that incorporation.

Much has been said about two apparently anti-Benthamite novels, Dickens’
Oliver Twist (1838) and Hard Times (1854) that followed Bulwer-Lytton’s Benthamite
novel, Paul Clzﬁ'ord. The much later Felix Holt, The Radical (1866) is also an anti-
Benthamite novel. Although this discussion is not a comparison of what Bulwer-Lytton

said in favor of utilitarian legal reform versus what Dickens said against utilitarianism in

91

general, the inevitable comparisons between the two necessitate a few comments. I ven-
ture to speculate that even Dickens, who never ceased in his appeals for reform, would
agree with Bulwer-Lytton’s emphasis on changes in the criminal laws, as did many other
reformers of his time even though they did not share Bentham’s intensity in radical re-
form. Dickens’ picture of Oliver Twist before the police magistrate is an expansion of the
scene when the young Paul Clifford is ﬁrst brought to court. The shadow of the gallows
is strong in both Oliver Twist and Paul Cliﬂord. Although Dickens far exceeds Bulwer-
Lytton in artistry, both recognize the value of idealism in conveying an impressionable
message. Dickens’ novels do not focus on criminal law legislative reform as narrowly as
Bulwer-Lytton does in Paul Cliﬁ'ord. His two novels criticize the broad concepts of utili-
tarianism. I also speculate that Dickens was not as well read in Bentham’s works as Bul-
wer-Lytton’s novel indicates he was and that Dickens’ criticism was directed more at the
form of utilitarianism expounded by James Mill than by Jeremy Bentham. We risk confu-
sion by attributing all criticism of utilitarianism to Bentham when other radical philoso-
phers wrote their own versions of utilitarianism as well.

Many scholars consider Paul Cliﬂord the ﬁrst of the Newgate novels.l Patrick
Brantlinger in The Spirit of Reform calls it the “prototype” of Newgate novels and of the
later social reform novels (35). Keith Hollingsworth deﬁnes Newgate novels as a series
of novels between 1830 and 1840 that differed from previous novels about crime and
criminality because of their interest in the criminal himself, rather than in a great criminal
character (15). Nineteenth-century critics opposed the Newgate novels “on the ground of
morality or taste” and feared their inﬂuence because “they familiarized their readers with

vice and crime, perhaps to a degree socially dangerous” (Hollingsworth 14). According to

92

Hollingsworth, “The literary war they occasioned gives evidence not only of the reaction
against Regency looseness [. . .], but also of a pervasive fear that crude manners and
crude morals might ﬂood upward with a rising populace whose education was a problem
still doubtful of solution” (16). Regarding Paul Cliﬁbrd, critics objected to Bulwer-
Lytton’s sympathetic treatment of the criminal and his willingness to blame society in-
stead of the criminal (Hollingsworth 81).

Some scholars disagree with the inclusion of Paul Clifford among other Newgate
novels because it gives short shrift to prison and prison conditions.2 The gallows located
on the prison site is the pending threat in the novel, not the notorious prison. In 1830, two
hundred and twenty-three oﬁemes were punishable by death in England according to
Louis Cazamian in The Social Novel in England 1830-1850 (46). Although we can detect
in the novel reasons for penal reform—boredom, close conﬁnement, threat of assault, in-
discriminate punishment inﬂicted by lazy turnkeys—its emphasis is not on the prison it-
self, but, ﬁrst, on the harsh criminal laws that send people to the corrupting inﬂuence of
prison and sometimes to their execution and, secondly, on the circumstances contributing
to criminal activity. “The laws themselves caused me to break the laws,” Paul says to the
judge at his ﬁnal trial, “ﬁrst, by implanting within me the goading sense of injustice; sec-
ondly by submitting me to the corruption of example.” As if his message is not clear, he
repeats it: “Your legislation made me what I am, and it now destroys me, as it has de-
strayed thousands for being what it made me!” (440; ch. 35).

Paul’s attack on the state of the criminal laws is not without merit. Criminal laws
in the early nineteenth century were relatively unchanged from the preceding century,

which, according to Gerard Postema in Bentham and the Common Law Tradition:

93

saw an enormous increase in criminal legislation, especially capital statutes,

mostly for crimes against property. Parliamentary action was rash, unsystematic,

and blindly reactionary, both in the sense that the statutes were designed to protect
the ruling social hierarchy against perceived threats of the masses, and in the
sense that they reacted episodically and violently to each newly perceived threat

in all its particularity. (263-64)

Noting the disparity between the nature of the crime and its punishment, Sir James

F itzjames Stephen, the nineteenth-century historian of the criminal law, wrote that the
“extraordinary lenity [. . .] towards the most atrocious acts of personal violence forms a
remarkable contrast to its extraordinary severity with regard to offenses against property”
(qtd. in Hollingsworth 20). Even William Blackstone, whose Commentaries on the Laws
ofEngland (1765-69)3 Bentham dared to attack, stated that within the criminal law ex-
isted “some particulars, that seem to want revision and amendmen ” (4.1 . 3)4 including
the extensive use of capital punishment (4.1. 9). But Blackstone blamed the problem on
“the irresponsible exercise of parliamentary sovereignty” in disregard of the Common
Law (Postema 265; Blackstone 4.1. 3).

Bentham countered that the maturing of the ‘art- and-science’ of legislation would
correct law’s defects. In “Indirect Legislation” (1802)5 Bentham argued that the science
of legislation had not developed or “been cultivated” to the extent of some of the other
sciences. The existing method of combating offenses was through punishment that he
called “direct legislation.” The next method, indirect legislation, or “combating offences
by preventive means” was “a reﬁnement of the art, and its transcendental branch” (171).

In contrast to Blackstone, Bentham said the defects in the law had their basis in the “con-

94

trol by terror and enforced ignorance” of the Common Law (Postema 266). In An Intro-
duction to Principles of Morality and Legislation (1 789),6 Bentham proposed his exten-
sive theory of proportionment between crimes and punishments: “The punishment for the
greater offense must be sufﬁcient to induce a man to prefer the less” (15.5.177). Bentham
also argued against capital punishment in “Indirect” saying: “Death is almost always a
remedy which is unnecessary or inefﬁcacious. It is not necessary as to those whom im-
prisonment might restrain [. . .] (186). Furthermore, he proposed that criminals should
compensate the victims of crime in lieu of severe punishments (188). Finally, Bentham
explained in An Introduction that laws creating an offense and laws commanding a pm-
ishment were two distinct laws, not parts of one law (Concluding Note 6 302).

In its time, Paul Cliﬂord was “a daring propaganda novel that boldly attacked the
criminal laws for the brutal frequency of capital punishment” (Campbell 38). The shadow
of the gallows accompanies every thought and action of the highwaymen. “I thought I
saw Jack Ketch7 at my heels,” Augustus Tomlinson, one of the gang members says (277;
ch. 9). Nevertheless, conﬁrming Bentham, fear of death does not deter the gang from
crime. They do not limit their activities. If caught, they face almost certain death no mat-
ter what the charge against them. The narrator at the novel’s conclusion compares the
moral of Paul’s rehabilitation to “the moral which is extorted from the gibbet and the
hulks which makes scarecrows, not beacons; terriﬁes our weakness, not warns our rea-
son” (452; ch. 36). Hanging is so common that the prominent lawyer who becomes a
judge in the novel, William Brandon, and his friend, Lord Mauleverer, are desensitized to

the loss of life and speak lightly of it. “[Y]ou know one treats these gentlemen highway-

95

men with a certain consideration, and hangs them with all due respect to their feelings,”
Lord Mauleverer says (410-11; ch. 32).

The laws, as Paul well knows, are merely the expression of the ruling class in
which: “[m]en embody their worst prejudices, their most evil passions, in a heterogene-
ous and contradictory code” (339; ch. 18). Regarding the meting out of punishment for
offences, he tells Brandon’s beautiful niece, Lucy, that “[T]hey make no distinction in the
penalty [. . .] awarded both to murder and to a petty theft imposed on the weak will by
famine [. . .] (339; ch. 18). Facing death, Paul argues that he never “committed one san-
guinary action, or one ruinous and deliberate frau ” but only “lived by the plunder of the
rich” (440; ch. 35). Establishing another bond to Bentham through his reference to resti-
tution at the end of his ﬁnal trial, Paul says that if he could live, he could make atonement
for his wrongs but that capital punishment “calls for repentance while it forbids redress”
(439; ch. 35). The narrator’s intrusion at the conclusion asks: “Who does not allow that it
is better, to repair than to perish,-better to atone as the citizen than to repent as the her-
mit. ” (452; ch. 36). After Paul escapes from the transportation colony, many of those
who suﬂ'ered losses at his hand mysteriously receive packets of restitution. Paul, like
Bentham, describes the dual nature of the criminal laws when he tells the judge: “Your
laws are but of two classes; the one makes criminals, the other punishes them. I have suf-
fered by the one—I am about to perish by the other” (440; ch. 35).

Paul’s statements about the criminal law are more than outraged attacks from one
who is lawless. They raise questions about the death penalty and what it accomplishes
versus what it is supposed to accomplish. They also expose the reactionary motivation of

the upper class behind much legislation. Furthermore, the novel’s attachment of criminal

96

activity to circumstantial and environmental factors represents an important turn to soci-
ology for its exploration of the causes of crime.8 J. S. Mill wrote that his father and Ben-
tham’s associate, James Mill, adhered to “his fundamental doctrine” of the “formation of
all human character by circumstances through the universal Principle of Association and
the consequent unlimited possibility of improving the moral and intellectual condition of
mankind by education” (Autobiography 65). According to Bentham, “circumstances must
be taken into the account before any thing can be determined relative to the conse-

99 6‘

quences” and that “criminative circumstances,” which he says can be “extenuative, ex-
culpative,” or “aggravative,” are pertinent to both the criminal acts and their conse-
quences (An Introduction; 7. 21-27. 79-83). Bentham theorized that “institutions deter-
mine conduct, and that to change conduct one must ﬁrst change the institutions” (Brant-
linger 46).9 He developed the concept of an ideal prison known as the panopticon to both
punish and rehabilitate offenders. Although his emphasis was prison reform, according to
James Steintrager, Bentham also intended to apply his strategy of inﬂuencing impres-
sionable yomg minds by bringing children to the prison so they could see the price paid
for criminal activity (80).

In the 1848 Preface to the novel, Bulwer-Lytton referred to a “Philosophy of Cir-
cumstance” whose victims are without conscience due to ignorance and whose school-
master is the felon of the academy of the House of Correction (233). He also cites the
“example of parents,” an “atmosphere in which virtue is poisoned” and the absence of
religion as factors that lead a child to become “less a responsible and reasoning human

being than a wild beast” (233). Bulwer-Lytton writes that his novel is “a loud cry to soci-

ety to amend the circumstance—to redeem the victim” (233). The novel presents Paul as

97

an example of the corrupting inﬂuence of the injustice of the laws and the prison experi-
ence. It offers no proof that he suffered from growing up in an alehouse among those
evading detection. Paul turned to crime after he was convicted as a sixteen-year-old boy
for something he did not do and imprisoned with repeat oﬂ'enders of more serious of-
fenses. The bitterness stemming from his incarceration and the persuasiveness of his
cellmate Tomlinson’s inﬂuence provoke in Paul “the thoughts that lead to crime” (270;
ch. 8). He tells the woman who raised him, Mrs. Lobkins, who is also the alcoholic land-
lady of an alehouse, that he must get out of prison “before I am quite corrupted” (272; ch.
8). Even the victim of the pick pocketing who pressed the charge against Paul, the
wealthy lawyer William Brandon, knows the teenager is going “to a place where, let him
be ever so innocent at present, he was certain to come out as much inclined to be guilty as
his friends could desire [. . . ]” (269; ch. 7). The lawyer also anticipates the gallows’
shadow once Paul experiences prison, drinking “if ever he lived to be a judge, he should
also live to pass a very different description of sentence on the oﬁ‘ender” (269; ch. 7). Un-
til that tuming point, the narrator says that “even in his destitution, when driven from the
abode of his childhood [. . .] instead of resorting to some more pleasurable or libertine
road of life he betook himself at once to the dull roof and insipid employments of Mac
Grawler, and preferred honestly earning his substance by the sweat of his brain to recur-
ring to any of the numerous ways of living on others [. . .] (271; ch. 8). He entered jail a
“boy who had never infringed a single law” (440; ch. 35).

In addition to his own sense of injustice, Paul witnesses at his ﬁrst trial the
judge’s refusal to release an innocent woman who has ﬁve days remaining in a seven-day

sentence, even though he has subsequently obtained proof of her innocence. Paul also

98

witnesses a little boy, who was “found guilty of sleeping under a colonnade” (269; ch. 7),
conﬁned with recidivists. These injustices prompt the narrator to mockingly praise the
legal system: “[I]t being the especial beauty of the English law to make no ﬁne-drawn
and nonsensical shades of diﬂ‘erence between vice and misfortune, and its peculiar
method of protecting the honest being to make as many rogues as possible in as short a
space of time” (269; ch. 7).

Later in the novel, Lord Mauleverer sarcastically refers to Paul’s ﬁnal arrest as
“his ‘present unfortunate circumstances’” (411; ch. 22). The irony of his joke is that he
says it to the man who thrives on his own claim about the inﬂuence of circumstances. In a
letter Brandon once wrote to his wife and Paul’s mother, he claimed that “had it not been
for that fund of obstinate and iron hardness, which nature,-I beg pardon, there is no na-
ture,-circumstance bestowed upon me” (415; ch. 22), he would have succumbed to de-
spair rather than thrived on bitterness at what he knew of “the real consequences of rank”
(414; ch. 22) or money and power rather than intelligence and virtue. As the younger son
of a decaying aristocratic family, his father did not prepare him to assume the family’s
title and properties by sending him away as a boy to study like his older brother, Joseph,
who is Lucy’s father. Instead, William remained at the family estate, Warlock Manor,
with his alcoholic father “[a]mong harlots, and gamblers, and lords, and sharpers, and
gentlemen of the guards, together with their frequent accompaniments—guards of the
gentlemen—biz bailiﬂ‘s” (289; ch. 1 1) who ridiculed their host. When he ﬁnally reached
Oxford, though impoverished and at ﬁrst shunned by the wealthier students, William
learned with growing embitterment to become their “parasite and the ﬂatterer.” Lord

Mauleverer was his “chief prey” (414- l 5; ch. 22). Brandon subsequently established

99

himself as a wealthy barrister whose two goals were to re-establish the prominence of his
family and to ﬁnd the son his estranged wife stole from him as an infant.

In their stress upon the inﬂuence of circumstances, Bentham and Bulwer-Lytton
position themselves on the side of experiential education popularized in the Bildungsro-
man. If identity is created from environmental and circumstantial inﬂuences then the
proper inﬂuences can stimulate upward class mobility or moral improvement. Counter to
this position is the conservative concept that identity stems from birth.lo In his 1848 pref-
ace Bulwer-Lytton writes of the “masses of our fellow-creatures—the victims of circum-
stances over which they had no control—contaminated in infancy” (233). This statement
implies that everyone is naturally virtuous. In the novel, Bulwer-Lytton approaches this
argument from an unusual angle. Instead of focusing on individuals of lower-class birth,
he focuses on how circumstances negatively inﬂuenced two men of upper-class birth.
Circumstances squelch William Brandon and Paul Clifford's inherent virtues.ll Although
his father is disreputable, wasting the family’s name and wealth, Brandon is raised among
the upper class. Embittered at slights and unkind treatment he received at Oxford because
he had no money or title and at the conduct of the upper class, Brandon “no longer re-
solved to be virtuous” (414; ch. 32). He also becomes convinced of the natural depravity
of humankind. Paul, who was raised in a lower-class environment by petty thieves, is so
embittered by injustice and inﬂuenced by his prison associates that he turns to crime. He
believes humankind can change if their circumstances are different.

Neither the father nor the son’s circumstances and subsequent embitterment are
entirely exculpatory. The author intrudes to mock Paul’s self-pity and indulgence: “the

ingenious occupation of cheating himself into the belief that, if he was a highwayman, it

100

was altogether the fault of the highways” (353-54; ch. 20). At ﬁrst consideration, this in-
trusion appears to undercut the novel’s argument about the inﬂuence of circumstances in
forming criminals. However, this intrusion makes the argument more convincing and less
one-sided in its placement of blame on society. It adds reason to the argument about cir-
cumstances and recognizes that criminal offenders are not without choice and account-
ability. Paul’s cohort, Tomlinson, dismisses any “romantic visions” that impart “the glory
of our career” for its “attack [on] the rich solely from consideration for the poor” because
“we grow more hardened [. . .] peasant or prince fares equally at our impartial hands [. . .]
(402; ch. 31).

Both Paul and his father make choices based on the passion and embitterment
they allowed to grow after circumstances set forces in motion. They chose to use their
exceptional talents to nonutilitarian ends. That circumstances negatively inﬂuenced the
two men raised in different class environments brings all classes into the Philosophy of
Circumstance argument. The same depraved society that undermines the morals of the
lower class undermines the morals of the upper class. As Brantlinger states, “[I]n a cor-
rupt society everyone is corrupt together.” The difference, he explains, is that some can
succeed better than others in fraud and corruption because of their wealth and social
status (38). Similarly, the narrator refers to his story as one “designed to show, in the de-
pravities of character, the depravities of the social state wherein characters are formed”
(393; ch. 29). Paul catalogues society’s evils at the trial’s conclusion: “cheateries of
trade,” “falsehoods of a profession,” “[t]he canting and prejudging part of the press,” and
widespread bribery and fraud (440; ch. 35).!2 The legal system reﬂects the degeneracy of

society, but it is also the battleground between the two groups and the source of power

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both seek. Law is considered a powerﬁrl weapon. One hand of criminals with money and
power competes through law with another band of criminals who have less money and
power.

Bentham’s repeated references to “sinister interests” blame those who make the
law and govern solely for their own beneﬁt for the state of the legal system.13 In his in-
troduction to Bentham’s An Introduction, Fred Rosen writes that the greatest obstacle to
reform was “the vested interests of ruling elites which could only be shifted by a combi-
nation of persuasion and compulsion.” Bentham’s persuasion was detailed attacks on cur-
rent political arrangements and his compulsion was “the force of public opinion” (xxxix).
Furthermore, Rosen observes that Bentham’s “writing on monarchy, aristocracy, the legal
profession, and other institutions opposed to reform became increasingly sharp and
highly critical as he revealed example after example of a ruling class taking increasing
amounts of power and wealth to itself and governing without accountability to the people
in general” (xliv). British philosopher and legal scholar, H. L. A. Hart, one of the most
proliﬁc writers on the radical philosopher, explains that Bentham’s view of government
was “as a gang of potential criminals, tempted like robbers to pursue their own interests
at the expense of those over whom they had power [. . .] (“Utilitarianism” 185). In “Indi-
cations Respecting Lord Eldon” (1825),l4 Bentham wrote: “Of those who, because un-
successful, poor, and powerless, men are in the habit of calling swindlers, the seat—that
of many of them at least—is in the hulks: of those hereby supposed swindlers, whom be-
cause rich and powerful, no man till now has ever called swindlers—the seat [. . .] is in
the House of Lords.” He then lists the criteria establishing the superiority in the art of

swindling of the swindlers in Parliament over those in the hulks. They can produce more

102

mischief because they have the power of the House of Lords. Their acts are premeditated,
and they make more proﬁt. Additionally they operate under fewer extenuating circum-
stances such as indigence and lack of education (14.4. 246-47). This is the same argu-
ment found in Paul Clifford.

Bentham’s condemnation of the Court of Chancery in “Indications”l5 preceded
Dickens’ portrayal of the court in Bleak House (1852-53) by more than a quarter of a cen-
tury. Lord Eldon or John Scott (1751-1838) was Lord Chancellor from 1801 to 1827 ex-
cept for a one-year interval in 1806. Strongly conservative, he opposed reform. As a
judge he sought thoroughly to investigate the preceding legal authorities and issue a deci-
sion that would “settle the principle for the future,” a process which resulted in many de-
lays (Walker 1120-21). For Bentham, Lord Eldon committed almost every offense possi-
ble to make the court what law reformer and Bentham’s friend Samuel Romilly (1757-
1818) called “the disgrace of a civilized society” (qtd. in “Indications” 19.259). He was
“[t]he determinate opposer of everything good; the zealous, able, and indefatigable sup-
porter of everything evil, from which, to the ruling one or the ruling few, reputed good, in
any the smallest quantity, at the expense of the many, appeared derivable” (19.259). Ben-
tham accused Lord Eldon, as head of “Judge and Company,” of extorting excessive ﬁl-
ing, appearance, and copying fees for his own and others’ beneﬁt. Lord Eldon, Bentham
said, took advantage of an act of Parliament enabling judges to set fees (12.252-54), par-
ticipated in a system of non appearances and delays in which he was the “Grand Master”
(8.223), engaged in buying and selling positions (4213-14), and served on the commis-

sion investigating his own court (12.237). Bentham also accused Lord Eldon of denying

103

the people what little support they might ﬁnd in parliamentary debate through judge-
made law, a conscious subversion of Parliament law-making powers.

Bulwer-Lytton also uses criticism of Lord Eldon to introduce what the novelist
called the “second and a lighter object in the novel” which “was to show that there is
nothing essentially different between vulgar vice and fashionable vice” (Preface 1840
232). In the 1848 Preface the novelist wrote again of the ﬁne line between the enforcer
and the subject of laws: “make what laws we please, the man who lives within the pale
can be as bad as the man without” (233).16 In Paul Cliﬂord, one of the gang members
shares with Lord Eldon the same nickname, Old Bags. His fellow gang members enliven
this thesis of common vice in their parody of Bentham’s “Judge and Company.” Accord-
ingly, Bagshot or Old Bags refuses to leave behind any goods during a robbery: “tis not
my way—I be’s slow about my work, but I does it thoroughly” (304; ch. 8). According
to the words of a ditty, “Old Bag’s Song,” “Slow was old Bags, but he never ceased /
‘Till the whole was grabbed” (286; ch. 10). Maintaining judicial neutrality, the highway-
man does not discriminate in the source of his income and “had done in one town more
towards eﬂ‘ecting an equality of goods among diﬂ'erent ranks than all the reformers from
Cornwall to Carlisle” (326; ch. 16). Conservative like his namesake and seeking to pro-
tect his own interests, Bagshot objects to the cultivation of common lands. “Every blade
of corn in a common is an encroachment on the constitution and rights of the gemmen
highwaymen,” he complains (285’ ch. 10).17

The ultimate villain in the novel is class inequality. Its repeated libelous parallels
between the upper class and criminals serve two ﬁmctions. First, it establishes the hu-

manity of the lower class. Secondly, it lays the foundation for a threat of class war. In an

104

oblique way, placing the two groups on an equal footing introduces the criminal into so-
ciety rather than distances the criminal from society. Referring to an old ballad about a
famous criminal, Lucy asks if Paul believes “that one so lawless, and eager for bloodshed
and strife, as this robber is described to be, could be so capable of soft affections.” Paul
responds that “many that the world load with their opprobrium are capable of acts—nay,
have committed acts, which in others the world would reverence and adore” (339; ch.
18). Paradoxically, he is echoing his mother’s words to the two petty criminals of the ale-
house attending her deathbed as she places her son in their care: “I have found that those
whom the world calls the worst are often the most human” (237; ch. 1).

Hollingsworth writes that Bulwer-Lytton and Dickens “examined the criminal as
one who, however perverted, must be recognized as belonging to the human family” (27)
and praises the overall “humanitarian intention” in Paul Cliﬂord (77). Bulwer-Lytton
wrote in England that “There has grown up among us a sympathy with the great mass of
mankind” (289). He deﬁnes his novel in the 1848 Preface as an “appeal from Humanity
to Law” (233) thereby connecting to Bentham’s argument that a legal system should con-
sider human motivation especially “in order to pass a judgment on any means that may be
proposed for combating offences in their source” (An Introduction 10.5.46.124).

Yet, establishing parallels between the classes and giving a human face to the
lower-class criminal element also highlights the distance between two groups with so
many similarities, emphasizes the unfairness of the lower class disparate existence, and
recalls its cause. This combination can lead to social protest.18 Bentham recognized the
threat of unrest in “Indications”: “As between the one class [of swindlers] and the other,

would you know in which, when the principle of legitimacy has given way to the greatest

105

happiness principle public indignation will press with severest weight?” (14 247). How-
ever, Bentham did not advocate resistance through revolution. It disrupted security and
brought unnecessary pain to everyone. An informed public could initiate change within
legal bormdaries. With this in mind, he objected to Blackstone’s acceptance of disobedi-
ence to laws considered contrary to divine will (An Introduction 4.1-26.482-86).
Bulwer-Lytton’s novel reminds readers of Bentham’s threat of public indignation
and echoes Godwin’s prediction of a class war in An Enquiry Concerning Political Jus-
tice. It is a persuasive threat because of the fear it arouses so near in time to the turmoil in
France and it provides an additional reason for the passage of legislative reform. The up-
per class might support reform to save themselves and their property whatever their posi-
tion on correcting wrongs. In a single paragraph Paul tells Tomlinson that “openly I war
against” society’s customs and laws and that “the conditions of war” exist between him
and “a body of laws hostile to the friendless and the poor” (335; ch. 18).19 Tomlinson
identiﬁes the law as perpetuating the class system. Objecting to the absence of class seg-
regation in prison he asks, “Where’s your boasted British Constitution?” (273; ch. 9). In
another scene, he mocks Blackstone, stating “O ancient constitution always to be ques-
tion ” (428; ch. 34). Even Lord Mauleverer understands that the Constitution means
“laws for the rich” (318; ch. 15). A subtler reminder of unrest is the rumor after Paul’s
transportation that Lucy went to France where she became a victim of the revolution. The
narrator also establishes the tension in a scene before Paul’s statement to the court in
which “a freezing anxiety numbing the pulse, and stirring through the air, made every
man in that various crowd feel a sympathy of awe with his neighbor, excepting only the

hardened judge and the hackneyed lawyers, and one spectator, an idiot [. . .]” (439; ch.

106

35). At the statement’s conclusion the crowd sits in awed silence before releasing “a
murmur of vague applause” (442; ch. 35).

Initially, the mob before and during most of Paul’s trial substitutes for the circus
atmosphere mob at the public spectacle of the gallows. They expect entertainment. Even-
tually, the trial watchers change from their group levity at a celebrity trial to a force that
is fearful and to be feared. Only the crowd seems to appreciate the power of the law, the
law’s impact that extends to them as well as the defendant, and that the proceedings tak-
ing place are an extended metaphor for the state of their society. Public executions oc-
curred because “[i]t was the theory of omcialdom that seeing criminals in the last extrem-
ity would ﬁighten spectators from evil courses” (Hollingsworth 3). Supposedly, a public
trial would reap the same beneﬁts. What those in power wanted through law to happen at
executions happens at Paul’s trial. It happens because his words are not the standard de-
fenses and he courageously exposes the system that brought him to trial. His circum-
stances remind the crowd how easily they could stand where he stands. It is not the law
they fear as much as their own circumstances that could bring them before the power of
the law. To continue their levity would be to laugh at their own predicament. At the same
time, his criticism empowers the crowd. They share his contempt. As the narrator says,
Clifford’s accusations in his statement to the court “reversed the order of things and
merged the petitioner in the accuser” (444 ch. 35).

The crowd’s behavior contrasts with that of the court and its oﬂicers and the up-
per class in attendance. Lord Mauleverer sends a note to the judge during the trial
reminding him of Brandon’s future elevation to a peerage, inviting him to dinner with
some nobles after the trial, and encouraging him to “Make haste and hang this poor

fellow” so the party will not have to wait long for their meal (439; ch. 35). In

107

the party will not have to wait long for their meal (439; ch. 35). In “Indications,” Ben-
tham cites Alexander Pope’s lines from The Rape of the Look: “The hungry judges soon
the sentence sign / And wretches hang that jurymen may dine”(3.21-22) in his diatribe
against Lord Eldon for leaving court so early during the afternoons (Postscript 4.3n2
281). Hollingsworth says that Pope’s lines refer to the custom limiting criminal trials to
one day (22).

During the trial, the prosecutor, Mr. Dyebright, mocks the judicial system, via ex-
aggerated claims that he “would rather ﬁfty of the wretched inmates of the county jail
were to escape unharmed, than that a hair of the prisoner you behold at the bar should be
unjustly touched” (437; ch. 35). His hyperbolics deride an ancient debate on the presump-
tion of innocence in which Sir John F ortescue stated in the ﬁfteenth century that “twentie
evill doers” should go free than convict an innocent man, and Lord Stafford at his own
trial in 1680 used the number 1000. (Twining 95). Blackstone thought it better that “ten
guilty persons escape” (4.27.352). Archdeacon Paley in The Principles of Moral and Po-
litical Philosophy (1809) opposed Blackstone’s statement, saying that the courts should
not shy away from their duties for fear of making a mistake and Bentham’s ﬁiend
Romilly issued a devastating reply in 1810 (Twining 96). Bentham obliquely supported
Romilly, saying the “pain of victims of crime is more widespread and more serious than
the pains of occasional punishment of the innocent,” while acknowledging “good reasons
for treating the conviction of one innocent man as a worse evil than the acquittal of one
guilty man” (Twining 97). Bentham’s concern was the “artiﬁcial device” or legal ﬁction
of the presumption of innocence that he said was contrary to the way the comts and its

ofﬁcers in truth treated defendants (Twining 97).

108

Mr. Dyebright’s language embellishments are one of many demonstrations in the

9 ‘6'

novel of the manipulation and abuse of language. Bentham thought lawyers jargon and
jargonization’ [. . .] a superior form of thieves’ cant hiding the defects of the law.” To
Bentham, “language had so often been used as an instrument of mystiﬁcation and oppres-
sion to deceive men as to the true character of their social life and institutions, including
above all, their laws, and to conceal from men the possibilities of reform” (Hart; Essays
on Bentham 2).20 And the esoteric cant of legalese, like the ﬂash language of the criminal
underworld, bonded the legal profession, setting it apart from the rest of society (Hart;
“The Demystiﬁcation” 29). For Bentham, Common Law was a ﬂash language word
which meant in plain English judge-made law and was used either to subvert Parliament
or as an instrument of Parliament to do its “dirty wor ” (“Indications” 19.1 1a 268). Legal
ﬁctions, which Blackstone praised as “highly beneﬁcial and useful” (3.4.6 43) in their
creating out of the imagination or an untruth a legal reality or truth, were “a willful false-
hood, having for its object the stealing of legislative power, by and for hands, which
could not, or durst not, openly claim it,--and, but for the delusion thus produced, could
not exercise it” (A Fragment 0n Government, Preface to 2"‘1 ed. (1823) 509).21 Bentham’s
Handbook of Political Fallacies (1824) more fully states his broadside on society’s wide-
spread verbal mendacity.

Regarding legal discourse, Bentham recommended that “law-books must be made
up into sentences of moderate length, such as men use in common conversation, and such
as the laws are written in France, with no more words than necessary; not like the present

Statutes [. . .] which are suffered with repetitions and words that are of no use [. . .] (Truth

versus Ashhurst 236). Bentham was consistent in his campaign against duplicity and am-

109

biguity in language.22 After presenting examples illustrating confusing language, Ben-
tham said his purpose was “that men may be aware of the ambiguity of language; and
neither harass themselves with unsolvable doubt, nor one another with interminable dis-
putes” (An Introduction 7.20 79). In this way, Bentham sought to avoid the interpretation
debates over wording and terms in statutes, the Constitution, and judicial opinions that
have prevailed to the present. Bentham’s classiﬁcation of offences in An Introduction
was an attempt to categorize and impose order over the “tyranny of language” (16.4.56
271) enumerating criminal offenses or the “Acts which possess such properties as seem
to indicate them ﬁt to be constituted offences.” His purpose was “to enable men to under-
stand the things that are the subject of it” (l6.i.la 187)

Bentham did not deﬁne factual terms with a synonym, but with a phrase or para-
phrase. In abstract conclusions of law, such as right or duty, a paraphrase was insufﬁ-
cient, so he would make “a different kind of remark, in order to elucidate these wor ”
(Hart, “Deﬁnition and Theory in Jurisprudence” 34). He called this exposition paraphra-
sis: “when not that word alone is translated into other words, but some whole sentence of
which it forms a part is translated into another sentence, the words of which latter are ex-
pressive of such ideas as are simple, or are more immediately resolvable into simple ones
than those of the former” (A Fragment 5.6b.6 495). Mill wrote that Bentlram’s style be-
came “heavy and cumbersome, from the excess of a good quality, the love of precision,
which made him introduce clause within clause into the heart of every sentence, that the
reader might receive into his mind all the modiﬁcations and qualiﬁcations simultaneously

with the main proposition [. . .]” (Autobiography 71).

110

As must be evident from this discussion on language, Bentham recognized the in-
adequacy of language in expressing ideas, meaning, and intent and that “conﬁning him-
self to the language most in use, a man can scarce avoid rrmning, in appearance, into per-
petual contradictions.” Short of inventing new words, as Bentham sometimes did, the
equally unsatisfactory alternative was “to enter into a long discussion, to state the whole
matter at large” (An Introduction 10.2.13 102, 16.i.1a 187). However, Bentham demon-
strated that putting together two words in common use would “frame the neutral inten-
tion” rather than using words connoting bias. His examples include substituting “sexual
desire” for lust or “pecuniary interes ” for “avarice” (An Introduction 10.2.l3h 102). C0-
inciding with Bentham’s attention to giving examples to his ideas, he also extensively
used imagery, metaphor, and analogy.

Paul Cliﬂord was the ﬁrst novel to use criminal slang or “ﬂash” (Cazamian 49).
The esotericism of that slang within a community has a counterpart in legal discourse.
language in the novel becomes like an entrance ticket to certain communities. The high-
waymen can successfully pretend to be gentlemen by emulating high society language.
Speech frequently identiﬁed class ranking. Therefore, high society could be fooled easily
by adopting their speech habits. Knowing this shallowness of society, Mrs. Lobkins tells
the twelve-year-old Paul to style his speech [not his deeds or thoughts] by reading the
Bible because “People goes more by your words than your actions” (241; ch. 2). Her
view of the Bible was not for its moral teachings, but its style and word choice. The
meaning of words, contrary to Bentham’s concerns, was unimportant. Additionally, Mrs.
Lobkins’ direction to Paul to assume a form of speech that is irrimical to his community

would limit his ability to communicate in that community, just as legal language is most

111

accessible to those of the profession and appears obscure to those outside the legal com-
mrmity. Moreover, Paul’s recommended guide is nonexistent in a community that ignores
both moral and positive law.

A noteworthy point regarding how texts as well as people assume false identities
occurs at the beginning of the novel. Paul’s mother asks one of the alehouse’s regulars,
Dummie Dunnaker, to swear on a Bible to preserve the secret that she stole Paul ﬁ'om his
father. Dunnaker could not ﬁnd a Bible in the community. He swore to the dying woman
on a book he said was the Bible knowing it was actually a collection of plays. Thus, the
novel begins with a deceit of words stated contrary to the actions performed and the
ﬁaudulent use of a written text as well as a written text pretending to be something it was
not. For Bentham, Blackstone’s Commentaries also was an impostor in its representation
of the laws of England as something they were not, especially in its statement “that the
system of our jurisprudence is, in the whole and every part of it, the very quintessence of
perfection” (A Fragment Preface 408). Similarly, the reactionary laws and severe pun-
ishments for their violations are represented as worthy of respect by those who know
them to be something else.

Ultimately, Paul learns a language outside that common in the den of thieves
through his tutor, Peter Mac Grawler. Through Mac Grawler’s short course on the art of
literary criticism, he also becomes proﬁcient in the methods of manipulation and abuse of
language using the methods of “slash,” “tickle,” and “plaster” (256; ch. 5). As explained
in the novel, to “slas ” is to cut up through accusation, to “plaster” is to praise with all
available superlatives, to “tickle” is to adopt ambiguous language that appears to say one

thing while suggesting another. Christensen considers how Paul “uses the sword and pis-

112

tol not only in his exciting adventures as swashbuckling highwayman [the passion of his
youthful readings] but also in an interestingly ﬁgurative sense as a man of letters. His ca-
reer properly speaking begins when Mac Grawler, the Scottish literary critic and editor of
the Asinaeum, teaches him about the three branches of criticism [. . .]” (60). Paul devel-
ops a reputation for “an innovating method of applying words to meanings which they
never were meant to denote” and “[h]e not only put old words to a new sense, but he used
words which had never, among the general run of writers, been used before” (258; ch. 7).
The latter were reversions to the language of his community, the ﬂash, “enigmatical
words and recondite phrases” which “imparted a great air of learning to the style of the
new critic” and an unintelligible sublimity” to his diction (258; ch. 7). Because his lan-
guage is so remote and mysterious, the new critic becomes, though incognito, the subject
of tea parties and praise. Yet, his criticism contributes nothing to the literary world and
seemingly, like legal language and ﬂash, exists in an inexplicable realm of its own.23
Paul’s education continues with Tomlinson, “a dangerous and subtle persuader”
(278; ch. 9), who explains “how the forceful cavalier use of words can enable one to
emerge victorious over the most intransigeant of moral realities” (Christensen 60). In his
mentoring of Paul, Tomlinson passes on “the value of words” (285; ch. 10) that he
learned from other gang members. “All crime and all excellence depend upon a good
choice of wor ” Tomlinson says. Under his theory, robbery becomes “relieving the ne-
cessities of the poor” while sharing booty becomes “sharing with your friends the gains
of your industry.” Tomlinson relies on language alone, inverting Bentham’s emphasis on

motives, shared properties, the act itself, and consequences. “To knock a man on the head

is neither virtuous nor guilty,” Tomlinson says, “but it depends upon the language applied

113

to the action to make it murder or glory.” With this statement, the narrator provides an-
other example in a footnote and claims it to be “a better illustration of verbal fallacies
than all Bentham’s treatises put together” (282; ch. 10).“

After all, Tomlinson tells Paul, “[W]e only do what all other legislators do. We
are never rogues so long as we call ourselves honest fellows, and we never commit a
crime so long as we can term it a virtue” (282; ch. 10). Furthermore, Paul’s gang holds
meetings, conducting themselves as if they were speaking as members of Parliament on
behalf of their political parties (327-28; ch. 16). The narrator’s comparison of the gang
members’ language to that of cabinet ministers highlights their joint occupation: “So nice
was their language, and so honest their enthusiasm for their own interests, you might
have imagined you were listening to a coterie of cabinet ministers conferring on taxes, or
debating on perquisites” (285; ch. 10). The parallel continues in their parsing of words
and fraudulent language. They speak of the sums they had “levied on the public,” explain
their thefts as for “the good of the community,” and refer to themselves as “the estab-
lished order” (285; ch. 10). Allan Conrad Christensen in Edward Bulwer-Lytton: The Fic-
tion of New Regions describes the environment of the novel as a “world of ethical relativ-
ism and lawlessness that have made everyone an unprincipled adventurer and desperado
in the realms of language” (60).

Thus, Paul’s labeling as “krravery” Ned Pepper’s abandonment of Paul and escape
after picking Brandon’s pocket “to let [Paul] be caged in his stead” is “a rrrisapplication
of terms” to Tomlinson, who suggests the word, “prudence” (283 ch. 10). Lucy tells her
rmcle that he has “been bred to that trade in which, as you say yourself, men tell untruths

for others, till they lose all truth for themselves” (318; ch. 15). Brandon teaches Lucy the

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social acceptance of word twisting and inversion: “I at the bar; the minister in parliament;
ﬁiend to friend; lover to mistress; mistress to lover; half of us are employed in saying
white is black, and the other half in swearing that black is white” (330; ch. 13). Lord
Mauleverer tells Brandon that “[Y]ou and I [. . .] who know men, and who have lived all
our lives in the world, must laugh behind the scenes at the cant we wrap in tinsel, and
sent [sic] out to stalk across the stage” (312; ch. 14). Eventually, a wiser Paul terms
Tomlinson’s word twisting, such as “genius for intrigue” instead of “deceit,” as “soph-
isms” (330; ch. 16). Unlike Bentham’s, Tonrlinson’s word substitutions do not seek neu-
trality but more subjectively favorable connotations.

The one man in the novel who does attempt to speak the truth and accurately say
what he means is Joseph Brandon, Lucy’s kindly and gracious father and William’s well-
intentioned brother. Joseph’s “confused and parenthetical habit of speech, by which he
very often appeared to those who did not proﬁt by long experience, or close observation,
to say exactly, and somewhat ludicrously, that which he did not mean to convey” (291;
ch. 1 1) parodies Bentham’s sometimes excessive clauses. For instance, in discussing the
news of the local paper he tells Lucy that “com has fallen—think of that, girl, think of
that! These times, in my opinion, (ay, and in the opinion of wiser heads than mine,
though I do not mean to say that I have not some experience in these matters, which is
more than can be said of all our neighbors), are very curious, and even dangerous” (291;
ch. 11). Lord Mauleverer ridicules Joseph’s mannerism as “linked speeches long drawn
out” (315; ch. 15). Yet, when he must confront more serious matters, Joseph’s words are
“less involved and equivocal than they were wont to be” (362; ch. 21). The novel’s sug-

gestion that Bentham’s style in his later writings is like that of a good-hearted elderly

115

gentleman perhaps indicates a measure of respect for Bentham’s sincerity as well as a
kindly and gracious view of Bentham’s excesses. Joseph Brandon’s manner of speaking
also becomes an example of Bentham’s identiﬁcation of the inadequacy of language to
someone who wants to explain himself well but, in doing so, extends the explanation be-
yond practical reason. However, Brandon’s manner of speaking is not the paraphrasis
Bentham described. Bentham’s idea in paraphrasis is not parenthetical commentary
within a sentence, but a restatement of the idea in another sentence that is simpler to un-
derstand (Harrison 86).

Bentham frequently used medical metaphors, describing society as sick and pro-
posing methods of cure through legislation. In “Parliamentary Reform Catechism”
(1817), he referred to the “mortal disease of misrule” (310) that will develop into convul-
sion without the remedy of radical reform. He also described the country’s rrrisrule as a
“plague” (321). Direct legislation was a remedy applied to existing evil, but indirect leg-
islation is preventative or therapeutic to future evil. Bentham chose physical terms related
to pain and sickness such as cure, injury, suﬂ‘ering, and hurtful to reinforce his descrip-
tion of a “body of political morals” and a “body of law” (“Indirect” 183). In some in-
stances, he wrote, “the policy of the legislator may be compared to that of a nurse” (“In-
direct” 174).

The novel both appropriates and reverses Bentham’s medical metaphor.
Tomlinson’s strengths from a Benthanrite point of view are his appropriation of Ben-
tham’s medical analogy. For Tomlinson, the law is an apothecary giving bad drugs to the
poor or “speedy refuges ﬁ'om life” and “pills to stimulate the appetite” or “premiums for

luxury” to the rich.” The scientist of legislation to Tomlinson is either a “quack or his

116

science itself is but in its cradle” because the apothecary only “relieves you [. . .] of your
money, not your malady” (337; ch. 18). On the one hand, his use of the phrase “science
of legislation” recalls Blackstone who called “the science of legislation, the noblest and
most difﬁcult of any” occupation, art, or science (Introduction 1. 9). Yet, his statement
also references Bentham’s words in “Indirect” on the immaturity of the science of legisla-
tion that must develop into the art-and-science of legislation to accomplish legal reform.
Tomlinson’s farewell to London as he boards a boat on the Thames to avoid transporta-
tion or hanging is a catalogue of society’s ills (428; ch. 34).”

Lord Mauleverer, who is adept at using words, is “slightly aﬂlicted by the aristo-
cratic complaint of deafness” (305; ch. 13), an afﬂiction that impairs communication and
becomes a metaphor for not hearing or ignoring the censure of his class and their con-
duct. He also has a fetish for exotic epicurean dishes but is a hypochondriac and attributes
all pains to a digestive disorder that revolts against the common fare of the people. His
“digestive organs [. . .] stood proxy for a heart” (448; ch. 37).

While Lord Mauleverer is emblematic of a sick society, William Brandon seeks to
control and use society’s sickness. While Paul speaks for Bentham, Brandon acts like a
Blackstone devotee. However, he is more of a perversion of the worst interpretation of
the jurist’s writings. A mysterious disease torrnents Brandon. Its most visible symptom is
that it distorts his false cormtenance of benign self-control revealing his natural counte-
nance of a sneer. The sneer represents his misanthropic feelings toward society with the
exception of his brother and Lucy. His disease eventually destroys him, but not before he
resorts to taking the most powerful and possibly deadly medicine a doctor will prescribe

to prevent exposure of his precarious health and of his true expression. He simultaneously

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tries to manipulate and control one disease for his own mortality and the disease of soci-
ety for his own gain. He tells Lucy “they who beget it [a metaphor], always get the worst
of it” (316; ch. 15).

Eventually, because of the disease, his demeanor becomes “the mask to the agony
then gnawing at his nerves” (321; ch. 15). At his death, the disease prevails and his face
clearly shows a sneer of derision. The adult Brandon has always been a masked ﬁgure.
He chose to enter a profession because he considers “[p]rofessions [. . .] the masks to
your pauper-rogue; they give respectability to cheating, and a diploma to feed upon oth-
ers” (415; ch. 32). Brandon is a mystery to those who know him, “bafﬂ[ing] in great
measure the rancor of party hostility” (290; ch. 11) and the subject of gossip because he
reveals so little about himself. He hides his true self, a “wily and aspiring schemer” (371;
ch. 24) with an intimidating persona as a lawyer and his excellent manners at social ap-
pearances. His reputation is “of unblemished integrity” and he is esteemed as “the most
honorable, the most moral, even the most austere of men” (290; ch. 11). At his death, the
narrator labels him an “unwavering hypocrite” (447; ch. 35).

Literally Brandon refers to his health when he tells the Prince of Wales, who is
about to make him a peer, that “it is the interest of my rivals to exaggerate the little ail-
ments of a weak constitrrtion.” However, as the novel’s representative of the British legal
system, and of Blackstone for this discussion, his statement ﬁguratively means much
more. The prince’s response indicates his understanding of that meaning: “The times are
those in which many occasions occur, that oblige all true friends of the constitution to
quit nrinor employment for that great constitutional one that concerns us all, the highest

and the meanest [. . .]” (321; ch. 15).

118

For Blackstone, the sovereignty of the British Constitution was “lodged as beneﬁ-
cially as is possible for society” and he described the constitutional government as “admi-
rably tempered” (1.2.51). In his concluding paragraph to the Commentaries, Blackstone
wrote: “Of a constitution, so wisely contrived, so strongly raised, and so highly ﬁnished,
it is hard to speak with that praise, which is justly and severely it’s [sic] due: the thorough
and attentive contemplation of it will furnish it’s [sic] best panegyric.” Its only faults, he
said, are those stemming from external forces, the “decays of time or the rage of unskilful
[sic] improvements in later ages.” Finally Blackstone exhorted “To sustain, to repair, to
beautify this noble pile, is a charge intrusted principally to the nobility, and such gentle-
men of the kingdom, as are delegated by their country to parliament. The protection of
THE LIBERTY OF BRITAIN is a duty which they owe to themselves, who enjoy it; to
their ancestors, who transnritted it down; and to their posterity [. . .]” (4.33.436).

Using terms paralleling Brandon’s mask before society, Bentham in the preface to
the second edition of A Fragment accused Blackstone of masking the Constitution: “this
pretended product of matchless wisdom—this object of veneration to the deluded multi-
tude—had never been any thing better than a cover for rascality” (511). He called the
Constitution “the imaginary matchless one” (“Indications” 19.11 268). Mill, who called
Bentham “the great questioner of things established,” said that before Bentham no one
“dared to speak disrespectfully, in express terms, of the British Constitution or the Eng-
lish law” (“Bentham” 5). According to William Twining in Theories of Evidence: Ben-
tham and Wigmore, Bentham thought “the true nature of the law, and in particular of the
technical system of procedure, was hidden by a collection of masks, screens, veils, pre-

tences, pretexts and fallacies which were all the creature of interest, operating as often as

119

not through folly and delusion as through the deliberate deception of others” (79). Ben-
tham also derided Blackstone for his “scorn upon those beneﬁcent Legislators, whose
care it has been to pluck the mask of Mystery hour the face of Jurisprudence” (A F rag-
ment 410).

Brandon pursues and gloriﬁes the past both in his heritage and in the law. Bran-
don has vowed to “restore a sunken name” to its glory before “the present degeneracy”
(413 ch. 32). During a visit to Warlock Manor, the family seat, he lingers over the rem-
nants of the family’s past fortunes still visible with “a feudal solemnity” (373; ch. 24). He
talks with Lucy about “ancestral pride” and tells her she is “sprrmg from a once noble,
but a fallen race” (376 ch. 25). He intends to buy a large estate formerly possessed by his
family in the neighborhood of Warlock and views his pending appointment to a peerage
and Lucy’s possible marriage to Lord Mauleverer as success in his efforts “to regild a
fallen name” (332; ch. 17). Brandon says he became a lawyer because “I analyzed my
talents, and looked to the customs of my country: the result was my resolution to take to
the bar” (415; ch. 32). Christensen writes that Brandon “believes ﬁrmly—as does the
vengeful old law of the traditional penal philosophy, which the novel is out to attack—in
man’s innate depravity.” He “makes the new generation bear the weight of hereditary
crime and injustice” (65).

Brandon’s veneration of history epitomizes what Bentham viewed as the worst in-
ﬂuence of the Commentaries in its reliance on custom, precedent, and the Common Law.
Blackstone advised adherence to what has “been well considered and settled by the wis-
dom of successive ages” (2.20.298) because “we owe such a deference to former times”

(1 .3.70] He cited the “great confusion [. . .] in overturning long-established forms, and

120

new-modeling a course of proceedings that has now prevailed for seven centuries”
(3.7.99). He objected to statutory changes of the Common Law saying “it hath been an
ancient observation in the laws of England, that whenever a standing rule of law, of
which the reason perhaps could not be remembered or discerned, hath been wantonly
broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end ap-
peared from the inconveniences that have followed the innovation” (1.3.70). The Com-
mentaries overﬂow with words of praise for the British legal system such as, “our admi-
rable system of laws [. . .] built upon the soundest foundations and approved by the ex-
perience of ages” and “our own irnmemorial customs” (1.1.5). Blackstone called the laws
of England “the best birthright, and noblest inheritance of mankind” (4.33.436). Black-
stone’s references to the disruption of the Anglo-Saxon law after the Norman Conquest
and the eventual restoration of the ancient law are evident in Brandon’s need to restore
the disruption to his family’s greatness.26

Bentham’s proposed reform was “to substitute statute law, made by democratic
parliaments, and founded on reason. The reasons would be independent of history and
would be in terms of future beneﬁts” (Harrison 88).27 In his Autobiography, Mill credited
Bentham and his father as sole critics “against that most peccant part of English institu-
tions and of their administration. It was the almost universal creed of Englishmen, that
the law of England, the judicature of England, the unpaid magistry of England, were
models of excellence” (55). Bentham viewed the inheritance of Blackstone’s Commen-
taries as a major obstacle to “the interests of reformation” (A Fragment Preface 394).
Bentham also wrote in his “Early Memoranda”: “Barristers are so called [. . .] a Bar-

rando, from barring against reformation the entrances of the law” (40).

121

Brandon seeks to return to the past and to maintain the character of the English
Constitution. His brother is satisﬁed with things as they are. Lord Mauleverer hides his
past as a goldsmith’s son. Paul, however, lives without an inheritance or a sense of the
past beyond growing up in an alehouse. Viewing himself as independent of any historical
allegiances, Paul says no parents give him advice that will make him wretched if he
obeys or disinherited if he ignores (279: ch. 9). His personal freedom symbolizes his lack
of national ties. Paul tells Tomlinson, “We have not for so many years discarded all the
servile laws of others, to be the abject slaves of our own weaknesses. [. . .] But let us not
be cravens, and suffer fate to drown us rather than swim” (388; ch. 27).

Unlike many of his fellow citizens, Paul does not complacently accept the “what
is” of the law. He both criticizes the law and in his own actions eﬁ‘ectuates change. If
Paul has any ties to the past, it is to his own criminal prosecution in England. By living in
America after his escape ﬁ'om a penal colony, Paul divests himself of British law’s en-
tanglements, so that in effect he has no ties to the past or no inheritance to burden him.
He can radically reform himself. In America, he ﬁnds a country that in the nineteenth
century is not so entrenched in ancient custom and class imbalance. Another country
equally young in formation might have served the novel’s purposes as well. Similarly,
Lucy divests herself of the past by selling off the family estate that she inherited at her
father’s death, although to “the nearest relation of the family” (449; ch. 36), and leaving
England.28 Their lives together in America demonstrate that radical reform—a fresh
break from custom, tradition, and the Common Law--that Bentham argued in “Parliamen-

tax-y Reform Catechism” was the only means possible to implement reform.

122

The novel’s conclusion in which Paul and Lucy’s break from the past of England
and Paul’s benevolent activism in America raises questions about the novel’s persuasive-
ness in promoting Bentham’s idea of legal reform in England. Part of the answer resides
in the nature of Paul Cltﬁ‘ord as a novel. The novel is noteworthy for its identiﬁcation,
more so than depiction, of the corrupted and corrupting condition of society and the func-
tioning for some and malfunctioning for others institutional infrastructure of which the
legal system was a part. It is not a work in the later tradition of realism. The omniscient
narrator tells how things actually are, rather than showing reality through detailed scene
description and dialogue indicating how the characters respond to each other and their
situations both verbally and in their actions. Additionally, the character make speeches
about the state of society and the gang members satirize society in ballads. The novel
uses episodes of love, adventure, and confrontation—the escapism elements of the Ro-
mantic novel (Holman 43 8)—to exemplify its argument. A clearly deﬁned hero and hero-
ine, ﬁgures absent in most realistic novels, star in most of these episodes. The hero and
heroine, the melodrama, and the exaggerated details transcend the ordinary day-to-day
experiences of most people. The beneﬁt of this idealism is that readers have no doubt
about the role of each character or of the signiﬁcance of each scene. This idealism does
not cater to ambiguity and most characters are one-dimensional.

Bulwer—Lytton’s word choice while discussing the purpose of the novel in his
1848 Preface to Paul Cliﬂord hints at the technique of the later realistic novelists. He

writes that “the heart of an author is the mirror of its age,” that “it is precisely those of-
fenses which society cannot interfere with that society requires ﬁction to expose,” and

that “ﬁction follows truth into all the strongholds of convention; strikes through the dis-

123

guise, lifts the mask, bares the heart, and leaves a moral whenever it brands a falsehood”
[emphasis added] (23 3-234). Later, in the same preface, he writes that “the author rather
observes than imagines; rather deals with the ordinary surfaces of human life, than at-
tempts, however humbly, to soar above it or to dive benea ” (234). Yet, the observations
and dealing with the ordinary in the narrative are not what we would consider mirnesis.
The novelist’s method is to expound and explain the real more than paint a picture of his
observations. He presents the real using romantic idealism. Moreover, in working with
his concepts of the future ideal that the novel works toward, Bulwer-Lytton had no ob-
servations to relate. The ideal has yet to occur. His idealism forces Bulwer-Lytton into an
anti-mimetic stance. He must imagine that ideal. However, to impose believability Bul-
wer-Lytton said: “[T]he narrator of a ﬁction must be as thoroughly in earnest as if he
were the narrator of facts. One could not tell the most extravagant fairy-tale so as to rouse
and sustain the attention of the most infantine listener, if the tale were told as if the tale-
teller did not believe i ” (qtd. in Stang 13).29
Idealism’s earnestness in the telling differs from the plausibility or believability in
realism. The believability of Bulwer-Lytton’s romantic idealism is not through imitation
of reality but through an ability to initiate what Coleridge described as a willingness to
suspend disbelief and imagine what could be, even though we are rmable to establish a
correspondence with that imaginative view to our own lives. The revelation or exposure
of truth in Paul Cltﬂord is not realism’s “ﬁdelity to actuality” (Holman 413) in represen-
tation. In The Theory of the Novel in England: 1850-1870, Richard Stang describes Bul-
wer-Lytton’s writing as “giving the reader inﬂated rhetoric and very conventional melo-

dranm” (14). The melodrama explains the rhetoric or gives life to the rhetoric. According

124

to Stang, “The critical term most often opposed to realism was idealism and the most ar-
ticulate advocate of the latter was Bulwer-Lytton” (153). Both techniques claim to expose
the truth, but vary in the manner of presentation or representation.

The melodrama and rhetoric of the novel support its depiction of the social prob-
lems the novel addresses. Its rhetoric also proposes how these problems should be solved.
These transcending the immediate-idealist solutions directly contrast with the pragmatic
empiricism of realism. Because idealism is not bound by the limits of verisimilitude, it
can move beyond here and now problems, which Bulwer-Lytton did try to illustrate in
ordinary situations, to imaginary episodes demonstrating the successful future implemen-
tation of proposed solutions to present problems. At one point in the novel, the narrator
describes Tomlinson as a “perilous companion” and attributes Tomlinson’s persuasive-
ness over young Paul to “showy theories [. . .] more seductive to the yormg and clever
than suasive examples [. . .] (279; ch. 9). Paul Cliﬂord moves toward a ﬁctional demon-
stration of the practical operation of previously established theory. Bulwer-Lytton writes
in the 1848 Preface, “the author at least seeks to escape where the man may not, and look
on the practical world through the serener one of the ideal” (234). Thus, the dénouement
of Paul Clifford suggests, albeit very brieﬂy, that the theory of the ideal is workable in
real life, that it can be something experienced. This optimistic conclusion gives a sense of
closure and determinacy to the novel rather than what seems to be the indeterminacy of
an on-going process that ends the realistic novel.

At the conclusion of a novel in the realistic tradition, the reader must judge its re-

alistic success only from the reading experience. In effect the charge to the reader is to

consider only the details as given in the novel. The imagination participates only in con-

125

sidering whether the novel presents a plausible correspondence to actual life. To summa-
rize Stang’s discussion on realism and idealism, realism is external, drawing from the
without and the objective, while idealism is the internal or subjective that draws from
within (187-88). At the conclusion of a trial, the judge instructs a jury to limit their delib-
erations to the facts presented at trial. They should not imagine anything beyond that pre-
sented at trial. Their imagination is limited to the factual situations presented to them,
what they objectively imagine as true or most probable within the standard of the burden
of proof. Bulwer-Lytton’s idealism is not so limited. It asks the reader to subjectively
imagine something beyond correspondence to actuality with the only standard of proof
being the earnestness of the narrator. In its abbreviated picture of how idealism can oper-
ate at the conclusion of the novel, the ideal becomes part of the ﬁctional real or perhaps
on par with the real. Something once seemingly rmobtainable in one present becomes the
obtained and plausible in another.

Realism and idealism vary the novel’s form as well. In order to imitate life the re-
alistic novel appears to lack form, supposedly “fragmentary and unmethodical” (Stang
151).30 Through its statement of problems and solutions, Paul Cliﬂ'ord not only corre-
sponded to Bentham’s expository strategies, it adopted a form of representation that
complied with the doctrine of utility in its usefulness and its aim of maximizing happi-
ness.31 The organization coincides with the development of the ideas of the mind or with
thinking, a progression from identifying a problem and imagining its rectiﬁcation. Hart

says in the introduction to Essays on Bentham that Bentham “thought the criticism of ex-
isting institutions unaccompanied by demonstrably practical alternatives was worthless; [.

- .1 because hatred of anarchy and disorder was as strong a passion with him as hatred of

126

 

blind custom and conservatism” ( 7).32 In addition, Bentham exhibited his “practical al-
ternatives,” the ideal, in excruciating categorization and detail. “Bentham’s attention to
detail,” according to Rosen “was part of his method of reform where an alternative ar-
rangement might be seen as plausible and realistic” (xli).

The novel’s hero develops in his idealism from anger at the injustices he experi-
ences to ideas about alleviating them. In this respect, he unites the attributes of his asso-
ciates—Pepper “the acting knave” and Tonrlinson, “the reasoning one” (279; ch. 9). The
shortcoming of the novel is its lack of development of the idealistic solution in greater
detail. It need not be as minute as Bentham’s work but enough to envision more of the
ideal as a workable experience. The danger of such an exercise is converting the novel
from idealism to utopian fantasy.33 Additionally, that the hero and heroine must leave the
source of the identiﬁed problems, rather than work against them where they originated,
distracts from the persuasive force of the idealist solution. However, the idealist solution
is impossible on English soil in view of the factual circumstances of the narrative.34 For
Paul to remain in England and avoid prosecution would circumvent the authority of the
law and encourage anarchy. He cannot instigate legislative reform and perform benevo-
lent acts while a fugitive from justice in England. In practical and political terms, such a
view of a convicted felon leading a radical reform movement that was very hostile to the
upper class could actually impair the reform processes that were underway at the time
Bulwer-Lytton wrote the novel. On the other hand, the multiple factors of Paul’s repen-
tance, the fear the novel arouses in its allusions to social protest, and the encouragement
to legislators to make the best use of their authority might actually promote the reform

process contemporary to the novel. The novel helps readers understand why reform is

127

necessary and to imagine the beneﬁts of reform. The alternative of somehow pardoning
Paul for his oﬂ‘enses might be possible considering his repentance and restitution and the
novel seems to effectuate a form of a pardon anyway in his life in American.35 Perhaps
the reference to Paul’s continued disturbance at his recollection of his English past while
living in America is to turn readers’ thinking back to England where reform at the time of
the novel was being debated.

Literary realism, like legal realism, highlights the “what is” and as such is near-
visioned monocular. George Eliot’s Middlemarch, Elizabeth Gaskell’s Mary Barton, and
the The Mayor of Casterbridge by Thomas Hardy, all of which were written after Paul
Cliﬂord, are examples of novels that emphasize depiction of life as it actually is and liv-
ing life as it actually is rather than seeking something higher. Bulwer-Lytton’s novel is
bifocular, inclusive of the near of the “what is” and the far of the “what ought to be.” The
irony of the realist tradition in literature, and sometimes in legal realism when it fails to
take its attack on the existing system beyond exposure and criticism, is that, despite its
reputation as indeterminate and process-oriented, its focus on “the what is” leads to clo-
sure. Readers retain no sense of a continuing conversation or ongoing interaction between
the text and the reader beyond the ﬁnal page. They may think of the characters’ lives as
advancing in time because of the popularity of ending novels in the realistic tradition with
a marriage or several marriages provides a sense of linearity or continuity and the expec-
tation of future generations. However, novels in the realistic tradition do not contain sub-
stantial anticipation of hope, change, or improvement in either the here and now of the
present or what becomes the here and now in the future. George Eliot’s Felix Holt, The

Radical is an exception with its dependence on organic slow growth and its use of his-

128

torical progression as an example. The boundaries of realism prevent the realist novelist
from pushing the imagination beyond the present or the “what is.” Readers have more of
a sense of the passing of the crisis or resolution of the focus of the novel from which the
characters have recouped and regrouped. The future is a blank space of speculation. In
Paul Cliﬁ’ord, the real of the “what is” purposefully moves to the ideal of what “ought to
be.” Bulwer-Lytton wrote in an 1838 essay that the evaluative question for any work is
not “how far it resembles what we have seen so much as how far it embodies what we
can imagine” (qtd. in Stang 153).

In law the terms “is” and “o t” are employed to differentiate legal positivism
and natural law theory. Positivists look at law neutrally for what it is. Natural law theo-
rists, on the other hand, insist that neutrality is impossible because some principles of
morals and justice encompass the very concept of law and that what the law is must be
considered in functional and teleological—the ought and the ideal——terms.36 Based on
this explanation, Bentham and Bulwer-Lytton’s legal reforrrrism should be more aligned
to natural law theory and the inseparability of the is and ought than the Bentharnites
would admit. Moreover, the “is” of literary realism seems related to positivism, for which
the utilitarians laid the foundation.

One way of working with this possible inconsistency is that the positivists’ view
of law does not foreclose the improvement of laws. Positivism does not preclude the abil-
ity to imagine and work for a better system of laws. But a better system cannot be devised
without knowing well the fundamentals of the existing system. Actually, Blackstone’s
Commentaries described his vision of the law as he believed it to be. It also was the

popularly disseminated version of the law as is notwithstanding the discrepancies Ben-

129

tham and others saw in that version. Bentham decried the presentrress of Blackstone in-
spired-British views of the laws and Constitution as the best of all systems, because they
ignored obvious faults and inequities and excluded the possibility of obtaining something
better. Blackstone fused “the is” and “the ought,” the real and the ideal, in the existing
British laws and Constitution. Any changes, he wrote, would come gradually in an evolu-
tionary progressive process over time in accordance with society’s slowly changing cus-
toms and traditions from which laws should be modeled. “Between these two points, in-
deed, the is, and ought to be, so opposite as they frequently are in the eyes of other men,
that spirit of obsequious quietism that seems constitutional in our Author [Blackstone]
will scarce ever let him recognize a difference” Bentham complained (A Fragment 498).

Secondly, Blackstone equated “the is” and “the ought” in his adherence to divine
will, which he said no manmade law could contravene. Therefore, positive law was in-
separable ﬁ'om morality and Christian moral teachings.37 In “Positivism and the Separa-
tion of Law and Morals,” Hart writes that “Bentham and [John] Austin constantly insisted
on the need to distinguish, ﬁrmly and with the maximum of clarity, law as it is from law
as it ought to be [. . .]” (50). Bentham blamed the confusion between law and morals on
two immediate threats: the anarchist who argued that evil laws could be disregarded, [re-
ﬂected also in civil disobedience leanings], and the reactionary whose acceptance of the
law as it is stiﬂed criticism (53). One sought to ignore laws they considered unjust. The
other sought to maintain the existing system and use severe measures against those whose
questioning of it jeopardized its authority.

The utilitarians combined a passion for reform with respect for law, epitomized in

Bentham’s statement that the motto of a good citizen is “To obey punctually; to censure

130

freely” (A Fragment Preface. 16. 399). Thus, one can respect the authority of the law un-
derlying the “what is,” while questioning it and aiming for the required reform as it
“ought to be.” Unlike some natural law theorists, Bentham and Austin adhered to two
ideas: “in the absence of an expressed constitutional or legal provision, it could not fol-
low from the mere fact that a rule of law violated standards of morality that it was not a
rule of law; and conversely, it could not follow from the mere fact that a rule was morally
desirable that it was a rule of law” (Hart 55).

Therefore, the law as it is for Bentham is ﬁrst a realistic view of its ﬂawed opera-
tions while not diminishing its authority. Equally realistic is the view of the law in the
novel, though not presented in the tradition of the realistic novel. The jury rightfully con-
victs Paul Clifford at his second trial. He did violate the law. Secondly, reform or the law
as it ought to be is not the intersection of law and morals, but the censure within the exist-
ing and still authoritative, though not ideal, system to achieve the ought to be. As Ben-
tham says in An Introduction, “A book of jurisprudence can have one or the other of two
objects: 1. to ascertain what the law is: 2. to ascertain what it ought to be. In the former
case it may be styled a book of expository jurisprudence; in the latter, a book of censorial
jurisprudence: or, in other words, a book on the art of legislation” (294; ch. 17.2.21). Ac-
cordingly, the ideal is “the ought to be” obtained through legislation. Paul Clifford meets
both of Bentham’s objects for a book of jurisprudence. The novel is devoted to explain-
ing and inquiring about what the law is. Interspersed within the depiction of “the what is
are suggestions of what the law ought to be and the reasons why.

In her introduction to The Bentham Reader, Mary Peter Mack suggests that Ben-

tham’s bridge of the gap between what is and what ought comes from The Advancement

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of Learning, in which Bacon described lawyers as working with the “is” and philosophers
with the “o t” and statesmen as the rulers of the world between (xiv). With this in
mind we can understand the “intellectual energy” Bentham gave to the maturation of “the
art and science” of legislation (Postema 266). Even a cursory reading of Bentham’s
works reveal his persistent looking forward to the “ought” and his recurrent use of the
word. And, as Mack says, “Bentham’s subject was always the law; his audience was al-
ways the legislator; and the legislator’s discourse always began with a question, that is,
with the collection of evidence, and ended with a command, that is, a substantive law, an
act of legislation” (xii). Bentham established in his earliest publication, A Fragment, his
method of working with the empirical facts of the what is to the normative judgments that
are, as Mack says “its end or justiﬁcation” (xi). Bentham wrote in his ﬁrst preface to The
Fragment that anyone speaking about the law could become an Expositor who explains
what the law is and inquires after facts or a Censor who explains what he thinks the law
ought to be and discusses reasons. The realm of the Expositor is limited to the law of the
country he reviews, but the realm of the Censor is the world because the ought to be is
universal. Thus, “To the Expositor it belongs to show what the Legislator and his under-
workman the Judge have done already; to the Censor it belongs to suggest what the Leg-
islator ought to do in the future. To the Censor, in short, it belongs to teach that science,
which when by change of hands converted into an art, the LEGISLATOR practices”
(397).38

Thus, the ideal for Bentham became statute law in a code, a “workable utopia”
from “inﬁnitely laborious detailed, empirical experience, observations, and experiment”

that ﬁlled in the chasm separating the is and the ought (Mack xix). Bentham created the

132

neologism, “codiﬁcation,” using it for the ﬁrst time in 1815. He also created another
word, “pannomion,” to refer to this comprehensive system of statutory laws that would
exclude reliance on precedent and custom of the Common Law (Weiss 449, 478). Its suc-
cess in criminal law depended upon the cultivation of the art-and-science of legislation
ﬁom direct legislation or combating oﬂmses by punishment to indirect legislation, the
transcendental branch of legislation, which combated offenses by preventive means (“In-
direct” 171). Perhaps, as Mack suggests, too much of our thinking about Bentham stems
from the thinking of James Mill, whose utilitarianism supports the commonly used pejo-
rative adjectives of “rationalist, deductive, [and] mechanical” (xxviii). Bentham, Mack
says, “was no rationalist laying down rigid mechanical laws, but a self-styled romantic
frankly chasing an admitted mirage” (x). Bentham’s utilitarian vision may be as Mack
says, “an unattainable Utopia,” brrt it would “nevertheless draw men by education and
new habit ever closer to it and ultimately transform their minds and hearts” (xix). Black-
stone said changes in the law were indistinguishable as it adapted to the slow progress of
history not through human intervention, a process he compared to “the changes in the bed
of a river” (4.33.402). He implies that aggressive interference would actually impair pro-
gress. Bentham and others like him disagreed. According to Hollingsworth, “They wrote
for a public which was every year larger and more concerned, and they gave their age
sGillething really new—a sense of conﬁdence that old custom could be changed for the
better” (9).39 The change they sought was not dependent on the passage of time and some
natural correcting of defects.
Certainly, the obvious references to Bentham and his thinking in Paul Clr'ﬂord in-

dicate that the novel shares an intellectual afﬁnity with Bentham. Paul urges “indulgence

133

to the faults of others” and, paraphrasing Bentham in “Indirect,” he declares, in support
of legislative reform or indirect legislation: “Circumstances make guilt, [. . .] let us en-
deavor to correct the circumstances, before we rail against the guilt” (452; ch. 36).
Equally tied to Bentham is Christensen’s statement that “Paul Cliﬁ‘ord even hints that if
the legal system formded itself upon man’s perfectibility rather than his innate depravity,
a utopia might resul ” (72).

The focus upon the human potential for self-improvement emerges in the second
part of the novel’s ideal that operates in conjunction with legislation. In An Introduction,
Benﬂram discussed the motive of good-will: “In a good sense, it is styled benevolence:
and in certain cases, philanthropy; and, in a ﬁgurative way, brotherly love; in others, hu-
manity; in others, charity; in others, pity and compassion; in others, mercy; in others,
gratitude; in others, tenderness, in others, patriotism, in others, public spiri ”(10.25 109).
He said the “the dictates of utility [. . .] are the most extensive and enlightened (that is
well-advised) benevolence” (10.36 117). According to Postema, Bentham believed that
“it is possible to arrange the circumstances within which a person lives and works such
that benevolence and semi-social motives can be cultivated and given an opportunity
genuinely to determine action” (3 83). Bentham wrote in An Introduction that private eth-
ics were “the art of self government” (17.3 282) and go “hand in hand” with legislation in
its concern with the “happiness and actions of every member of any community” (17.8
285). However, private ethics should govern the rules of beneﬁcence, not self-regarding
motives coerced by legislation (17.19 292), but, as Steintrager points out, the legislator

can indirectly “educate the people to the beneﬁts of acting benevolently, to show them

134

how it is in their own interest to pursue the interest of others” (39). Mack summarizes
Bentham’s application of law and ethics as:

one subject, law or ethics (for ethics is the general art-and-science, divided under

his bifurcate system into private ethics or morals and public, or legislation), the

all-comprehensive art-and-science of morals and legislation; one audience, the

legislature; one set of values, the greatest happiness of the greatest number. (xxi)

Bulwer-Lytton’s period as a Benthanrite was brief, and he did not write another
novel about “the immediate imperfections of contemporary society” (Cazamian 50). In
England, Bulwer-Lytton admitted he did not agree with all of Bentham’s utilitarian
points, but said because of him, “the prevailing spirit of the age” is “the spirit of examina-
tion and questioning” (319). Furthermore, Bulwer-Lytton included in England an appen-
dix written by Mill in which Mill credited Bentham with setting the example “of treating
law as no peculiar mystery, but a simple piece of practical business, wherein means were
to be adapted to ends, as in any other arts of life” (Appendix B 411). Bulwer-Lytton rec-
ognized Bentham for his principle of philanthropy, “a paramount regard for the multi-
tudes rather than for sectarian interests” (318) and for “combin[ing] what had not yet
been done, the spirit of the Philanthropic with that of the Practical” (318). In England he
described benevolence as “the great prevailing characteristic of the present intellectual
spirit [. . .] (289).

Cazamian writes that after 1830 the “exertions of the philanthropists (like those of
the utilitarians) were to bear fruit”(49). Paul Cltﬂ‘ord is signiﬁcant as a utilitarian novel,
Cazanrian argues, because it “marks the point when utilitarianism became genuinely in-

ﬂuential in literature [. . .]” (41). He also questions whether “philanthropic utilitarianism

135

would have been better expounded by some other novelist” because “the literary medioc-
rity of Paul Cliﬂord is closely akin to the psychological character we found to be preva-
lent in the weaker hangers-on of Bentham and the utilitarian temperamen ” (50). Still,
Cazamian points out, the novel ends on a “Utilitarian note” with a quote from the eight-
eenth-century radical John Wilkes: “The very worst use to which you can put a man is to
hang him” (46; Paul Cliﬂord 452; ch. 26). Granted, the novel does not inspire the readers'
emotional attachment that Dickens inspires or the intellectual depth of Eliot’s later nov-
els. The novelist’s style is ornate, the action melodramatic, and his characters make
speeches instead of conversation. Even so, its problem/solution reform message and af-
ﬁnities to Bentham is clear. Nineteenth-century readers would not miss the novel’s mes-
sage. It is signiﬁcant more for what it says and its attempts to implement reform rather
than for the ways in which it is said.

Although the reference is to England, Peter Graham’s praise of Bulwer-Lytton for
giving life to the ideas of “dry Utilitarian prose” and presenting argument through exam-
ple (157) equally applies to Paul Cltﬂord. The utilitarian note at the novel’s conclusion is
more than a reference to usefulness of things or deeds because utility extends to how
much these things or acts contribute to the maximization of happiness. “The science of
which the basis has been investigated in this work can be pleasing only to elevated souls
who are warmed with a passion for the public good,” (“Indirect” 188) Bentham wrote
referring to legislation. “Passion,” Tomlinson responds to Paul’s vow that he always will
resist laws that discriminate against the friendless and the poor, “is the usual enemy of
reason—in your case it is the friend” (335; ch. 18). Twenty years after Lucy’s departure

from England to meet Paul, they are ﬁnancially secure and safe in a new country that will

136

not prosecute Paul for his past oﬂ’enses; yet, his passion survives. The community re-
spects him for establishing a hospital, redressing public grievances, 40obtaining popular
and public beneﬁts, and using his wealth for “the most kindly benevolence” (452: ch. 36).

The Newgate novel, as previously discussed, was controversial because of its per-
ceived potential to inﬂuence conduct. Paul Cltﬂord employs a tradition established in
seventeenth and eighteenth-century novels about criminals and criminality. As Lennard
Davis writes in Factual Fictions: The Origins of the English Novel, “The formula for cre-
ating a criminal in the eighteenth century was to take a youth, have him read novels,
which action leads him to crime, prison, and the gallows” (125). However, Bulwer-
Lytton’s novel cites instances of both the negative and positive inﬂuences of reading
novels. As a child, Paul Cliﬂbrd was absorbed in reading about the “great highway man”
Richard Turpin (239-40; ch. 2). Even when Mac Grawler introduces him to more formal
studies, the life of the famous criminal is “an ominous affection [. . .] a study by day, and
a dream by nigh ” (244; ch. 3). After Paul quarrels with his foster mother his teenage
imagination is a mix of thinking he can ﬁnd and live in a cave like Dick Turpin (some-
thing he actually emulated as a highwayman) and a desire to “seek his fortunes alone, af-
ter the manner of the ingenious Gil Blas, or the enterprising Roderick Random” (250; ch.
4).

Paul threw down his Turpin stories and took up novels, drama, and poetry only af-
ter Tomlinson impressed him with his dress, skill with words, lifestyle, and, signiﬁcantly,
praise of learning: “Know that in this country, genius and learning carry everything be-
fore them. [. . .] Learning is better than house and land.” (246; ch. 3]. Although the narra-

tor says sarcastically, mocking the novel’s critics, that Paul’s new literary pursuits “were

137

scarcely of that nature which a prudent preceptor would have greatly recommended”
(246; ch. 3) and that “literary avocations” seemed “proﬁtless,” he suggests Paul would
gain “a reﬁnement in his tastes,” and “a tone of enterprise and of thoughtless generosity”
(247; ch. 3). Later, when Paul naively expected Pepper to do the right thing and appear
and confess his guilt to obtain Paul’s release, the narrator attributes it to his education:
“the same ﬁne theories of your ‘moral rogue’ that possess the minds of young patriots
when they ﬁrst leave college for the House of Commons, and think integrity a prettier
thing than ofﬁce” (266; ch. 7).

One way to prevent the novel’s negative inﬂuence was to limit the reading public
by censorship or through limiting educational opportunities for the lower classes. Ben-
tham wrote in “Indirect” that one of the means to inﬂuence the will was to provide exam-
ples that would “strengthen the impression of punishment upon the imagination” (178;
ch. 3). Bentham also encouraged the cultivation of literature as one of the “innocent
amusements” which gives pleasure and weakens “dangerous inclinations” (180; ch. 4).
He opposed government censorship because it “is impossible to measure it, because it is
impossible to tell where it ends. It is nothing less than the danger of stopping the whole
progress of the human mind in all its pa ” (176; ch. 2). The only censorship Bentham
condoned was “that of the enlightened public, which discountenances false and danger-
ous opinions, and encourages useful discoveries” (177; ch. 2) and in domestic households
by the head of the family (184; ch. 22). In “Indirect” Bentham also called for government
intervention in education “in order to direct the course of the inclinations towards those

tastes most conformable to the public interest” when the parents could or did not provide

138

for their children (184-85; ch. 22). Chresomathia (1815) is Bentham’s proposal for a sys-
tem of education.

Paul Cliﬁbrd also participated in the nineteenth-century debate about the literacy
of the poor. When Paul turned to gambling, Mrs. Lobkins blamed it on his education and
“grievously upbraided herself for her former folly, in seeking for a superior education for
her protégé. ” According to the narrator, “In like manner, when a man who can spell
comes to be hanged, the anti-educationists accuse the spelling-book of his murder” (253-
54; ch. 5). A minister Paul meets tells him that crime “comes of educating the poor.” He
fears the critical thinking skills some learn from education: “The moment they pretend to
judge the conduct of their betters—there’s an end of all order? [sic] They see nothing sa-
cred in the laws, though we hang the dogs ever so fast; and the very peers of the land,
spiritual and temporal cease to be venerable in their eyes” (294; ch. 11).

As Davis points out, seventeenth and eighteenth-century novels about crime and
criminals possess two forms of doubleness. Although the criminal is an “example of sin-
fulness, evil, and degeneration” to be avoided, the criminal’s repentance was to be imi-
tated (Davis 126). Similarly, although criminal activity may be interpreted as social pro-
test, the hanging and/or repentance of the criminal support that repressive social control
protested against. In other words, the novels threatened the established order by fueling
protest and inspiring a lower-class sympathetic alliance with the criminal, but they also
legitimized the established order by disposing of the criminal in accordance with the con-
trolling powers (Davis 136). Bulwer-Lytton’s utilitarian view works a bit differently.
Paul is a sympathetic criminal. He encourages social protest through blaming circum-

stances and the harsh laws for his fate as demonstrated in the ﬁnal trial scene. He atones

139

through restitution to his victims, something much more utilitarian than execution or life
in a transportation colony. He never repents for his indignation, just his way of express-
ing it. Neither Paul nor the novel legitimates the established class order or the existing
laws. The legislative process remains intact, but the process itself has not been the subject
of criticism. Paul’s indignation and the novel’s complaints about the laws and social im-
balance remain unchanged. Paul, in accordance with Benthamite philosophy, converts his
indignation to its best use. In America, Paul is respected “not only for the rectitude of his
conduct, but for the energies of his mind, and the purposes to which they were direct ”
(451; ch. 36). This is the pleasure of the best use as opposed to the pain of the gallows.

Similarly, the answer to the critics of the novel form and the message to novel
writers is one of best use. The narrator presents a case for an evaluative theory of the
novel that should be premised on whether its inﬂuence directs readers toward vice or vir-
tue. The illustrations of how Paul’s early readings had “so strong a hold” (383; ch. 4)
upon him buttress the text’s argument for the persuasive energies of the novel and Paul
Cliﬂ'ord as a novel is an attempt to demonstrate how those energies should be best ap-
plied. By doing so, the text makes itself an example of its own argument.

Bulwer-Lytton used idealism to argue for Bentham’s concept of the ideal. He also
highlighted Bentham’s ideas using characteristics of idealism in ﬁction while borrowing
from Bentham’s writing style, medical metaphors, and rhetorical strategy as well. Sig-
niﬁcantly, he expanded Bentham’s words on writing about jurisprudence to transform the
novel into a book of jurisprudence that is both an expositor describing problems or the
“what is” about law and novels and a censor presenting solutions or the “ought to be” for

both legal reform and novel writing. In this way, the novel becomes authoritative and

140

persuasive in the manner of a book of jurisprudence. Its mix of rhetoric inserted like mini
essays within the ﬁctional account combines the impression left by storytelling with the
argumentative strategies of nonﬁction exposition to insure that its message is unmistak-
able. The novel pushes the process another step by depicting the operative ideal of the
“ought to be.” In other words, the imaginary depiction of the “ought to be,” the ideal, en-
ables readers to imagine the ideal as something workable and practical, closer to the ac-
tual and the “what is” than something only in a utopia or the distant future. In Paul Clif-
ford, the novel becomes even something more than a book of jurisprudence because it
includes within its jurisprudential functions considerations of private ethics and, most

particularly for Bentham and Bulwer-Lytton, of benevolent acts for the community.

141

Notes

l Paul Cliﬂord was Bulwer-Lytton’s ﬁfth novel and “an immediate commercial
success,” selling out all copies on the ﬁrst day of publication, April 30, 1830. Recognized
sources for the novel are William Godwin’s An Essay Concerning Political Justice
(1793) and Bentham’s “Indications Respecting Lord Eldon” (1825) (Campbell 38).

2 See Margaret King and Elliot Engel, “The Emerging Carlylean Hero in Bulwer’s
Novels of the 18308.”

3 Hereinafter Commentaries.

4 When possible, I cite ﬁrst volume then chapter and section or paragraph number
followed by the page number of the edition used for the works of Blackstone and Ben-
tham.

5 Hereinafter “Indirect.”

6 Hereinafter An Introduction.

7 Name used for hangrnen. The original served during the time of Charles II
(Hollingsworth 7-8).

8 Robert Owen (1771-1858), one of the founders of British socialism “believed
that people’s characters are formed by hereditary and environmental forces” (Prall 590).

9 In George Eliot’s Felix Holt, The Radical, this argument is reversed in favor of
individual improvement that will eventually result in improvement of the institution.

1° My thanks to Dr. James Hill for pointing out this debate to me.

n The author also appears to be reluctant to give up the argument that gentleman

are born by showing that despite the environment in which he was raised Paul bears the

142

demeanor and manners of a gentleman: “[h]e was especially formed for that brilliant
world from which his circumstances tended to exclude him” (340; ch; 18).

'2 See Ned Pepper’s song : “Commerce and law have a method of thieving/
Worse than a stand at the outlaw’s tree” (387; ch. 29). See also “the painﬁrl comparisons”
in “The Libellous (sic) Parallel of Augustus Torrrlinson” introduced as “A wonderful like-
ness between the life of the gentlemen adorning his Majesty’s senate and the life of the
gentlemen whom you are conducting to his Majesty’s jail” (402-03; ch. 31).

'3 Postema writes that Bentham’s approach to the Common Law was not “merely
a detached philosophical assessment of a jurisprudential theory. It was a direct challenge
to the ruling political ideology” (311).

‘4 Hereinafter “Indications.”

'5 See also “Truth versus Ashhurst” (1792) for similar attacks on the court’s de-
lays and fee requirements.

'6 These comments also tie to the novel’s inheritance from John Gay’s The Beg-
gar ’s Opera and Henry Fielding’s Jonathan Wild, “which use[s] a criminal career to il-
lustrate the thesis that only social circumstances and our mental prejudices make any real
difference between a great rogue and a great conqueror” (Cazamian 45).

’7 Other gang members also caricature government ofﬁcials that the public would
recognize and the king. Bulwer-Lytton’s wife actually provided a key for the depictions
(Campbell 3; Hollingsworth 79). Bulwer-Lytton mainly sketched “Old Tories, Canningite
Tories, and men who accept none of the duties of their rank” (Hollingsworth 74).

’8 In Factual Fictions: The Origins of the English Novel, Lennard J. Davis dis-

cusses the inﬂuence of sympathy for the criminal upon lower class social protest.

143

'9 At Paul’s talk of more violent social protest, the narrator places a footnote to
remind readers that “these sentiments are Mr. Paul Clifford’s—not his” (335; ch. 18).

20 For a concrurence, see Gerald J. Postema Bentham and the Common Law Tra-
dition 311.

2‘ Hereinafter A Fragment.

22 According to Fred Rosen, “In all his writings Bentham emphasized the impor-
tance of the careful use of language and paid great attention to the deﬁnition of terms”
(xxxiv).

23 Interestingly, as an additional comment on the degeneracy of literary critics,
Paul’s former teacher, Mac Grawler, robs Paul of the fees owed him as a literary critic,
becomes a cook for his gang after Paul saves him from arrest for pickpocketing, informs
on Paul to the police, and testiﬁes against him. At the end of the novel the former editor
of the literary magazine earns his living as a hangman.

24 Bulwer-Lytton obviously was familiar with Bentham’s writings. He refers to
Bentham’s inﬂuence on the intellectual climate in England and the English. He also re-
fers to Bentham in his third novel, Pelham (1828) The hero, Pelham, reads Bentham and
Mill at the direction of his uncle who want to show him “how inseparably allied is the
great science of public policy with that of private morality” (144; Vol. 1, ch. 36).

25 In some respects, Tonrlinson is Bentham’s antithesis. Tomlinson’s moral phi-
losophizing appears indicative of Bentham’s complaint against those who base moral de-
cisions on their own sense of right and wrong (An Introduction 2.14d 24). The highway-
man, relying only on theory, denounces democracy, another Benthamite cause, and de-

scribes a scoundrel who cheated him as reading Sir Francis Bacon’s On the Advancement

144

of Learning, an inﬂuential source of Bentham’s thinking. In Bulwer-Lytton’s social his-
tory, England and the English,” written three years after Paul Cliﬂord, Bulwer-Lytton
states signiﬁcant disagreements with Bentham’s moral philosophy. His treatment of
Tomlinson as a comment on Bentham’s moral philosophy and systematics, though
closely allied to Bentham’s legislative philosophy, is a subject for a study beyond the fo-
cus of this endeavor.

26 This disruption and restoration argument in British legal history is discussed
more extensively in the chapter on George Eliot’s Felix Holt, The Radical.

27 For a different approach to the role of the past in the novel see Allan Conrad
Christensen’s Edward Bulwer-Lytton: The Fiction of New Regions.

28 The way Bulwer-Lytton manages Lucy’s conduct after she has inherited both
William Brandon’s and Joseph Brandon’s estates is interesting. First, the novelist found it
necessary to say that because so few people knew that William Brandon was Paul’s le-
gitirnate son, Lucy inherited his estate. She circumvented Paul’s right, but avoided the
legal complexities of proving that William was Paul’s father and that Paul was legitimate,
and the possible complications of a convicted felon inheriting substantial sums. The nov-
elist risks no impropriety, legal or otherwise, by depicting a convicted felon sent to a
transportation colony as a rich man which we see later in Dickens’ Great Expectations.
Secondly, she sells the family estate to the nearest relative instead of just any buyer.
Through this sale, the novelist continues the tradition of keeping property in the family as

if trying to ease the break she and Clifford are making ﬁom England.

145

29 Bulwer-Lytton, like the later Henry James, according to Stang, considered the
novelist/narrator an historian and would object to Trollope’s intrusions reminding the
reader that the narrative is ﬁction (13).

30 True imitation would be closer to the experimentations of the modernists
through stream of consciousness and attempts at simultaneous representation.

3‘ Christensen correctly identiﬁes a pattern in some of Bulwer-Lytton’s novels in
which “his Romantic idealism sought [. . .] to assimilate Benthamism” (xiii). Christensen
considers the idealism of Bulwer-Lytton’s heroes a tragedy, and the union of utilitarian-
ism and idealism a contradiction in which “there can be no stable reconciliation” (74).
Brantlinger’s suggestion that Bulwer-Lytton’s “romantic realism [. . .] is superﬁcially op-
posed to, but still related to, the reform idealism of the Bentharnites” (280 n21) is closer
to the position of this chapter.

32 See also Mary Peter Mack’s Introduction to A Bentham Reader: “There is no
[mowing without doing, theory without practice, science without art” (xi).

33 However, a utopia might be more consistent with Bentham’s imagination. In
addition to constructing plans for the perfect prison, the panopticon, Bentham designed
perfect villages in lieu of workhouses, which he called Panopticon Hill Villages. How-
ever, he was not successful in persuading the enactment of these innovate schemes (Mack
xix-xx).

3'4 For some additional thoughts on emigration as an ending to social reform nov-
els see Culture and Society: 1780-1950, Raymond Williams (98, 103).

35 All of Paul’s compatriots escape prosecution. The legal disposition of the

criminal cases versus the literary disposition is discussed in the concluding chapter.

146

36 For more on these distinctions see Joel Feinberg and Hyman Gross, Philosophy
of Law and H. L. Hart “Positivism and the Separation of Law and Morals,” Essays in Ju-
risprudence and Philosophy.

37 For Bentham the question of morality was not its tie to Christianity. He pos-
sessed a “deep-seated hostility to religion in general and toward the Church of England in
particular” (Steintrager 16). For him, morality is obtained through the principle of utility.
Religions he said “inspire doom” (“Indirect” 182).

38 This division appears in Trollope’s Orley Farm. Von Bauhr is the Censor with
his view of universal reform, while the representatives of the other countries are the Ex-
positors with their presentations of the operations of their legal systems.

39 For a less enthusiastic view of Bentham’s thoughts and inﬂuence see Richard
A. Cosgrove, “Jeremy Bentham: The Light of Utility,” Scholars of the Law: English Ju-
risprudence from Blackstone to Hart and Michael Oakeshott, “The New Bentham,” Ra-
tionalism in Politics and Other Essays.

40 Critics considered other subgenres as well as novels about crime capable of cor-
rupting readers. The Romance and Gothic novels supposedly implanted frivolous and

dangerous thoughts in young women.

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Chapter 3
Thinking About Proof in Wilkie Collins’ The Woman in White

Walter Hartright, the narrator of Wilkie Collins The Woman in White (1860), be-
gins the Preamble of the novel with the words, “This is a story of what a Woman’s pa-
tience can endure, and what a Man’s resolution can achieve.” He also states that the
events in the story “might have claimed their share of the public attention in a Court of
Justice” but did not because of the law’s standards of proof and the required expenses.
Consequently, he intends to tell it in the manner that “the story of an offence against the
laws is told in Court” (33). His statement contends that the legal system has denied him
assistance and that he intends to tell a story of self-help to obtain justice.

This discussion of The Woman in White focuses on three aspects of the novel bor-
rowed from the legal system: its method of proof, its presentation of proof “like a story,”
and the historically necessitated consequences of facts proven or the concept that a
chronological collection of causally connected past facts necessitate certain consequences
or a universal conclusion. They are devices intended in both the world of Collins’ novel
and the world of the law to make accounts of past events factual and probable. Hartright
appropriates the rules regarding legal proof and claims to make them the rules of the
novel, a twist on the more common approach of the law and literature method in which
literary theory is more likely to be applied to legal texts. The product of Hartright’s ef-
forts is a self-authenticating literary/legal text that simultaneously provokes suspicions
about its claims of factuality and truthfulness. At the same time, the novel realistically

represents the uncertainty of facts and truth.

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Incorporating a legal model into a novel supposedly adds legitimacy to what the
novel says. It presupposes a higher standard of proof and attention to facts in the ﬁctional
form than the text normally might use. The Woman in White as a sensation novel depicts
events in the Victorian world that the contemporary literary realists ignore, kill, or deport
as the atypical or the other. To counter realism’s claim of plausible depiction of actual
ordinary events, the sensation novel argues that what the realistic novels ignore or expel
is equally real. To prove that position it must meet a higher standard of representation.
That representation in The Woman in White depends on adherence to the legal model of
telling stories and its burdens of proof. The legal model also assists the position of the
sensation novel’s limited narrator.

However, instead of a story ending with the sense that the truth emerges, the
novel concludes with a sense that the truth remains unknown and that the reason and
logic of the rationalist tradition of evidence as a vehicle of objective reality is a product
of class and power, vulnerable to manipulation and misuse, and incapable of determining
a probability of truth. Therefore, the legal ﬁamework lessens the legitimacy or realism of
Hartright’s story because the model is defective. Yet it does not lessen the novel’s posi-
tion as a sensation novel because in demonstrating weakness in one of society’s highest
institutions, which is near rmthinkable, the novel becomes a realistic depiction of the le-
gal system’s operation. This realistic depiction of what lies beneath the surface of the le-
gal world is one of the sensational elements of the novel, as is the lingering sense of truth
untold. Thus, the defeat of the legal model adds to the sensational element of the novel as

well as to its claim to be more realistic than realistic novels.

149

More speciﬁcally, the narrator’s analogue to the legal framework in presenting a
series of narrators to tell their part of the story in the chronological order in which the
events occurred, as if they were witnesses testifying at a trial, is supposed to establish in a
progressive format logical connections, using the rationalist tradition of evidence, that
lead to the truth. Hartright’s selection of narrative testimony and his very direct opening
annormcement/ statement of what the story is about activates preconceived notions about
stories and raises expectations of what Hartright’s story will prove. It conceals the ma-
nipulation and artiﬁciality of linear narrative order and ignores the actual disorderly
events in human lives, including the intervention of unrelated and unconnected accidents
and coincidences. Hartright’s strategy contributes to the unreliability of his story because
his connections appear too well ﬁtted to accept. His free proof, or excluding few details
in the storytelling, provides information raising inferences counter to what Hartright
would have readers believe and therefore exposes his narratives and overall story to chal-
lenge. Yet again, the defects of Hartright’s strategy buttress the sensation novel’s icono-
clastic attitude to the Victorian world and its favored novels of realism by demonstrating
that narrative detail does not depict objective reality, but subjective reality, and is framed
by partiality, prejudices, and self-interest. The transparency, in the sense of being easily
challenged, of both the individual narratives and the overall story they compose actually
renders a realistic account of their world and demonstrates one way in which narra-
tors/novelists construct stories.

Hartright’s opening statement about patience and personal resolution implies in
the former a teleological attitude and in the latter individual independence and self-

conﬁdence. As such, it establishes an a priori theory which raises expectations of the

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conclusions readers should form at the end of the novel because it draws upon their liter-
ary sense of how stories go together to form meaning. Patience ties to the narrative
method of gradual progression toward the right conclusion. Resolution relates to the
ﬁxity of intent, the purposefulness toward guaranteeing that the conclusion sought will be
obtained. Combined, they imply that self-control, persistence, and steadfastness toward a
goal will ultimately bring success or just ends. They also imply personal responsibility
and self-help that may or may not be within the boundaries of conventional rules. The
story is about Marian Halcombe’s patience in obtaining revenge against Count Fosco’s
liberties toward her and Hartright’s resolve to punish the conspirators and obtain a form
of justice. It becomes an account of several people involved in various methods of self-
help that either are on the edge of violence or do erupt into violence and how they justify
their actions or remain indiﬂ‘erent to any moral justiﬁcation.

Hartright’s multiple self-help devices self-authenticate his text in the same way
the devices work in legal texts. The devices are auxiliary texts within the text. They are
the source of textual authority, not the author of the text. The written words represent the
truth because of external forces acting within and upon them. While pursuing the con-
spirators, Hartright regards himself as the agent of divine law, suggesting that his quest is
morally worthy, sanctioned by the highest law, and toward a righteous end. Adopting the
form of a legal text for authenticity associates his story with authority and power. Yet,
despite an overwhelming dependence on these devices in law, literature, and life, the
story proves that they are not indicators of truth or reality. Therefore, Hartright’s text be-
comes rmreliable because the authoritative systems he employs for self-authentication

and, most importantly, their texts are unreliable.

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As a quasi-legal document and a ﬁctional text, The Woman in White is a unique
text from a law and literature perspective because it encompasses both law in literature
and law as literature, the two branches of law and literature. Collins’ novel incorporates a
legal method as a joint literary and interpretative device that is a trope on both ap-
proaches of this interdisciplinary movement. The importance of the text lies not in what it
says about law, but how it uses law and how legal methods and analysis authenticate the
story or sway its interpretation. It applies legal analysis to a literary text instead of apply-
ing literary analysis to legal texts—something that is more often the work of law as litera-
ture. The introduction of facts as if presenting evidence at a trial, the multiple narratives
like a string of witnesses in a case, and the narrative form of testimony all mimic to some
degree the legal method of proof.1 The text becomes a legal document similar to the tran-
script of a legal process—a confession, an inquest, a part of a trial. It narrows the distinc-
tion between the ﬁction of a novel and the nonﬁction of legal texts and the devices they
employ to prove their authority, to speak with an authoritative voice, and to appear real or
truthful.

Walter Hartright, the main narrator and editor of the other narratives that com-
prise the novel, is a young drawing teacher from London who is hired to teach two half-
sisters, Laura Fairlie and Marian Halcombe, at their home in Cumberland, Lirnmeridge
House, where they live with Laura’s eccentric and self-obsessed uncle, Frederick Fairlie.
Marian is poor, but Laura is heir to the Fairlie fortune. Laura has reluctantly agreed to
marry the older Sir Percival Glyde because it was what her dead father wanted. The night
before his departure for his new job while walking in north London, Hartright meets a

yormg woman dressed in white who has escaped ﬁ'om an asylum and who refers to the

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kindness of Laura and Marian’s mother, who is also deceased, to her as a child. That in-
cident begins a series of incidents that raise suspicions of a connection between the
woman in white, Anne Catherick, and Sir Percival. The woman, who resembles Laura,
appears in Limmeridge and attempts to prevent the wedding. Alter Hartright leaves his
position because he has committed the mistake of falling in love with Laura and follow-
ing the wedding when Laura and Marian move to live at Sir Percival’s home, Blackwater
Park in Hampshire, the suspicions continue. Complicating the situation is the discovery
of Sir Percival’s indebtedness, his ill temper, and his intent to obtain Laura’s fortune,
something that requires her consent or her death. Furthermore, the household is domi-
nated by the presence of a mysterious Count Fosco ﬁom Italy to whom Sir Percival is
attached and whose wife is Laura’s aunt. While Marian is recovering from an extended
illness, Laura is reported dead in London and a woman identiﬁed as Anne Catherick is
returned to the asylum. First Marian and then Hartright attempt to prove that the woman
Marian ﬁnds in the asylum is not Anne, but Laura, and that Sir Percival and Count F osco
have conspired to steal Laura’s identity and her fortune.

The mainstream legal framework Hartright adopts to tell the story supposedly en-
forces his promise to present the truth directly and intelligibly. In its claim to truth and
therefore, reality, the novel adopts the assertion of the realistic novel tradition while si-
multaneously expanding that assertion to include an additional real element, the sensa-
tional.2 The sensation novel shows that the correspondence to life of the realistic tradition
is something more than the observations of ordinary daily life. The appearance of the
mysterious lady in white, Anne Catherick, to the narrator as he is walking late one night

at once introduces the sensation aspect and suggests that such events, though extraordi-

153

nary, can and do happen. Thus, the sensation novel is, as Winifred Hughes states in The
Maniac in the Cellar: Sensation Novels of the 1860s, a “mixture of different ‘realities”’
(17). But, the sensational realities are earthbound, levels of the natural, not the supematu-
ral. Jenny Bourne Taylor writes in the introduction to another Collins’ novel, The Law
and the Lady (1875), that the sensation novels “blurred the boundaries between the
strange and the familiar [. . .]. They transposed the disturbing and exotic elements of
Gothic ﬁction, the sinister city underworld of the crime, or ‘Newgate’, novel, and the ex-
cesses of high melodrama into the everyday domestic, familiar world of the majority of
their readers, exploiting the undercurrents of anxiety that lurked behind the doors of the
apparently secure middle-class home” (Intro. viii).

Hughes and other scholars3 note how Victorian ﬁction typically rejects the un-
derworld or “counterworld” (144) through death and destruction, or, as seen in the exile
of Lady Mason and her son in Anthony Trollope’s Orley Farm, through forms of emigra-
tion or transportation. Yet The Woman in White demonstrates that in the sensation novel
the subversive actively participates beneath the surface of and sometimes within Victo-
rian life despite attempts to conceal, destroy, exclude, or ignore it. Although the villains
Count Fosco and Sir Percival are dead at the novel’s conclusion, the Italian Brotherhood
remains in existence, the count’s cohorts are still in London, the legal system remains
susceptible to abuse and its methods of proof fallible, fallen women like Mrs. Catherick
still receive the clergyman’s bow, and perhaps the most subversive character of all in the
novel, the narrator, becomes a member of the “landed gentry of England” (645).

Not only did the sensation novel disturb middle-class images of home and hearth,

Patrick Brantlinger writes that it “broke down the conventions of realistic ﬁction” (27). In

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doing so, sensation novels eroded the perceived reality presented in the contemporary
realistic novel. Sensation novels revealed that the realistic tradition did not portray life
plausibly or as it actually was. According to Brantlinger, “They stripped the veils from
Victorian respectability and prudery, exposing bigamists and adulterers, vampires and
murderers” (26). The numerous references in the novel to Sir Percival Glyde’s exemplary
public behavior and to his friend, Count Fosco, as a nobleman, are countered by their pri-
vate conspiracy to prevent Anne Catherick from publishing Sir Percival’s secret and to
obtain Laura Fairlie’s wealth.

Hughes considers the sensational novel “an uncomfortable challenge to the under-
lying assumptions of both realism and idealism” (70). Realism actually participates in
suppressing an ever—present reality. Ifrealism is “the oﬂicial ideal” (Hughes 190) or what
might be called the best there is, the sensational iconoclastically scoffs at perceived tradi-
tion. Moreover, the vitality, persistence, and perhaps immunity of the sensational coun-
terworld and its moral ambiguities preclude any concept of the ideal as something exalted
or even achievable. In other words, the sensation novel exposes what has proclaimed it-
self as the “what is,” or the real, as fraudulent by utilizing another form of the “what is,”
or the sensational, that eﬂectively disallows for any “ought to be,” or the ideal. More sig-
niﬁcantly, the legal ﬁamework, which should have purged the subversive and brought a
return to the perceived ideal, actually increases the lurking anxiety.4 Not only is the legal
system inaccessible, as Hartright discovers, its methods are easily misappropriated. The
English bulwark and ultimate ideal of the legal system once it becomes earthbound, or is
taken into human hands, becomes malleable. The realism of the sensation novel cannot

tolerate any form of the ideal.

155

The sensation novel competed with novelistic realism, but, as Lonoff discusses, it
also looked backward to Romanticism and Coleridge’s willing suspension of disbelief
(23-24). The events and characters of the novel seem to be real. Peter Harvey Sucksnrith
writes that Collins achieves that suspension “with regard to himself in his creation of an
imaginary world because he can assume a poetic faith in its existence; while he can ex-
press this faith with an infectious conﬁdence precisely because he is conﬁdent of its simi-
larity to the real world and his own experience” (xii).

The subgenre of the sensation novel ﬂourished for only about “a decade or two”
(Brantlinger l), perhaps because of its subversiveness to the perceived “as is” and ab-
sence of the “ought to be.” Hughes attributes the subgenre’s demise to mainstream novel-
ists accommodating “the more troublesome elements” of the sensation novel (190). Not-
withstanding its anachronistic elements, the sensational novel was prophetic. Its trust in
the internal, the imagination, the consciousness founded on something besides the em-
pirical inherited ﬁ'om the Romantics, becomes the consciousness of the modem British
novel.5 The willing release to internal consciousness of intuition, suspicion, and irrational
feeling in the sensation novel bears traces of the stream of consciousness and varying
points of view later developed by Virginia Woolf and Ford Madox Ford. Its exposure of
the shadows and obscurity both within each individual and the external world anticipates
Joseph Conrad’s Heart of Darkness.

Critics of this subgenre railed against its moral ambiguities and “inappropriate
subjects” presented in a sensational manner rather than in the serious tones of moral con-
demnation such subjects deserved. Just as critics attacked the romance, the Gothic, and

the Newgate novels, they considered the sensation novel dangerous as well because of its

156

potential inﬂuence on readers (Brantlinger 5-7). According to Hughes, the sensation nov-
els brought the extreme too close to the everyday instead of keeping it remote or distant
from the real: “[T]he terrible or the improbable is something that happens to somebody
else in some other era. To let it happen to oneself, or to one’s peers or contemporaries, is
simply unthinkable” (54).

Despite the critics’ protests, Collins, along with Charles Reade, another writer of
the sensation novel, needed only to look to the “modern urban experience” around them
(Hughes 53) for their subject matter. They made ﬁction out of what was in the newspaper
daily and “on one level they could even claim that to sensationalize was to be realistic”
(Brantlinger 9). Hughes argues that Reade and Collins “in particular, profess to challenge
the realists on their own ground and to surpass them according to their own standard.
What, after all, could be more ‘real’ than literal fact?” (50). In his novel Hard Cash,
Reade includes “reports of trials at law” in a list of narratives dwelling on interesting
facts (qtd. in Hughes 53). Sucksmith suggests that Collins selected the form of this novel
because of “the inﬂuence of the sensational trials of mid-Victorian England” which
newspapers reported and “frequently illustrated” (xii). This public reporting positioned
crime and criminals on a different level ﬁom that of the earlier crime novels and the
Newgate novels. Hughes argues that the sensationalists were alert to this movement: “As
part of their juxtaposition of realistic and romantic elements, the sensationalists of the
1860s not only raise crime from its recent Newgate origins, but also remove it from the
traditional realm of kings and Chieftains and grandiose villains” (32-33). Furthermore, as
Count Fosco demonstrates in his lecture on crime and criminals, crime becomes a ques-

tion of whether the criminal is clever enough to avoid detection. That ability to outsmart

157

the police or to avoid detection for an extended time period increases the sensational as-
pect.

Because the subject matter of much courtroom action often gives the impression
of the extreme and extraordinary, the legal ﬁamework of the novel increases the sensa-
tion atmosphere. Lawsuits and criminal prosecutions often derive from what seem to be
rmbelievable events and conduct in ordinary people’s lives. The sensational lure of trials
emerges in the disclosure of private lives and secrets in a public atmosphere just as the
sensation novel publicized the underworld. That aspect attracts the public’s attention to
the legal system for the same reason the public is attracted to supermarket tabloid stories
and explains the popularity of legal settings in literature, ﬁlm, and television.

However, another reason for the public’s fascination is the sense that the distance
between the acts leading parties to litigation and their own lives is very small indeed. The
unthinkable about which the critics of sensation novels complained presents itself in the
courtroom. For this reason, spectators, who have no personal interest in the outcome of a
particular case, attend trials or view them on television, and the news media report on tri-
als because of the public’s interest. One of the reasons victims of crime seek more par-
ticipation in trials and one of the consequences of victim impact statements is to counter
the impression of disbelief in the criminal act, to reduce the perspective of the crime and
its aftermath as an aberration, an isolated incident that injures a distant or remote person.
This lessening of the distance mediates the absurdity for the victims and their families as
well as for those who hear their statements.

Hartright’s story is in a sense a statement of the impact of crime on victims, their

ﬁiends, and families. In line with the sensation novel’s unmasking of the extraordinary in

158

the ordinary, it shows that no one is immune from committing crimes or becoming vic-
tims. It also can be viewed as an account of frustration at an inability to obtain justice and
the ways ﬁ'ustration can escalate into taking the law into one’s own hands.

In addition to the sensational subjects of the legal system that make a legal
framework an appropriate atmosphere for a sensation novel, the law operates within a
strict standard of proof that is more demanding than what most individuals use in their
daily decision making. The consequences of the decisions triers of fact make regarding
peoples’ lives and property necessitates these standards. In an introduction to the novel,
Julian Symons describes Collins’ shifts in narrative viewpoint as “an ingenious way out
of some problems involved in a serial publication” and as a means to comply with the
demand of serial publication “that each installment should end on a note of suspense”
(12).6 D. A. Miller in The Novel and the Police dismisses the narrator’s “organizational

device” as “curious” and “obvious gimnrickry” because “nothing in the story ever ap-

pears to motivate it” (156). However, the legal method as an organizational process con
nects to the novel’s status within the sensation subgenre in two aspects. First, the narra-
tive format recognizes the standard of proof that the sensation novel must meet in order
to appear real. Secondly, it shores up the reliability of the limited narrator.

In order to present convincingly the cormterworld of Victorian ﬁction, what
Hughes calls “the extremes of human experience” (52), as part of the ordinary and of eve-
ryday life, the text must meet a higher standard of proof than the novel in the realistic tra-
dition. The nature of the material of the sensation novel imposes a greater risk of failure
to meet the requirements of credibility than the attempts at correspondence to life, the

plausibility to actual events, of the more restricted form of realism. To fail reduces the

159

sensation novel to the mystery and terror of Gothic ﬁction. If The Woman in White is to
meet its standard of what Sucksmith deﬁnes as the “completely convincing nature of the
events, characters, and world of the novel,” then “a certain degree of verisimilitude [. . .]
is all the more crucial as a literary strategy [. . .]” (xi). Thus, Reade and Collins “brandish
their documentation and their expert testimony” (Hughes 50). Additionally, Sucksmith
explains, “a steady accumulation of particulars, of circumstantial detail derived from the
real world” presented through the multiple narratives/testimonies encourages belief (xii).
The “detail added to detail” and the “ﬁnely conceived portraits [. . .] have the effect of
helping us to accept what might otherwise seem too implausible” (Symons 21). Setting
up the presentation of the story as an analogy to a trial, as if it were the presentation of
facts through testimony to prove a contested case, colors the evidence with a higher pro-
bative value. In addition, it provides an additional attachment of the sensational to the
mainstream world, instead of fantasy or the supernatural, because even though sensa-
tional elements are topics of legal proceedings, the legal system itself is a conservative,
historically bound, unchanging institution of society.

Thus, the standard of proof varies in novel subgenres in respect to their corre-
spondence to life. Similarly, the standard of proof is not the same degree in all kinds of
litigation because, as John Jackson and Sean Doran explain in their article on evidence,
“it should take account of the magnitude of the harm that will be caused if a decision is
wrong” or what might be called a correspondence to life’s consequences. The legal sys-
tem considers the degree of exposure “to risks of error.” In civil cases, which are usually
disputes between private parties, the risk of error is “allocated as evenly as possible” and

judgment is determined from a preponderance of the evidence. Some civil cases, such as

160

those involving change of child custody, possess a greater risk of error so the evidence
requiring such a drastic change must be clear and convincing. In criminal cases, it is
“preferable to allocate the risk of error in favour of the defendant because the risk of a
person being wrongfully convicted is considered much graver than the risk of a person
being wrongly acquitt ” (Jackson and Doran 175). This stems from the ancient debate
about presumption of innocence and the adage that it is better to let a guilty man go free
than to convict an innocent man. Thus, the standard of proof in a criminal case is a higher
degree of probability or beyond a reasonable doubt]

Since the narrator’s Preamble refers to “an offense against the law,” his story
must be a form of criminal prosecution. Hartright’s reference to obtaining justice and
punishing the conspirators throughout the novel supports this conjecture. That is what
Hartright’s story accomplishes though not through the legal process. Despite the impres-
sion that the novel is a story of Hartright’s prosecution of the conspirators, the novel also
hints that Hartright is offering a defense to charges of his culpability in the deaths of two
men. Thus the story of Hartright’s pursuit of the conspirators, his prosecution of Sir Per-
cival and Count F osco, becomes as if it were a part of Hartright’s defense to an action
attempting to hold him accountable for his self-help. From either point of view, the stan-
dard would be one of beyond a reasonable doubt.

The legalistic narrative device also combats, in part, what Brantlinger sees in
many sensation novels as a “difﬁculty in claiming authority” because of their blend of
“romance with realism, the sensational with the domestic and contemporary, [and] im-
probable or at least inﬁequent events with probable settings and characters [. . .]” (11).

Furthermore, Brantlinger explains that the mystery and secretive nature of the narrative

161

limits narrators in sensation novels. The narrator is not omniscient or all knowing if tell-
ing a story in which the narrator acknowledges being without full possession of the facts
in the novel’s world and explains how that knowledge eventually became known. At the
same time, because the narrator knows the key to the mystery and is withholding that in-
formation in order to maintain suspense, the narrator’s trustworthiness or reliability is
diminished (15). Inherent within the sensation novel is the sense of something held back
while the story progresses. Ifthe narrator has by his own admission and method of narra-
tion withheld information, no guarantee exists that he has ceased doing so at the story’s
conclusion. The multiple narrative/testimonial devices Hartright adopts relieve him of
some of that lack of credibility. They distract attention from him as the sole narrator.
Lonoﬂ‘ says the devices “eﬂace the real author by producing the illusion that the persons
in the story were responsible for writing it” (128). The device also connotes that others
besides the narrator certify the truth of the story, by their cumulative weight where the
facts in each story correspond to the facts in other stories.8 In much the same way, an at-
tonrey presenting a case does not claim omniscience. The witnesses, not the attorney, are
the source of the evidence. Credibility or trustworthiness rests on the witnesses as they
testify, and, is a question for the trier of fact.9

Simply by stating in the Preamble, “This is a story,” Hartright draws on certain
expectations about what a story does and says. Narrative or story denotes an account with
a beginning, middle, and end from which the reader will form some interpretation or at-
tribution of meaning. Furthermore, the Preamble subtly implants several theories about
how stories are structured, what they do, and what they accomplish: the linear method of

storytelling is the most easily understood and is a legal technique; personal narratives are

162

truthful, and patience and resolution result in justice for offences against the laws. Har-
tright’s chain of narratives of accumulated facts uniting as a complete story dictate what
seems to be a certain outcome, a decision that his resolution and morality have prevailed
over the evil villains. Unlike Count Fosco, who writes in his confession: “One of the rar-
est of all the intellectual accomplishments that a man can possess is the grand faculty of
arranging his ideas” (613), Hartright uses the temporal framework. Instead of a more
complex arrangement that looks backward and forward and deviates for subplots, he
plays upon the perceived human inclination to sort out events in an orderly manner.

Hartright inserts continued reminders of his story’s ﬁtting together in an uninter-
rupted series-—“the course of the narrative steadily ﬂowing on” (585), “the tangled web
will be most speedily and most intelligibly unrolled” (435), “the progress of the narra-
tive" (586). Even Mr. Gilmore, the Fairlie family lawyer, says Hartright’s plan “for pre-
senting the story to others in the most truthful and most vivid manner, requires that it
should be told, at each successive stage in the march of events, [. . .] (150). Finally, Har-
tright refers to “the necessary law of such a story as mine” (5 85) that each person’s narra-
tion is presented in the order of his or her connection to the events.

The narrative order analogy to a trial is weak because the presentation of wit-
nesses may not follow chronologically the events and witnesses do not testify in uninter-
rupted narratives. The accurate story image is that attorneys will fashion a story from the
piecemeal evidence presented during the trial while making closing arguments. Addition-
ally, advocates, like Hartright, will attempt to plant a theory or predisposition for thinking
about the case at their ﬁrst opportunity in front of the trier of fact during opening state-

ments before the presentation of evidence. Then as the evidence is introduced, the trier of

163

fact supposedly ﬁts it into this predesigrred scheme that in the novel Hartright has so
helpfully labeled. A chronological presentation of evidence during a trial might not be the
best method of determining truth or of meeting the burden of proof. The sequencing of
testimony in the order of witnesses should be determined by the nature of the evidence,
its impact upon the jury, and other factors. For instance, particularly complicated, tedi-
ous, and boring evidence might be followed by testimony that is more emotional or inter-
esting or something that establishes the human impact of the scientiﬁc evidence. For ex-
ample, parts of Hartright’s narratives are dry in the section titled “The Story Continued in
Several Narratives” in the second epoch, and Mrs. Michelson’s account rambles and in-
serts extensive opinion. But, because of Hartright’s commitment to narrative testimony
and linear arrangement, he can do nothing to insert something more interesting. Another
eﬂ‘ective maneuver is arranging the testimony so that a particularly strong witness is the
last to testify at the end of a party’s case so the words of that witness or the evidence that
witness presents is the last thing the jury has in their minds of that party’s presentation of
evidence.

Witnesses often are called “out of order” so that expert witnesses can be released
and the time clocks on which they are basing their fee stopped or so that law enforcement
personnel can return to their work. The Federal Rules of Evidence only restrict the order
of the presentation of evidence to effective interrogation and presentation for determining
truth, to efﬁciency, and to protecting witnesses from harassment or embarrassment
(McCormick 1:12). A situation in which the evidence lines up and can be presented
strictly chronologically, as the narrator does, is unusual. While those in the legal system

recognize that choices should be made about the best way of presenting a case, Hartright

164

does not. His insistence upon his method becomes an attempt to impose certainty upon its
result. Signiﬁcantly, he does move away from the strict linear presentation of witness
narratives as the novel progresses and when the readers might be so engrossed that they
do not notice the deviation.lo

Narrative in legal proceedings usually refers to the narratives in opening state-
ments and closing arguments, the statement of facts in judicial opinions, victim impact
statements, confessions, and the defendant’s presentation during the sentencing phase of
capital offense cases. Another area, and the area that generates the most controversy, is
the use of narrative to present views in legal scholarship. Catharine MacKinnon attributes
“much of the contemporary storytelling impulse” to a resistance to “the claim of exclu-
sivity of the single dominant version of social reality [. . .] (234). Enlightenment concepts
of truth, she says ﬂatten the many dimensions of reality. Testifying in the narrative form
or quasi-narrative form as seen in the novel always has been one method of presenting
evidence; however, it is not the usual subject in narratology of law discussions.

Narrative testimony differs from testimony elicited by a questioner about speciﬁc
facts. It begins with a general question establishing the witness’ personal knowledge and
opportunity to observe and whatever else is necessary to establish the narrative and the
narrator to the case being heard. Next, the witness is asked for a recount of what was seen
and heard. This kind of testimony can be more persuasive than speciﬁc questions because
it appears more naturally presented, and belonging to the witness rather than the ques-
tioner. Furthermore, it best uses those witnesses who have good memory, personality, and
effectiveness in speaking. Their narration may be more interesting and impressive and

provide a better opportunity to display their honesty and intelligence than if the witnesses

165

were simply responding to questions. The risk of such a form of testimony is rambling,
confused, and incompetent testimony. Another hazard of narrative testimony is that it be-
comes privileged over what should be the more persuasive presentation of mathematics
or statistics and scientiﬁc data.‘1 Judges have the discretion to limit or prohibit narrative
testimony.

Speciﬁc interrogation testimony, though sometimes dull, is a better method for in-
troducing complicated evidence and for keeping the witness with the bormdaries of ad-
missible testimony and what the questioner seeks to prove. Some authorities argue that
narrative testimony is more accurate because less susceptible to the questioner’s sugges-
tion, while the fully interrogated testimony tends to be more complete. Nevertheless,
even during narrative testimony, the examiner may interrupt with speciﬁc questions and
at the conclusion of the testimony ask speciﬁc questions so a witness presenting narrative
testimony does not provide a smooth uninterrupted account.12

Finally, narrative testimony is not to be confused with the open-ended questions
or speciﬁc question/response type testimony used during direct examination, which calls
for more detailed answers than the closed-ended questioning or leading questions used
during cross-examination that often require a yes or no. For example, Marian’s note to
Mrs. Catherick intending to seek validation of Sir Percival’s account of their acquaint-
ance was posed in a manner that requested neither a narrative nor speciﬁc information.
Unfortunately, for purposes of fact-ﬁnding, it was two closed-ended questions requiring
only an afﬁrmation or denial.

Despite Hartright’s stress on narrative testimony, he also appreciates the art of in-

terrogation. At the coroner’s inquest of Sir Percival’s death, he adopts the same tactics as

166

Mrs. Catherick in her ﬁrst letter, answering only the questions put to him and not volun-
teering any information obtained from his own investigation. During his exchange with
Mrs. Catherick in her home, he is very attentive to her reactions to his speciﬁc questions
and statements and skillfully orders and phrases what he says to her: “I pressed the point
farther and farther home, I went on without allowing her a moment of delay” (509). But
when Hartright meets with Mrs. Clements, he tries to induce the ﬂow of information in
another manner: “Knowing by experience that the plainest narrative attainable ﬁ‘om per-
sons who are not accustomed to arrange their ideas, is the narrative which goes far
enough back at the beginning to avoid all impediments of retrospection in its course, I
asked Mrs. Clements to tell me ﬁrst what had happened after she had left Limmeridge,
and so, by watchful questioning, carried her on from point to point [. . .] (479).l3 He gen-
tly encourages Mrs. Clements to reconstruct the past: “I felt the necessity of trying to
awaken her recollections of other times, persons, and events than those on which her
memory had hitherto been employed [. . .]” (485).

Hartright’s narratives are not transcripts of oral testimony although it is easy to be
drawn into thinking they are. They are written accounts Marian and Hartright solicited
both during and after the story’s conclusion. Writing their stories allowed witnesses to
choose their words carefully and to revise and edit their accounts. An attorney’s prepara-
tion of witnesses in order to gain familiarity with their testimonies and in order to dis-
courage irrelevant, superﬂuous, and inadmissible testimony is a form of editing. Wit-
nesses seldom have an opportunity to correct their statements made from the witness
stand. Some of the narrators do not know the nature of Hartright’s investigation and oth-

ers, like Mr. Gihnore, know the story’s outcome. In contrast, witnesses on the stand know

167

why they are there, the reason for their testimony, and usually the ending of the events of
which they were a part or witnessed. Some of them, such as expert witnesses, receive
payment for their time.

Hartright also deletes some of the testimony from parts of Marian’s diary, exclud-
ing an entire week of the chronological account between the second and third epochs, the
title Hartright gives to the novel’s three sections. His failure to obtain accounts from Pro-
fessor Pesca, Laura, one of the servants ﬁ'om Blackwater Park named Margaret Porcher,
and others is conspicuous and raises suspicions that their narratives might not have coin-
cided with the plan of his story. Despite his assertions of its necessity to tell the truth,
Hartright allows a gap in the linearity. However, a series of testimony at trial is inter-
rupted and may have gaps especially when the judge rules certain evidence inadnrissible.
What is important is the nature of the gaps. Gaps regarding irrelevant material are insig-
niﬁcant. Gaps in the elements of proof or that give the impression that something is kept
secret are signiﬁcant.

Narrative testimony, like all narrative, contains inherent credibility hazards. Even
Hartright does not accept them fully: “there was one point in the narrative which made
me doubt the propriety of accepting it unreservedly and which suggested the idea of
something hidden below the surface” (491). According to Peter Brooks in “The Law as
Narrative and Rhetoric:”

“The legal storytelling movement has tended to valorize narrative as more authen-

tic, concrete and embodied than traditional legal syllogism. But [. . .] storytelling

is a moral chameleon, capable of promoting the worse as well as the better cause

every bit as much as legal sophistry. It can make no superior ethical claim. It is

168

not, to be sure, morally neutral, for it always seeks to induce a point of view. Sto-

rytelling [. . .] is never innocent” (16).

The weakness of narrative is its reconstruction of past events. As Jackson and Doran ex-
plain, “Present knowledge about past facts, which is what much adjudication is concerned
with, is possible, but because it is based on incomplete knowledge, evidence establishing
the truth about the past is typically a matter of probabilities and the characteristic mode of
reasoning is inductive by which one starts with certain basic data and moves by way of
inductive generalization toward a probable conclusion” (173). This rationalist method of
reasoning naturally ﬁts into the orderly linear narrative assumption that if things happen
in sequence, then a casual connection exists.

When the reconstruction of past events is presented in narrative form instead of in
response to speciﬁc questions, witnesses tend to give a sense of order to past experience,
however disorderly they may have been. They impose a causal connection through what
they perceive as links in a chain of events. Jurors willingly accept a party’s argument that
all the evidence comes together like a story for the same reason. As Richard Sherwin ex-
plains in “Law Frames: Historical Truth and Nanative Necessity in a Criminal Case” a
temporal memory or desire is “so embedded in our mental representations of even ” that
it “inﬂuences the way we make sense of things” (51). We make sense of things by con-
verting those things—our perceptions and multiple impressions—into orderly narrative.
The linear story frame in collusion with rationalist thinking becomes an imperative ac-
cording to Sherwin because “a particular historical truth mandates a particular legal out-
come” (67). Without contradiction or disruption of its logical progression, a succession of

perceived facts necessitates a particular conclusion.

169

In contrast to Hartright’s style, Count F osco’s narrative tends not to arrange
events and makes no claim at doing so. Instead, the count talks before beginning to write
of arranging ideas that his narrative shows is something different from arranging occur-
rences. The complete composition possesses a temporal movement, but not a dependency
upon the chronological. It digresses for commentary and reﬂection on the past before the
events of Hartright’s story. Count Fosco does not attempt to make inferential connections
from fact to fact, event to event, or inference to fact. He acknowledges the simultaneous
occurrence of events and thoughts without forcing an order out of them. In fact, his com-
position becomes more of a playful synchronic representation of his present thoughts
about past events and his consciousness at the time than a diachronic representation. As a
chemist familiar with the simultaneity of chemical reactions, perhaps the count tolerates
spontaneity of events and ideas more easily than an historian. His composition’s disorder-
liness, in comparison to what Hartright presents as events in a more tightly organized ac-
count, does not make his writing any less accessible or less credible.

The use of narrative testimony in the presentation of evidence and a fully con-
nected narrative as the goal of the presentation of evidence has its detractors. In an article
titled “Law is not a Dramatic Narrative,” reminiscent of Virginia Woolf’s statement that
“Life is not a series of gig lamps symmetrically arrang ”(154), noted attorney and law
professor Alan Dershowitz labels the use of narrative thinking in trials a prosecutorial
device that is counter to justice. “When we import the narrative form of storytelling into
our legal system,” Dershowitz says, “we confuse ﬁction with fact and endanger the truth-
ﬁnding frmction of the adjudicative process” (101). He convincingly argues that to per-

suade a jury to decide in favor of a party because the evidence ﬁts together in story form

170

takes advantage of society’s immersion in the ﬁctional form of beginning, middle, and
end. While Sherwin is concerned about the necessary conclusion of historical truth, Der-
showitz is concerned about the importance attributed to each piece ﬁtted temporally and
causally within historical reconstruction.”

The common narrative structure of literature, ﬁlm, and television drama creates in
listeners and viewers the conception that every element in a story has meaning and that
all action is teleologically oriented. Paraphrasing a statement by Chekhov that “if you
hang a gun on the wall in the ﬁrst act, you had better use it by the third act” (99), Der-
showitz shows that the emphasis on storytelling imposes a way of thinking that expects
every element to have some bearing within the linear movement of the ﬁctional action.
Readers and viewers expect the purpose of each element in the story to be developed as
the story progresses; nothing is gratuitous or without meaning. This expectation trans-
forms random, accidental, and coincidental incidents, which have no bearing on proof,
into elements in the chain of connections establishing proof.15 It forces meaning out of
unrelated events or facts. Under this way of thinking the litigating attorney, at least the
one bringing the legal action, must be like Hartright and fashion a story based totally on
cause and eﬂ‘ect that stubbomly resists thinking in any other way. '6

Hartright’s stress on establishing linear causal connections extends to using
Providence when he is unable to fashion a logical inference or connection otherwise. Di-
vine intervention substitutes for the logical connection.l7 He attributes his survival from
three deadly incidents in Central America to divine purpose in making him an instrument
of Providence. He says that “the hand of God” pointed Marian and Laura to visit their

mother’s grave before leaving Limmeridge House so that they would ﬁnd Hartright re-

171

turned from Central America and mourning for Laura. He proclaims “the Hand that leads
men on the dark road to the future had led me [. . .]” (435). When Hartright wants to de-
ﬂeet any causal connection to his own actions, he again cites divine intervention. Assum-
ing no responsibility for Sir Percival’s death, not even the relentless tracking down of the
baron’s secret, Hartright stands outside the burned church and reﬂects that “the visitation
of God ruled it that he and I should meet” (541). Incorporating Providence into a series of
connecting links naturally leads to assuming a divine purpose in the ultimate outcome
and affects the interpretation to be placed upon it. The outcome must be what God in-
tended. If God intended it, it must be justice. Providence adds an additional teleological
dimension to Hartright’s story as well as a theological one. The deaths of the conspirators
then become not only legally just because of Hartright’s legal model, but also morally
just and the product of divine will with the infusion of Providence into the legal model.l8
Conversely, Hartright provides no explanation, providential or otherwise, for the series of
coincidences that make it near impossible to prove the date of Laura’s arrival in London
after her reported death: the destruction of the envelope bearing the postmark of the date
she left Blackwater Park and mailed it to her former governess, Mrs. Vesey; the failure of
Marian’s doctor to record a date in his treatment book; and the inability of any of the staff
at Blackwater Park to place Laura’s departure to any more deﬁnite time than within a cer-
tain week of July.

The teleological aspect of narrative also implies a ﬁnal resolution that in law be-
comes the verdict or justice. The resolution is not the story’s conclusion, but the interpre-
tation of the story and the consequences of that interpretation. Yet if the verdict stems

from reliance on narrative that erroneously forces elements into a linear causal pattern,

172

that resolution is unjust. To demonstrate the hazard of relying upon storytelling and the
mindset it imposes, Dershowitz paraphrases the words of Justice Oliver Wendell Holmes,
Jr. from The Common Law: “the life of the law should not be teleo-logic or theo-logic [. .
.]; it should be human experience.” And, he continues, law must “develop its own rules of
structure and editing—of evidence, relevance, and prej udice—by looking to the vagaries
of real human experience” (105). That experience is very different from the rationalist
tradition exalted in theory but defeated in practice as a subsequent discussion herein of
the narratives of lawyer Gilmore and others will show.

The analogy of narrative to presenting evidence in a trial also is ﬂawed in the
story’s exclusion of cross-examination. Linear storytellers do not pause for challenging
inquiries about what they said or to account for discrepancies. To an extent, some narra-
tives compensate for these defects. The narrators’ biases, failure to observe, self-interest,
submission under coercion, and other factors discrediting what they say are so transparent
that cross-examination becomes unnecessary. In others, nothing raises questions of truth-
fulness and their narrative/testimony must stand unconfronted and uncontradicted. Sec-
ondly, the novel provides no opportunity for confrontation of the accusers or testimony
on behalf of the conspirators/defendants unless Count Fosco’s coerced confession is a
statement in his defense and his wife’s biography of her husband a statement of his char-
acter, and unless parts of Mrs. Catlrerick’s story referring to Sir Percival’s motives are
exculpatory evidence on Sir Percival’s behalf.

This is not to imply that a competing story exists to Hartright’s story. It does im-
ply that the conspirators might have a point of view different from Hartright’s interpreta-

tion or his storyline or, thinking in terms of Dershowitz’s fear of the coherent narrative,

173

that the reconstruction of past events erroneously converts the extralegal into connected
inferences that become or lead to facts in the story.19 Not all trials are competing stories
in the sense that the defense must offer a narrative that counters that of the moving party,
although in some cases the opposing party does present its own reconstruction of the
past.20 Particularly in a criminal case in which the prosecution bears the burden of proof
beyond a reasonable doubt, the defense need only raise questions of reasonable doubt
during cross-examination, through witnesses testifying on behalf of the defendant, and
during closing argument. Since the defense has no burden in most criminal cases to pre-
sent evidence and the defendant can remain silent with immunity, a trial in all cases is not
an issue of competing stories. Instead, “the criminal trial is often a battle between a
prosecutorial narrative and a defense strategy of disrupting the coherence of that narrative
[. . .] (Binder and Weisberg 262). In other words, the defense, in both civil and criminal
cases, can respond with a variety of strategies to the plaintiﬂ‘ or prosecution’s evidence.
To state that a trial is a process of competing narratives is misleading. In the majority of
cases, the opposing party’s energies are devoted to confusing and disrupting the moving
party’s attempt at a linear, coherent narrative “until it is transformed into a nonsensical,
incredible tale too full of inconsistencies and loose ends to establish the onslaught of rea-
sonable doubt” or whatever standard of proof required (Sherwin 68). In effect, the de-
fense attempts to the disrupt the expectations established in the jury by the opponent’s
reliance on the narrative method. At the same time, the defense uses the expectations
raised by storytelling by demonstrating that the opponent’s facts do not ﬁt within the

standard storytelling form and therefore cannot be used against the defendant.

174

The point here is not that the conspiracy to obtain Laura’s fortune did not occur or
that Hartright did not search out Sir Percival’s secret and Count Fosco’s involvement in
Anne’s death and Laura’s commitment to an asylum. Rather it is to identify Hartright’s
story as only one version of the events that may not be complete or totally accurate. Har-
tright’s insistence on proof and accuracy should alert readers to unanswered questions.
As evidence scholar Kenneth W. Graham makes clear, “a litigant’s insistence on the
purely factual nature of the dispute often masks a weak position on the normative aspects
in issue” (1211). Like a good trial attorney, Hartright has developed a strategy based on
his theory of the case, a pre-existing pattern intended to convince and insure an interpre-
tation that coincides with his purpose. That strategy cannot tolerate contradiction or un-
certainty.

The narrator’s claim to exclude hearsay evidence regarding any “circumstance of
importance” (33) is another use of legal methods to impose legitimacy on his story. Har-
tright’s words imply that he excludes from his own narrative and those of the other narra-
tors what he calls hearsay because he wants the narrators to “speak to the circumstances
under notice ﬁ'om their own knowledge” (33). Hearsay is a statement other than one
made by the speaker while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. The reasons for excluding such statements, either written
or oral, are threefold: the declaration is not made under oath, the declarant’s absence at
trial prohibits the jury’s observance of demeanor, and the declarant’s absence prevents
cross-examination. The hearsay exception differs from the exception regarding knowl-
edge ﬁ'om personal observation or ﬁrsthand knowledge, which provides that a witness to

a fact which can be perceived by the senses must have had an opportunity to observe and

175

must have actually observed the fact. Therefore, personal knowledge cannot rest on
statements of others.21

Since Hartright and his many narrators assert the statements of others for their
truth, it would appear that what Hartright means is that he and the other narrators will
limit themselves to narrating what they personally saw and heard others do and say. The
narrators breach even this prohibition when they repeat what someone else tells them
they heard another person say or saw another person do. Marian writes what Laura tells
her Sir Percival did and said on their honeymoon. Hartright writes what Marian tells him
Count Fosco said and did when he visited her in London. Moreover, it is noteworthy that
Hartright’s judgment of Sir Percival and Count F osco stem from sources other than his
own observation. He never met Sir Percival and only saw Count Fosco near the end of
the novel. He forms an opinion and builds a case against them based on the knowledge of
others and what they say the count and baron said and did. Prosecutors and triers of fact
are similarly situated. Ironically, one of the exceptions to the hearsay rule occurs when
the out-of -court statements of another are not used to prove the truth of the matter as-
serted. Hartright could claim that he repeats the statements not for their truth, but to show
why he, the recipient of the information, acted as he did.22

Hartright’s attempt to order events through narrative, whether in testimony or by
marshalling testimonies so that they come together like a story, goes hand in hand with
the rationalist tradition of evidence.23 Rationalist thinkers “assumed that it was possible
to start with certain basic items of evidence which correspond with reality and then rea-

son from these toward a probability judgment of a past event” (Jackson and Doran 178).

176

Thus, items of evidence connect to each other and build upon themselves just as parts of
a story.

Current thinking about determining probabilities of truth replaced medieval reli-
ance on “methods of proof such as ordeal, battle, or compurgation, which did not require
a tribunal of fact to come to conclusions on the basis of evidence” and the “highly techni-
cal rules of proof based on the authority of the churc ” that followed the Middle Ages
(Jackson and Doran 172). The publication of The Woman in Write followed by several
decades Jeremy Bentham’s Rationale of Judicial Evidence (1827), one of many treatises
on evidence in the late eighteenth and early nineteenth centuries. Bentham’s work “ar-
ticulated a cognitivist, empirical epistemology which laid the foundation for many of the
epistemological and logical assumptions of standard evidence discourse in the Anglo-
American world” ((Jackson and Doran 173). In 1872, legal historian and nineteenth-
century jurist James F itzjames Stephen wrote that evidence was a subject “which reaches
far beyond the law” and explained that “the law of evidence is nothing unless it is
founded upon a rational conception of the manner in which truth as to all matters of fact
whatever ought to be investigated” (qtd. in Welsh 153).24 According to William Twining,
a theorist in the intellectual history of evidence scholarship, the dominant tradition of
evidence discourse “has largely taken for granted a set of assumptions that bear the hall-
mark of the eighteenth-century enlightenment [. . .] one seeks the truth by observation
and reason and if one seeks long enough the truth will out—most of the time” (“Evidence
and Legal Theory” 70).25

Despite the prominence and longevity of rationalism in legal thinking, its detrac-

tors point out that the “urrcontrollability of events and human actions dissipates, in rather

177

short order, the complacent ‘all’s right with the world because truth and justice will out in
the end’ attitude that the linear story would have us believe” (Sherwin 52-53).26 Count
Fosco exhibits similar thinking when he explains how “a little bit of clap-trap” justiﬁes
the “shortcomings” in nineteenth-century crime detection methods: “[O]nly invent a
moral epigram, say that it works well, and you blind everybody to its blunders from that
moment. Crimes cause their own detection, do they” And murder will out (another moral
epigram), will it?” (255).

Rationalist thinking may be maligned unfairly for promoting the potentially dan-
gerous pattern of linear narrative testimony. The logical, progressive thinking of narra-
tives is not so enticing as their seductive tendencies that suspend analytic faculties and
judgment.” Stories defer critical thinking, rather than activate rational reason as the
reader or listener is absorbed into capturing each detail, relishing the suspense, and anx-
iously awaiting the ending. Add to the account elements of the sensation novel and the
entrapment is complete. Additionally, the storyteller wants to be a good storyteller and to
meet the audience’s expectations. The desire to entertain and to account coherently for all
parts in the whole generates the potential for fabrication and forced connections. Narra-
tive, after all, is artiﬁcial and artiﬁce; no matter how committed it is to truth and the real,
it is still a product of the imagination.28

The alternative to the simplicity of linear resolutions is nonlinear complexity and
disorder. That Hartright cannot impose a completely unbroken linear order to the events
in the story veriﬁes this altemative’s participation in the story. Nevertheless, disorder is
much more difficult to comprehend and integrate into human thinking. From Hughes’

view, “the sensational novel is moving toward an absurdist perspective, in which both the

178

universe and human conduct are irrational and frequently determined by accident. For
both heroes and villains, the ﬁnal nightmare is a loss of control, not only over external
events but even over their own actions” (71 ). Sherwin concludes that: “our conventional
knowledge about causation and meaning may not be sufﬁcient.” Continued adherence to
the conventional narrative method of establishing clues or inferences and developing
facts is dangerous because as Sherwin says, it “may not do justice to what is going on in
the world. As distasteful as it may be, it suggests that it may not be possible for us to
wholly account for truth and justice within a conventional, causally sequenced storyline”
(53).

Methods of proof are important because before triers of fact, the judge or jury, can
apply legal rules to the facts of the case, the facts ﬁrst must be established or proved.
Evidence, according to Twining, is “the means of proving or disproving facts, or of test-
ing the truth of allegations of fact” (“Evidence and Legal Theory,” 66). Judge Jerome
Frank explained in Courts on Trial: “a court [meaning here the trier of fact] is supposed
to determine the actual, objective acts of the parties, to ﬁnd out just what they did or did
not do, before the law-suit began, so far as those facts bear on the compliance with, or the
violation of, some legal rule. [. . .]. No matter how certain the legal rules may be, the de-
cision remains at the mercy of the courts’ fact-ﬁnding” (15).

Knowing the legal system’s emphasis on proof, it is not surprising that the lawyer
who represented the Fairlie family interests during Mr. Gilmore’s illness, Mr. Kyrle, re-
sponds to Hartright’s initial presentation of what he thinks proves Laura’s identity with a
question, “[W]here are your proofs?” (463). What Hartright considered “facts,” were sus-

picions and inferential links from those suspicions of how Laura arrived at the asylum.

179

Hartright’s facts cannot dispute the existing evidence of Laura’s death that conformed to
the perceived tradition of the rational and logical establishment of legal proof. Mr. Kyrle
does not dismiss Hartright as much as he reminds him of the standards of proof the legal
world demands.29 The attorney is not condemning circumstantial evidence or indirect
evidence, which is evidence based on inference and not on personal knowledge or obser-
vation, but Hartright’s reliance on suspicion to form inference instead of relying on facts
that raise inferences. An example of properly working with circumstantial evidence in the
novel occurs during Sir Percival’s preparation for a trip. Marian and Count F osco return
ﬂour a walk to discover the baron’s dog-cart with a horse attached and the groom stand-
ing by. The count asks the boy if the baron is going to drive the pretty horse far. The boy
replies that he does not know. He adds that the horse, a mare named Brown Molly, is
used for long distances, while the baron usually takes another horse, Isaac of York, for
the short distances. Hearing this the Count says, “Logical inference [. . .], Sir Percival is
going a long distance today” (263). The count has no personal knowledge of the baron’s
plans, but he can infer the distance of the trip from the horse Sir Percival plans to use. Of
course, his inference can be disputed by other evidence. This inference is different from
Hartright’s method.

Marian and Hartright seem to be creating a new category of circumstantial evi-
dence in which inferences are formed from suspicions. After hearing Count F osco’s in-
ference, Marian reﬂects, “I had my own inferences to draw, from what I knew through
the housekeeper and ﬁom what I saw before me [. . .] (263). Marian infers from the mys-
terious appearance of Mrs. Catherick at Blackwater Park searching for Anne while Sir

Percival and Laura were still on their honeymoon, Sir Percival’s later agitation at learning

180

of the visit, and his unexplained urgency to take a journey upon receiving the informa-
tion, that Sir Percival’s trip is to Mrs. Catherick, who lives a long distance from Sir Per-
cival. In contrast to circumstantial evidence is direct evidence, which is based on “per-
sonal knowledge or observation that, if true, proves a fact without inference or presump-
tion.”30

Mr. Gilmore and Mr. Kyrle represent the pervasiveness of rationalist thinking in
decision-making. However, what for them is reason has become unreasonable adherence
to rules under the auspices of the rationalist tradition. The novel does not attack the legal
profession; it positively pictures the four lawyers in the novel as courteous men con-
cerned about their clients rather than the fees they will obtain from them.3 ‘ They are sub-
ject to rule-based thinking that often counters their personal opinion. Mr. Gilmore, as will
be further discussed herein, makes decisions about events in life using the same process
as he would in considering the probability of evidence. Even though Mr. Kyrle personally
believes Hartright’s account, he must express his legal opinion that the story Hartright
initially tells him does not meet the rules of legal proof.

The rules that conﬁne the lawyers mirror the structure of the legal system. Har-
tright’s words in the Preamble about the “machinery of the law” not responding to “every
case of suspicion, and to conduct every process of Inquiry” (3 3) initially appear as nega-
tive criticism, but actually positively illustrate the jurisdictional limits of the legal system.
A legal system responding to every suspicion and process of inquiry is incapable of per-
forming the purposes for which it was formed. Such dependency would overburden it and

suffocate any effectiveness. A broad jurisdiction also risks a legal system out of control

as it interferes in and regulates all aspects of people’s lives. Before a legal case can pro-

181

ceed through the process of litigation, it must allege a minimum of facts that support a
cause of action. In other words, the moving party must possess the ability to establish a
claim in a civil action or probable cause in a criminal action that entitles the party to pre-
sent evidence during trial toward meeting the standard of proof. This is what Mr. Kyrle
told Hartright. Parties initiating a lawsuit present a story in the pleadings “that is told ten-
tatively” and “consists of allegations that must still be proven” according to Peter
Tiersma in Legal Language (4). Although arguments that the standards required to initi-
ate legal claims do deny some access to the courts and for that reason should be re-
examined are meritorious, any reduction of the limitations must reﬂect on the risk of ex-
posure to frivolous suits and harassment—the constant threat of intrusion and interroga-
tion by the government and by private parties acting under the legal system’s sanction
and possible abuse of the legal process.32
The distinction between Hartright and the lawyers is one of imagination versus
reason. In attempting to convince Hartright that a logical explanation exists for Sir Per-
cival’s connection to Anne Catherick, Mr. Gilmore cites as authority his “practical view,”
saying that as a young man Hartright takes the “romantic view” (142). Hartright, an artist,
counters reason with imagination: “Judging by the ordinary rules of evidence, I had not
the shadow of a reason, thus far, for connecting Sir Percival Glyde with the suspicious
words of inquiry that had been spoken to me by the woman in white” (101), yet he cannot
divest himself of his suspicions that Anne and the baron are connected. The intensity of
his reservations about the baron is most aptly stated when Hartright declares: “If the re-
cording angel had come down from heaven [. . .] and had opened his book to my mortal

eyes, the recording angel would not have convinced me” (107). He is so at the mercy of

182

his imagination that he wonders if he “was at the mercy of any delusion which common
chances and common coincidences might suggest to my imagination?” (101). Hartright
describes his thinking as “almost like a monomania to be tracing back everything strange
that happened, everything unexpected that was said, always to the same hidden source
and the same sinister inﬂuence” (105).

Extralegal elements alone have no place in logical thinking or legal determina-
tions. Marian does not mention Anne Catherick in a letter she sends to Mr. Kyrle asking
for advice because “that topic was connected with a mystery, which we could not yet ex-
plain, and which it would therefore be useless to write about to a professional man”
(329). Even if Hartright and Marion had the opportunity to dissect and defeat the proof of
Laura’s death, Mr. Kyrle says, “[w]hen an English jury has to choose between a plain fact
on the surface and a long explanation under the surface, it always takes the fact in prefer-
ence to the explanation” (463). And Hartright admits: “In the eye of reason and of law, in
the estimation of relatives and ﬁiends, according to every received formality of civilized
society, ‘Laura, Lady Glyde,’ lay buried with her mother in Limmeridge churchyard”
(434). Mr. Kyrle tells Marian after he investigated the circumstances of Laura’s death and
before she ﬁnds Laura in the asylum that “the shocking suspicion to which she had al-
luded in his presence was in his opinion destitute of the smallest fragment of foundation
in truth” (436-37).

An example of how insistence on logic and reason actually prevents the discovery
of truth and Hartright’s determination to pursue extralegal elements to discover facts oc-
curs during Hartright and Marian’s visit to the local school, where they ﬁnd the school-

master punishing a pupil who has told a story about seeing the ghost of Marian and

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Laura’s mother by her tombstone. The schoolmaster says to “believe in what can’t possi-
bly be” is “against reason and discipline” (108). He calls the boy “too obstinate to listen
to reason” (109). Marian expresses surprise that “any of the boys had imagination enough
to see a ghost” (109). She mocks the child’s expertise of the world of ghosts: “As a ‘gha-
ist’ should be—where a ‘ghaist’ ought to be—why, you little fool, you talk as if the man-
ners and customs of ghosts had been familiar to you from your infancy!” (110). Instead of
dismissing the boy’s story, Hartright follows his suspicions that something lies behind the
boy’s imagination. He progressively accumulates facts, which lead to the discovery that
Anne Catherick, dressed in white, had been cleaning the stone.

The lawyers and Hartright represent two extremes—imagination and reason, ro-
manticism and practicality. Hartright, however, does merge the imagination with reason.
After Mr. Kyrle introduces Hartright to the legal system’s forms of proof, Hartright con-
siders “the terrible obstacles that lay across our path [. . .] in their true character” (463).
To succeed he must comply with the legal system’s requirements, which means to learn a
different way of thinking. But that does not mean he discards his imagination. The novel
shows Hartright using his imagination as he searches to ﬁnd the necessary facts for legal
proof. The novel suggests that extralegal evidence can point to admissible evidence. In
the process of discovering evidence, a release of the imagination can become a valuable
tool. Additionally, imaginative scrutiny helps to reconsider what is accepted as factual.33
However, Hartright personiﬁes Dershowitz’s fears by reifying or factualizing coinci-
dences, accidents, fate, and chance as permissible links in his path toward proof: “The

events have a meaning, these events must lead to a result” (205). He risks allowing his

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imagination to reach conclusions to the exclusion of other possibilities and then inserts
facts as he ﬁnds them to ﬁt his conclusion.

Not only do Hartright and Marian use extralegal elements of instinct, intuition,
imagination, suspicion, accident, and coincidence in searching for facts to build a case
against the conspirators, or so they can reconstruct history in a way that proves the con-
spiracy, all the narrators insert opinion and draw conclusions in their narratives. They
also insert irrelevant and superﬂuous information. The narratives do not comply with the
rules of evidence in limiting information to that which is relevant and factual, but include
extraneous details. These details add to the sense of realism, but are not consistent with
the novel’s adherence to a legal model.34 According to Twining, “the modem tendency
has been to see the law of evidence largely as a collection of disparate constraints in ﬂee-
dom of proof and ﬂee evaluation of evidence” (Theories of Evidence 12-13). Hartright’s
contention that the narratives conform to the rules of evidence can have no other purpose
than to give the appearance of the probative value of his proof because the narratives
themselves extend the rules of admissible evidence rather than adhere to them. Even so,
Hartright limits the presentation of too much evidence during the coroner’s inquest and at
the mock legal proceeding at Limmeridge House.” At the ﬁrst, he says he resisted in-
cluding his unsupported opinion during the coroner’s inquest. At the second, he says he
“avoid[ed] complicating my statement by unnecessary reference to Sir Percival’s secret”
(63 8).36 Nevertheless, after the inquest Hartright says that “In these pages, however, and
after the time that has now elapsed no such cautions and restraints [. . .] need fetter the
ﬂee expression of my opinion” (543). He adhered to the rules when they worked for his

beneﬁt, but he disregards them in order to insert all available information to present the

185

story as he wants it to be heard. The effect of these lapses in the rules of evidence actu-
ally eliminates all exclusionary rules that would apply in the presentation of narrative tes-
timony in a trial court.37

The extent to which the rules of evidence should exclude information ﬂom the
trier of fact was a topic of debate among nineteenth-century legal scholars and it contin-
ues to the present. According to Graham, Bentham advocated limiting admissibility re-
strictions because “enforcement of the substantive law was ﬂequently ﬂustrated by an
inability to reconstruct historical facts—a failing fostered by the exclusionary rules of
evidence.” Bentham believed in the “curative powers of information” (1211). He argued
that the vulnerability to false testimony through limiting the scope of rules would be
overcome in cross-examination and inconsistency with other evidence (Twining, “Theo-
ries of Evidence” 45).

Jackson and Doran write that the contemporary limiting of the scope of rules and
the relaxing of exclusionary rules “reﬂect a heightened faith in the capacity of the lay tri-
bunal to weigh certain forms of evidential material which was traditionally excluded ﬂom
its sphere of deliberation” (177). Under this argument, hearsay, which plays a major part
in most people’s decision making and learning, could be admissible. If people retain and
discard ﬁgrnents of hearsay to determine that which they consider believable in decisions
aﬁ'ecting their daily lives, they would apply the same standards as triers of fact. Regard-
ing testimony, Gewirtz writes of “increasing pressures to let ordinary life in, to allow
people to tell the stories they tell in ordinary life in the way they usually tell them” (“Vic-

tims and Voyeurs” 136).

186

Hartright ‘s ﬁctional implementation of ﬂee proof exempliﬁes two real opposing
positions in modern debate over the extent of the rules of evidence: the potential to con-
fuse and the philosophy that more is good. Proponents of both positions cite truth ﬁnding
as the premise of their position. On the one hand, the seductive overload of information
and details can obscure facts rather than assist in their determination. A ﬂamework of
excessive information and details gives the impression of credibility that does not exist or
confuses when the evidence does not convince. On the other hand, the tendency of some
of the narrators, especially Hartright and Marian, to tell more than is necessary even to
sustain the progressive movement of the narrative, provides the clues that begin to disin-
tegrate the alleged certainties of the story and in this way actually facilitate speculation
that another story exists that is closer to the truth. Furthermore, under this more is good
philosophy, facts are not extracted piecemeal ﬂom the context surrounding them, but re-
ceived by the triers of fact in a less artiﬁcial, holistic, presentation.

Truth in law means probability, not certainty; the foundation of the rationalist
tradition is weighing probabilities. Resolution of the ﬂee proof debate depends upon what
view prevails about adjudication’s purpose. According to law professor Laurie Kadoch,
the tension of adjudication’s purpose is between “a process that uncovers accuracy and
truth and is at the same time fair.” Justice can be “a search for truth, a search for justice,
or the upholding of valuable social or moral principles” (95).38 Despite what litigants may
say about truth, they seek legal redress for many other motives than determining truth,
such as an acknowledgment of wrong, an opportunity to express their grievances and in-
dignation, revenge when justice equates to an eye for an eye philosophy, and recovery of

ﬁnancial damages and restitution, as Hartright’s vagaries of motive indicate.39 Hartright’s

187

ﬂee proof, more revealing than it would have been if his story actually had been re-
stricted by the rules of evidence, has planted a persistent seed of doubt that resists attach-
ing probable truth to many parts of his story. At the same time, Hartright’s excessive in-
formation clouds his motive for telling the story and his purpose for acting as he did in
the story. In obtaining facts, presenting the facts, and directing the conclusions to be
drawn ﬂom them, Hartright uses legal methods that simultaneously support his story’s
credibility and undercut the legitimacy of the legal methods.

Whatever the boundaries of the scope of evidence, it functions on the premise that
“experience is the basis of belief; making inferences ﬂom evidence and reasoning about
disputed questions of fact involve a straightforward application of ordinary common
sense or practical reasoning” (Twining, “Evidence and Legal Theory” 70). Underlying
Bentham’s theory of evidence is the premise that “we form judgments about the truth of
statements about the real world on the basis of evidence which we evaluate in terms of
general experience” so that “experience is the basis of all knowledge” (Twining, Theories
of Evidence 20). Mr. Gilmore bases his consideration of himself as a practical man upon
his adherence to experience and the repetitions of those experiences as an evaluative tool.
At the arrival of the mysterious letter to Limmeridge House denormcing Sir Percival, Mr.
Gilmore says, “Things of this sort happen constantly in my experience [. . . ]. I don’t deny
that there are peculiar complications in this case; but the case itself is, most unhappily,
common, common-common” (142). After Sir Percival’s offer to withdraw from the en-
gagement Mr. Gilmore says, “As to my experience, few men in his situation would have

said as much” (161).

188

However, the text’s references to experience indicate that it is an illusive concept
and that the value of experience is only when conﬂicting experiences of the same kind
reveal the weakness of expectations of experiential consistency. The tension between re-
liance on experience and intuition is played out several times in the novel between
Marian and Mr. Gilmore. Marian’s intuition counters both her own and Mr. Gilmore’s
experience. Before Laura’s ofﬁcial engagement to Sir Percival, Marian questions his
suitability even though her reason and experience tell her that Sir Percival has explained
satisfactorily his connections to Mrs. Catherick. Marian dismisses her doubts telling Mr.
Gilmore, “Your experience ought to be, and is, the best guide I can desire” (158). In turn,
Mr. Gilmore says “my long experience made me attach an importance to her hesitation”
and even though he saw “no cause for any rmeasiness or any doubt” she made him “a lit-
tle uneasy, and a little doubtful, nevertheless” (159). However, the lawyer ignores his
personal experience of Marian and dismisses the discomfort he experienced because he
cannot attribute it to reason, saying, “In my youth, I should have chafed and fretted under
the irritation of my own unreasonable state of mind. In my age, I knew better, and went
out philosophically to walk it off’ (159). After Laura’s inexplicable emotional distress
about her marriage sways him ﬂom supporting the marriage to hoping it will not occur,
the lawyer condemns himself for allowing his emotions to prevail: “A man of my age and
experience ought to have known better than to vacillate in this unreasonable manner”
(168).

The sentient governs experience because the assumption of the dominant tradition
of evidence is that one seeks the truth through “observation, experience and experiment”

(Twining, Theories of Evidence 52). In trials the observations of both witnesses and triers

189

of fact are vital. Reliance on observations assumes an ability to observe and that those
with the opportunity to observe take advantage of it. Missed and incomplete observations
on the part of the observer in the novel diminish their credibility. Though in the same
room, Mr. Gilmore fails to notice Laura’s distress at her separation ﬂom Hartright and
Marian’s intervention to sooth it. Marian initially does not observe her sister’s attachment
to Hartright that was growing daily in her presence.

Furthermore, the novel also depicts how forming generalizations based on the ex-
perience of past observations cannot be trusted. Hartright’s experience of the female ﬁg-
ure led him to believe that Marian was a beautiful woman until she turned around and he
saw her face. Experience would argue that favoring the dirnwitted Anne Catherick’s
strange conduct against Sir Percival’s reputation and impeccable conduct is unreasonable.
The appearance and conduct of the recalled to life Laura, who more resembles Anne
Catherick mentally and physically than the person known as Laura, Lady Glyde, supports
those who conclude that Marian and Hartright are “at once the dupes and the agents of a
daring imposture” (434). Based on her observations of Count Fosco’s manners, consider-
ate inquiries about the welfare of others ﬂom a lady in distress to a humble servant girl,
and devoted attention to his pets, Sir Percival’s Blackwater Park housekeeper, Mrs.
Michelson, concludes that the cormt meets her expectations of a nobleman of high char-
acter.

Inherent trust in social conventions and rules of propriety also limits the legiti-
macy of observations as well as blocks the observer ﬂom any interpretation counter to
what is expected.40 Those who view the conduct of Sir Percival and Count Fosco favora-

bly are conditioned to accept good manners and rank as proof of trustworthy conduct. Mr.

190

Gilmore tells Hartright “that every explanation which can be expected ﬂom a gentleman
and a man of honour, he [Sir Percival] will readily give” (142). After hearing the men tell
a policeman that Anne escaped ﬂom an asylum, Hartright’s adherence to conventional
authority causes him to fear that he is guilty of wrongfully helping an inmate escape and
that he has allowed loose in London someone with limited capacity to care for herself
even though he “had seen nothing, in her language or her actions to justify it [. . .] (55).
Hartright also ﬁnds “[I]n external appearance Mr. Gilmore was the exact opposite of the
conventional idea of an old lawyer” (139).41

Count F osco is the most signiﬁcant and professional observer in the novel. Laura
aptly labels him “a miserable Spy” (381), someone whose duty is to observe others on
behalf of the enemy of the Italian Brotherhood and inform on his observations to “the
government which he secretly served” (585). He also becomes a spy for Sir Percival of
Laura and Marian’s activities. The count is successful because he discards the baggage of
cultural constructs such as social epigrams or moral codes. He masks himself, unmasking
everyone else.

Unfortunately, the underlying operation of the rationalist tradition permits the
subjects of observation to destabilize the experiential perspective with which they are ob-
served. As Twining explains, “every step in inferential reasoning about questions of fact
requires justiﬁcation by reference to one or more background generalizations” which “are
typically left implicit,” are seldom “value ﬂee” and “postulate a relatively high degree of
‘cognitive consensus’ in a given society” (“Hot Air” 1540). Because the subjects of the
observations, such as Sir Percival and Count Fosco, have faith in the observer’s bondage

to the rational tradition of determining what is supposedly objective truth, they succeed in

191

deceiving the observer. In other words, they purposely distort that which is being ob-
served because they correctly rmderstand how their observers will interpret what they see.
They will judge or interpret their observations based on their own and society’s heritage
of cumulative experience ﬂom repeated observations and adherence to conventional gen-
eralizations of what certain observed conduct means.

Perhaps the most successful example of this faith is Sir Percival’s conditioning
Mrs. Catherick’s ﬁnancial support on her remaining in the village of Wellington where
the scandalous combination of the two seen together at the church, Mrs. Catherick’s hus-
band’s desertion, and Mrs. Catherick’s pregnancy that could not have been conceived
during the period of the marriage resulted in the village people’s conclusion that she and
Sir Percival were lovers. Hartright almost reaches the same conclusion rmtil he realizes
the incidents were only “guilty appearances” ﬂom which were drawn a “superﬁcial con-
clusion,” and what Sir Percival expected and wanted in order to preserve his real secrets
(492).

Mr. Gilmore also demonstrates how triers of fact are susceptible to distortions
ﬂom preconceived notions. He calls his role “the purely judicial kind” (155) when weigh-
ing Sir Percival’s explanation of the Anne Catherick affair. Accordingly, he “was to al-
low all due force to the high reputation of the gentleman [. . .] and to decide honestly
whether the probabilities [. . .] were plainly with him or plainly against him” (155). His
presumption of deference owed a gentleman clouds his evaluation of the man. Mr. Kyrle
tells Hartright that juries are “bound to take facts as they reasonably appear” (463). In
other words, triers of fact are not expected to look beneath the surface of appearances or

to recognize appeals to their predispositions.

192

Certainly, those who organize legal narrative for triers of fact do so relying upon
certain expectations. They need not distort as much as design the narrative so that it ig-
nites certain expectations. For instance, something as simple as the dress and occupation
of a witness will raise suppositions of truth and, more seriously, racial stereotyping will
raise expectations of certain behavior.42

The text also works with the interpretation of individual faces to determine hon-
esty or guilt. The baronet comments that the count looks curious. Count Fosco jokes that
“an immense foundation of good there must be in the nature of a man who arrives at my
age, and whose face has not yet lost the habit of speaking the truth” (351). Hartright
watches his sister and thinks he knows her thoughts because “[f] aces sometimes tell
truth” (42). In the graveyard beside Mrs. Fairlie’s tomb Hartright says Anne’s face “be-
trayed every other emotion with transparent cleamess” (124). Mrs. Catherick’s sudden
change in demeanor to a “paroxysm of terror” at his mention of the vestry convinces Har-
tright that “she had been more than the mere witness of it [Sir Percival’s forgery]—she
was also the accomplice beyond a dou ” (514). Marian writes that Sir Percival during
his rage looked “more like a prisoner at the bar than a gentleman in his own house” (266).

Faith in detecting truth ﬂom the speaker’s cormtenance is ingrained in the law’s
method of proof as well. One of the reasons for the prohibition during a trial against hear-
say evidence is that jury members are unable to judge the credibility of the speaker’s de-
meanor. Nevertheless, the events of the text show how easily demeanor deceives even
when the observers use the full opportunity to observe. Frederick Fairlie admits that

Count Fosco “had certainly taken me in” (371). The count’s congeniality is “his deadly

smile that hides everything” (327).

193

Despite observation’s esteemed position in establishing facts and thereby truth,
the text and the law undermine that stance by the numerous devices to increase the reli-
ability of observations. Observations are reinforced so that the facts to be proved are sub-
stantiated through corroborating cumulative evidence. In other instances, observations
require propping, something to make them more substantial or worthy of belief, espe-
cially when conﬂicting observations exist. Increasing the quantity and quality of evidence
increases the level of certainty of the proof (Shapiro 192). Seeking corroboration, Har-
tright wonders: “Was it possible to strengthen the evidence by discovering any conclusive
facts in relation to the lives of Mrs. Catherick and Sir Percival before either of them ap-
peared in Old Welmingham?” (493). A coincidence persuasively validates the livery
driver’s memory of a woman named Lady Glyde because Glyde was his wife’s maiden
name. One text recording observations substantiates another text of observations in Count
Fosco’s postscript to Marian’s last entry in her journal praising “the wonderful power of
memory, the accurate observation of character” (358) and “the ﬁdelity of the portrait”
(359). He repeats these certiﬁcations in his confession.

In the absence of corroboration, the narrators in the novel, like witnesses on the
stand, insert information intended to authenticate their observations. Marian provides an
extensive description of her position on the rooftop and her ability to overhear the con-
spirators clearly and adds that her “attention was ready enough to measure exactly as it
was spoken” and that her “whole interest ﬁxed breathlessly on the conversation” as she
“followed it word for word” (344). Laura tells her sister: “My powers of memory,
Marian, are not like yours. But I was so strongly impressed, so deeply interested, that

nothing of any importance can possibly have escaped me” (304). Hartright frequently at-

194

tempts to show his fairness and thereby credibility by reminders of his veracity: “I must
not now attempt to deceive others” (106). Marian veriﬁes the trustworthiness of her jour-
nal entries by referring to earlier entries to support her memory and reminders that the
entries were made in close proximity to the time of the events they recorded.

Some witnesses think evidence of their Christian faith and therefore fear of pun-
ishment if they “bear false witness” inspires the impression that their observations are
related accurately. Mrs. Michelson tempers her entire narrative with religious extremism,
announcing in the second paragraph of her narrative that she is the “widow of a clergy-
man of the Church of England” and has “been taught to place the claims of truth above
all other considerations” (379). Hester Pinhorn, the cook in Count Fosco’s London home,
states in the beginning of her narrative: “I know that it is a sin and wickedness to say the
thing which is not, and I will truly beware of doing so on this occasion” (420). She con-
cludes the narrative with “my oath as a Christian woman, this is the truth” (425). In de-
scribing herself as a “hard-working woman” (420), the cook draws upon the Christian
work ethic to verify her character. She takes “no heed” of the days of the week except
Srmday. Hartright also incorporates this device in his references to Providence and “my
own conscience” (479).

On the other hand, limited mental capacity completely destroys a witness’ compe-
tency because witnesses must not only have the ability and opportunity to observe, they
must have cognitive competence, according to the rationalist tradition (Twining, Theories
of Evidence 52). The rationalists dismiss Anne Catherick because she is dimwitted.
Laura’s lack of memory and her adherence to a story of visiting her former governess’

house in London that Mrs. Vesey denies make it impossible for Laura to help herself le-

195

gally. Sir Percival’s servant who was at the scene of the ﬁre cannot testify at the coro-
ner’s inquest or identify his master because of the effect of the ﬁery scene on his mind.

Identiﬁcations of individuals also demand cumulative support. “Questions of
identity, where instances of personal resemblance are concerned,” Mr. Kyrle tells Har-
tright, “are, in themselves, the hardest of all questions to settle” (464). Laura’s longer ac-
quaintance with her aunt than with Hartright bolsters the aunt’s identiﬁcation testimony
according to Mr. Kyrle. That the aunt beneﬁts ﬁnancially from her niece’s death does not
concern him. Marian’s testimony is discredited as an aider and abettor to an asylum es-
capee and her own ﬁnancial beneﬁt ﬂom Laura’s restoration.

Writings can supplement and strengthen observations or stand alone as factual
evidence. The stable records show when Laura arrived in London ﬂom Blackwater Park,
a date known only by the conspirators. Hartright discovers the falseness of one writing,
Sir Percival’s forgery, because of its discrepancy with another writing, a copy kept else-
where, and thinks he can prove that discrepancy by another writing, “the necessary ex-
tract ﬂom the register” he would copy not knowing that still another form of writing “a
legally-certiﬁed copy was necessary, and that no document merely drawn out by myself
could claim the proper importance as a proof’ (530-31).

The rationalist tradition thinkers in the novel give credence to the doctor’s death
certiﬁcate even though he was only writing information someone else had told him. The
narrative on Laura’s tombstone becomes proof of her death even though it was made
ﬂom information supplied by another. These two quasi-government/ofﬁcial documents
seem to be self-authenticating. Twining explains that church and government records or

other evidence “created or preserved with a view to being used as evidence at some fu-

196

true time’ is called preappointed evidence and is “a particularly clear example of ‘con-
structing’ facts” (Theories of Evidence 31 n35). In addition, the novel shows the unreli-
ability of the custom of the church as the record keeper of births, marriages, and funer-
als.43 Despite harsh punishments for tampering with the records that acted as some secu-
rity for their reliability, the dependency upon a church ceremony limited what was re-
corded in the registers. The registers recorded church ceremonies, not the actual events of
birth, marriage, and death (Twining, Theories of Evidence 31-32, 87).

Marian and Hartright are inclined to believe Anne Catherick’s letter to Laura even
though it is anonymous and indicates mental instability, while the rational thinkers like
Mr. Gilmore ﬁnd little substantiation in it and expect an explanation. A similar division
of credibility occurs at the receipt of a brief letter ﬂom Mrs. Catherick substantiating Sir
Percival’s logical explanation. Later, when Mrs. Catherick writes to Hartright after Sir
Percival’s death and reveals Sir Percival’s secret and her actions as an accomplice, Har-
tright accepts most of the contents. An arbitrary standard regarding the truth of written
texts persists throughout the novel that depends on whether the writing coincides with a
pre-existing theory of those seeking to use them as proof.

Writing is most privileged in the novel when used as proof of identity. Writings
on bodies prove identity—the name and crest on a watch found on Sir Percival’s burned
body, the name of Anne Catherick on the clothes on Laura’s body when she entered the
asylum, the identity of the dead by a writing on a stone over their bodies. To destroy the
proof, destroys the identity.44 Sir Percival intends to destroy the forged marriage records
that had established his false identity in order to preserve that false identity, not recogniz-

ing that destroying the proof of his identity would ﬁguratively and literally destroy him.

197

The Brotherhood assassinates Count F osco and obliterates what identiﬁes him as a mem-
ber, leaving him without any identiﬁcation.”

Hartright orchestrates a public spectacle erasing evidence of Laura’s death—her
name from the tombstone—and replacing it with another name to resurrect his wife’s
identity and entomb Anne’s. His action signiﬁes more than the connection of writings to
identity. The erasure deletes a story that Hartright includes among the narratives at the
end of the second epoch as “The Narrative of the Tombstone” containing a name, and
dates of birth, marriage, and death or the beginning, middle, and end of Laura’s life. He
explains that he obtained that narrative “by taking a copy of the false inscription on the
grave before it was erased” (637). This scene acknowledges that Hartright is collecting
information for subsequent publication and that he intends to place this narrative among
the other narratives knowing it to be false.

He replaces the original writing on the tombstone once thought to be real, with
another writing now thought to be real. Hartright replaces Laura’s story with an incom-
plete narrative for Anne—“One line only was afterwards engraved in its place” (639)-—
containing only Anne’s name and a date, July 25, 1850, that is neither designated as her
beginning or date of birth nor her ending or date of death. Although it is the date Anne
actually died, it is also the clue that caused Marian to search for her sister and Hartright to
pursue the cormt and the baronet. Anne’s story is then incomplete or nonexistent. Her life
dissolves into nothing more than a clue to the conspiracy.

While writings on and above bodies have signiﬁcance in the novel, the identity of
authorship or signatures on writings bear little consequence. Mrs. Catherick’s letter to

Hartright is unsigned. Anne’s suspicion-inciting letter to Laura is unsigned. Hartright

198

writes under an assumed name. These examples protect the author’s anonymity. There-
fore, the writing’s content or something else, not the authorship, must provide the text’s
authority. What the text says, what externally endorses the text, and how the text presents
itself such as its format and invocations to higher powers, not the credentials of the au-
thor, convey the import of the document. The narrator/author, as Hartright claims to be,
diminishes, but at the same time ﬁnds safety, as an instrument for something else.

When a text is anonymous or its claim to authority comes ﬂorn something exter-
nal to the author, such as a legal ﬂamework or Providential endorsement, then nothing is
accountable for the contents except the texts of these external authorities. The resolution
of the text is the consequence of its inheritance ﬂom past texts. Hartright is not account-
able for his text because it is built upon the texts of others both within and outside the
novel. He simply put them in order, relying on the precedent of the dominant narrative
format and legal and biblical texts. The deaths of Count Fosco and Sir Percival coincide
with what biblical and legal texts would mandate against the sinner and those who com-
mit oﬂ‘enses against the laws. Signiﬁcantly, Hartright’s rise to the landed English gentry
is the result of a past legal text of inheritance, an external authority unconnected to him,
ﬂom which he indirectly beneﬁts as the husband of the beneﬁciary.

Several of the writings in the novel are confessions. Confessions denote state-
ments of accountability; however, the confessions in the novel attempt to deny or limit
personal blame. Count Fosco’s confession is both compelled and self-interested. When
declaring his intent to battle with the count, Hartright speaks of “force” (47), “forcing
(5 79), and “wrest from” (579). At their only confrontation, Hartright acts ﬂom a superior

bargaining position because the Count fears for his life. Count Fosco’s most signiﬁcant

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exculpating declaration is that he committed no gratuitous crime: “Have I not carefully
avoided exposing myself to the odium of committing unnecessary crime?” (632). He is
not “worthy of any serious blame” he says, because he only took Laura’s identity, not her
life, and asks Hartright to “[j]udge me by what I might have done” (632).

The scene in which Hartright presents himself late at night at Count Fosco’s home
is comparable to images of suspects in custodial interrogation who are deprived of sleep
and confess under threat of fear that something much worse awaits them than punishment
for their crime. Although Count Fosco, not Hartright, initiates the custodial locked room
and threatens Hartright with a gun, the count is at a disadvantage because the Brother-
hood is closing in on him. Hartright obtains the information he seeks after bargaining
with the count to allow him to escape London—another analogy to criminal prosecution
in which suspects provide information police or prosecutors need in exchange for leni-
ency.

Two men alone in a locked room of Count F osco’s house create a setting similar
to an interrogation room “cut off from the outside world” that Chief Justice Earl Warren
described in Miranda v Arizona (445). “Interrogation still takes place in privacy,” Warren
wrote for the majority. “Privacy results in secrecy and this in turn results in a gap in our
knowledge as to what in fact goes on in the interrogation rooms” (448). The reader of the
account only knows what the interrogator Hartright reveals. Chief Justice Warren wrote
that during interrogation the police force the suspect to conﬁrm the “preconceived story
the police seek to have him describe” (445). Hartright tells Count Fosco that the results of
his months of investigations make “any attempted denial of plain facts [. . .] quite use-

less” and that he knows the count is “guilty of an infamous conspiracy” (609). Hartright

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expects and asks Count Fosco to corroborate Hartright’s theory that Laura did not arrive
in London until the day after she reportedly died there. The count’s response accords with
Hartright’s hypothesis, “[Y]ou can lay your ﬁnger, I see, on the weak place” (610).46

In her confessional letter to Hartright, Mrs. Catherick admits her greed for Sir
Percival’s gifts and her role as his accomplice. Although Hartright during his visit to her
asked some of the questions she answers in the letter, she apparently voluntarily writes to
him with a sense of obligation because he has “served the hatred and wreaked the venge-
ance of three-and-twenty years” (548). To repay her debt, she tells him what he wants to
know. At the same time her letter defends her actions, listing her inclination not to inter-
fere in the baron’s affairs, her desire for presents her husband could not provide, and her
ignorance of the law as reasons for assisting Sir Percival. Her defense incorporates an
excuse for Sir Percival as well. Although she calls herself a “fool” for doing so, she says
she sympathized with his situation caused by no fault of his own and that other women of
higher scruples would have done the same. She now thinks he tricked her, taking advan-
tage of her greed and her sympathy, which she implies replaces her culpability with vic-
timhood.

Frederick F airlie’s narrative is equally confessional and defensive. He tries to ex-
plain away his being duped by Count’s F osco’s lies and he tries to excuse any causal
connection between his acts and omissions and Laura’s injuries. A reluctant witness, Mr.
Fairlie asks, “Is a man in my state of nervous wretchedrress capable of writing narra-
tives?” (360). But he says he is told “that I am a ﬁt person” (360) to describe experiences.
He also writes under duress, having been threatened by Marian at Hartright’s instruc-

tions: “Tell him that the statement you request will, sooner or later, he insisted on, if he

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shows any reluctance to furnish you with it of his own accor ” (501). Therefore, he sup-
plies what they want. The narrative is not completely F airlie’s own because his valet in-
serts what Fairlie cannot remember. Their accuracy is doubtful because the two of them
“are likely to make all sorts of mistakes” (360), according to Mr. Fairlie.

The weakness of confessional as evidence stems ﬂom the interrogative atmos-
phere that coerces, passively or aggressively, the suspect to satisfy the interrogators.
What the interrogators think they want may not be the truth if the interrogators are
operating on a wrong theory. Brooks cites what he sees as the “deep-seated suspicions of
confession” in the majority opinion of Miranda. According to Brooks, “There is
something inherently unstable, and unreliable about the speech act of confession, about
its meaning and its motives” (125). Even when a confession may be voluntary, a product
of choice, Brooks says, “circumstances may make the confessional utterance false rather
than true” (126) because of the reasons motivating the confession. Furthermore,
interrogators ignore aspects of the confession that raise suspicions of unreliability and ﬁx
on the information that ﬁts their preconceived theory. Hartright never questions that the
count was merely conceding to Hartright’s wishes and lost nothing in telling Hartright
what he wanted to know. The cormt was operating under stress and needed only to pacify
Hartright so he could escape London. Although Hartright describes her letter as
“hardened shameless depravity” ﬂom one with an “atrocious perversity of mind” (361), it
does not deter him from accepting Mrs. Catherick’s account of her relationship with Sir
Percival because it conﬁrmed his theory. He does not question her motive for writing or
refusing to admit that Anne’s father was anyone else than her husband. Hartright

dismisses her inference that he caused Sir Percival’s death because he denies it.

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“Given the obscurity of the motives for confession,” Brooks explains, “that mode
of discourse seems to be capable of producing both the deepest truth and the most damag-
ing untruth” (132). Recognizing the narrative nature of a confession, Brooks worries that
the process of interrogation and confession “always leaves us uneasy, as do so many
modern narratives proffered by ‘unreliable narrators,’ narratives, indeed, that give us no
basis for judging what ‘reliability’ might mean” (134).

Despite the absence of a dark room and an overt interrogator, Hartright maintains
a confessional tone on the one hand and provides clues on the other that he is not telling
the entire story.47 His protestations of fairness, admissions of his own weaknesses, and
insistence on his veracity—“I have disguised nothing relating to myself in these pages”
(601)—are excessive and as if Hartright is trying to convince an interrogator who does
not trust him. His reproduction of words of praise ﬂom Marian, Mr. Gilbert, and others
for his exemplary conduct equate to the ritual of compurgation, which would release him
from any accusations against him. While acknowledging his “vindictive motive” and “in-
stinct for revenge” (475), he claims “speculations on the future relations of Laura and
myself, and on the private and personal concessions which I might force ﬂom Sir Per-
cival if I once had him at my mercy, never entered my min ” (475). He imagines himself
in moral dilemmas and describes how he would act appropriately. An example is his
statement that if Sir Percival had lived he would not have blackmailed the baron.

These self-serving statements by their excess become claims of innocence to alle-
gations of guilt not overtly made in his story and actually prompt suspicions that he was
more responsible for the deaths of the two men than he admits. Hartright initiates the

“suspicion” and “inquiry” that he refers to in the Preamble into his own culpability:

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“These words are written under no prompting of idle self-contemplation. Passages in this
narrative are soon to come which will set the minds of others in judgment of my conduct”
(47 5). He also states at the beginning of the Third Epoch that the stories to come next are
not of the speakers themselves. They are “in the words of the brief, plain, studiously sim-
ple abstract which I committed to writing for my own guidance, and for the guidance of
my legal adviser” (43 5). He offers no explanation why he needs a legal adviser. We can-
not be certain if he is referring to Mr. Kyrle whom he later contacted as the Fairlie family
lawyer or if this account was prepared for someone else and for another reason. Har-
tright’s subsequent question about Sir Percival could be directed at himself: “Was it pos-
sible that appearance in this case had pointed one way while the truth lay all the while
unsuspected in another direction?” (492). We begin to think that he is like Sir Percival
who “courted the suspicion that was wrong for the sake of diverting ﬂom himself some
other suspicion that was righ ” (492). Hartright concludes, “here was the approach to the
Secret, hidden deep under the surface of the apparently unpronrising story which I had
just hear ” (492).

The suspicions ﬂom which we can raise inferences of Hartright’s guilt begin with
the motives for his conduct. He has an inexplicable hatred for Sir Percival fueled by their
rivalry for Laura’s hand in marriage and fortune. Hartright has mismanaged his money.
Hartright condemns the deceit and trickery of rank and power. He speaks less of marry-
ing for love and more of marrying to obtain legal standing to represent Laura’s claim.

Causal connections can be traced both directly and indirectly, raising suspicions
of Hartright’s involvement in the two deaths. Hartright returns ﬂom Central America to

ﬁnd Laura and Marian preparing to hide themselves in London ﬂom the conspirators who

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would return Laura to the asylum and bring proceedings against Marian for implementing
Laura’s escape. Hartright, in a more offensive attitude, threatens that “those two men
shall answer for their crime to ME, though the justice that sits in tribunals is powerless to
pursue them” (466). Although the answer Hartright sought may not initially have been
the death of two men, his narrative at once denies and conﬁrms his culpability. Respond-
ing to the man’s calls for help, he claims to have forgotten all the injury Sir Percival in-
ﬂicted and his “own oath in my own heart to summon him to the terrible reckoning that
he deserved” (535). He describes in detail his attempt to rescue Sir Percival ﬂom the ﬁre
by climbing on to the roof to “break the skylight, and give him some air” (535), an act
which gave the ﬁre more air as well. Then, with a crowd watching, he orchestrates a ﬂan-
tic attempt to break down the door. Later, to absolve himself, he gratuitously oﬂ‘ers his
assurance that Sir Percival “must have dropped in his death-swoon, he must have sunk in
the place where he was found, just as I got on the roof to break the skylight window”
(544). Outraged that Mrs. Catherick considers him an instrument in Sir Percival’s death
because his “inquiries ﬂightened him into the vestry” (548), Hartright interprets the inci-
dent as divine intervention and “a calamity for which I was in no sense answerable” (561)
because retribution against Sir Percival had “been snatched from my feeble hands” (611).
Similarly, Hartright glosses over his involvement in alerting the Italian Brother-
hood to Count Fosco’s masquerade in London and his threatening the force of the Broth-
erhood in his confrontation with the count: “Other vengeance than mine had followed
that fated man ﬂom the theatre to his own door—ﬂom his own door to his refuge in
Paris. Other vengeance than mine had called him to the day of reckoning, and had ex-

acted ﬂom him the penalty of his life” (642). In effect, he says he intended to kill and

205

would have killed Count Fosco, but he did not. The count’s escape was Hartright’s “sac-
riﬁce” (611). In disowning any responsibility, he places the conspirators’ deaths beyond
his control. Hartright turns on his own method of narrative links and establishing causal
connections in denying his association to the deaths, while actually supplying the suspi-
cious inferences.

The purpose of identifying Hartright’s possible culpability, his motive and oppor-
tunity, is to suggest that these suspicions are too obvious in the novel. They compare to
Sir Percival’s courting of wrong suspicions to divert attention to another suspicion that is
closer to the truth. Since readers cannot go beyond what the text tells them, they are left
only with the suspicion that something else remains to be told.

For instance, some inferences exist to implicate Marian as a more active accom-
plice in the deaths. She describes herself as being the opposite of her “angel” (61) half
sister in fortune, disposition, and appearance. A temper, which Mr. Gilmore mistakenly
perceives as “indignation” instead of malice (162), undermines her attempts at maintain-
ing decorum. She resents and ridicules the restrictions society places on women: “Being,
however, nothing but a woman, condemned to patience, propriety, and petticoats for life,
I must [. . .] try to compose myself in some feeble and feminine way” (221). She also has
her own resentrnents about rank and power. Marian must depend on Laura, who was bonr
into a privileged family, for a home. Most importantly, she is outraged and terrorized at
Cormt F osco’s penetration of her camouﬂage and identiﬁcation of her as his own kind.
Her irreverent “careless way of talking” (60) establishes a “similar sensibility” (360) to
Count F osco and his deﬁnition of a smart criminal as well as a shared abhorrence for

moral clap-trap speeches, a connection she does not deny. Before Hartright returns ﬂom

206

Central America and takes over, Marian exhibits cunning and courage against Sir Per-
cival and the count, but she also stiﬂes much outrage and insult.48 With Hartright to help
her, she wants to get even with the count. “I try to be patient, Walter,” she tells Hartright,
who is preparing to force confessions ﬂom the conspirators. “But I have a little of my old
temper still left, and it will get the better of me when I think of the Count.” (471). She
also tells Hartright, “if ever those men are at your mercy and if you are obliged to spare
one of them, don’t let it be the Count” (469). His promise to remember includes “when
the time comes” (469). Hartright has to physically restrain her ﬂom accompanying him
on the conﬂontation with Count Fosco.

Hartright could admit more involvement in the deaths. Both the form of the sensa-
tion novel and its Victorian readers would tolerate it.49 However, to admit his participa-
tion in murder goes against the theory of the interrogators, the novel’s audience, who are
also the triers of fact. Even though the ﬁrst page of the text seeded that theory of pa-
tience, resolution, and justice and Hartright has nourished it throughout the text, it be-
comes the interrogators’ own by virtue of their meeting the text’s imposed cognitive ex-
pectations. His audience is reading under the expectations that truth and justice will out
because that is what Hartright has said the story will show. He established an a priori the-
ory for the interrogators and triers of fact to ﬁt the facts to in their deliberations. If Har-
tright becomes a murderer as well as becoming a member of the landed gentry of Eng-
land, then truth and justice or poetic justice, the imperative of this historical reconstruc-
tion, disintegrates in mockery of the legal and biblical authority he claims. Readers have
only a string of suspicious inferences that, according to the rationalist tradition, are insuf-

ﬁcient to charge Hartright.

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Count F osco’s obvious murder and the unprovable suspicions that the text raises
of Hartright’s participation in the two deaths do meet the required elements of the sensa-
tion novel—mystery, murder, and exposure of the underworld. These are the surface of
the story, intentionally developed as skillful diversions ﬂom what remains beneath the
story’s surface. In this sense, Hartright’s text is no different ﬂom Madame Fosco’s biog-
raphy of her husband. Hartright’s evaluation of the work sounds a bit like Hartright’s
own story: “The work throws no light whatever on the name that was really his own or on
the secret history of his life—it is almost entirely devoted to the praise of his domestic
virtues, the assertion of his rare abilities, and the enmneration of the honours conferred on
him” (644).

Hartright’s resolve and denial of committing any wrong is better understood after
considering a parable by Franz Kaﬂra included in his novel The Trial, and previously
published as “Before the Law.” The story tells of a man ﬂom the country who “begs for
admittance to the Law” but the doorkeeper says “he cannot admit the man at the mo-
ment.” The man ﬂom the country is surprised because “the Law, he thinks, should be ac-
cessible to every man and at all times [. . .].” But the doorkeeper is imposing and the law
appears in the far distance so the man from the country “decides that he had better wait
until he gets permission to enter” (213). The man ﬂom the country persistently waits out-
side the doors, repeating his request until he becomes an old man. As he is dying he asks
the doorkeeper: “Everyone strives to attain the Law [. . .] how does it come about, then,
that in all these years no one has come seeking admittance but me?” The doorkeeper re-
sponds “No one but you could gain admittance through this door, since this door was in-

tended for you. I am now going to shut it.” (Kaﬂta 214-15).

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One interpretation of Kaﬂra’s parable is that the law is something remote and un-
obtainable except with permission. In Hartright’s story permission means the ability to
pay and the accumulation of facts. Otherwise, the law remains distant because it is stead-
fastly glued to the rational tradition of proof and demands high fees and costs. “[T]he le-
gal remedy lies, in every sense of the word beyond our means,” Hartright says. “We can-
not produce the law proof, and we are not rich enough to pay the law expenses” (466).
Furthermore, as Marian says, “Even if we had the means of paying all the law expenses,
even if we succeeded at the end, the delays would be unendurable, the perpetual sus-
pense, after what we have suffered already, would be heartbreaking” (581).

These factors do deter many valid complainants ﬂom pursuing their rightful
claims within the legal system. Bentham and other evidence scholars since have com-
plained that the rules of evidence serve the interest of the material class and powerful in-
terests. Only the rich and the powerful have the money to prepare a case that will meet
the standards of proof. Furthermore, despite the prominence of law in ﬁction and the me-
dia, few people understand the mechanics of legal proof. In The Woman in White only
people of a certain social, educational, and econonric level, who have contact with law-
yers, know the necessity of proof. For example, Marian, who had known Mr. Gihnore
since childhood, knew to observe the marks Sir Percival inﬂicted on Laura’s arm so she
can speak ﬂom her own knowledge of their existence: “I may have to swear to it at some
future time” (321).

In contrast, Hartright is surprised at the lawyers he meets in the novel because
they are counter to his preconceptions. After he hears for the ﬁrst time the story of Laura

and Marian ﬂour “a stranger’s point of view” when he meets with Mr. Kyrle, he at ﬁrst

209

cannot accept the legal obstacles in the case and appeals to Mr. Kyrle to look more fa-
vorably upon it. Following Mr. Kyrle’s gentle rebuﬁ', Hartright tells Marian, “All I have
done today is to ask another man to act for me. I count ﬂom tomorrow. [. . .] Because to-
morrow I mean to act for myself’ (469). The rationalist tradition assumes “a shared stock
of knowledge” or a “cognitive consensus” (Twining “Evidence and Legal Theory” 70).
Additionally thinking about evidence presupposes homogeneity not only about the gen-
eral experience ﬂom which everyone supposedly reasons, but that everyone shares the
same conceptions of “truth, reason and justice under the law” (Twining, Theories of Evi-
dence viii). However, society’s pluralism means that not everyone approaches the bench
with the same point of view, the same experiences, the same deliberative process, or
through the same door.

As Kaﬂca’s parable makes clear, both the legal system and those who seek entry
to it are guilty for the interpretation of inaccessibility. The legal system promotes a for-
midable doorkeeper through, among other things, its conservative adherence to tradition
and ancient customs, exorbitant costs, and ﬂawed methods of proof. Those who seek ac-
cess complain of inaccessibility before turning the doorknob of the door meant for them
or taking responsibility and ownership of their legal system. In addition, both should be
troubled that an institution formed to beneﬁt society has become inaccessible to a large
number of its members. Otherwise, the door remains shut.

But, unlike the man ﬂom the country who never takes some responsibility for the
interpretation of the legal system that contributes to its inaccessibility, Hartright does take
responsibility so that the law ultimately works for him to the extent that its scope allows.

Hartright’s confessional mix exhibits a pride at his success through self-helps0 The pov-

210

erty that had prevented legal assistance was a blessing in “forcing me to act for myself’
and that he thinks he actually achieved more than the law possibly could: “The law would
never have obtained me my interview with Mrs. Catherick. The law would never have
made Pesca the means of forcing a confession ﬂom the Count” (640). He implies that the
law is ineffective and, because of its ineffectiveness, individuals must act for themselves.
Ifhe committed any wrong, the failures of the legal system made him do it. Similarly, he
is unconcerned that the Brotherhood’s object was “anarchy and revolution” (596), and
that it considered itself beyond the reach of the law.

The forgery motivating Sir Percival’s actions also was an act of self-help because
the unfairness of the laws prohibiting intestate inheritance by illegitimate children would
have left him penniless and without the social standing to which he was accustomed.
“The son (who can blame him?) wisely provided for himself’ (550), Mrs. Catherick
says.51 As a revolutionary political society, the Brotherhood is the extreme example of
self-help by those who ﬁnd the law an ineffective resource. However, its object “the de-
struction of tyranny and the assertion of the rights of the people” (595) is not that far re-
moved ﬂom Hartright’s condemnation of rank and power. Neither is Pesca’s vow that
once a member betrays the Brotherhood “No human laws can protect him” (598) that dis-
similar ﬂom Hartright’s vow to obtain justice against the conspirators. For Pesca, the
Victorian underworld is the refugee ﬁnding shelter in England’s midst: “Laugh at him,
distrust him, open your eyes in wonder at that secret self which smoulders in him, some-
times lmder the every-day respectability and tranquility of a man like me—sometimes
under the grinding poverty, the ﬁerce squalor, of men less lucky, less pliable, less patient

than I am—but judge us not!” (595-96).52

211

This image of restrained force patiently waiting for an opportunity is ﬁightening
in its reminder of the explosive potential within Victorian society. Yet, it merely ex-
presses the rage Hartright and Marian stiﬂe sometimes unsuccessfully. Hartright speaks
of his tendencies to physical violence: “IfI had been ﬂee to follow my own instincts, I
should probably have begun by speaking to the man, and have ended by knocking him
down” (467). Later, losing control and pushing a man away “smartly with my open hand”
(524) causes his arrest and conﬁnement. Marian says that if she had been a man “I would
have knocked him (Sir Percival) down on the threshold of his own door” (268). Marian
considers her self-control “degrading” (328). She wants to exhibit her anger: “My tongue
burns to tell your uncle that he and Sir Percival are not to have it all their own way” (202)
she complains to Laura. Sir Percival’s many exhibitions of rage against his wife, kicking
a dog, and struggling to control his temper also coincides with the image of a society’s
smoldering anger ﬂagilely contained by conventions, proprieties, and unreasonable rea-
son.

Pesca’s terror at his own ﬂaterrrity and his warning also emphasize self-help’s la-
tent trait of lawlessness and abuse of the law. Hartright reduces the supposedly urbane
reﬁnement of Victorian society to a delusion when he employs the strategies adopted
“against suspected treachery in the wilds of Central America [. . .] in the heart of civilized
London” (474). Hartright’s self-help became a regression to the time before the law when
truth was determined by ordeal—Sir Percival’s trial by ﬁre—and inquisition—Hartright’s
conﬂontation with Count F osco—and by combat—Count F osco’s demand that the men
eventually meet in a duel, Hartright and Marian’s references to a “single-handed” (501)

meeting between Sir Percival and Hartright.S3 It is also a regression in interpretation to

212

past times when self-help meant vindication and revenge, words Hartright ﬂequently uses
in his tracking down of the conspirators, and to the “deadly certainty” (601) of the Broth-
erhood that if a man “inﬂicts injury on the well-being of his fellow-men, ﬂom that mo-
ment he forfeits the right, and it is not only no crime, but a positive merit, to deprive him
of it” (595).

Count Fosco “who snaps his big ﬁngers at the laws and conventions of society”
(568), represents the most obvious individual example of lawlessness.S4 He epitomizes
the smart criminal he describes who escapes while the foolish criminal is captured. The
hiding of a crime or its detection is merely “[a] trial of skill between the police on one
side, and the individual on the other” (256). Virtue is something the count cannot deﬁne
because it is a cultural construct. He ridicules English society’s blinding moral epigrams.
“I say what other people only think,” he says, “and when all the rest of the world is in a
conspiracy to accept the mask for the true face, mine is the rash hand that tears off the
plump pasteboard and shows the bare bones benea ” (259). Hartright’s statement that he
has “no choice but to oppose cunning by cunning” (467) places him on equal footing with
the cormt’s views.55

Because they are smart, Sir Percival, Count Fosco, and Hartright can use or abuse
the legal system for their beneﬁt. Sir Percival’s thugs provoke Hartright into an assault so
they can press charges and delay his investigation of the baron. The magistrate unwit-
tingly helps the thugs by requesting more proof—a witness who observed the incident——
and jailing Hartright in the interim. Count Fosco planned to use the law by exposing
Laura’s whereabouts in order to involve Hartright “in interminable legal disputes and dif-

ﬁculties” (567). Sir Percival uses the threat of prosecution to silence Mrs. Catherick. Har-

213

tright threatens Frederick Fairlie with “a choice between doing his niece justice on my
terms, or facing the consequence of a public assertion of her existence in a court of law”
(636). Sir Percival uses legal discourse, “my plain statement of facts” and “proof of the
truth of my assertion” (155) to support his contrived explanation of his acquaintance with
Mrs. Catherick.

Hartright’s attempt to gain credibility and legitimacy by associating his story
through analogy with the legal system in his choice of format and legal discourse also
exploits the legal system. Those working outside the law because it is ineffective or be-
cause they have contemptuously denounced it, hypocritically call upon the legal system
as if it meant something worthy of respect and they considered it powerful. The narrator
is successful because his narrative technique appeals to readers’ expectations of what a
story does and his mimicking of legal methods invokes readers’ expectations that the law
will render truth and justice. Other words both internal and external to the text—legal and
biblical discourses and the inherent predispositions they provoke—become auxiliary en-
forcement to the words of the text, or the text’s testimony or narrative. A combination of
words and their auxiliaries creates a text that stands alone as objective facts. It is the liv-
ing authority, not its author. Readers of the text are prohibited ﬂom looking behind the
words of the text to any inﬂuential prejudices and cultural predispositions of the author.
Legal texts, most particularly judicial opinions, legislation, and the Constitution make the
same claim as anonymous texts and enlist the same self-help techniques. Although their
authorship is not unknown, the authority and power of these texts comes not ﬂom their
authors, but ﬂom the overriding ﬂamework that sanctions the words and ﬂom their own

forms of auxiliary word enforcement within the text.

214

The self-help, self-authenticating devices Hartright employs are supposed to con-
tribute to his burden of proof, but they are nothing more than artiﬁcial constructs that do
not make his story any more real or credible except superﬁcially. However, the novel it-
self succeeds as a sensation novel on two levels. It succeeds in fulﬁlling the elements of a
sensation novel in imposing the rmderworld beneath Victorian conventions and propriety
and it concludes with a mystery about Hartright’s endorsement and participation in that
world. At a second level, its undermining of traditional institutions of authority, particu-
larly the legal system’s methods of proof, further shakes complacent faith in the legal
system’s ability to render justice.

But the novel carries its point another step in its questioning of the weight given
to written proof. As Walter Kendrick points out, “Villainy and heroism alike operate on
the assumption that there is such a thing as a transparent text, an ordered arrangement of
words and spaces which can be taken as proof of events in the real world and even as a
substitute for them” (31). The assumption that Kendrick refers to is not peculiar to the
events of the novel. Historically written documents have assumed a privileged status. The
novel of the realist tradition was, in part, an attempt to bring ﬁction to that status. By
demonstrating how writings that claim to be real or true are arbitrarily accepted, dis-
carded, or subsequently displaced by other writings with a similar claim, Collins’ novel
disputes the ability of a writing to represent truth or reality. It questions the perceived al-
legiance to written documents by evaluating how that allegiance is practiced. Writings
are accepted as factual until a subsequent writing successfully disputes the facts of the
previous one. The latter nulliﬁes or destroys the former. Hartright erases Laura’s narra-

tive on the tombstone and replaces it with another. The characters accept or denounce the

215

veracity of writings depending on whether they coincide with their predispositions. In the
legal system, a decision is reversed and replaced by another, but during the time of its
existence, the ﬁrst is no less authoritative than its successor, as was the belief in Laura’s
death before Hartright’s proof convinced otherwise. Authors of texts make them what
they want them to be employing a multitude of self-authenticating devices to prove them

and relying on an expectation that the text will be unreasonably valorized.

216

Notes

1 Interestingly, law professor Roger C. Park writes in “Evidence Scholarship, Old
and New” that evidence scholarship has remained apart ﬂom any of the interdisciplinary
movements in law, what are called “the law and” movements such as law and literature,
law and economics, law and sociology, and others. According to Park, “no member of the
law and literature movement sought to apply theories of literary criticism to a critique of
evidence law” (850). His statement is signiﬁcant for purposes of this discussion because
in Collins’ The Woman in White, a text written almost 150 years before Park’s observa-
tion, we ﬁnd the narrator working with and subtly commenting on theories of evidence in
a literary text.

2 Philip O’Neill in Wilkie Collins: Women, Property and Propriety ranks The
Woman in White “as one of the better examples of the sensational genre, a popular liter-
ary form which ﬂourished for a brief while in the 1860s” (1). In Wilkie Collins and His
Victorian Readers, Sue Lonoﬂ credits Collins with founding the school of sensation ﬁc-
tion (22).

3 U. C. Knoepﬂmacher, “The Counterworld of Victorian Fiction and The Woman
in White” 366-367; George Levine, “Realism Reconsidered” 248-249.

4 My thanks to Dr. James Hill for pointing this out to me.

5 “Collins’ bold narrative method,” Sucksmith explains, “removes the external
world of action to an inner stage within the minds of his characters and the action is col-
oured, often quite subtly, by their consciousness” (xv).

6 Symons writes that The Woman in White was serialized in Dickens’ All the Year

Round ﬂom November 1859 to August 1869 and then published in three volumes (15).

217

The novel begins in 1849 and continues through the following two years preceding the
Crystal Palace Exhibition in 1851. This was a time of revolutionary activity across much
of Europe as Tamar Heller points out in Dead Secrets: Wilkie Collins and the Female
Gothic (122).

7 As Barbara Shapiro points out in “ ‘To a Moral Certainty’ Theories of Knowl-
edge and Anglo-American Juries 1600-1850,” some jurisdictions sufﬁx “and to a moral
certainty” to this standard (153).

8 According to O’Neill, “Narrative authority is democratized” by the device of
multiple narratives “ostensibly in the interests of veracity.” But, as he correctly points
out, “not all the characters see events in the same way and the truth itself is relativised”
(101).

9 Considerations of the inﬂuence of Collins’ legal education on his ﬁction writing
are speculative, but the novel indicates more than a layman’s familiarity with the legal
system. Although he never practiced law, Collins entered Lincoln’s Inn in 1846 accord-
ing to Catherine Peters in The King of Inventors (68).

‘0 For example, a review of the trial scene in Trollope’s Orley Farm shows
Dockwrath called as the ﬁrst witness although his testimony is about the most recent
event, his ﬁnding of a document bearing the same date as the disputed codicil. The next
witness is the other party to the deed.

” See Catherine A. MacKinnon , “Law’s Stories as Reality and Politics” for more
discussion on this point.

12 See McCormick on Evidence 1:16-17 for more on these topics.

218

 

'3 Interestingly, Hartright’s words here about arranging ideas echo Count Fosco’s
statement before preparing his confession that the ability to organize ideas is a rare privi-
lege. Furthermore, we see how Hartright recognizes the effectiveness of a form of ques-
tioning that combines narrative with speciﬁc questioning.

1" See also Walter M. Kendrick, “The Sensationalism of The Woman in White,”
25.

'5 For example, Hartright argues that had he not rescued the drowning Pesca long
before the story takes place, which instilled in Pesca a sense of obligation so that he rec-
ommended Hartright for the position at Limmeridge House, “I should in all human prob-
ability never have been connected with the story which these pages will relate” (37).

‘6 See Peter Tillers “Prejudice, Politics, and Proof,” on “the constructed character
of evidence and reality” (772) and how we alter reality in our attempts to perceive it and
Paul Gewirtz “Narrative and Rhetoric in the Law” on “Narrative [. . .] is seen as the so-
cial construction of reality” (13). Both evidence and narrative are attempts to construct
reality.

'7 Hartright’s turns to Providence are an exception to Jenny Bourne Taylor’s
statement in In the Secret Theatre of Home: “He seems to be replacing divine judgement
with empirical evidence that emerges as both reliable and relative; absolute morality with
contingent experience, wherein the corruption of the Law is replaced by the analysis of
the Reader, but within the ﬂamework of credibility which the Law confers” (110).

'8 The legal system does make allowances for what it terms acts of God, particu-
larly in tort actions as shown in the legal maxim “Actus Dei nemini facet injuriam”—an

act of God does wrong to no one. Therefore, no one is responsible in damages for inevi-

219

table accidents. However, the cause must be exclusively the forces of nature and the
event overwhelmingly unpreventable. See Black 's Law Dictionary 34, 1616.

‘9 Winiﬂed Hughes states in The Maniac in the Cellar: Sensation Novels of the
1860s, “the conﬂicting opinions advanced by some of the minor narrators and accom-
plices” are “suggestions, as yet ﬂeeting and indirect, that the same facts or events will
bear opposing interpretations, according to the different perspectives ﬂom which they are
evaluated” (140).

2° Because of the adversarial nature of litigation, we tend to think of competing
stories during a trial. See Paul Gewirtz “Narrative and Rhetoric in the Law” 2-13, for a
view of a trial as “struggle over narratives” (7) and Peter Brooks “The Law as Narrative
and Rhetoric” 14-22, for the suggestion that “the law is in a very important sense all
about competing stories” (16).

2‘ See McCormick on Evidence 2293-6.

22 Collins applied this same hearsay prohibition, conﬁned with ﬁrsthand knowl-
edge, in his later novel The Moonstone (1868).

23 Paul Gewirtz argues in “Victims and Voyeurs: Two Narrative Problems at the
Criminal Trial” that “the entire law of evidence and much of the law of procedure is
really a law of narrative——a law of narrative transactions” (136).

24 For an extensive discussion of the role of circumstantial evidence or evidence
based on inference, not personal knowledge, that includes a discussion of Collins’ The
Moonstone, see Alexander Welsh, Strong Representations: Narrative and Circumstantial

Evidence in England.

220

25 Twining developed the label ‘Rationalist Tradition of Evidence Scholarship” to
incorporate the “remarkably homogeneous set of assumptions about evidence and adjudi-
cation” of Anglo-American scholars” (“Hot Air” 1531).

26 See Jerome Frank, Courts on Trial disputing the “Truth-Will-Out axiom” be-
cause tha “ ‘axiom’ does not jibe with reality” (17).

27 See Harlon L. Dalton “Storytelling on Its Own Terms” 57-60 and Catharine A.
MacKinnon “Law’s Stories as Reality and Politics” 232-23 8.

2" Guyora Binder and Robert Weisberg argue in Literary Criticisms of Law that
narrative is not “more authentic, spontaneous, or sincere” and “is not intrinsically ﬂee of
the pressures of self-interest and social norms that inﬂuence all cultural practices, includ-
ing law” (208).

29 Lynne DeCicco discusses in Women and Lawyers in the Mid-Nineteenth Cen-
tury English Novel the depiction of the legal system’s exclusive reliance on “surface de-
tails,” which scrutinizes only the facts, “while the bizarre and unfathomable portions are
discounted” (156). Her discussion includes an unjustly harsh account of Mr. Gilmore’s
involvement with the marriage contract that fails to consider his adherence to rules of
professional responsibility and attempts to link his physical breakdown to a breakdown of
the law.

3° For more detailed descriptions of evidence, see “Evidence,” Black ’s Law Dic-
tionary, 576-77.

3 ' In fact, the lawyers in the novel are among the few characters not subject to
suspicion and who do not appear to be something they are not. However, they are the

least suspicious of others and most rmimaginative of all the characters. Even Sir Per-

221

cival’s lawyer, Mr. Merriman, though not a favorite of Mr. Gilmore, is sharp and able to
“overreach you under the disguise of inveterate good-humor” (175) during bargaining,
according to Mr. Gilmore. Although Sir Percival bids Mr. Merriman as he rushes by dog-
cart to catch a train, “Hold fast, [. . .] if you are upset trust to the devil to save his own”
(249), no one accuses Mr. Merriman of knowledge about or participation in the conspir-
acy or suggests that his vigor in representing the baronet in the marriage settlement was
illegal or unethical. Mr. Gilmore and Mr. Merriman both were bound to follow the in-
structions of their clients within the conﬁnes of the law. Irnportantly, Mr. Gihnore admits
that “[i]n the case of any other client I should have acted on my instructions” (177) before
making once last argument against accepting Sir Percival’s demands. Marian overhears
Mr. Merriman explain over Sir Percival’s objections that as a lawyer he must look at both
alternatives in all transactions. However, Mr. Meniman was duped by his client into
having Hartright followed under the pretense that he had assisted Anne’s escape ﬂom the
asylum.

32 D. A. Miller touches upon these concerns in The Novel and the Police, 157.

33 Tillers concedes “that there are things at work in inference that are hard to un-
derstand and that we are usually or always better off in letting our common intuitions
guide our factﬁnding rather than in trying to construct a priori factﬁnding techniques that
are supposedly more logical” (774).

34 In The Novel and the Police D. A. Miller’s criticizes the narrator’s Preamble
that “utopically envisions” an extension of the law to include cases of suspicion and
processes of inquiry because it supercedes the legal model to which the novel “nominally

clings” (157). This criticism can be extended to include within the novel’s vision an ideal

222

evidentiary state in which anything possibly related to the legal action is admitted for de-
liberation. Both visions undercut the legitimacy the legal ﬂamework supposedly pro-
vides.

35 The novel as a legal proceeding includes three legal hearings within the overall
proceeding: the mock presentation of proof at Limmeridge House, the coroner’s inquest,
and Hartright’s arraignment on the assault charge.

36 The presentation of proof at the Limmeridge House proceeding and its sanction
by Mr. Kyrle is another example of using legal format to impose legitimacy.

3" The phrase exclusionary rule here broadly refers to all rules prohibiting the ad-
mission of certain information, not the Exclusionary Rule that in American law sup-
presses tainted evidence in accordance with the ﬂuit-of-the-poisonous-tree doctrine be-
cause obtained in violation of the accused’s constitutional rights.

38 Jackson and Doran note that litigation’s emphasis on truth or rectitude or deci-
sion discourages alternative dispute settlement and lessens important procedural rights
“173-74).

39 According to law professor and evidence scholar Peter Tillers in his article
“Prejudice, Politics, and Proof,” the truism is “that litigation is not just a search for the
truth” (773).

‘0 O’Neill writes that in these instances “convention dominates interpretation”
(109).

4’ Jenny Bourne Taylor writes that Hartright “projects meaning into ﬁgures and

events in the light of his own preconceived expectations, and has his own identity rmder-

223

mined when they are undercut by his sense of the strange and anomalous [. . .] (In the Se-

cret 112).

42 As society and juries become more diverse, this assumption of cognitive con-
sensus I hope will be weakened and litigants will be unable to manipulate it for their
beneﬁt.

43 Signiﬁcantly, a lawyer’s insistence on preserving a copy of the church records
provides the proof of Sir Percival’s secret.

4" For more on this argument see Kendrick, 30-31).

45 Knoephlmacher describes this aspect of the novel as “a collision between a law-
ful order in which identities are ﬁxed and an anarchic lawlessness in which these social
identities can be erased and destroy ” (362).

46 The idea for this comparison of Count Fosco’s confession scene derived ﬂom
Peter Brooks’ discussion in “Storytelling Without Fear" on confessions and Chief Justice
Warren’s decision in Miranda.

‘7 Lonoff writes that all of Collins’ narrative devices “operate in two conﬂicting
directions. On the one hand, they have an air of authenticity that persuades the reader to
suspend his distrust and accept the facts they convey; on the other, they may caution him
that they are devices within a narrational ﬂamework, and they may reveal the calculating
presence of their author between the lines” (129). Donaghy and Perkins suggest “A more
attentive reading of the text, one informed by the very hermeneutics of suspicion and sur-
veillance characteristic of every narrative in the novel, raises the possibility that Walter,

far ﬂom being objective, is in fact manipulating the narrative for his own ends” (392).

224

48 For more on Marian’s role in the novel see Richard Barickman et al Corrupt
Relations, 114-120.

’9 Richard Altick’s Victorian Studies in Scarlet demonstrates that “Popular taste
required that the plot of the sensation novel, in addition to being set in the present, be
complicated by [. . .] above almost all else—murder achieved, contemplated, or merely
suspected” (76). For a fuller discussion of the domestication of murder and the sensation
novel, see 67-85.

5° Although not meant in the same manner here as Samuel Smiles in his book
Self-Help (1859), analogies exist to Hartright’s self-help such as Srrriles’ creed that suc-
cess comes ﬂom application and persistence and the theme of “God helps those who help
themselves.” See Asa Briggs article on Smiles in Victorian People.

5 ' The defects of the inheritance laws and of the property rights of women are
other legal subjects of this novel and subjects Collins obliquely implies require reform.

52 A worthy study in this and other Victorian novels is the obvious xenophobia.

53 Signiﬁcantly, Shapiro calls these ancient forms of proof “irrational proofs”
(155).

54 Taylor writes that “it is in the paradoxically ‘carrrivalesque’ ﬁgure of the upper-
class villain that the dominant codes both of the narrative and the social order are dis-
played and overturn ”(In the Secret 121).

55 According to Hughes, “Divested of its gotlric trappings and conventional mor-
alizing, the central action of The Woman in White, is nothing more nor less than a trial of

skill between cunning adversaries” (142).

225

Chapter 4

Thinking about Law’s Heritage and Law and Morality in

George Eliot’s Felix Holt, The Radical

Legal issues superﬁcially occupy a major role in George Eliot’s novel Felix Holt,
The Radical (1866).1 Most obviously, the law operates in the title dispute over Transome
Court, in the trial of Felix Holt, and in the extension of the ﬂanchise under the ﬁrst Re-
form Bill. Perhaps less distinct is the question of positive law’s association with morality
in the novel: the blend of church and state in government, the politics of reform, and the
conduct of the lawyers and opinions expressed about them. However, despite their
prominence in the background and setting of the novel, manmade laws and the legal sys-
tem are not the focus of the novel. Positive law and the legal system are so placed as if to
minimize their part in the course of individual lives. Legislation and the legal system
serve merely as a ﬂamework for the novel’s argument about another more important sys-
tem of law-like conduct expressed as secular natural law. Although one of the essentials
of moral behavior, sympathy for others, becomes intertwined in the novel’s legal issues,
individual moral consciousness supercedes positive law as a means to social reform. U1-
tirnately the imagination inspired by sympathy becomes an evaluative model for deter-
mining the accuracy of representation in a social problem novel.

Much of the scholarship about the novel looks to Eliot’s other writings, such as
letters and essays in which she discusses her own and others’ opinions on novel writing,
political reform and the religion of humanism. I do not intend to speculate on how the
novel integrates these extensively explicated writings. Many scholars already have exten-

sively explored the possible connections.2 This discussion will work with what the “Au-

226

thor’s Introduction,” the ﬁfty-ﬁve chapters and epilogue of the novel itself, and Felix
Holt’s “Address to the Working Man” (1868) reveal about the thinking about law in the
novel.3 However, I will look outside the literary text to some legal texts, not to suggest
their inﬂuence on the novel, but to demonstrate an intellectual, political, and religious
affinity between the novelist and the legal texts in thinking about law.

The ﬁrst section of this discussion concerns law as an inherited tradition and its
participation in the disposition of property through inheritance. Within Anglo-American
legal thinking thrives a reverence for its ageless traditions and customs and pride in the
ability to trace its language, procedures, and thought to past centuries. This reverence and
pride sustains a sense of universal, permanent rectitude and implies that the legal system
stands on sound and unshakeahle foundations that have remained continuous and stable
despite the passage of time. Similarly, the novel presents a society enmeshed in ancestral
worship and inheritance, the past, and continuity, particularly when juxtaposed beside
legal mechanisms of inheritance and legal reform. Both the Anglo-American legal sys-
tem, the novel’s narrator, and Felix Holt consider change with skepticism and advocate a
gradual progressive change that coincides with an organic or natural development over
time instead of drastic or more quickly enacted reform.

Coinciding with the former position is the novel’s moral argument, which shares
many elements of natural law theory. Before the nineteenth century when jurists such as
Jeremy Bentham and John Austin began to advocate the separation of positive law ﬂom
natural law, natural law was treated as unquestionably within the inherited tradition. The
second part of this discussion examines the novel’s arguments as secular natural law the-

ory. Although Felix Holt rejects the Christian religion (as did George Eliot), his argu-

227

ments borrow ﬂom natural law theory, both classical and functional. His statements to
the workingrnen, his teaching of Esther Lyon, and his conduct regarding his arrest and
prosecution display elements of natural law thinking—a law-like prescription. Esther’s
development and corresponding deeds describe the application of these prescriptions in
daily life.

The natural progression ﬂom the discussion of F elix’s afﬁnities to natural law is a
review of what the novel says about the fusion of law and morality. To the rectors of the
Anglican Church, religion and politics are natrrrally and nationally inseparable. But the
Dissenting minister suﬂ‘ers criticism for his political exhortations ﬁ'om the pulpit from
conservatives and his own congregation alike. The two lawyers most prominent in the
novel, Matthew J errnyn and John Johnson, connive and manipulate in a moral vacuum.
Thoughts of right and wrong do not govern their legal intrigues. The judge and jury in
Felix’s trial are unswayed by Esther’s attribution of high moral standards to Felix and
convict him of the criminal charges against him.

One of the arguments for the incorporation of moral considerations into law,
which for purposes of this discussion includes politics and reform, may be what the novel
shows as the consequence of a moral life. According to the novel, the self-knowledge and
internal reﬂection of a moral way of thinking results in a consciousness of the lives of
others and a corresponding sympathy for fellow human beings. This sympathy suppos-
edly inspires conduct that reﬂects a shared humanity and better understanding of others.
Felix Holt and Esther devote themselves to helping the working class improve itself
through education. Their energies concentrate on changing and improving the lower

class, not in reform of institutions or the upper classes who comprise them.

228

Supposedly, as a social problem novel or a novel of social reform, Felix Holt, The
Radical shares with other members of the subgenre the intent to expose the social prob-
lems of and injustices inﬂicted upon the working class and through that depiction, or
through a moral argument, arouse sympathy and indignation that would prompt legisla-
tive reform. Examples of such novels include Charlotte Bronte’s Shirley (1849), Eliza-
beth Gaskell’s North and South (1855), Alton Locke by Charles Kingsley, and Hard
Times by Charles Dickens. However, the novel contains no tear-jerking emotions ﬂom
pictures of the lives of the working class of the sort that some of these novelists, particu-
larly Dickens, described. As F. R. Leavis wrote in The Great Tradition, Eliot portrays
“human mediocrity" with “compassion,” not sentimentality (76). Unlike other social
problem novels, Eliot’s novel, through its demonstration of the development of sympa-
thy, most particularly in Esther, and the actions her deeds inspire, does not advocate leg-
islative reform. Instead, its emphasis rests on individual moral acts, so that change comes
not ﬂom legislation but ﬂom individual moral deeds. The novel implies that change, at
least radical change, makes things worse instead of better and is unnecessary as long as
people adopt moral standards and its component of sympathy ﬂom which they gain an
imagination of what the lives of others must be like. Alternatively, moral standards must
be improved so they can support a structure of reform.

A novelist in the realist tradition must be able to imagine what the lives of others
are like if the novel is to present a depiction that corresponds to actual life. The implied
statement about novel writing in Felix Holt is that to create a realistic social problem
novel, the writer must possess sympathy for humanity ﬂom which derives the requisite

imagination to make the representation of the ﬁctional characters’ lives true to actual life.

229

An imaginative depiction of life cannot correspond to actual life unless it derives ﬂom
sympathy and the real imagination that it produces in the possessor. Since sympathy de-
rives ﬂom maintaining a moral life, morality, or a moral element, becomes part of the
evaluative process of realistic novels. Therefore, the strong element of morality in Felix
Holt elevates it to a higher realistic level.4

This moral emphasis, or emphasis on law-like conduct leads thinking away ﬂom
changing laws to changing individuals so they are more moral. Laws gradually will re-
ﬂect these moral changes. Social change then precedes legal change and the laws of soci-
ety directly correspond to its moral standards. At the time of the novel, many laws, such
as limiting the ﬂanchise, appeared to be unfair to the working class and to work in favor
of the upper class. At the same time, the limited earning capacity of the working class and
their limited education places property ownership and material wealth out of their reach.
According to Felix’s proposal, until the people, particularly the workingrnen who are sub-
ject to much vice and corruption, improve morally, reform giving them more representa-
tion in government and making their lives better will not occur or will not occur without
negative disruption. Following the reasoning of the novel, a more sympathetic society
will be less resistant to change or will bring about a better life without a need for restruc-
turing established institutions. The moral discipline of the natural law precedes and is part
of the positive law’s inheritance.

The lessons of the past and of nature inherently rule against radical change, ac-
cording to the novel. Henry Auster writes in “George Eliot and the Modern Temper” that
one of the crucial strands in all of Eliot’s works is an “acute sense of the erosion in soci-

ety of long established traditions” (77). In fact, as most studies of the novel point out, the

230

beginning of the novel in September 1832 follows the passage of the Reform Bill of 1832
that expanded the ﬂanchise. The period covered by the novel is very short. It ends in May
of the following year. Interestingly, the author’s lengthy introduction to the novel refers
to a simpler time before the passage of the ﬁrst bill while Eliot wrote the novel in the year
before the passage of the Reform Bill of 1867.

As Peter Coveney explains in his introduction to the novel “Felix Holt is very
much about the past and its organic relationship with the present [. . .]” (9). A legal
document ﬂom the past governs the present possession of Transome Court, home of the
gentriﬁed Transome family. All ancestor, a lawyer named Durfey, obtained possession of
the property in 1729 when he purchased the entailed interest of the then owner’s oldest
son, Thomas Transome. That meant the Durfeys, who changed their name to Transome,
held the property subject to the entail, which, in this instance, was to Thomas Transome
and his heirs-male. When Thomas Transome’s line expired, the estate would become the
property of the Bycliffe family according to the docrunent of entailrnent. The Durfey-
Transome and Bycliffe families fought numerous lawsuits, the last in 1811 or twenty
years before the time of the novel, because the Bycliffes claimed the male line of Thomas
Transome was extinct and they were entitled to possession of the property. The last suit
ended when the plaintiff, Maurice Christian Bycliffe died. Supposedly, he left no heirs to
continue the suit. However, unbeknownst to anyone but the conniving lawyers, a member
of the Transome line remained alive in the form of a drunken bill-sticker, Tommy Troun-
sem. What no one knows, not even the lawyers, is that Bycliffe did leave a child. She is
the beautiful and sophisticated Esther Lyon who thinks her father is a poor minister to a

Dissenting congregation, Rufus Lyon.

231

At the time of the novel, the Transomes do not know that the possession of their
estate hinges on the life of a drunken misﬁt and that the rightful heir to their property is
living in the same community. Tommy’s subsequent death and a series of coincidences
that lead to Esther’s exposure as the heir makes their possession precarious. Harold Tran-
some, who was to inherit the property as part of the Durfey-Transome line, and his
mother invite Esther to live with them while they attempt to work out the ramiﬁcations of
this discovery. During her visit at Transome Court, Esther moves ﬂom imagining “what
it would be to abandon her own past, and what she would enter into exchange for it”
(496). When Harold says she is the “empress of her own fortunes,” she responds that she
does not “know very well what to do with [her] empire” (501). Eventually, she decides
neither to dispossess the Transomes nor join their world through accepting Harold in
marriage.

A brief review of the responses Esther’s disposition of her inheritance has
prompted in contemporary scholarship indicates the various interpretative strains this im-
portant aspect of the novel has produced. Her decision has been described as:

0 an absolution “of the dead past as a restriction, a determinant, or a
source of guilt and punishment” (Meckier 230),

0 an emancipation of “the constraints imposed upon her by the body of
the paterfamilias buried in the will” (Milton 4),

0 an explosion of “the illusion that inheritance is grOunded in nature”

(Gallagher 262),

232

o a recognition of “the potentially tragic consequences of her inherited
destiny” and the discovery of “the power to resist and escape” (Coveney
51).

o a proof that “the endless contingencies of the claim [. . .] make it clear
that the line of inheritance based on land and law is nothing more than a
messy web of politics, based on choice and circumstances” (Boden-
heimer 226),

c an end of the fee tail in which “only the Bycliffe heir can break the con-
trol of the past and dispose of the estate according to the needs of the
present situation” (Horowitz 138-39).

These literary interpretations, although strong for what they show us of the inter-
actions of law and literature within a text, attribute symbolic meaning to Esther’s inheri-
tance that does not completely concur with the legal meaning. Esther is the beneﬁciary of
a century-old legal document that gives her the property in fee simple by virtue of her
being the only Bycliffe in existence at the death of Tommy Trounsem.5 She does not end
the fee tail or the control of the past; it ended with Tommy’s death. The only control on
the property was that the Transomes could not sell it with a clear title. Esther, on the
other hand, like any other Bycliffe owner had they prevailed in their earlier claims, be-
comes an owner without an entailment and can dispose of her inheritance in any way she
desires ﬂee of any restrictions or duties once the encumbrances on the property, the
mortgages and annuities, are released. No constraints on her or her father’s family ever
existed regarding the property other than delayed ownership. As her case signiﬁes, an

inheritance does not always coincide with one’s past. The father and the Bycliffe family

233

she never knew are not part of her past any more than the child of insemination ﬂour a
sperm bank has any experiential past with the sperm donor. For some reason, which the
text does not reveal, John Justus Transome entailed Transome Court with the remainder
to a Bycliffe. No Bycliffe had a vested interest in the property until Tommy Trounsem
died, so Esther is not taking over a property that has been in her family for generations.
The only constraints known are the entailment of the original Transome interest (not the
Durfey-Transome interest) and the restrictions that the Durfey—Transomes would have in
disposing of the property because they only purchased a limited interest in the property.
The text does not disclose if the Durfey-Transomes strictly followed a distribution of
their interest to the oldest son but makes clear that Harold Transome, treated by all as the
only surviving son of the current possessor, stood to inherit the Durfey-Transome interest
until Tommy’s death.6

Catherine Gallagher is correct in stating the obvious, that inheritance is not
grounded in nature, although it can be associated with nature if “nature” is synonymous
with family lineage as the English custom of keeping property ownership within a family
implies. The grounds upon which inheritance rests in the nineteenth century are legal in
“nature” as inheritance of real property has been since the beginning of English law. As
far as the text reveals, the Bycliffe v Transome lawsuit derives totally ﬂom legal claims
based on the original Transome document with no extralegal appeals to centuries of an-
cestral ownership. The Durfeys purchased their interest in the property to self-construct a
past. Obtaining land was a move upward in social standing for the lawyer Durfey-
Transome. The text does not indicate that the Bycliffes had any previous connection to

the property or explain why the creator of the entailment designated them as remainder

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men. Neither nature nor politics are behind their disputed claims for the property.7 Esther
does not inherit a destiny, but only legal rights that entitle her to certain choices. She in
effect complies with the terms of the past in the sense that her entitlement or rights are
the product of ancient English laws of real property. The legal past, though not her past,
has empowered Esther as the “empress” she and Harold refer to, with a disposable title to
real estate which she can keep for her own use or dispose of in part or in whole. Tommy
Trormsem correctly summarizes the situation when he says, “It’s the law—that’s what it
is. [. . .] There’s folks born to property, and there’s folks catch hold on it; and the law’s
made for them as catch hold” (377). Esther was not born to the property. Until Tommy
died which member of the Bycliffe family would inherit was not known. She did catch
hold of it.

Another point of clariﬁcation regarding Esther’s handling of the estate is that she
did not reject her inheritance or one past for another. She elected not to take possession of
the property to the exclusion of the Transomes and to negotiate a settlement with the
Transomes. This can be the only inference ﬂom the statement that “she resigned all claim
to the Transome estates” (5 99) and the source of her subsequent disbursement of incomes
for Mrs. Holt, Mr. Lyon and herself. Esther, Mr. Lyon, and Harold anticipate this ar-
rangement at their ﬁrst meeting over Esther’s inheritance. Mr. Lyon refers to his belief
that “one Christian brother should not go to law with another” and “would extend this
rule to all my fellow-men.” Esther says “there is nothing that would be more repugnant to
me than any struggle on such a subject.”8 Harold proposes that he and Esther can
“thwart” the lawyers “by determining not to quarrel” (480).9 Although laws are binding,

they do not leave individuals completely without choice. Esther’s decision is her own,

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although inﬂuenced by Felix’s teachings.10 Instead of a drastic change that could have
disrupted the Durfey-Transomes who have occupied the property for more than a century
as well as her own life, she chooses, based on her inherited right, to extend the continuity
that the past allows by taking a regular income ﬂorn the property while she returns to the
continuity of her actual past. The continuity of the past also is maintained in Transome
Court’s continued possession by the upper class. Although she could have married Har-
old and accomplished the same purpose of not disturbing the Transomes, Esther’s conti-
nuity or her past would have been drastically altered by this alliance. She also continues
the past in another way in the legal arrangements between her and the Transomes. She
adds another link to Transome Court’s legal history. As Florence Sandler points out in
“The Unity of Felix Holt,” “The legal maneuverings in the nineteenth century reveal an
earlier set of legal maneuverings and so back [. . .]. As long as land, property, and power
have been maintained, it has been by means of such manipulation [. . .] (145).

The past jeopardized in Esther’s choice was the only past that Esther knew in the
sense of having experienced it, that of her life with the minister.'1 Though she does not
reject her stepfather, she does reject his faith as a Dissenter. Similarly, Felix picks the
parts of his inheritance he will carry forward into the future. He rejects his father’s inheri-
tance of a quack medicine business but not his family’s standing as artisans. The Holts
were a family of weavers. Felix becomes a watchmaker. As a Radical, Harold rejects the
Tory allegiance of the Transome family but not their notions of upper-class property
ownership that began with the lawyer Durfey. Harold “was addicted at once to rebellion
and to conformity” and possessed “a pride that was moulded in an individual rather than

an hereditary form” (197). After his discovery that his real father is J ermyn, he realizes

236

that he has been ﬁghting with his past throughout the novel. This realization harkens back
to the early warnings ﬂom his uncle not to quarrel with Jermyn. At the same time, Harold
gains a better perspective about the past in his relationship with his mother. Jerome Thale
correctly states in The Novels of George Eliot that “[The] consequences of the past cannot
be rejected. Each of the three ﬁnds himself where he is as a result of what his parents
have done [. . .]” (104). However, he erroneously states that the three individuals are se-
verely limited in choices because of those consequences. The three clearly choose the

role of the past in their futures.

The person most affected by the past is Mrs. Transome. She lives in silent suﬂ‘er-
ing because of a choice she made as a young woman, her affair with J ermyn, about which
she is constantly reminded with Harold’s return. Her conduct reveals her inability to rec-
oncile the past to her present. She prematurely buries herself in the past of her “Lingon
heraldry,” her family stories to Esther among portraits of long dead Transomes—“in the
midst of desecrated sanctities” (494). Mrs. Transome is embarrassed and angry that Har-
old would break the tradition of Tory allegiance among the landed gentry. She enjoys rid-
ing out among her tenants like a feudal lord so that they must express their subservience
to her and follow her orders above anyone else’s. She contradicts the doctor’s prescrip-
tions with her own remedies. That at her death “throughout that neighborhood there was
silence about the past” (605) signiﬁes how prominent it was in everyone’s thoughts. She
is, as Terry Eagleton writes in Criticism and Ideology, “pictured as a pathetically out-
dated feudalist [. . .]” (117).

Countering Mrs. Transome’s cruel feudalism are the dreamy and heroic feudal

images that Harold, Felix, and Esther conjure. Esther, who reads the works of the Roman-

237

tic poet Byron imagines a lover who will admire her ﬂom a distance. That lover’s chiv-
alry prevents his ever “adopt[ing] a scolding tone towards a woman” in the manner that
Felix does because he “had no chivalry in him” (264). At Transome Court, Harold’s be-
havior so clearly coincides with her imagination when he kneels on one knee to help her
with her netting that she proclaims, “Ah, how chivalrous you are.” She ﬁnds him paying
“homage” to her and talking to her of how a woman should always have a man to “guard
her ﬂom trouble” (499). Harold has returned ﬂom his personal crusade to the home of the
inﬁdels with bounty and a son born ﬂom a slave wife. He is intent on “rooting out
abuses” (121). Harold wants to make life comfortable and effortless for his mother while
she sits on satin cushions. When he learns that he is not the eligible suitor he had pre-
sented himself to be while wooing Esther, he intends “to do what perfect honour de-
mand ” (587). Even the entailment on the property derives ﬂorn a medieval statute
(633).

Although Felix is not chivalrous, his characterization also borrows ﬂom the past.
He has a “great Gothic head” (561) and he recalls the medieval guilds when he talks of
returning to the artisanship of his ancestors and maintaining class boundaries, duties, and
functions. He undertakes an Arthurian quest that includes self-sacriﬁce and near asceti-
cism for the good of others: “This thing can never come twice over. It is my knighthood.
That was always a business of great cost” (419).12 After knocking down Constable
Tucker during the riot on election day, he rises up wielding a sabre to lead the drunken
crowd.l3 Eventually he accepts Esther as Sancho Panza to his Don Quixote. Sandler ar-

gues that Felix strikes associations to a past “norm against which to judge the tyranny and

238

servility of the present age, and by which to purge the Constitution of the abuses inherited
ﬂom the invader William and his feudal lords” (144).M

These references to inheritance and associations to the historical and mythological
past represent on a small scale the countering stable force of the known in England’s na-
tional inheritance and history existing during a time of social, economic and political
change.15 Privileging the past has successfully delayed change and legitimated the exist-
ing legal system, although some scholars consider the emphasis on traditions and customs
a mythology of English jurisprudence. English jurist Sir Edward Coke (1552-1634), who
wrote the ﬁrst textbooks on the modern common law, was inﬂuential in “ﬁxing the form
and development of modern English law,” particularly in its preservation of ancient
forms (Walker 240). According to Christopher Hill in Intellectual Origins of the English
Revolution, Coke “gave Englishmen an historical myth of the English constitution”
(257). That myth, Hill says, was that the good laws and continuous enjoyment of them by
the primitive English had been broken by William the Conqueror and his successors, but
that the English had fought back and eventually restored them.‘6 In fact, the inﬂuence of
the Normans did contribute to the development of English law much more than the jurists
would admit. For example, the many legal terms now common in Anglo-American law
derived ﬂom the law French of the Normans show their continued inﬂuence.

Even so, the myth was propagated. Sir William Blackstone supported it in his
Commentaries on the Laws of England (17 65-69)17 through repeated references to the
interruption of the good laws by the Normans and blaming their inﬂuence for any defects
in the laws of England: “That ancient collection of unwritten maxirns and customs, which

is called the common law, however compounded or ﬂom whatever fountains derived, had

239

subsisted irnmemorially in this kingdom, and though somewhat altered and impaired by
the violence of the times, had in great measure weathered the rude shock of the Norman
conquest” (1.1. 17; see also 4.33. 435). In his concluding essay, Blackstone refers to the
“ancestors” who transmitted English liberties to “posterity” (4.33. 436). Soon after
Blackstone, Edmund Burke, in his Reﬂections on the Revolution in France (1790), cred-
ited both Coke and Blackstone as “industrious to prove the pedigree of our liberties” by
looking behind the Magna Carta to establish the genealogy in “the still more ancient
standing law of the kingdom” (117-18). Burke wrote that their work “demonstrates the
powerful prepossession towards antiquity, with which the minds of all our lawyers and
legislators, and of all the people whom they wish to inﬂuence, have been always ﬁlled;
and the stationary policy of this kingdom in considering their most sacred rights and ﬁan-
chises as an inheritance” (118).18 In the nineteenth century Walter Bagehot wrote in The
English Constitution (1867) that the “semi-ﬁlial feelings” the British have for their gov-
emment “are inherited just as the true ﬁlial feelings in common life” (60) and that “yes-
terday’s institution are by far the best for to-day; they are the most ready, the most inﬂu-
ential, the most easy to get obeyed, the most likely to retain the reverence which they
alone inherit” (64-65).

Eliot shows many of the major characters in the novel also experiencing breaks in
their development associated with other countries. Mr. Lyon left the ministry for ﬁve
years to live with and marry Esther’s French mother. Felix lived in Glasgow studying
medicine and intending to rise in the social hierarchy. Harold left Transome Court for
ﬁfteen years in Smyrna. Esther’s break, though not associated with another country, oc-

curs during the novel when she lives brieﬂy at Transome Court. 19 However, the interrup-

240

tions in their lives are learning experiences that contribute to and are incorporated into
their development instead of a destructive period requiring restoration.20

As Franco Moretti points out in The Way of the World, this view of English his-
tory gave the word “revolution” an unusual political meaning. Revolution became for the
English “a retru'n back, ‘full circle’ to the original spot” because its prupose was to elimi-
nate the disruptions in historical continuity (207). Once the idea of inheritance and conti-
nuity is established, the movement is a gradual progression forward in time. Blackstone
explains how after the conquest “it has been the work of generations for our ancestors, to
redeem themselves and their posterity into that state of liberty, which we now enjoy [. . .]
[to] a gradual restoration of that ancient constitution, whereof our Saxon forefathers had
been unjustly deprived, partly by policy, and partly by the force of the Norman.” After so
deftly tying liberty to the ancients, he attaches its restoration to “a long series of years [. .
.] step by step effected” (4.33. 413). He implies that to proceed differently would risk the
cherished liberties. If the development of the law and its accompanying liberties had been
otherwise, then he could not have “delineate[d] some rude outlines of a plan for the his-
tory of our laws and liberties ﬂom their ﬁrst rise, and gradual progress” which “have
been and are every day improving, and are now fraught with the accumulated wisdom of
the ages” (4.33. 435).”

Eliot’s introduction also looks to the heritage of the past, allowing much “de-
parted evil” due to progress, but “some pleasant things too, which have also departed”
leaving to the elderly “enviable memories” (75). This theme continues in F elix’s address
with its emphasis on the “old institutions,” that along with “the various distinctions and

inherited advantages of classes, which have shaped themselves along with all the wonder-

241

ful slow-gowing system of things made up of our laws, our commerce, and our stores of
all sorts” (616).22 He reminds his audience of their duty to leave an inheritance to their
children and those who come after them because of “the law by which human lives are
linked together” (613). Felix refers to “that treasure of knowledge, science, poetry, re-
ﬁnement of thought, feeling, and manners, great memories and the interpretation of geat
records, which is carried on ﬂom the minds of one generation to the minds of another”
(621). He buttresses his argument with repeated reminders of the “preservation of order”
(620-21), which, as with continuity, would be disrupted without “a certain patience on
our part with many institutions” (621).

Corresponding to the belief in the slow development of English laws, Felix says
that solutions to problems “come slowly, because men collectively can only be made to
embrace principles, and to act on them by the slow stupendous teaching of the world’s
events” (625). Associating the negative with the cutting of timber and the positive with
the gowth or preservation of trees in the novel sustains the slow-gowth argument. Mrs.
Transome tells Harold that she had “held every tree sacred on the demesne” as part of
preserving the property for his “getting the estate some time, and releasing it.” Without
the ancient trees the property would lose its worth. “A park without ﬁne timber,” she
says, “is no better than a beauty without teeth and hair” (95). But the self-interested law-
yer Jermyn has no regard for the posterity exhibited in trees. “Not a door in his big house
but what was the ﬁnest polished oak, all got off the Transome estate,” Sampson the
coachman says (83). Harold discovers that, with the exception of the demesne, Jermyn
had recklessly thinned the existing trees and failed to plan for the future by planting new

ones. Harold equally ignores the slow gowth of nature when he describes his radical ap-

242

proach to laws with a metaphor: “I remove the rotten timbers and substitute ﬂesh oak,
that’s all” (121). Though the former is commendable in ridding abusive and outdated
laws, the latter does not consider the time necessary to grow a quality oak or for society
to be willing to accept change according to the novel’s message.23 In another organic ref—
erence, Mr. Lyon recalls the association of radicalism with destruction, citing the noncon-
fornrists in the Long Parliament of 1640 who wanted to eliminate root-and-branch the
system of Church government by bishops (368, 665 n3).

Moretti argues that the revivalist view of British history that looks backward to
restore and maintain the past has resulted in a “fatal immaturity that has nipped in the bud
the full modernity of English political institutions and culture and which has gadually
emasculated the hegemonic potential of the industrial bourgeoisie and the cultural auton-
omy of the workers’ movemen ” (207). Thinning may be reckless as Harold notes, but it
also allows for the full development of the remaining plants. Because of this immaturity,
according to Moretti, the law became the symbol of the nation’s legitimacy encouraging
“the gowth of a culture of justice, of a pride in the intangibility of one’s rights, and in the
guarantees they provide against the abuses of political power” (207).

In Whigs and Hunters, E. P. Thompson described how eighteenth-century law le-
gitimized class power and was the authority of the gentry and the aristocracy: “[T]he law
[. . .] may be seen instrumentally as mediating and reinforcing existent class relations
and, ideologically, as offering to these a legitimization” (262). Blackstone’s writings on
the law of that century conﬁrm Thompson’s analysis. The jurist wrote that to repair and
uphold the laws was “a charge intrusted principally to the nobility, and such gentlemen of

the kingdom, as are delegated by their country to parliament” (4.33. 436). In his introduc-

243

tion to the Commentaries in which he discusses the study of law, Blackstone refers to the
“English nobility and gentry,” “persons of rank and distinction,” and “those of noblest
birth and most ample patrimony” as those who will beneﬁt ﬂom the introduction of legal
studies at Oxford (1.1. 12). The reason some go to Oxford and some work in the ﬁelds or
factories perhaps is due to what Bagehot described in the nineteenth century as “the most
strange fact, though the most certain in nature” (62). The rmequal development of the
human race he said shows “the relative steps of our long and gadual progess” (62).
“Great communities are like geat mountains,” he says, “they have in them the primary,
secondary, and tertiary strata of human progess [. . .] (63).

While Blackstone gloriﬁed the aristocracy to set them apart, Bagehot looked at
the bottom rung of the hierarchical ladder. The lower class he says is “scarcely more civi-
lized than the majority of two thousand years ago (62). In Felix Holt, The Radical, the
novel’s narrator describes the crowd on election day as resembling “oxen and pigs” (421)
in their uncalculated actions. When the militia arrived, they “ran confusedly, like terriﬁed
sheep” (432) and were driven along by the ﬂats of the soldiers’ swords.24 Felix tells the
workingnen in his address that they cannot take matters into their own hands but must
accept class distinctions: “No society ever stood long in the world without getting to be
composed of diﬂ'erent classes” (615). Leisure and instruction make the upper class more
“likely to be aware of” the “many precious beneﬁts” of the nation (621). Although the
workers should “resolutely declare against the wickedness in high places,” he urges them
to “set ourselves also against the wickedness in low places” (624). While the workers
concentrate on their own improvement, the upper class must “remember that they hold it

[the treasure of knowledge] in trust, and that with them lies the task of searching for new

244

remedies, and ﬁnding the right methods of applying them” (625). He refers to how “the
labours and earnings of the past have been preserved and handed down” and that without
“the precious material” inherited ﬂom the past, “no worthy, noble future can be
moulded” (626). In other words, as Fred C. Thomson summarizes Felix’s address in
“Politics and Society in Felix Holt,” “For people unaccustomed to the proper uses of the
precious cultural heritage to seize rashly the alluring prerogative of material wealth, re-
ﬁnement, and leisure, trampling down their traditional custodians, would mean the de-
basement of the nation” (107). Felix’s message, Thompson says, is that “[h]istory and the
collective wisdom of the nation are on the side of the ruling classes” (108). It is also the
message of Blackstone and Bagehot.

Moreover, that side is supported by the law and is in control of the law. Black-
stone and others promised a universal ideal epitomized in the title of the concluding essay
to the Commentaries, “Of the Rise, Progess, and Gradual Improvements, of the Laws of
England.” E. P. Thompson argues that the eighteenth-century “provides a text-book illus-
tration of the employment of law, as instrument and as ideology, in serving the interests
of the ruling class.” The gentry “were content to be subject to the rule of law only be-
cause this law was serviceable and afforded to their hegemony the rhetoric of legiti-
macy.” But, as Thompson explains, the “struggles of 1790-1832” forced the gentry to de-
cide whether to “dispense with the rule of law and exercise force” or “submit to their own
rules and surrender their hegemony.” By surrendering to the law, “they threw retrospec-
tive light back on the history of their class” and sustained the institution that maintained
their position. Ifrefonns were to occur, then they should occur within the ﬂamework his-

torically vested by and in the upper class (Thompson 269).

245

The class-based rationalization of Mrs. Transome’s brother, Reverend John Lin-
gon, depicts this theory. Still smarting ﬂom the Catholic Emancipation Bill and the ex-
pansion of the ﬁanchise, he ﬁrmly adheres to the old traditions of his county. For exam-
ple, no sport equates to the now abolished cock-ﬁghting, “under which Old England had
been prosperous and glorious, while so far as he could see, it had gained little by the abo—
lition” (109).25 He tolerates Harold’s radicalism because “nothing was left to men of
sense and good family but to retard the national ruin by declaring themselves Radical,
and take the inevitable process of changing everything out of the hands of beggarly
demagogues and purse-proud tradesmen” (110). This doubleness of the upper class on the
one hand concedes to the necessity of reform while, on the other hand, places them in po-
sitions to control reform and protect their interests. “If a mob can’t be turned back,” Rev.
Lingon says, “a man of family must try and head the mob, and save a few homes and
hearths, and keep the country up on its last legs as long as he can” (111). The rector looks
back to the country’s former leaders like William Pitt to justify his means for the saving
of the country’s ends and warns Harold not to “be attacking the church and the institu-
tions of the country [. . .] you’ll keep up the bulwarks and so on, eh?” (121). When Har-
old publicly announces his candidacy for North Loamshire, Rev. Lingon’s introduction
canies the crowd over the hump of skepticism about a man ﬂour a stalwart Tory family
becoming a Liberal by reminding them that the wisdom of the “best Tories” leaves them
no alternative but to become the “best Liberals” (295). “There isn’t a nastier Horse than
your horse that’ll jib and back and turn round when there is but one road for him to go,

and that’s the road before him,” he says (295). Rev. Lingon reconstructs radicalism so

246

that its purpose becomes keeping reform in check, allowing for just enough change to
prevent revolution, and preserving the nation in much the same way that Felix does.
Felix and the narrator also speak for the upper-class interest regarding reform by
arguing that igrorant power cannot make wise laws because such power would bring
“mischief.” In a statement recalling the symbolism of timber cutting, Felix says for the
workingnan to act with power now would “undo what has been done with geat expense
and labour, to waste and destroy, to be cruel to the weak” (399). Even “a justiﬁable resis-
tance” (615), Felix says in his address can “become a damaging convulsion” when the
resisters are stupid, narrow, and geedy——the human nature of the workingnen.26 F elix’s
“Address to the Working Men” is directed to an audience after the passage of the second
reform bill. In fact, he mentions his involvement in the election riot after the ﬁrst reform
bill. Much of the address recapitulates and excerpts his statements in the novel and many
of the novel’s events support his later words. At the trial of one of the mob’s participants,
a miner named Dredge represents how the lower class is unready to assume power or to
change. He blames others and his circumstances for his actions. His behavior moves
“most observers” to “the melancholy conviction that there had been no enhancement of
public spirit and faith in progess ﬂom that wave of political agitation which had reached
the Sproxton Pits” (560). F elix’s emphasis on law and order that he urged upon the work-
ingnen in the novel continues in his address. He tells the workingnen to join with the
upper class as “guardians of order.” This would actually distinguish them he says, be-
cause the workers, unlike the upper class, are not motivated by protection of wealth,
property, and comfort. He and the workers, Felix says, “must act as if we understood that

the frmdamental duty of a government is to preserve order, to enforce obedience of the

247

laws” (619), rather than as if they were the unthinking beasts described during the novel’s
riot scene.

According to the novel, no one adapts well to rapid change because it is unnatural.
After the election, the rector analogizes Harold’s “racing speed” in implementing agricul-
tural improvements to Transome Court with political reform, telling his nephew that the
mob’s riot has shown that “a Radical won’t do for the country.” Reform, like nature, can-
not be hunied. “The wheat must have time to gow, even when you’ve reformed all us
old Tories off the face of the gound,” he says (529). For a similar reason the debate be-
tween the Dissenting minister and Anglican rector Augustus Debarry never occurs be-
cause it gives credibility to religious sects, something the cormtry is not ready to face.
The “ﬁght with a dialectic short-sword,” (259) as Mr. Lyon considered it, between the
two denominations would be equivalent to lowering a drawbridge and allowing the sepa-
rations of class, politics, and religious beliefs to mingle.27

The premise of the novel is that although change is inevitable, it is an organic
force not to be forced by humans. Whatever the powers behind it, change proceeds at its
own speed for the good of the country and without human assistance. Rev. Lingon has
faith in the workings of another power: “as if Providence couldn’t take care of the coun-
try without my quarrelling with my own sister’s son” (122). Mr. Wace, the brewer, who
is also a member of the Established Church, is leery of the Radicals because, “if we can’t
trust the government just now, there’s providence and the good sense of the country [. . .]
there’s a right in things. [. . .] And if church and king, and every man being sure of his
own, are things good for this country, there’s a God above will take care of ‘em” (301-

02). Although Eliot did not accept a divine force her language in novel imports, as

248

Bodenheimer writes, that “there is another history above and beyond the one in which we
are enmeshed; that it is a history that knows where it is going, and that actions in politics
4 mean something different when they are taken in its ligh ” (228). That force connects also
to the novel’s concluding sentence that the young Felix “has a geat deal more science
than his father” (606).

Similarly, Blackstone’s treatise on the development of English law relies on his-
tory that seemed to have been guided by an “extensive plan” (4.33. 436) that acts inde-
pendently of human intervention “however compounded or ﬂom whatever fountains de-
rived” (1.1. 17). Daniel J. Boorstin writes in The Mysterious Science of the Law of Black-
stone’s organic and providential view of law:

Blackstone held out to the student of law the unsatisfying certainty of being a

powerless spectator of a happy story. [. . .] The student thus had to feel humble

and reverent toward the tendency of history, for that tendency was no less a part
of the laws of nature than was the prohibition of murder. Though he might be sin-
cere in his desire to hasten progess, man had to be aware that he was treading sa-
cred gound and had better leave the laws of nature and of history to work them-
selves out. (82-83)
However, the novel also suggests that during the process of gadual progess the individ-
ual can improve both his internal and domestic well-being. Before they can assume any
power, the workingnen must convert their energy from violent self-help that is ineffec-
tive and destructive to moral and intellectual improvement. According to Bodenheimer,
the novel argues that “genuine change occurs in the understanding of individual persons,

which can only then shape new social orderings” (222).

249

Felix’s emphasis on self-knowledge, individual improvement, and individuals
helping each other contains many ideas similar to natural law thinking.28 Felix’s moral
rhetoric adapts religious thinking to the nineteenth-century question of faith and what J.
Hillis Miller labeled the disappearance of God by excluding the natural law’s Christian
and teleological aspect.29 The historical continuity of the natural law tradition survives in
the novel through a secular form. According to K. M. Newton in George Eliot: Romantic
Humanist, Eliot shows that “even if the moral and social values associated with the
Christian tradition could no longer ﬁnd metaphysical justiﬁcation, these values could be
justiﬁed in purely humanist and non-metaphysical terms” (50). In the sixteenth-century,
Dutch jurist Hugo Grotius asserted what had been hinted at for centruies, that natural law
would hold “even if it should [. . .] wickedly be supposed that God does not exist, or
takes no concern in human aﬂ'airs” (qtd. in Sterne xiv; Bix 227). A disbelief in Christian-
ity does not exclude individuals ﬂom what Richard Sterne calls in Dark Mirror, “secu-
larization of the ethical law of nature” (xiv). The Bible speaks of Gentiles “who have not
the law” but “do by nature what the law requires.” They will not be excluded ﬂom salva-
tion because “[t]hey show that what the law requires is written on their hearts, while their
conscience also bears witness [. . .]” (Romans 2:14-16).

Law professor Brian Bix in his essay summarizing natural law theory explains
that the literal meaning of the higher law of natural law for some is “that there are law-
like standards that have been stated in or can be derived from divine relation, religious
texts, a careﬁrl study of human nature, or consideration of nature” (223). These standards
involve moral or ethical conduct. This traditional natural law theory has been most inﬂu-

enced by Thomas Aquinas’ thirteenth-century Summa Theologica. Aquinas wrote that

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positive law is derived ﬂom natural law which means that in some instances natural law
“dictates what the positive law should be” while in other instances, it allows for “human
choice” (Bix 225). Blackstone incorporates the belief that positive laws derive ﬂom natu-
ral law in the ﬁrst volume of the Commentaries. Two of the most critical distinctions be-
tween positive law and natural law have to do with the moral duty to obey or disobey un-
just laws and the extent that natural law participates in positive law.

Because of the novel’s organic orientation and numerous references to nature, it is
important to review how nature or the natural participates in natural law theory. Accord-
ing to Bix, this participation can be traced as far back as ancient Greek writers, including
Plato and Aristotle, but the Roman orator Cicero’s interpretation is best known. Al-
though, as Bix points out, the combination of natural with law is ambiguous, it can be
delineated in three ways: “because they derived ﬂom ‘human nature’ (our ‘essence’ or
‘purpose’), because they were accessible by our natural faculties (that is, by human rea-
son or conscience), because they derived ﬂom or were expressed in nature, that is, in the
physical world about us, or some combination of all three” (224). For classical writers,
according to Bix, the source of the higher standard is said to be (or implied as being) in-
herent in the nature of things” (224). Although for Christian writers the source was a di-
vine being, they “referr[ed] to the rules of nature which express divine will” and spoke of
“higher standards inherent in human nature or in the nature of things” (224-25).

The introduction of the minister of the Independent Chapel in the novel and his
introduction to the philosophy of Felix Holt through the intermediary of Mrs. Holt,
Felix’s mother, presage the passage of Christian natural law thinking to its secular form.

Lyon is a devout man who is so absorbed in questions of Biblical interpretations and

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scholarship and most importantly, in salvation for another life, that he too often is un-
aware of the immediate world around him. The inescapable repetition of “short-sighted”
to describe him indicates he has too little perspective on the present world to be very ef-
fective. He is distinguished ﬂom Felix Holt in age, philosophy, and physical appearance.
Coinciding with the narrator’s ﬂequent subtle indication of character evaluation through
the language of physical appearance in the novel, Mr. Lyon is unkempt in his old clothes.
Despite “the purity of his character and a quickness of intellect,” he is easily distracted
and disorganized so that Esther must monitor his activities. His “unworldliness and sim-
plicity in small matters (for he was keenly awake to the larger aﬂ'airs of this world) gave
a certain oddity to his manners and appearance” (163).

When Mrs. Holt is announced as a visitor, Mr. Lyon thinks of his inability to
“deal with these weak sisters” because “their needs lie too much out of the track of my
meditations, and take me often unawares. Mistress Holt [. . .] angers the reason of natrual
man” (133). The minister receives Mrs. Holt’s complaints about her rebellious son who
has demanded that she cease the sale of quack medicines on which she and her deceased
husband made their living and unsuccessfully attempts to temper her harshness and self-
absorption. When she leaves, Mr. Lyon again refers to “the natural man” whose “ready
scorn” is checked by his duty to the “weaker vessel” (138). The natural man of Christian
natural law as symbolized in Mr. Lyon, though good at heart, is incapable of contending
with the daily world’s details and the needs of his congegation or to persuade them in
moral thinking.

Mrs. Holt’s farewell shows her resentment at the minister’s implication that per-

haps the wrong thinker is before him rather than her son, “I wish you good-morning, Mr.

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Lyon, and thank you, though I well know it’s your duty to act as you’re doing. And I
never troubled you about my own soul [. . .]” (138). She, along with many of the other
parishioners, does not hesitate to criticize the minister. His congegation members reject
his spiritual teaching for their own and do not treat him with respect. His previous con-
gegation in another town objected to his suggestion that “salvation [. . .] might extend to
unconscious recipients of mercy” (174), an allusion to Paul’s message to the Romans
previously cited. In Treby his church members’ “reverence was often mixed with gowl-
ing, and was apt to be given chieﬂy to an abstract parson who was what a parson ought to
be, so the good Dissenter sometimes mixed his approval of ministerial gifts with consid-
erable criticism and cheapening of the human vessel which contained these treasures”
(158). Mr. Lyon is not served the best tea in their homes or provided with the best ac-
commodations during out of town visits, and he is laughed at behind his back. He is ac-
cused of laxity in raising a daughter, Esther, who appears to lack the humility of one ﬂom
a household beneath the “substantial householders who kept him” (158). More impor-
tantly, though Esther attended some of his sermons, to his sorrow she maintains a dis-
tance ﬂom his teachings and declines to become a member of the congegation.

At ﬁfty-eight Mr. Lyon’s reputation is declining, having failed to meet the reputa-
tion and aspirations he and others had for his career before he met Esther’s mother. The
leaders of the Anglican Church, Rev. Lingon and Rev. Debarry, are kindly, but neither
intent on nor effective in winning converts. Like Mr. Lyon, they are men near the end of
their careers. Neither rector is pictured in his church. Privately, both talk more about poli-
tics than they do about religion. Their public appearances are political or in their capaci-

ties as magistrates of their respective communities. As ofﬁcials in local government, their

253

attempts to disperse the election day crowd are igrored. Rev. Lingon, though a commu-
nity favorite, is “[a] clergyman thoroughly unclerical in his habits [who] had a piquancy
about him which made him a sort of a practical joke” (294). He usually hides his cravat
with a colored bandana.

Rev. August Debarry, “much respected for his affability” (124) is “a ﬁne speci-
men of the old-fashioned aristocratic clergyman, preaching short sermons, understanding
business, and acting liberally about his tithe” (127). He dismisses the Reformation as the
nonconforrrrists making scruples about triﬂes. Like Rev. Lingon, the narrator associates
him with protecting and preserving the English heritage. His rectory is “among the bul-
warks of our venerable institutions—which arrest disintegrating doubt [and] serve as a
double embankment against Popery and Dissent [. . .] (329). He refuses to debate Mr.
Lyon on “the constitution of the true church” and “their bearing thereupon of the English
Reformation” (261) because, in words that reﬂect the spirit epitomized in Blackstone,
“[t]here can be nothing more renegade—losing all the result of civilization, all the les-
sons of Providence—letting the Windlass run down after men have been turning at it pain-
fully for generations” (330). But he agees to substitute a young curate as an action “the
least compromising to the church” (346). That substitute, Sherlock, fails miserably as a
representative of the established church in his lack of conﬁdence and ﬂight ﬂom the
town. Neither he nor Rev. Lingon can publicly defend the church when asked for more
substance than repeated platitudes, meaningless phrases, and abstractions on matters such
as the debate on baptism by sprinkling rather than immersion that are the trivia for which
Rev. Debarry criticized the nonconforrnists of the Reformation. The Anglicans thus are

ineffective as purveyors of moral conduct.

254

Continuing to exclude any possibility of Christianity as a source of moral guid-
ance, Eliot removes the one character who appears unencumbered by the past or ques-
tions of parenthood and whose integity, public acceptance, respect for others, and politi-
cal ability establishes him as a potential leader intent on doing the public and country
good. Instead of remaining as this hope for the future, Philip Debarry converts to Catholi-
cism. His conversion and subsequent death in Rome become a literal and ﬁgurative
desertion of his family and country and a rejection of his inheritance and duties as a
member of the upper class.30 Unlike other characters in Victorian novels who are exiled
because their violence or otherness threatens the conventional order, his threat is subtler
but equally undermining of established conventions. He is “one of the new
Conservatives”3 1 whom his father cannot understand. He also willingly breaks down
barriers of class and religion by treating a servant “more deferentially than an equal”
(308) and acknowledging in Mr. Lyon a “worth in the man beyond his class” (332). He
“defend[s] the casuists” (331). Contrary to his uncle’s wishes, Philip facilitates Mr.
Lyon’s request for the public debate. The debate is dangerous because it would open a
dialogue between the two denominations and give more standing to the Dissenters than
the Anglicans concede. Indeed, old ﬂiends who had been separated by religious
differences use the meeting as an opportunity to be with each other again.

Philip’s exemplary conduct and wisdom affects his father, Sir Maximus, and his
uncle, Augustus Debarry, who defer to and depend upon the younger man for guidance.
His uncle says his “character [is] a possession to all of us” (332). But his voice is “modu-
lated by delicate health and a visitation of self—doubt” (249). When Augustus Debarry

joins with his brother to obtain F elix’s pardon, he knows he is following his nephew’s

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wishes——“Phil would be on that side”—as if the young Debarry were no longer of the
same world instead of in London for his duties in Parliament. Despite the necessity of
eliminating Philip as a threat to convention, his character is not developed perhaps less
because of his threatening tendencies"2 than because he is a literary device to include Ca-
tholicism in the novel’s argument for the ineffectiveness of Christianity and its leaders.33
Even though the narrator seems intent on neutralizing any representative of Chris-
tianity, Martin J. Svaglic correctly points out in “Religion in the Novels of George Eliot,”
that in portraying Christianity, Eliot is “usually respectful and often, especially with dis-
sent [. . .] warm and affectionate, since dissent was more actively benevolent than the Es-
tablished Church [. . .]” (289). The gentle disarming of any religious obstacle to Felix’s
secularism and the introduction of Felix and Mr. Lyon prepares the way for what Jerome
Meckier calls a “cultural transmission” ﬂom Mr. Lyon to Felix that indicates “an opera-
tion previously spiritual and sacred has become physical and secular, although it retains
its religious aura” (229). In their perspectives on their fellow human beings, Felix re-
places the spiritual life of the future propounded by Mr. Lyon and his Milton with the
Caliban of Shakespeare and the earthly physical present (369). “I care for the people who
live now,” Felix says, “and will not be living when the long-run comes” (362). Felix, who
abstains ﬂom church attendance and refers to Mr. Lyon’s “awful creed” (156), is young,
healthy, intelligent, and self-conﬁdent. He possesses above average physical strength and
towers above most men. The “peculiar stamp of culture” on his face made “a very
roughly-cut face worthy to be called ‘the human face divine’” according to the narrator
(398). Everything about his appearance is exceptional and worthy of respect and atten-

tion. He is like a human god, and Esther provokes biblical overtones when she thinks,

256

“[h]e was like no one else for her: he had seemed to bring at once a law, and the love that
gave strength to obey the law” (369). Esther eventually decides that to turn her back on
him would be equivalent to turning her back on heaven (591).

Felix is not a man of God whose duty it is to spread God’s word, but the god him-
self, speaking his own word. This does not mean he is an earthly divinity entitled to wor-
ship despite Esther’s love and enthusiasm. His portrayal directs the perspective of relig-
ion in this novel to humanity and the physical, actual world, not any transcendental ele—
ment. It differentiates Felix from the Dissenting minister who says, “our powers are being
trained not only for the transmission of an improved heritage, as I have heard you insist,
but also for our own entrance into a higher initiation in the divine scheme” (342). The
transmission Meckier cites concludes at Felix’s trial when Mr. Lyon admits that he
wished Felix were a member of his congregation because “I should then feel that the
great virtues and the pure life I have beheld in him were a witness to the efﬁcacy of the
faith I believe in and the discipline of the church whereunto I belong” (567). However,
that cannot occur in the novel; its secular orientation is on the present and on individual
moral worth.

The present world for Felix “is not a very ﬁne place for a good many of the peo-
ple in it” (143). He says he is “a man of this generation” and he intends “to make life less
bitter for a few within my reach” (367). Instead of ending pain in a life hereafter, he fo-
cuses on a better world on earth bordering on a utopia for future generations. He thinks
he is one of those “called to subject themselves to a harder discipline, and renounce
things voluntarily which are lawful for others” (363). Unlike Philip, his calling requires

not a withdrawal from the community, but an aggressive involvement in it with no antici-

257

pation of an earthly or heavenly reward. In eﬁ‘ect, Felix personiﬁes what Sterne deﬁnes
as “the heart of the natural law tradition [. . .] a concern for the common weal [. . J”
(258). Still, in accepting the torch from Mr. Lyon, he simply replaces the paciﬁcation of
expectation of an afterlife through salvation with the distant hope of a better earthly
world for future generations.

Aquinas wrote that through reason human beings learn the natural order of
things—“a natural inclination to its due act and end” and to discern what is good and evil.
The norms of natural law are “the rational creature’s participation in the natural order”
(2.1.93.2 208-09). In this respect, natural law is concerned with functionality. Blackstone
states that justice and happiness derives from following the natural law precepts of “ﬁt-
ness or unﬁtness of things” (Intro. 2 41). Felix’s address displays this functionality: “a
society, to be well off, must be made up chieﬂy of men who consider the general good as
well as their own” (614). The classes of society, he says, are like “the human body, with
all its various parts depending on one another” (614-15). Thinking of class functions in-
stead of interests, he says is “the only safe way by which society can be steadily im-
proved and our worst evils reduced” (616-17). This is “taking the world as it is,” he tells
the workingmen (616) or working with “human nature” (616) so as to “shape our means
more and more reasonably towards the least harmful, and therefore the speediest, attain-
ment of our end” (619). In his speech to the crowd gathered for nomination day, Felix
emphasizes the “nature of things.” He argues that “[t]he way to get rid of folly is to get
rid of vain expectations, and of thoughts that don’t agree with the nature of things” (400).
He tells Esther that he wants “to stand up for the lot of the handicraﬁsmen as a good lot,

in which a man should be better trained to all the best functions of his nature” (366).34

258

Others in the novel also adopt the idea of functionality and working together to-
ward a common end, although more with an idea of pragmatic self-preservation than of
self-improvement. Because “the whole duty of a Tory was a matter of conscience with
him,” Sir Maximus argues, “We are bound to regard every man of our party as a public
instrument, and to pull it all together” (180). Harold’s defection to the Radicals has ex-
tensive ramiﬁcations beyond the political. Sir Maximus pronormccs that “he’s got neither
religion nor morals left” and “can’t know anything about English politics” (182). Fur-
thermore, the baron, not knowing how prophetic he is, claims Harold jeopardizes his po-
sition as a landowner. Similarly, one of the local newspapers equates Harold’s candidacy
to the disassociation of his family from its “attachment to right principle, and with the
maintenance of our constitution in Church and State” as well as a “laxity of feeling to-
wards Protestantism” (195). To assault conventional Tory politics is equivalent to blas-
phemy.

In the same way that the historical-inheritance argument of slow growth retards
rapid change, so do claims of functional morality. Both use the organic process to but-
tress their position and rest their call for order upon a natural foundation that ties to na-
tionalism. In a society in which similar language has been praised for centuries, as Black-
stone and others attest, these arguments are irresistible, despite their questionable ethics
in enclosing the lower class within strict boundaries and depriving them of power. For
Felix, Sir Maximus, and the writer for the newspaper, the established national order is so
encompassed within their concepts of reason, common sense, and good conduct that to

resist it is against nature, absurd, and immoral.

259

Felix proposes educating the lower class so that resisters will use right reason and
know their ftmction.35 Esther and the working class require an education, not in order to
become questioning critical thinkers, but “in order to bring them into the national fold”
(Lesjak 95). Felix’s arguments work at shaming both Esther and the workingmen. This is
the technique he urged in his speech on the stump after the nomination process in which
he says that “the greatest power under heaven [. . .] is public opinion—the ruling belief in
society about what is right and what is wrong, what is honourable and what is shameful”
(401). He begins his address with rightly placed criticism of politicians and government
but moves swiftly to embarrassing the working class for their insobriety and
irresponsibility toward their families. He also humiliates Esther into thinking she is
selﬁsh, interested only in triﬂes, and inconsiderate of her stepfather’s virtues. The
working class through the franchise and Esther through her reﬁned good taste, beauty,
and eligibility for marriage seek upward mobility. Additionally, Esther is half-French
with a foreign aspect to her. IfEsther and the workingrnen are to be enfolded into English
society, they must be tamed and dissuaded from unnatural behavior. Felix views his
Glasgow experience as a lesson in the futility of rising above one’s class. Education, he
argues, enlightens individuals about who they are and guides them to their function.

F elix’s second argument from natural law concepts about the best self and functionality
directs thinking away from external beneﬁts, which he thinks can lead to danger and
disruption, to a ﬁxation on internal examination.

The only scenes of Felix’s teaching of the working class in the novel are through
his speeches and school for some neighborhood boys. His teachings of Esther, though

sometimes like speeches, are less political but a one on one exhibit of what he wants to

260

be, “a demagogue [. . .] who will tell the people they are blind and foolish, and neither
ﬂatter them nor fatten on them” (366). While her stepfather’s attempts at Esther’s conver-
sion were based on his fear of her unﬁtness for heaven, Felix’s words attack her “self-
respect and self-satisfaction” because they infer that she accepts the “trivial, narrow,
[and] selﬁs ” when her best self is capable of a higher ﬁmction” (214) though not of a
higher class. “I distinctly see that I can do something better,” Felix says. “I have other
principles, and should sink myself by doing what I don’t recognize as the best” (210).
This is what he wants Esther to understand, and his words burn into her consciousness as
“self-criticism” and “inward questions” previously unknown to her. Her continued asso—
ciations with Felix convince her that there was “something greater and better in him,” and
she absorbs his words because, as the narrator says, “so incalculable is the effect of one
personality on another” (327).

As she becomes more subject to F elix’s inﬂuence, the text reveals a slight tension
between the characterizations of Esther and Felix. Although she is part of the transmis-
sion from the religious Mr. Lyon to the secular Felix, she emerges as separate and distinct
from Felix in her implementation of natural law concepts, while he remains behind with
only his preaching.36 The natural law concepts have passed from the prescriptive in Felix
to the descriptive in Esther. Her character seems to take over the novel. She becomes
more likeable and appears superior to Felix. During several parallel scenes, she and Felix
respond differently to similar situations and she undoubtedly emerges more aware of her-
self and others and more efﬁcient in inspiring others to adopt moral conduct.

The ﬁrst indication of her participation in the transition from Mr. Lyon to Felix

occurs in the exchange between Mr. Lyon and Esther after Mr. Lyon revealed the circum-

261

stances of his marriage to Esther’s mother. Esther recognizes that the life of a woman
raised in luxury reduced to living in poverty with a Dissenting minister because in her
own way she knew that it was the right thing to do “must be the best life” (355). Annette
reciprocated Mr. Lyon’s sacriﬁce in her change of heart and willingness to help him.
Esther is pleased with this discovery because it is “where one bears and does everything
because of some great and strong feeling—so this and that in one’s circumstances don’t
signify” (356). She is thinking of Felix’s renrmciation and perhaps her own eventually.
From a natural law perspective, this best life represents the perfect juncture of will and
right reason with function. Her stepfather’s unresponsive reply that “the feeling that
should be thus supreme is devotedness to the Divine Will” disturbingly “did not ﬁt on to
the impressions wrought in her” (356). Soon after this incident, Felix expands on Esther’s
discovery in telling her that “the ﬁnest fellow of all would be the one who could be glad
to have lived because the world was chieﬂy miserable, and his life had come to help
some one who needed it” (361). Another example of the transmission from Mr. Lyon to
Felix is the different approach Mr. Lyon and Esther take to her inheritance. Esther’s view
of her inheritance is infused with concern for the disruption of the Transomes. Her stepfa-
ther’s opinion is that is represents a “providential arrangement not to be wholly set aside”
(504) so that it can be used as “a means of honouring and illustrating a purer form of
Christianity” (506)

The ﬁnal example of the transmission, after which Mr. Lyon recedes into the
background of the novel and Felix is only slightly less visible, occurs during Felix’s trial.
The novel’s practice session for Esther’s testimony occurs at Transome Court alter Mrs.

Holt appears uninvited and demands that the gentry intervene on behalf of her son. Her

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rantings expose to Harold the close relationship between Esther and Felix. As a result,
Esther’s conscience forces her “to speak the truth about the man” to Harold. She de-
scribes Felix’s “nobleness” (537), as she will later at the trial. Harold’s response is that
her “testimony to any one is enough for me” (538). In this scene, Esther felt “her own
words were bringing her a clearer revelation” (537). That revelation emerges as her tes-
timony. Her appearance before the court is the commitment Mr. Lyon prayed for, but it is
not to the church: “Her clear voice sounded as if it might have done if she had been mak-
ing a confession of faith.” In the courtroom, “[e]very face looked grave and respec ” in
recognition of the sacredness of her action (5 72).3 7 Not only does she supply valuable
testimony in accounting for F elix’s conduct before the riot, but she also tells of his “kind
feeling towards others,” that his character was not one “to join in a riot or to hurt any
man,” and that his noble nature and tender-heartedness prevented “any intention that was
not brave and good” (573).38

Even though her action is not the profession of faith her Christian stepfather
sought, it rings of traditional natural law theory. The references to “necessity,” “one irre-
sistible impulse for her heart,” and the union of her “passion and her reverence for rarest
goodness” (571) represent the aim and ﬁmction of natural law thinking. It is self-
knowledge and conscience spontaneously merging so that the response of the individual
is not alter choice, mediation, or considering alternatives but according to an incontest-
able awareness of what is right. Esther’s synthesis is the culmination of Felix’s teachings
from “the ﬁrst self-questioning, the ﬁrst voluntary subjection, the ﬁrst longing to acquire
the strength of greater motives and obey the more strenuous” (3 69). Overcoming her life-

long “dread of being ridiculous” (573) in public, Esther speaks because “the voice of

263

right and truth had not been strong enough” (571). The narrator’s identiﬁcation of
Esther’s surprise testimony as “a necessity for action, rather than a resolve to act” (571)
clearly distinguishes Esther’s immediate necessity from Felix’s deliberated necessity with
which he justiﬁes his renunciation: “It is the old word—‘necessity is laid upon me’”

(3 63).3 9 However, Esther would not have acted upon her internal synthesis if Felix’s
teaching had not opened her vision to a denial of her ego and a receptiveness to her con-
science.

The same deliberation and resolution separates Felix’s earlier actions during the
riot from Esther’s action at the trial. Felix was ﬁrst “swayed by the crowd.” Then he
could no longer be an observer when the crowd reached the inn and he decided to “coun-
tera ” the outrages. “His mind was busy with possible devices” to prevent injury and de-
struction. He acted “towards a plan he was bent on” (426) using his “rapid senses and
quick though ” (427) so that he “chose between two evils” when he struggled with and
disarmed Constable Tucker. Clearly, the narrator presents Felix, although “his blood was
up,” (427) as calculating and planning his actions rather than subject to an overwhelming
synthesis of his consciousness and conscience. Another difference in the two actions is
the intent of the actors. Esther is not thinking of the consequences of her deed as much as
a sense of the only right thing that can be done in the situation so that whatever the con-
crete consequences, the abstractions of truth and right are satisﬁed. Felix seeks concrete
results, the control of the mob, and the prevention of physical injury and damage to prop-
erty. It is an ends justify the means kind of reasoning. The ﬁnal distinction is the conse-
quences of Esther and Felix’s acts. In attempting to prevent the death of Spratt, the hated

manager of the coal-pits, and property damage, Felix implements the same results on a

264

diﬂ'erent person and different property. In performing the only right thing, Esther shows
the courtroom spectators the consequences of her synthesis.

In yet another comparison between Esther and Felix, their speeches before the
court evince Esther’s development and F elix’s stasis. The judge might understand F elix’s
intellectual explanation, but not the jury. Instead of talking to the community of jurors, he
becomes didactic and tmsuccessfully attempts to elevate their thinking to the superior
level he asserts. The narrator approves of his enthusiasm and stamina in speech making:
“The sublime delight of truthful speech to one who has the great gilt of uttering it, will
make itself felt even through the pangs of sorrow” (564).40 His conduct appears con-
trived. In contrast, Esther’s testimony was briefer and spoken very clearly in a manner
that everyone, at all levels, understood and knew was sincere without her saying so. Both
her spontaneous conduct and her speech create a moving impression. Although they do
affect the legal verdict either, as Harold later tells her, “You made all the men wish what
you wished” (5 89). That wish results in Felix’s pardon. Felix’s intentions are good, but
he fails. Esther succeeds, not in inﬂuencing the legal verdict, but in affecting Felix’s
prized public opinion that leads to his pardon.

Another aspect of natural law present in the trial is Felix’s assertion of the right to
disobey unjust laws. Aquinas, relying on Augustine, explains in the Summa Theologica
the instances in which laws are not binding in conscience (2.1.4 233). These are what
Felix calls “sacred feelings” that make it “a sacred duty” to resist (565). Similarly, Black-
stone told his audience that they were bound to transgress any human law that violated
the law of nature or else they would “offend both the natural and divine” (Intro.2 43).

Irnportantly, for purposes of the novel’s criticism of resistance, to detail speciﬁcally when

265

and only when the law must be disobeyed implies an equal moral obligation otherwise to
uphold the law as an institution of society.

Mr. Lyon, once more acting as a sort of nineteenth—century Milton,"1 ﬁrst intro-
duces the concept of civil disobedience when he instructs Felix that “the right to rebellion
is the right to seek a higher rule, and not to wander in mere lawlessness” and warns Felix
“not to say that liberty is licence.” The minister says that, “[T]rue liberty can be nought
but the transfer of obedience from the will of one or of a few men to that will which is the
norm or rule for all men” (242). Although Mr. Lyon considers church-rates an injustice,
he does not support “that passive resistance to a legal imposition which had been adopted
by the Friends (whose heroism in this regard was nevertheless worthy of all honour)”
(270). Felix’s secular natural law views emerge during the trial in his statement that al-
though his excuse for attacking Tucker was to prevent the constable’s disabling him from
his drive to save lives and property, he does not want the court to think that he would
never assault a constable “if I saw him doing anything that made my blood boil.” Felix
explains that, “I reverence the law, but not where it is a pretext for wrong, which it should
be the very object of law to hinder. [. . .] I hold it blasphemy to say that a man ought not
to ﬁght against authority; there is no great religion and no great freedom that has not done
it, in the beginning” (565). Considering Felix’s position as a defendant his gratuitous and
confusing introduction of a statement about civil disobedience seems misplaced. He spe-
ciﬁcally says his action against Tucker was not in response to an unjust law. He is mak-
ing the statement to prevent any inference that he is relying on civil disobedience as a de-

fense. Harold describes “that whole peroration of his, which he ought to have left unsaid”

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(566) as a “blunder” (565). He tells Esther that the jury “won’t understand it, or rather
will misunderstand it” and “it has soured the judge” (566).

Esther surpasses Felix from a natural law aspect in her reliance on the synthesis of
the right reason of her thinking and the conscience in her heart. Felix too often relies on
his mental faculties while unnaturally denying his heart. He cannot profess his love for
Esther because it does not ﬁt with an intellectual concept of how he must function. He
speaks of “cleaving to a purpose he sees to be best” (558) even after his actions at the riot
failed. Esther’s inheritance is “a ﬁtting lot” for her from his perspective because he does
not consider that the best self and true functionalism must combine right reason and con-
science. Esther cannot consider the ﬁtness of her purpose exclusive of what Felix would
call “the lot” of others.

Esther’s ultimate test concerns her inheritance. Contrary to its argument for slow
external change, the novel depicts internal change as occurring quickly: “life is measured
by the rapidity of change, the succession of inﬂuences that modify the being; and Esther
had tmdergone something little short of an inward revolution. The revolutionary struggle,
however, was not quite at an end” (591). Rapid internal change occurs also in Mr. Lyon’s
leaving the church for Esther’s mother and Harold’s gaining understanding after learning
the identity of his true father.42 Esther was tempted to marry Harold because it would re-
solve the hesitation she felt at turning out the Transomes: “if something would come and
urge itself strongly as pleasure, and save her from the effort to ﬁnd a clue of principle
amid the labyrinthine confusions of right and possession, the promise could not but seem
alluring” (524). She ﬁnds a “dullness” in the ease of Transome Court and Harold seemed

“an air of moral mediocrity to all her prospects.” Both seem to nullify “the higher ambi-

267

tion which had begun to spring in her” (524). She cannot shake the voice of her con-
science that reminds her of something higher. However, if F elix’s renunciation of his
love for Esther is a necessity for him to accomplish his work, what he sees as following
his best self’s function, then Esther’s renunciation of her love for Felix and accepting a
life at Transome Court, less austere but equally difﬁcult, might also be a necessity in
Felix’s terms. Further complicating, the “repugnance” (592) she felt at turning the Tran-
somes out, is a desire to stay with them in the hopes of bringing them some comfort. Ac-
cepting Harold would parallel the revitalization he wants to bring to the property through
a revitalization of the Transome family in their children. Converting the property to an-
other good use as something that follows her stepfather’s belief in its providential impli-
cations could equally be a necessity. Either approach counters the text’s message against
upward mobility and gradual change. These options provide a function for her without
her determining her own ﬁtness for purpose and “without paying a heavy price” (591)
that the narrator and Felix argue must encumber “the best thing that life could give” or
“all that is greatly good” (591).43 She has no promise that if she returned to her stepfa-
ther’s home Felix would marry her. Even if Felix fulﬁlls her hopes, “she knew that she
pledged herself to meet high deman ” (592). Although the novel has been building to—
ward Esther’s ultimate conﬁontation with herself, the narrator takes pains from a literary
position to make Esther’s internal turmoil not only realistic, but also consistent.

Mrs. Transome’s misery and her coming to Esther for mercy tilt the decision:
“The dimly-suggested tragedy of this woman’s life, the dreary waste of years empty of
sweet trust and affection, aﬂlicted her even to horror. It seemed to have come as a last

vision to urge her towards the life where the draughts of joy sprang from the unchanging

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fountains of reverence and devout love” (597). The implied assumption, though not en-
tirely credible, is that despite Esther’s enlightenment, her life at Transome Court would
be as tragic as Mrs. Transome’s. Esther’s decision is not prompted by a sympathetic
imagination in which she considers the consequences of her acts on others. Her decision
is based on what she sees in the present of Mrs. Transome’s life and her imagining her-
self in the same position. Her sympathetic imagination has turned inward to herself. The
text is unclear why she fears, knowing the different environments in which she and Mrs.
Transome had been raised, that she would be susceptible to the same character faults as
Mrs. Transome.

The text also is unclear why Felix, upon his release from prison, no longer ad-
heres to his resolution to never marry. His surprise at seeing Esther back in the Dissenting
minister’s home provides Felix another opportunity to lecture his best pupil and question
her thinking even as he proposes marriage. He touches the curls he wanted to cut off
when they ﬁrst met; at his implication that they are extravagant, Esther tells him they are
natural. With “a grave look of appealing submission” (602), she reminds him that her
plans to distribute her income require his approval. In this way, Felix wins back tempo-
rarily the center stage in the novel that he lost while in prison. His lack of appreciation
and praise for her strength in court and the disposition of her inheritance is conspicuous
as he doubts her sincerity and understanding of what a life with him will be like. Finally,
at Esther’s words that her husband must be “greater and nobler than I am,” he admits that
he will “be forced to be a much better fellow than I ever thought of being” (603). Esther’s

moral conduct has touched him now and the novel can move smoothly from the last

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chapter to the epilogue that opens with Esther the center of attention once again at their
wedding.44

Elizabeth Errnarth notes that many scholars conclude that Eliot “derives the no-
tion of moral imperative from Christianity while she otherwise rejects Christian beliefs”
(2 74).” As previously stated, one of the conﬂicts between natural law and positive law
theorists is the extent to which natural law should participate as a prescriptive and de-
scriptive guide to positive law. In a broad perspective, the text presents this issue in the
relationship of church and state, its portrayal of lawyers and the public opinion of law and
lawyers. The novel’s statement about the infusion of morality into these legal perspec-
tives coincides with what in The Art of George Eliot, W. J. Harvey calls her concern
“solely with man’s moral struggle in this world” (47).

Membership in the Established Church and afﬁliation with the Tory party unites
religion and politics for purposes of the status quo. Both Anglican rectors are magistrates,
a position only open to members of the Church of England (Moylan 340). Their position
entitles them to dispense the law on some occasions. Rev. Lingon speaks publicly on be-
half of Harold’s candidacy after some soul-searching about how to justify his change of
political endorsement and then later retracts his acceptance of radicalism. Both rectors are
actively involved in the election day activities. A humorous example of the blend of re-
ligion and law is the deﬁnition of excommunication offered by Sir Maxirnus Debarry’s
butler who calls it “a law term [. . .] meaning that a Radical was no gentleman” (187).
Rev. Debarry considers the political sermons of the Dissenting minister “as pernicious
sources of intoxication as the beerhouses” (127) and teaching “hucksters and tape-

weavers that it’s their business to dictate to statesmen” (248). He wishes in his position as

270

a magistrate that the law entitled him to censor Mr. Lyon’s politics from the pulpit. Rev.
Debarry is not a hypocrite in seeking to silence Mr. Lyon while being himself actively
involved in law and politics. His criticism is the content of the Dissenting minister’s
words which challenge the established alliance, causing “mischief” by “mak[ing] the ig-
norant multitude the judges of the largest questions, both political and religious, till we
shall soon have no institution left that is not on a level with the comprehension of a buck--
ster or a drayman” (330). He views a lessening of class divisions as a dumbing down of
society’s institution or making them subject to society’s lowest common denominator.
While the Anglicans view law and religion without question as blended along
with government into a concept that establishes their nation’s identity, some Dissenters,
most prominently Mr. Lyon with his traces of Milton, consider the fusion of politics or
the law with religion or morality a vehicle for “the cause of truth and freedom” (127) and
a means to obtain political and religious liberties. Harold, as the Radical candidate, visits
Mr. Lyon seeking his endorsement but not the other candidates or their representatives.
Despite criticism from even some of his own congregation, Mr. Lyon disputes the
contention that “the pulpit is no place for teaching men their duties as members of the
commonweal ” (146). He is against the ballot because “it would be ﬁrtile as a
preservative from bribery and illegitimate inﬂuence” and because it prevents voters from
having to experience a test of conscience in publicly indicating their preference.46
However, Mr. Lyon opposes the part of law that litigates disputes explaining that
“the practice of our courts is little consistent with the simplicity that is in Christ” (481).
Disputes should be resolved through dialectic between the parties, another similarity to

Milton, as shown in Mr. Lyon’s request for a debate on the differences between the reli-

271

gious philosophies. His one consultation with a lawyer, asking J ermyn to ﬁnd informa-
tion about Esther’s father, jeopardizes Esther’s inheritance because it gives the lawyer
information to blackmail Harold. Although the public opinion of lawyers in the novel
says little for their integrity, it has not shamed the lawyers into modifying their conduct.
As the narrator says, “A provincial lawyer in those old-fashioned days was as independ-
ent of personal esteem as if he had been a Lord Chancellor” (307). The narrator refers to
the legal profession as “a profession where much that is noxious may be done without
disgrace [. . .]” (317). In explaining why Felix does not want the assistance of counsel,
Mr. Lyon says he has “an averseness to a profession wherein a man may without shame
seek to justify the wicked for reward and take away the righteousness of the righteous
ﬁom him” (482). In fact, as the coachman Sampson says, “It was not so well for a lawyer
to be over-honest, else he might not be up to other people’s tricks” (83). It was such be-
havior of a lawyer named Durfey that began the dispute over Transome Court: “As for
right or wrong, if the truth were known, the very possession of the estate by the Durfey-
Transomes was owing to law tricks that took place nearly a century ago, when the origi-
nal old Drufey got his base fee,” according to the Transome’s current lawyer, J ermyn
(317).47

Other than the narrator, the main moral voice describing lawyers comes from
Philip Debarry’s valet, a man with a mysterious background whose surname is Christian.
The butler at Treby Manor jokes about “a party [. . .] calling himself a Christian and be-
ing anything but i ” (189). Christian exhibits few moral attributes, was once the subject of
many legal difﬁculties himself, and holds the key to Esther’s identity. Christian attributes

lawyers’ lack of civility to “this cursed conjuring secret of theirs called Law” that makes

272

them “think everybody’s ﬁightened at them” (310). For Christian, “secrets were often a
source of proﬁt [. . .] (347), and he intends to gain from what he knows about Esther’s
father. His patient and intelligent behind the scenes work is for his own beneﬁt, yet he
does stymie the evil of Jermyn’s blackmail and Johnson’s ﬁnancial gain and brings good
to Esther and Harold. He warns Mr. Lyon to avoid J ermyn’s help in ﬁnding Esther’s fa-
ther: “I am much mistaken if there isn’t a lawyer who’ll take precious good care to keep
the law hoodwinked. And that lawyer is Mat Jermyn” (351). He tells Harold “where the
lawyers are on the scent you can never be sure of anything long together” (454).

J ermyn receives the brunt of negative opinion of lawyers in the novel. One of De-
barry’s tenants jokes that J errnyn could win a contest against the devil. Sir Maximus’ but-
ler retorts to the statement that the Transomes always won their lawsuits, “And always
lost. [. . .] I think we all know the nature of law” (186). His listeners share the public
opinion that J ermyn’s wealth came from his self-interest in managing the Transome
properties. The lawyer, impervious to public opinion, exhibits no humiliation that would
modify his conduct or prompt any regret for his past acts. According to the narrator,
“[m]oral vulgarity cleaved to him like an hereditary odour” (202). Jermyn “had had to do
many things in law and in daily life which in the abstract, he would have condemned; and
indeed he had never been tempted by them in the abstract” (205). He commits adultery
with Mrs. Transome, a client, which results in Harold’s birth. Through blackmail he ob-
tains Mrs. Transome’s silence about that past for more than thirty years while he takes
timber from the property for his own use and encurnbers the property with mortgages and
annuities ultimately payable to him. Because of J ennyn, Esther’s real father is wrongfully

imprisoned. His death in prison ends the last of the Bycliffe v Transome litigation. Fi-

273

nally, J ermyn attempts to continue the blackmail of the Transomes by threatening to re-
veal the heir to the property if Harold does not drop the suit he has ﬁled against Jermyn.48
Although he admits to having “stretched my conscience” (515), Jermyn justiﬁes his ac-
tions as for the beneﬁt of the Transomes whom he thinks are forever indebted to him lit-
erally and ﬁguratively in the papers he holds against the property and for the extent of his
efforts at keeping Transome Court in their possession. Jermyn thought only of his “own
freedom from obligation and the indebtedness of others towards him” (513).

John Johnson, J ermyn’s subordinate who worked as an electioneering agent in
Harold’s campaign and was responsible for inciting the Sproxton miners, is equally adept
at turning situations into his own advantage. He also works for Harold’s opponent, Gar-
stin, using Tommy Trounsem to paste up some handbills that support Harold and others
that hint at his true parentage. Because Felix has repeatedly and publicly attacked J ohn-
son’s bribery of the miners, the revengeful Johnson tampers with the witnesses against
Felix “so that “their strong perception and memory” in their testimony “was due to a
fourth mind, namely, that of Mr. John Johnson” (563). He extends his “doubleness” (385)
by countering Jermyn’s plan to use his knowledge of Esther’s identity to control Harold.
After he obtains the necessary facts from Christian, he enlists a law ﬁrm other than the
one he knows handled the Bycliffe’s claim in the past to notify Esther of her inheritance
and to solicit her as a client. In this way, Johnson defeats Jermyn, and he will receive a
commission from the ﬁrm’s proﬁts if they represent Esther’s claim.

The only lawyer in Treby to escape ill repute is Mr. Labron, who handles the De-
barry affairs, and is mentioned only occasionally as representing their interests during the

election. Perhaps the Debarry power and wealth protect him, but he is not associated with

274

any of the selﬁsh practices that occupy J ermyn and Johnson. Mr. Labron may have no
more higher moral standards than the other lawyers, but he is not shown as part of the
“push and scramble for money and position” (362) that Felix mentions as part of the up-
ward mobility climb from one class to another. The Treby merchants appreciate that law-
yers are part of a new professional/business class who participate not only in politics, but
are part of the new economy. When one of the townspeople suggests that lawyers seem to
have a hand in everything, another responds “that lawyers must live.” The original
speaker returns that he “did not see that so many of them need live, or that babies were
born lawyers.” His associate “felt that this speculation was complicated by the ordering
of side-saddles for lawyers’ daughters” (371).

Signiﬁcantly, the upper class ﬁgures in the novel do not disparage J ermyn for his
vices. For them, the concept of what it means to be a gentleman has replaced what it
means to be virtuous, or they confuse virtue with gentlemanly conduct and social posi-
tion. J ermyn is an outsider who anived in Treby to make money by developing a spa. His
vocabulary is not the tongue learned from his family and class but something he taught
himself. He “knew the dictionary by heart, and was probably an illegitimate son of some-
body or other” according to the narrator (125). Rev. Lingon says J ermyn is “one of your
middle-class upstarts who want to rank with gentleman, and think they’ll do it with kid
gloves and new furniture” (109). Harold recalls that the Lingons, Transomes, and Debar-
rys always considered J ermyn “a man of business” and “did not regard him as a gentle-
man or their equal” (112). Jermyn’s moral vices as a lawyer are tolerated like the silence
that surrounds his past with Mrs. Transom. However, his attempt at upward mobility can-

not be tolerated. His representation of a Radical ends all expectations of ever winning Sir

275

Maximus’ favor because it is so ungentlemanly. For this reason, some of the invited
guests shun his daughter’s birthday party and he is pushed out of the meeting about
Felix’s pardon, not because of his professed immorality, but because, as Sir Maxirnus
says, “This is a meeting of gentlemen” (581).

Both J ermyn and Johnson, though handsome and well dressed, are reviled by the
narrator and other characters for their appearance in variations of the word “sleek,” as if
they physically indicate their newness to prosperity and the absence of depth from a fam-
ily heritage.49 J ermyn and Johnson convert their gains into emulating the upper class in
splendid homes and material goods, conduct, dress, and education for their children.
Johnson “wished his children to be more tmquestionably genteel than their father [. . .]
(3 84). According to the novel’s epilogue, the disgraced J ermyn exiles himself to the con-
tinent. However, the novel is silent regarding what public opinion attributed to his ruin,
his personal or his professional misconduct or both. Johnson’s prosperity continues and
remains a puzzle to moralists who won’t mention his wealth and London home with two
drawing rooms because it contradicts the maxim that Divine Providence rewards virtue.
His misconduct does not disturb them as much as its consequences in material success.

This review of the clergy, politicians, and lawyers makes several points about the
participation of morality in their affairs. The rectors only refer to natural law in their na-
tionalistic blend of church and government. Although the rectors are an active force in
politics, there is no indication that they exert natural law thinking either prescriptively or
descriptively in their political participation or contact with law makers. Their church is
not a source of moral conduct, but a part of the nation’s bulwarks. The novel depicts J er-

myn and Johnson, the lawyers, as completely void of any integrity that would result ﬁom

276

natural law thinking. Thus, the representatives of the church and the representatives of
the law, both lawyers and lawmakers with the exception of Philip Debarry, are relatively
destitute of considerations of morality, and it is to no one’s great concern except Felix
and Mr. Lyons0 Of the clergy, only Mr. Lyon considers natural law as a prescriptive
force in law.

Ironically, a novel centered around a time of extensive changes in the laws, ac-
tively situates positive law as secondary to a moral code of conduct. While framed
arormd the complexities of inheritance and real property laws, the novel makes no com-
ment on their moral content or effect. The only comment on Felix’s trial is about the
judge’s severity. The trial serves mainly as a vehicle for Esther’s public conﬁrmation and
a demonstration of the widening circle of sympathy.

The moral laxity or amorality of many of the characters representing the nation’s
institutions——the law, the church, the aristocracy—supports the overall implication of
Felix’s teaching, raising the moral standards of the people beginning with the working
class. When that happens, as seen in the novel mainly through Esther, individuals not
only think about themselves but others. Esther rejects what the narrator calls “a little code
of her own about scents and colours, textures and behavior, by which she secretly con-
demned or sanctioned all things and persons” (159) for another code that moves from
centering on herself to thinking about others. That sympathy for the welfare and happi-
ness of others inspires in return exhibitions of similar good conduct.51 Thus, Esther’s
conduct inspires others in the courtroom. They “felt a thrill of surprise mingling with
their admiration” because it was as if “some hand had touched the chords, and there came

forth music that brought tears” (573). Because of her actions, Sir Maxirnus “was wrought

277

into a state of sympathetic ardour that needed no farming,” and he decided to work for
Felix’s pardon so that he could “gratify her feelings.” He is assured that Felix must be a
“good fellow if she thinks so” (576). His brother, the rector, and “the co-operation of
similar movements in the minds of other men whose names were of weight” support
Felix’s pardon.52 Esther’s sympathy brings people together and inspires them to act—
Harold and Sir Maxirnus, Harold and his mother.53 When Esther and Felix are married
“[e] ven great people, like Sir Maxirnus and his family, went to the church to look at this
bride, who had renounced wealth and chosen to be the wife of a man who said he would
always be poor” (604). Mr. Wace, the narrator says, reﬂected the feeling of most every-
one who attended: “I feel somehow as if I believed more in everything that’s good”
(604).

Esther’s sympathy diverts her imagination from herself——her seeing herself as
some sort of beautiful heroine waiting for homage from a handsome and chivalrous
suitor—to others—the Transomes and her stepfather. Instead of a daydream of and for
her own enhancement, she imagines the future impact of present conduct for both herself
and others. At Transome Court she was daily “getting more clearly into her imagination
what it would be to abandon her own past, and what she would enter into in exchange for
it; what it would be to disturb a long possession, and how difﬁth it was to ﬁx a point at
which the disturbance might begin, so as to be contemplated without pain” (496). This
looking into the future is what Felix, who says he is “wamed by visions,” meant when he
told her, “we are saved by making the future present to ourselves” (365). When Esther
wishes for her own vision, Felix says he wants her “to have such a vision of the future

that you may never lose your best self” (366).

278

The contrasting imaginative thoughts of Esther and Mrs. Transome as they look
from their bedrooms upon the same scene of the river and trees in Transome Court’s park
is noteworthy. For Esther, the “for—ever running river, and the bending movement of the
black trees” supply “the largeness of the world” that she requires “to help her thought”
(590). For Mrs. Transome, “the black boundary of trees and the long line of the river
seemed only part of the loneliness and monotony of her life” (596). The novel shows that
those who do not imagine or cannot see what their conduct may produce in the future are
bormd to suﬂ‘er. The youthful Mrs. Transome and J ennyn are the prime examples of
those who look no further than to “indulge their passion and their vanity” thinking they
can “determine for themselves how their lives should be made delightful in spite of unal-
terable external conditions” (318). Jermyn’s “selﬁsh insensitivity” in not anticipating the
impact of his words urging Mrs. Transome to tell Harold their secret brings the full
weight of Mrs. Transome’s wrath upon him, and consequently denies him her assistance.
Their son, Harold, is “unspeculative” or has no imagination and is “tmsympathetic”
(127). Others have limited sight, like the short-sighted Mr. Lyon, who can only vision a
predestined future in another world and Rev. Lingon whose “ﬁrst impressions quickly
became traditions” and “saw nothing but what his easy disposition inclined him to see”
(526). Felix in his address acknowledges, “any large body of men is likely to have more
of stupidity, narrowness, and greed than of farsightedness and generosity” (615). In the
same scene that presents Rev. Lingon’s way of seeing, Esther says to Harold who is
thinking of cutting some trees so that the view from the park extends beyond them that

“[o]ne likes a ‘beyond’ everywhere” (527). 54

279

Similarly, the novel shows the legal system, with its extensive bonds to the past,
as not looking beyond the immediate and incapable of including in legal judgments the
imagination that derives from sympathy. The judge hearing Felix’s case is “a severe man,
and one nourishing a prejudice against the bolder spirits who stand not in the old paths”
(548). The judge mistakenly considers Felix a dangerous reformer seeking drastic
change. During the trial, worrying that not all has been said on Felix’s behalf, Esther
thinks, “it was the jury who were to be acted on” and “there might have been an impres-
sion made on their feeling which would determine their verdict” (570). She erroneously
thinks, according to the narrator, that juries pronounced verdicts “from sympathy for or
against the accused” (5 70). The narrator says because of Esther’s inexperience she did
not know how the object of the prosecution’s reply and the judge’s summary was “cool-
ing down sympathy into deliberation” (571). These thoughts precede Esther’s testimony
that eventually had an effect, “but the effect was not visible in the rigid necessities of le-
gal procedure” (573). The judge, as well as many in the courtroom, thought that “killing a
constable was not the less an offence to be regarded without leniency” (5 74).

Even though legal justice condemns Felix to prison, the meeting of the “magis-
trates and other county gentlemen” the day after the trial is not ﬁ-om outrage over an
abuse of justice in F elix’s conviction. The narrator very carefully manages that meeting
and its ties to the law so as not to offend an audience of differing opinions about the law.
Readers are reminded that the members of the group are normally “just-spirited men”
(575). To present the meeting of this mixture of gentlemen as intended to override the
court and jury and overturn the verdict locates these men too closely to the mob and re-

form. It also implies that their power is stronger than one of the institutional bulwarks or

280

that they are above the law. The scene accomplishes a subtle juggling to meet opposing
interests. It ﬁrst placates those who would argue that the members of the upper class
think themselves above the law by showing the gentlemen working within the law. Sec-
ondly, it compliments the members of the upper class, who just might agree that they are
above the law of the common man, by providing them with a legal vehicle that they can
use to circumvent the law. The meeting affronts neither view and keeps the legal system
as an institution intact.

The scene incorporates the law and class in three ways. First, it conforms to Mrs.
Holt’s perception that the upper class could rescue her son despite the law, a request she
made to the Transomes in an earlier scene that submitted her to total ridicule, particularly
when she addresses the mentally deﬁcient, elderly Mr. Transome. Yet, it is the class Mr.
Transome represents, Sir Maxirnus and others, who, despite their deﬁciencies, prepare a
memorial to the Home Secretary for F elix’s pardon that no one doubts will succeed. Sec-
ondly, their motive, responding to, “the necessary impulse” that “had been raised to a
high pitch of emotion” when Esther stirred their hearts” (575) is another positive reﬂec-
tion on the upper class. Rev. Debarry, with less “ardour” than his brother, but more repre-
sentative of the other men, ﬁttingly characterizes the god in man element of the high
emotion in his determination that Felix is entitled to “mercy” (576). The scene appropri-
ately ties to Felix’s address because without breaking down class barriers the upper class
extends sympathy and generosity to someone outside their class.55 Finally, the scene de-
picts class unity in the gentlemen rallying around Harold and expelling Jermyn. Neither
Harold’s paternity nor his candidacy as a Radical denies him their protection. Despite Sir

Maximus’ complaints about Harold as a Radical candidate, he cannot reject one who has

281

grown up and been accepted in their midst since his birth. Sir Maximus must remain si-
lent about Jennyn’s adultery, but he can exclude Jermyn for what appears to be a much
greater sin in trying to place himself in a class to which he was not born through entre-
preneurship and the acquisition of a gentleman’s accoutrements.

The concept of a pardon, like an appeal, is a legal vehicle through which the law
can supercede itself, but unlike an appeal of a lower court’s decision to an upper court it
operates on what might be seen as the margins of positive law and without the requisite
objective ﬁndings of error that are the basis of an appeal.’6 The concept of an extrajudi-
cial procedure in which certain individuals have the power to modify the orders of courts
of law raises questions regarding the certainty, justice, and permanency of judicial deci-
sions and the criteria that should be used to exercise the authority of granting pardons. It
also prompts considerations about the function of this separate process, such as whether it
is to correct abuses of justice, and therefore acts within the system of checks and bal-
ances, or whether is it a process which actually invites subjective review of the legal sys-
tem and the offenders who pass through it so that in instances when the law does not or
cannot achieve the morally right outcome, this separate procedure can. The provision for
pardons in the legal system may be a process created for sympathetic perspectives. An-
other consideration is whether the pardon process functions as an instrument for those
with power to dispense their own law for whatever reason and function outside the laws’
conﬁnes while possessed of its sanctions.

Even though sympathy may have motivated Felix’s pardon, the novel selectively
applies it. At the same time that sympathy grows for Felix Holt and mercy is extended,

the narrator and others in the novel work against any similar emotion for the dead Con-

282

stable Tucker and his family and Felix’s co-defendants. The narrator portrays the consta-
ble as acting with his brawn and not his head: “any discrimination of Tucker’s lay in his
muscles rather than his eyes” (427). The community opinion is that his wife and family
will be provided with more in his death through a pension and charities than he provided
during his life (464). Mr. Lyon says after visiting the radical in prison that Felix has “no
grief save for the poor man Tucker” (467). But at his trial Felix asserts that the constable
was at fault because he was “tmder a mistake about my intentions” (565). The implication
is that if the constable had possessed more mental strength than muscular, he would be
worthy of more sympathy or that if he had possessed faultless judgment in a crisis, he
would be entitled to sympathy. Both Felix and the constable use poor judgment and more
physical force than necessary, but readers are asked to ﬁnd one exculpable and the other
culpable.

Three of the colliers are sentenced to a year’s imprisonment while another, “who
stole the Debarrys’ plate” (560) is sentenced to transportation for life. Felix, who com-
mitted homicide, is sentenced to four years’ imprisonment. A single paragraph relates the
disposition of their crimes and the future of these men who were urged to their actions by
drink and Johnson. Nothing explains the disparity in sentencing. It is difﬁcult to deter-
mine whether this disparity reﬂects upon the legal system or the novelist. We might say
that Felix deserves special consideration because he acted with good intentions and poor
judgment; after all, he is the hero of the novel. On the other hand, the colliers, who must
be seen as complying with Felix’s description of their ignorance, acted with bad inten-
tions and no judgment. They are held accountable for bad intentions planted in their igno-

rance by the electioneering agent and inﬂamed by intoxication. The narrator twice de-

283

scribes one of the men as “poor,” particularly in mentioning his tears at the sentencing
and uses this behavior to show how unready the lower class is for the ﬁ'anchise.57
Despite this confusion, the treatment of the colliers and Felix’s conviction contra-
dicts any argument that the novel supports an infusion of sympathy into deliberations at
trial and the rendering of punishment. Apparently, sympathy is something that works out-
side the courtroom. But even then, it is selective. Although Felix obtains leniency, the
miners receive no leniency, even though the commrmity knows they were taken advan-
tage of and incited by those who knew the potential for violence words and drink would
generate. Not only does sympathy have no place in the objective world of the law, the
novel’s rmequal application of sympathy outside the courtroom appears relative and sub-
jective. The text seems to say that the miners, whom the narrator compares to domestic
beasts, are not worthy of sympathy because their uncalculated violence is worse than
F elix’s calculated violence. However, if the novel treated them sympathetically, it would
condone such disruptions, rendering worthless F elix’s philosophy of self-improvement in
order to abolish resistance. The working class would not require education if society
treated them sympathetically when they erred. Even Felix, exemplary character with a
temper that he may be, is not absolved totally. His leaving the community, though volun-
tary, distances him from the scene of his violence. The text indirectly punishes his vio-
lence by excluding him from the community which he, and Esther in a positive way, dis-
rupted. These intricacies and subjective applications of sympathy weaken the novel’s fo-
cus on sympathy as a concept under which individuals can make fair and realistic deci-

sions.

284

Even J ermyn, the most morally degenerate character in the novel with the excep-
tion of Johnson, accepts that the court does not render justice with sympathy, or the jus-
tice he thinks he is owed morally. Threatened by Harold’s lawsuit after years of what he
considers self-sacriﬁce, denial of other means of advancement, and rmethical and illegal
conduct that jeopardize his career, J ermyn says to Mrs. Transome, “Of course the law in
this case can’t in the least represent the justice of the matter” (515). That he knows in
court his moral justiﬁcation will not exculpate his acts, indicates he recognizes a separa-
tion of, at least, his version of morality and positive law. Jermyn does not believe he has
done anything unjustiﬁably wrong. His defense is not that dissimilar from F elix’s. He
claims he acted as he did to save others even though it was against the law. He also had to
choose between two evils. Furthermore, and unlike Felix, he claims he only took what he
was owed. His reasoning also perverts civil disobedience arguments in its implications
that he was bormd by conscience to break the law to save others. Therefore, J ermyn ac-
knowledges breaking the law, but not without moral justiﬁcation, no matter how thin: “If
it came to a question of right and wrong instead of law, the least justiﬁable things he had
ever done had been done on behalf of the Transomes” (317). Nevertheless, the novel’s
argument is not about justice or institutional reform except as the ultimate result of indi-
vidual reform. Jermyn’s error is his version of morality. His selﬁshness blocks any self-
examination that according to the application of sympathy in the novel would move him
from drinking about himself, to honestly thinking about others and imagining the conse-
quences of his conduct upon them. He is on par with many others in the novel, Mrs.

Transome, Mrs. Holt, Harold, and even Esther until, as Norman Vance writes in “Law,

285

Religion, and the Unity of Felix Holt, “her moral education in sympathetic insight and
social responsibility [. . .] liberates her” (120).

The novel shrinks the early- and mid-nineteenth—century debate on the Condition
of England about “social, material, and social well-being” (Gallagher xi) to a Condition
of the Individual Debate. Its theory of gradual progression suggests that individual im-
provement slowly will reﬂect itself in institutional improvement without any aggressive
intervention or change within the institutions.58 Eventually, legal justice and moral right-
ness would be synonymous. The novel actually does not address the question of the ex-
tent to which natural law prescriptively and descriptively should participate in positive
law because that misses or avoids the “heart” of the issue. In fact, it is no longer an issue
when, according to the novel’s implications, the individuals who make the law and work
with it are morally enlightened and possess the imagination of concern for others and of
looking into the future.

The novel also speaks to how the imagination inspired by sympathy contributes to
the imaginative representation of reality. Esther, who previously read the imaginative
products of writers, begins to write her own novel. Her imagination before meeting Felix
centered on herself as a romantic heroine like those in the literature she reads. The narra-
tor describes her in the early pages of the novel as “a remarkable Cinderella” (208), refer-
ring to the conditions in which she lived as compared to the sophistication and taste she
possessed and her dreams of eventually being recognized for her worth by a man above
her class. After meeting Felix, “she had felt unable to read when she was alone, being
obliged, in spite of herself, to think of Felix Holt—to imagine what he would like her to

be” (263). And at Transome Court where she begins to compose a diﬂ‘erent story in

286

which she is no longer a heroine waiting to be rescued, she also is unable to read. Her
imagination takes a different course as she takes a more active role in her future: “her life
was a book which she seemed herself to be constructing trying to make character clear
before her and looking into the ways of destiny” (498). The text shows her moving be-
yond herself, imagining what the lives of others, such as the women in the full-length
portraits that decorate Transome Court, were like. Any lingering adherence to the imagi-
nation prompted by her previous readings is eliminated during a playful exchange with
Harold about literary genres and what genre he ﬁts as a hero, when he tells her that his
dead wife “had been a slave—was bought in fact” (541). His words shock Esther’s
imagination of Oriental love and her imagination turns to the “what is,” the realities that
correspond to actual life.59

The movement of Esther’s sympathy and imaginative insight almost impercepti-
bly shifts to a position on the moral imagination necessary to write a social problem
novel. The character that emerges from her development is a model of appealing and su-
perior qualities, more good and noble than Felix Holt. She becomes an evaluative stan-
dard for imaginative depiction in the nineteenth-century social problem or reform novel.
The inference is that sympathy and insight nourish an inspired and realistic imagination
in a writer, as it did for the author Esther, and that inspired imagination can only create
realistic representation. An additional inference is that if novels of one sort can inﬂuence
the imagination as they did at one time for Esther, then novels of another sort with a
higher standard of social responsibility and sympathetic imagination can inﬂuence read-

ers as well.

287

If we examine Felix Holt, The Radical using that criterion, Eliot deserves credit
for portraying the ideal the novel suggests. The novel does not overwhelmingly dwell on
deﬁning the problems that must be addressed, although it does ask the reader to confront
the “what is” in the nature of things. Its emphasis is offering the initial steps of what
could lead to an ideal through sympathetic imagination. The novel attempts to show those
steps in real terms through Esther. It works with the “ought to be” within the “what is.”
Because the novel’s scope is limited to individual improvement, the ideal and ought to be
are more workable, requiring only the cooperation of the individual to reappraise internal
values rather than something more extensive, such as changes in the laws or legal system.
It is a change or reform that does not drastically or too rapidly disrupt the existing society
so it is easier to both comprehend and accept. That aspect makes the ideal more realistic.
Felix Holt, The Radical describes a means of working toward solutions for social prob-
lems with a perception, right or wrong, of the consequences of its implementation.
Esther’s development represents what can happen to those who follow the ideal of Felix’s
teachings. The novel seemingly follows its dictates of using the imagination to look
ahead to the future as a gage of present conduct.

The true ideal underlying the novel is that Felix and Esther’s work in their new
community will inspire the same development in others as Felix’s teachings did in
Esther.”o Slowly, those they inspire, and more particularly their descendants, should be-
gin to feel the beneﬁts of their teachings in their ability, as Felix says in his address, “[t]o
discern between the evils that energy can remove and the evils that patience must bear”
(627). Felix’s success depends upon whether his teachings can be eﬁ‘ective beyond a very

susceptible subject—a woman who was “not contented with her life” (159) which was “a

288

heap of fragments,” who sought “some great energy to bind them together,” and thinking
of chivalrous lovers believed that “[l]ife would be much easier in the presence of such a
love” (264). Furthermore, Esther is an educated and intelligent woman capable of follow-
ing Felix’s manner of speech. The workingrnen and their families may not be able to so
easily follow his intellectualizations. Although her statement was made during an early
conﬁ'ontation between the two, Esther refers to herself as “an audience of one” (213).

IfEliot’s social problem novel is to be persuasive, then the nature of her audience
and the ability of the novel to reach it must be a factor for examination as well. Few
working- class families, many of whom were illiterate, could afford to purchase novels or
have access to Blackwood’s Magazine, which published the “Address to the Working
Man.” In addition to problems of access to the writings is the problem of understanding
the intellectual argument. The novel, like Felix’s speech, is not written in the language of
the community it supposedly addresses. It is written for the educated reader and appears
intentionally to demonstrate the educational depth of the writer. Considering these inher-
ent problems of access and comprehension, the novel’s ability to reach and persuade
those it supposedly addresses is limited. Felix’s address is not realistic because it is not
presented to the audience to which it is addressed.

Eliot’s audience then can come only from the middle and upper classes. Although
it points out their faults, the novel does not shame them, particularly the middle-class, as
Felix did Esther or as he intends to do the working class. The novel tends to coincide with
public opinion at least from a Tory and Anglican Church perspective. This may be saying
more than the novel warrants, but at the most, to this audience it simply argues for the

beneﬁt of self-examination and right reason so that their consciences will direct them to

289

their best selves and to right conduct that will ultimately improve the lives of and bring
happiness to others.61 The novel leaves unanswered the question of what to do about
working class conditions and the injustices they experience while they learn moral im-
provement and class functionality. In the meantime, the status quo is unthreatened and
the country’s institutions, ineﬂ‘ective and vice ridden as they may be, remain intact.

Oddly, the novel’s conclusion provides little hope for the continued existence of
the upper class as custodians of the nation’s treasures or for their self-improvement. It
implies they are extinguishing themselves and their power without any external interfer-
ence through imbecility, affairs outside their class, marriage to slave women, and conver-
sion to Catholicism. The Debarry family is left without an heir with Philip’s death. The
ungovemable Transome heir, Harold’s son, is physically violent, undeveloped in speech,
and unresponsive to most human contact with the exception of a foreign servant and a
mentally paralyzed old man. This concluding view supports the novel’s notions that
change will occur organically. The upper class overtime will self-destruct its authority
and power. Hope remains in the members of the middle class who the novel shows as ac-
tively involved in their community and interested in its welfare. J ermyn and Johnson
seem to be exceptions to the general good impression the novel presents of its merchants,
manufacturers, and farmers.

The problem with the novel’s faith in slow growth is that legal reforms of any
type “naturally” work slowly. They do not need to be retarded by other means. The novel
operates on the erroneous assumption that legislative reforms differ from individual re-
forms in the sense that the former works with speed and the latter with temperance. It

presents the problems of the ﬁrst election alter the passage of the Reform Bill of 1832 as

290

a realistic representation of the consequences of reform implemented too quickly, a rep-
resentation that is unwilling to give society time to become comfortable with imple-
mented reforms. Just as Esther slowly adjusted to new ways of thinking, so can society
while reform is operating in their midst. In other words, the novel’s proposition for slow
growth before reform could equally apply after the passage of reform bills. The second
erroneous assumption is that legislative reform causes some sort of disruption while indi-
vidual reform does not. Any change meets some degree of resistance. Esther at ﬁrst re-
sisted Felix’s teachings. On two occasions, she strongly resisted his criticism of her read-
ing selections and her sophisticated tastes. That change at ﬁrst is met with Opposition,
sometimes violent, is not evidence that the change is too rapid or its implementation im-
prudent.

Furthermore, Felix’s proposal of self-improvement or self-reform at times cannot
succeed within certain individuals because it lacks enforcement power over those who are
not so enlightened. He claims public opinion will shame individuals into correct action,
but it did not shame the lawyers, who represent the negative side of the scrambling up-
ward middle class. Felix cannot argue realistically the nature of things without knowing
that some individuals will not convert or be shamed. It may be impossible to legislate
morality in the sense of changed thinking, but legislation can enforce right conduct. In
some instances legislation prohibiting and penalizing conduct coincides with morality
such as the prohibition against murder and other offenses considered mala in se or wrong
in themselves whether prohibited by law or not. Unfortunately, in other instances of right
conduct not everyone agrees on what is moral conduct. Mr. Lyon could not persuade his

congregation to accept many of his moral tenets despite his sincerity, devoutness, pa-

291

tience, and kindness. In some instances, law’s coercive force can accomplish more than
shame and reason. A more contemporary example is that without legal enforcement pub-
lic school integration and the civil rights movement would have been irrevocably stalled.
The consciousness of a need for change could not have been implemented against a his-
tory and tradition of opposition, discrimination, and segregation without authoritative
support. And, whether the reform was implemented through individuals or legal en-
forcement, violence would have accompanied every step.

Felix Holt, The Radical appropriates an argument premised on morality and
shame to retard the desire for a voice in government and changed circumstances of a cer-
tain group and offers to them an abstract concept involving patience and self-
improvement. It uses history or the past as an example of slow growth to support the
novel’s message against drastic reform. This view of history, although not shared by eve-
ryone, certainly had an historical and strong intellectual basis of authority in nineteenth-
century England. Eliot’s development of a law-like system of individual conduct drawn
from Christian natural law theory is worthy and an objective for everyone to follow. The
novel dismisses organized religion’s ability to accomplish the same purposes. However, I
am not sure Eliot persuasively demonstrates why personal development through secular
natural law cannot work for the individual at the same time that activism in reform and
law works for the community. In other words, Eliot does not convincingly justify why
reforrnists must be patient while moral development is working toward a certain personal
standard. This view appears to be equally “shortsighted” as Mr. Lyon because it does not
employ Esther’s looking beyond to the consequences of this position. Those conse-

quences maintain the lower class in their present condition. It does improve their present

292

quality of life. Perhaps one of the reasons Eliot does not describe that life in much detail
stems from her intent to direct attention away from that issue and the sympathy it would
inspire and from the omission in the novel’s message of something that confronts the
workers’ immediate physical needs.

The narrator says of the judge’s summation to the jury at Felix’s trial that “[e]ven
the bare discernment of facts, much more their arrangement with a view to inferences,
must carry a bias: human impartiality, whether judicial or not, can hardly escape being
more or less load ” (574). Similarly, the facts within this realistic novel are not arranged
impartially. The message of the novel is loaded. Nonetheless, it is a loaded message that
many shared during Eliot’s time. My comments on some parts of the novel’s message
throughout this chapter have been concemed with the novel’s persuasiveness. A rule of
persuasive argument that lawyers know well requires imagining the points of the opposi-
tion, addressing them, and either defeating and discounting them or showing why on
some evaluative scale the opposition’s arguments are less worthy. Eliot does not take ad-
vantage of both the rhetorical and descriptive opportunities in the novel to address more
of the counter arguments to the novel’s message in the same way that she showed why

secular natural law should replace religion.

293

Notes

' Published in three voltunes June 1866 (Coveney 37).

2 For extensive discussions of the inﬂuence in Eliot’s novels of Positivism, the re-
ligion of humanism and the philosophies of the French philosopher Auguste Comte,
German philosophers Ludwig Feuerbach and David Friedrich Strauss, and German histo-
rian Wilhelm Riehl see: U. K. Knoepﬂmacher Religious Humanism and the Victorian
Novel, Bernard Semmel George Eliot and the Politics of National Inheritance, Martha S.
Vogeler “George Eliot and the Positivists,” and Bernard J. Paris “George Eliot’s Relig-
ion of Humanity” and Experiments in Life: George Eliot ’3 Quest for Values among oth-
ers.

3 Most discussions of this “novel” include three different texts written at different
times. Although it is not a topic of this paper, this factor of three texts written at separate
times but together referred to as one text raises questions about our assumptions of the
status of extratextual or complemental, or supplemental texts in making statements about
a novel and the need to delineate what is meant when using the phrase “the novel” or re-
ferring to the title of a text. The risk involves, among other things, exporting into the
novel what the author wrote in essays, letters and other texts, and inadvertently making
them part of the text studied. See Peter Coveney’s discussion on the timeframes for the
writing of the Author’s Introduction and Felix’s address (1867) at pages 639-40 and 607
of the Penguin Classics edition.

" Implied within this paragraph’s argument is that the person making this argu-

ment possesses the requisite moral position.

294

5 Since we do not know the exact wording of the entailment, we do not know the
particulars of the Bycliﬁ‘e family, such as whether the remainder is to be distributed to the
heir or heirs of a particular Bycliffe. Obviously, it was not restricted to males or Esther
would not be considered an heir. But, if other Bycliffes had been in existence at the time
of Trounsem’s death, the distribution would be more complicated.

6 In truth, Harold is not the son of the present owner, Mr. Transome; he is the son
of an affair between Mrs. Transome and the lawyer Jermyn. Until the ﬁrst and only son
of the Transome marriage, Durfey, died, Harold was not considered the heir by anyone
but his mother, who wished for the death of the reckless and wayward imbecile Durfey.

7 Considering the thinking about real property in England’s early days, it would
be difﬁcult to argue that inheritance is “natural.” Originally, the monarch owned all prop-
erty and allowed the feudal lords its use. As Blackstone wrote, “We are apt to conceive at
ﬁrst view that it [the right of inheritance to descendants] has nature on it’s [sic] side; yet
we often mistake for nature what we ﬁnd established by long and inveterate custom. It is
certainly a wise and eﬂ‘ectual, but clearly a political, establishment; since the permanent
right of property, vested in the ancestor himself, was no natural, but merely a civil, right”
(2.1. 11). Rights to individual private property and its distribution derived from the com-
mon law. Nonrelatives, or those who are not related by blood to the decedent, frequently
inherit. See also A. W. Brian Simpson’s Introduction to Volume 2 of Blackstone’s Com-
mentaries on the Laws of England and chapter 1 of volume 1 at 135.

8 Her statement must be an unintentional slight coming from the lowly minister’s
stepdaughter to the aristocratic Mrs. Transome who is sitting in the same room and has

spent much of her adult life in legal struggles to save the property for the Transomes.

295

Esther’s faux pas is a subtle commentary on the ranking of positive and natural law in the
novel.

9 His action is a real thwarting of lawyers because he is preventing both J ermyn’s
blackmail and Johnson’s proﬁt from setting other lawyers on Esther’s claim.

1° Many scholars explore the conjunction of determinism and choice in the novel,
but that is not a topic of this discussion.

'1 Thomas Pinney writes in “The Authority of the Past in George Eliot’s Novels”
that “the abstract and legal conception of the past” is not the guide in Felix Holt, but “the
affections that grow out of personal experience” (143). Esther certainly possessed affec-
tion for her stepfather and for Felix, but the main motivation was the self-awareness and
sympathy that Felix’s teachings had inspired in her.

‘2 Franco Moretti writes in The Way of the World: The Bildungsroman in Euro-
pean Culture that Felix’s resolution not to marry “is the sign of an exacting nature, aware
of its own worth and devoted to a solitary dream which, in one way or another, will make
it hard to come to terms with reality” (214).

‘3 See Judith Wilt’s “Felix Holt, The Killer: A Reconstruction” for a much harsher
view of Felix’s medieval characteristics

‘4 Esther’s stepfather, Mr. Lyon, looks back to the English Revolution and Mil-
ton’s “liberal air” (369). Additionally, the text establishes a connection between the blind
poet and the short-sighted minister.

‘5 Thomas Pinney writes that “the chief values of the novels are on the whole con-
servative, cherishing what is known and familiar, seeking the good in outmoded forms,

and remaining skeptical of all hopes for swift and inevitable progress” (133).

296

’6 Seventeenth-century jurist Sir Matthew Hale also participated in the develop-
ment of this mythology according to Norman Vance in “Law, Religion and the Unity of
Felix Hol ” (1 15).

‘7 Hereinafter Commentaries.

'8 Franco Moretti suggested these readings of Hill, Burke, and Thompson.

'9 Rosemarie Bodenheimer also discusses the “breaks” in the lives of Mr. Lyon
and Esther in The Politics of Story in Victorian Social Fiction (218-19).

2° Thomas Pinney thinks that F elix’s philosophy is actually a restoration or “moral
regeneration” of the working men” (133).

2‘ As Moretti points out the concept of continuity ties into the “desire that the
realm of the law be certain, universalistic, and provided with mechanisms for correction
and control” which enhances the sense of justice in the laws (213).

22 Coveney says that the novel projects the danger of a society “severing itself
from the nourishment of its past” (23). Bodenheimer refers to “the obsession of this text:
belief in change is blindness to continuity; things seem to change, but people stay the
same” (209).

23 The cutting of timber on an entailed estate also has legal implications as ex-
plained in Anthony Trollope’s Ralph the Heir and may require permission of the remain-
der man. Therefore, Jermyn’s cutting the trees for his own beneﬁt may have been legally
improper as well. During Esther’s stay at Transome Court, Harold asks her opinion about
thinning some trees. As the heir to the property, she should be consulted.

2’ As Fred C. Thomson explains in “The Genesis of Felix Holt” this depiction dis-

tinguishes Eliot’s novel from the “strain of social protest” found in the ﬁction of Gaskell

297

and Kingsley: “She gives us no scarifying pictures of slums or inhuman working condi-
tions. The Sproxton colliers and the barﬂies at the Cross Keys are brutish and stupid, but
there is none of the stench and ﬁlth of real degradation about them. Their ignorance and a
childish docility to evil counsel are emphasized above their squalor” (576).

25 Coveney notes that this is an anachronism since the sport was not abolished un-
til 1849, but it is effective to demonstrate the thinking of this gentleman (649 n1).

26 Felix himself was aware “that this angry haste of his about evils that could only
be remedied slowly, could be nothing else than obstructive, and might some day [. . .] be
obstructive of his own wor ” (393).

27 Both W. J. Harvey in The Art of George Eliot and Arnold Kettle in an essay ti-
tled “Felix Holt The Radical” mention what Kettle calls “the rather odd abandonment, [.
. .] of the projected debate [. . .]” (108-09). Harvey writes that Eliot leads the reader into
“a cul-de-sac” and “thwarts expectations after “a great deal of elaborate preparation”
(134).

28 Richard Sterne writes in Dark Mirror: The Sense of Injustice in Modern Euro-
pean and American Literature that Felix Holt “can be read as a kind of elegy for natural
law for a writer strongly inﬂuenced by Darwinism” (xvii).

29 Martin J. Svaglic in “Religion in the Novels of George Eliot,” sees the portrayal
of Felix in terms of a substitute, because without faith in God to help them, human beings
turn to one another for help. This portrayal coincides with Bernard Paris’ account in
“George Eliot’s Religion of Humanity” as “a religion not of God, but of man, a religion

of humanity” (420).

298

30 In another sense we might consider Philip’s conversion another looking to the
past. The parish church of Treby Magna includes a side-chapel for the tombs of the De-
barrys: “For when the black Benedictines ceased to pray and chant in this church, when
the Blessed Virgin and St. Gregory were expelled, the Debarrys, as lords of the manor,
naturally came next to Providence and took the place of the saints” (123). Philip’s behav-
ior makes him a pseudo-saint in the community and to his family that is legitimatised by
his conversion and death in Rome where “a ﬁne bust of him” is displayed.

3 ' Fred C. Thomson in “Politics and Society in Felix Holt” connects Philip’s new
conservatism to the later “Young Englanders” of Disraeli, a group whose enthusiasm was
kindled by the Church revival at Oxford. Thomson concludes that “[t]he subsequent con-
version of Philip to Catholicism is therefore historically consistent with his politics. [. . .]
Though the idea was left in embryonic condition, he seems partly designed to illustrate
the type of personality on whom the Oxford Movement [. . .] made its impact” (120 n14).

32 In a brief reference to Philip Debarry, Rosemarie Bodenheimer describes him
as “the novel’s only shadow of a hope for leaders who combine power with disinterested
sensibility. [. . .] Philip Debarry is praised by the narrative at each of his appearances. He
is a moral aristocrat who represents the possibility of rising standards made possible by a
stable class hierarchy” (103). She does not address the issue of his alienation and subse-
quent demise, but using her argument, the text defeats the possibility of his potential ac-
complishments through his removal from participation in society.

33 The narrator eliminates any interference from a non-Christian religion in her
brief reference to Baruch Nolan. Although the narrator raises the suspicion that the retired

London hosier is Jewish, in the community, “[n]o question had ever been raised as to Mr.

299

Nolan’s extraction on the strength of his hooked nose, or of his name being Baruch.” He
completely assimilates into the community through his congeniality, wealth, and mar-
riage to the daughter of local family. Because he attends church irregularly and grumbles
about the sermons along with everyone else, “there was no ground for classing him oth-
erwise than with good Trebian Churchmen” (300).

34 This same nature of things and natural function element of natural law has been
cited to support legal arguments against a woman’s right to choose abortion and to sup-
port discrimination against homosexuals. As Sterne points out, in the nineteenth century
the U. S. Supreme Court cited “the nature of things” to deny a woman’s application to
become a lawyer and to support segregation (257).

35 Carolyn Lesjak writes in “A Modern Odyssey: Realism, the Masses, and Na-
tionalism in George Eliot,” that Felix’s views show that “the working class must be do-
mesticated with the conﬁnes of national English culture” (94).

36 Coveney distinguishes Felix from Esther in describing the former as “more of-
ten a moral assertion” (l4) and the latter as “the moral heart of the novel” (38).

37 This scene is one of several in which a religious link is obvious. In “George
Eliot and the Modern Temper,” Henry Auster writes that the function of imaginative
power “ﬁnds expression and thus a way of giving shape and direction to life. It is that
ﬁulction that is sacred and not particular forms, which explains the borrowing of religious
terminology to describe the imagination at work [. . .] (89).

38 Arnold Kettle calls Esther’s testimony “a high-grade character-reference”
(108). Catherine Gallagher considers Esther “the defense’s most important witness” who

“instead of ﬁlling in the facts of Felix’s case [. . .] simply sweeps them aside” (242). Both

300

forget that Esther explained where Felix had been before the riot and his state of mind
because, as Eliot writes, Mrs. Holt could not be relied upon to supply the same informa-
tion without making it an “inevitable farce” (S61).

39 Henry Auster cites a similar moment from Middlemarch when Dorothea and
Will profess their love for each other. He calls it “the imagination at its synthesizing, dia-
lectical, creative work of bringing mind and world, subject and object, into relationship
with one another” (93).

40 Ian Milner in The Structure of Values in George Eliot describes Felix’s speech
throughout the novel as “for the most part a Latinized vocabulary (with frequent abstract
nouns), a lengthy and often involved sentence structure (ill according with his supposedly
‘brusque’ manner) and rhetorical or high-fallutin’ ﬂourishes that betray the author’s de-
sire to show how well—educated he is. [. . . ] Normally it weighs down his speech with a
stilted bookishness and pedantry” (49). Milner considers Felix’s trial scene “a certain
forceful and digniﬁed eloquence” (49) despite Harold’s evaluation, Esther’s fear that all
has not been said on Felix’s behalf, and its being beyond the scope of most of his audi-
ence.

4' F. R. Leavis in The Great Tradition calls Mr. Lyon a “heroically quaint re-
minder of the heroic age of Puritanism” (67).

42 According to Jerome Meckier in “Hidden Rivalries in Victorian Fictions: The
Case of the Two Esthers,” Eliot shows that “the most meaningful kind of social change
begins quietly and internally, though not without prodding from an outside agent” (234).

43 Interestingly, unlike Esther who does not consider her marriage to Harold as a

given, Felix in two references to the marriage during Esther’s visit at the jail erroneously

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calls it “a ﬁtting lot in reserve for you” (558) and “a case of ﬁtness” (557). And, as Ruth
Bernard Yeazell points out in “Why Political Novels Have Heroines,” to comply with the
theological aspect of her internal revolution, her choice must reinforce continuity and co-
herence. Her choice could not result in a drastic change (142), which is what Felix ex-
pects of her.

’4 Meckier says that though Felix “awakens her to the beauties of a life of pur-
posefulness,” she teaches him “that purposiveness increases in power when suffused with
love” (234).

45 However, Ermarth does not accept this argument, which is similar to that
adopted in this discussion. In “Incamations: George Eliot’s Conception of ‘Undeviating
Law,’ ” which does not include a discussion of Felix Holt but brieﬂy mentions Rufus
Lyon, she argues instead that Eliot’s work deﬁne two realms of law that determine con-
sequences, “the cultural (or moral) and the natural (or material)” and that within the
realm of culture the only law is the embodied presence of the world itself’ (275).

46 Though Mr. Lyon and Felix have much to say about voting, neither qualiﬁes as
a voter.

47 As Norman Vance suggests, the continuity of landownership by the Transomes
is both morally and legally undermined in the novel and that the implication extends to
all ancestral ownership in England so that political legitimacy is located “in responsibil-
ity to society in general and in moral principle rather than in land-ownership [. . .]” (106-

08).

302

48 For a more extensive discussion on blackmail in the novel, see chapter 10 of
George Eliot and Blackmail by Alexander Welsh. Bodenheimer also brieﬂy mentions the
blackmail in her discussion of the novel at page 215.

49 According to Bodenheimer, “George Eliot attacks the entrepreneurial ideal with
a vehemence” and “links business malpractice with sexual violation” (100). In the same
way, Eliot attaches sexual darkness to radicalism in Harold’s purchase of a slave woman
and making her his wife.

50 Harold Transome straddles this generalization. Despite his “moral mediocrity”
and his claim that he cannot “keep the conscience of the party (275), he exhibits high
standards when confronted with ethical dilemmas as evidenced in his refusal to pay
Christian “to suppress evidence or remove a witness” (451). Realizing that even if he
does not pay Christian to suppress evidence it will appear that he did, Harold insists that
Christian remain in Treby. The narrator writes, “the outside conscience came in aid of the
inner” (451). Additionally, Harold resists Jermyn’s blackmail that would require destroy-
ing evidence or concealing a witness, he will testify for Felix even though it means ex-
posing his own knowledge of the bribery of the colliers, and he informs Esther so she is
not deceived when he learns that he is an ineligible suitor for her. The narrator says he is
“attached as a healthy, clear-sighted person, to all conventional morality, construed with
a certain freedom [. . .] (197). Harold cannot be a completely valueless character or
Esther would appear ridiculous in receiving his attentions.

5 l Esther’s explanation of sympathy is found in her description of Harold whose
“very good-nature was unsympathetic: it never came from any thorough understanding or

deep respect for what was in the mind of the person he obliged or indulged [. . .] (528).

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Walter Houghton writes in The Victorian Frame of Mind 1 830-1 8 70 that “George Eliot’s
benevolence presupposes a forgetfulness of self in the recognition of our common hu-
manity. The distinction meant a reemphasis on sympathy as the power of entering into
the feelings of another, especially in sorrow or trouble; and consequently experiencing
not only pity and love but also patience, tolerance, and forbearance” (278).

52 Catherine Gallagher says Felix is saved because he was good, not because of
Esther (242), but her position goes against the public opinion argument of the novel
unless we combine Gallagher’s statement with Rosemarie Bodenheimer’s statement that
Esther “exempliﬁes that power of public opinion on the side of right” (106) and conclude
that ﬁrst Esther convinced public opinion that Felix was good and then because those in
power believe he is good they save him. Up until the time of Esther’s courtroom testi-
mony, little exists to indicate that very many people thought Felix was good.

53 It was an act of caring for another, Mr. Lyon’s taking in a poor woman and her
child and his devotion to her that resulted in Annette understanding Mr. Lyon’s love and
returning it, spending the rest of her life with him, and leaving her daughter in his care.
Esther repeats her mother’s act when after Mr. Lyon tells her he is not her real father,
“but had only striven to cherish her as a father, had only longed to be loved as a father,”
he “became the object of a new sympathy in which Esther felt herself exal ” (354).

54 This “beyond” of the sympathetic imagination contrasts to Trollope’s present-
ness in his appeal for sympathy to temper judgment. Eliot’s sympathy looks to the conse-
quences of present actions on the feelings and lives of others. Trollope’s sympathy is
based on readers imagining themselves in similar situations and imagining how they

would feel and how they would like to be treated.

304

55 See Bernard Semmel who quotes Eliot’s friend and English Comtist Frederic
Harrison on how after the publication of the novel everyone of all political affiliations,
class, schools of thought, and other factions were “all quite convinced that it has been
conceived from their own point of view” (59).

56 It might help us reﬂect upon the merits of this legal vehicle if we consider the
recent controversy over the use of his authority to grant pardons by the 42nd President of
the United States.

57 Also, the contrast between the overt attachment of sympathy to Mrs. Transome
and none to Mrs. Holt is troublesome.

58 Nicholas Rance in Wilkie Collins and Other Sensation Novelists: Walking the
Moral Hospital goes so far as to propose that “[t]o Felix Holt [. . .] while men remain
morally corrupt, corrupt statutes will be corruptly administered. If men were not corrupt,
there would be no need for legislation” (139).

59 Lesjak says that Esther’s “personal development can be read as a microcosm of
modern narrative of ‘inevitable progress’ as she learns to discard the Romantic texts she
initially identiﬁes with in favor of the ‘realism’ Felix embodies [. . .]” (92).

6° Gallagher presents a different, though not totally contradictory view of Eliot’s
working with the what is and what ought to be. She argues that the novel does not show
“the ought” as growing out of “the is” because Eliot is purposely disconnected by her
“politically inspired attempt to escape from the web of metonymic associations” (225).
Bodenheimer considers Felix Holt one of a different kind of social problem novels that

“in their emphases on the moral power of narrative, they implicitly revise the status of

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social-problem ﬁctions as instruments of social intervention: in these works the novel
form itself become a recuperation and a repository of history” (10).

6' W. J. Harvey takes another position on this point. He says of Eliot’s novels in
general that if a reader “closes the book with his vision enlarged and his sympathy ex-
tended through an imaginative participation in, or contemplation of, the particular desti-
nies portrayed, then the novel has been morally successful” (40). Furthermore, Harvey
argues the Eliot’s novels extend readers beyond themselves “by controlling our vision of
her ﬁctional world so that we see it through a series of interconnected but ever-enlarging

perspectives which demand of us greater knowledge, sympathy and insight” (41).

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Conclusion
Thinking Becomes Imagination

Looking at these four nineteenth-century British novels in their entirety and think-
ing about their thinking about law from a holistic view, rather than for the thinking about
law revealed within each of the novels, suggests several inquiries lingering in the back-
ground of each of the previous chapters. The ﬁrst question addresses the message of the
texts and the quality of the texts. What are the connections between the literary quality of
each novel and its value as an instrument of reform or the persuasiveness of its message?
More speciﬁcally, how might the literary quality of a text prompt or impair drinking
about law? Inversely, might the nature of the literary message affect the quality or per-
suasiveness of the literary imagination? For purposes of this discussion, this inquiry must
consider whether the self-imposed limits of the realistic literary tradition qualify in some
way the persuasive powers of the novels written in that tradition. Ifa realistic novel is
bound to represent imaginatively only the presentness of daily life, can it effectively con-
vince readers of the need for change or of the potential for something better than what is
represented in the novel? Might a novel of romantic idealism be more effective in imagi-
natively demonstrating something other than the legal status quo?

The next grouping of questions concerns the connections between literary and le-
gal imaginations. What message does an increased understanding of the uses of the liter-
ary imagination have for the legal imagination? In what situations might the imaginative
processes of literary endeavors be applied to legal ones? What might be the additional
issues raised regarding the legal system’s pursuit of rectitude of decision and justice

when literary imagination becomes legal imagination?

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Lastly, thinking about the overall or broad view of the thinking about law in the
novel progresses to thinking about the imaginary legal and imaginary literary dispositions
of the legal disputes in each novel. What are the implications demonstrated in each of the
novels of this study in which the authors’ literary imaginations assume a literary judg-
ment that reworks the legal judgment? Is this assumption of authority over law’s judg-
ment indicative of another operative code of law-like conduct external to positive law?
What are the implications in thinking about the thinking about law and the legal system
of each novel’s successful thwarting in some form or degree legal determinations?

To discuss the ﬁrst grouping of questions we should recall the nature of the novels
within this study. Trollope’s Orley Farm and Eliot’s Felix Holt, The Radical are two real-
istic novels. That means, very brieﬂy and simply, that they attempt to represent actual
present life by accurately depicting the details of ordinary life. Their correspondence to
life is to be judged not according to whether the events they illustrate actually occur but
whether they are probable or possible. The Woman in White by Wilkie Collins also is re-
alistic, but it is a sensation novel. Its details of life include a world of secrecy, mystery,
and crime—events that appeared in the newspapers. The world of the sensation novel is
more extensive because it includes more aspects of life, but it is no less realistic than a
novel in the tradition of realism. Bulwer-Lytton’s Paul Cliﬁrord works with idealism, the
ideal in depiction and an ideal in its message. The characters are extraordinary individu-
als, almost caricatures, and nearly one-dimensional. They represent consistently what
they are intended to represent, such as a villain or a hero. Their lives are ﬁlled with melo-
drama and romance. The narrator and characters tell the “what is” in life rather than

showing it through description and the actions of the characters. Paul Cliﬂord also con-

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cludes with an ideal attained through a better world or a higher standard in its brief de-
scription of what the world “ought to be.”

Since each of these novels complains of one or more problems in varying degrees
of intensity and focus, I will address the ﬁrst questions with an analogy to a rhetorical
exposition in which a problem is deﬁned and a solution proposed. My resistance to the
world “as it is” conclusions of the novels of realism-—0rley Farm and Felix Holt, The
Radical—has been obvious throughout this discussion. At the same time, the value of the
ability to describe or deﬁne a problem as Eliot does, and Trollope as well to a lesser ex-
tent, cannot be dismissed. A problem must be deﬁned and its causes explored before their
effects can be modiﬁed or eliminated. For Eliot the problems are the focus of the novel—
the disruption caused by reform before the people are ready for change and how to ad-
dress the complaints of the working class. For Trollope the problems are not the main fo-
cus of the novel but an important subplot—the shortcomings of some aspects of the trial
process, the possibilities of legal reform, and the speed at which it should be enacted. In-
terestingly, within the realistic descriptions of these problems or the “what is” Trollope
and Eliot seem to harbor a stiﬂed desire to burst out with a picture of the world as it
“o t to be.” To do so requires more imagination than the boundaries of the realistic
tradition allow. Although the novels hint at some resistance to the boundaries of realism,
it is deﬁnitely restrained. To some extent, these allusions to a concept of the world as it
“ought to be,” the ideal in each novel, are extractable. In an understated sense, they do
look to the future. In contrast, Bulwer-Lytton clearly and repeatedly deﬁnes the problems
that are the focus of the novel—the impact of circumstances and harsh laws on increased

criminal activity which are all the product of class imbalance—and proposes solutions

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that he attempts to describe in operation. Collins does not deﬁne a problem in speciﬁc
terms, but the novel clearly recognizes and utilizes a weakness in the legal system and in
Enlightenment thinking that is evidenced through the narrator’s ability to manipulate that
weakness and the law for his own beneﬁt.

Orley Farm is not a social problem novel or a novel of social reform according to
the standard deﬁnition which emphasized focusing on the living and working conditions
of industrial workers. Its complaint about the legal system is what the narrator and some
of the other characters view as the unfairness of rigorous cross-examination during trials
and the legal system’s procedural methods that protect the guilty and conceal truth. Addi-
tionally, the novel considers the most appropriate approach to bringing about legal re-
form.

Not only does the narrator effectively depict what is seen as faults in the system—
for example, Mr. Chaffanbrass’ browbeating cross-examination of John Kenneby—the
narrator yearns for change. “I would have it of the best if that be possible” (168), the nar-
rator says in an intrusion after Mr. Moulder has praised the trial by jury process. Trol-
lope’s descriptions of the conference on legal reform convey a sense of both the possibil-
ity of something else and the absence of a sense of what that might be. His brief list of the
legal systems in other countries at the congress on legal reform accomplishes two things.
It reminds readers that not everyone thinks as highly of the English system as the English
do. That reminder that representatives of other countries think their legal systems are su-
perior to England’s in the same way that Blackstone praises the English system over oth-
ers dims Blackstone’s hyperboles. Secondly, the list demonstrates the existence of work-

ing legal systems that could be examined for their usefulness in improving the English

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system if the English considered reform. Furthermore, the German jurist, Von Bauhr,
presents an extensive reform proposal with global implications. The examples from the
congress show that legal reform is, despite the English bar’s resistance, something in the
air. Signiﬁcantly, the narrator in another intrusion remarks that such conferences and ef-
forts like Bon Bauhr’s “are seldom absolutely wasted” (136; ch. 17). However, the novel
never moves beyond that point. Readers are taken to the edge and then told to step back.
The narrator undercuts his own criticisms of the system by the unintelligibility of Von
Bauhr’s reform proposals, Judge Staveley’s cautions of moderation to Graham, and the
judge’s strong urgings to the young barrister that he devote more time working on his law
practice than on his reform writings so he can live in the world while trying to change it.
As a writer in the realist tradition, Trollope is limited to criticizing the “what is”
or deﬁning a problem. He cannot depict a world that does not exist. He does not attempt
to approach the “ought to be” as Eliot does in Felix Holt, The Radical. Although Trollope
does not discourage readers from pushing their imaginations to something that does not
exist, he dilutes his convincing criticism through his consistent narrative moderation and
balance and reminders that the story is ﬁctional so that the complaints become less ur-
gent. Conversely, his introduction of sympathy for Lady Mason, his transference of that
sympathy to society at large, and his mastery at including readers by asking them to recall
situations when they too were desperate are more immediate and incline readers to reex-
amine their perspectives in forming judgments. At the same time, this safe abstraction of
sympathetic tolerant judgment does not violate the boundaries of the literary tradition of
realism. Trollope straddles between depicting the legal criticisms persuasively and re-

maining consistent with his message of temperance. Because the latter message is so

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much a part of his artistic and narrative style and because moderation is the ultimate mes-
sage of the novel, it supercedes and mitigates the persuasiveness of his criticisms about
the legal system. However, the artistic quality of the novel works eﬂ‘ectively toward the
persuasiveness of the novel’s overall message. Simultaneously, that message is reﬂected
in the artistic style itself. The message has determined the artistic quality, or at least its
tone, because the author cannot urge tolerance without using tolerance in the vehicle he
has chosen to make his statement.

Eliot’s Felix Holt, The Radical also skirts the traditional deﬁnition of a social
problem novel. It tells about the lives of the English workers but does not show their liv-
ing or working conditions and makes few attempts to arouse any sympathy for their igno-
rance and conduct only slightly above that of domestic beasts. The narrator of the novel is
no less a demagogue in shaming the workers than its hero, Felix. Eliot attempts to im-
plement the beginnings of an ideal through an exceptional student, Esther Lyon, and her
teacher, Felix, who is subject to bouts of not facing reality. The recurrence in the novel of
the caution to make present decisions with a sense of the consequences looks to the ﬁr-
ture. So does the argument that acts based on a sympathetic imagination seed similar acts
from others. These examples are intirnations of the “ought to be.” Unlike Trollope who
does not suggest an ideal, Eliot’s Felix Holt does detail his visionary steps toward an
ideal.

Although the epilogue moves from the time of the novel’s end, 1833, to the time
of writing the novel, 1866, Eliot does not use the opportunity to describe much of the pre-
sent. She provides little information of the married couple’s life in another town or of the

reception of Felix’s teachings there through his school and lending books to the lower

312

class. According to Felix’s argument, the results of self-improvement in the working
class families would emerge in future generations, not the present generation. Eliot could
not extend her novel or her imagination that far in time and continue writing in the realis-
tic tradition because it would move beyond the presentness of realism. Neither does she
describe change in Treby Magrra. Other than prosperity and “more enlightenment,” which
she says is “doubtless,” she cannot describe any personal improvements in the people be-
cause she has no knowledge of them, “not having correspondence in those parts” (605).
She does know that North Loamshire has not returned a Radical candidate.

Eliot’s silence regarding change is persuasively consistent with her slow growth
argument. The slower the change the less obvious it becomes. Drastic change is more
visible. The novel’s argument, coinciding with a time when reform enthusiasm was de-
creasing, may have been the perfect rationalization to those whose energies were spent in
working for reform. Her views also provided additional fuel to those who feared future
reforms might be more drastic. The author’s recalling of the past and Blackstone’s sim-
plicity and faith in eventual progress to restore the nation after the disturbances over re-
forms is persuasive and appealing. When Eliot wrote Felix Holt, The Radical, Jeremy
Bentham had been dead more than thirty years. That she felt it worthy to continue the
Blackstone-Bentham debate on Blackstone’s behalf in her novel indicates the lasting irr-
ﬂuence of both men. It also exploits fears of reform and adds to the persuasiveness of the
novel’s message. Furthermore, the novel’s emphasis on the improvement through secular
natural law of the moral well being of the individual rather than the group is, as Claude
Bissell writes in “Social Analysis in the Novels of George Eliot,” “pointing out and heav-

ily underlining the moral inadequacies of philosophical radicalism” (154). Eliot’s de-

313

scription of the working men and of the riot on election day are persuasive reminders of
two points in the novel’s message. The working class is not ready for reform because, as
Blackstone said, changes in the laws contrary to social norms or customs or in advance of
social change caused disruptions, not improvements. The utilitarian principle of pleasure
and pain, as seen in Dickens’ Hard Times, did not establish norms of right and wrong
conduct in individuals.

Critics attacked both of the two remaining novels for their potential negative in-
ﬂuence upon vulnerable readers. Obviously, they thought these stories were persuasive,
or they would not have expressed this criticism. In Collins’ novel, an undercurrent of
crime, deceit, and anarchists beneath Victorian respectability threatens perceptions of
stability. Although it was the subject of newspaper stories, such material was not the ap-
propriate subject for novels. Collins’ realistic depiction or free proof—the more than nec-
essary details to meet the burden of proof—and authenticating devices, which included a
legal ﬁ'amework for legitimization and providential intervention, make the sensational
appear real and persuades readers to recognize the reality of the sensational as more than
something they read about in newspapers that happens to others. Collins’ novel, with its
multiple layers of reality and its cunning iconoclasm, is persuasive, drawing resolute
readers into their own pursuit of the slippery truth. Its message chips away at British
complacency, because it provokes an uncomfortable vision of society residing on the
fringe of moral and legal anarchy through its examples of the eﬂ’ortless deconstruction of
the institutions and conventions that were acceptable means of discovering the truth.

Although The Woman in White is not a problem/solution exposition or even the

deﬁnition or statement of a problem, it does present a case against the logical assump-

314

tions of Enlightenment thinking. For the legal system, this is a problem since law’s rules
of evidence for determining truth are based upon this rational thinking. The novel indi-
rectly encourages a re-examination of legal methods to discover facts and reconstruct past
events so that judgments and verdicts might be closer to the ideal of the truth or what
really happened. Even though offering no direction toward what might be a better
method, to its credit the novel identiﬁes some areas worthy of examination: the use of the
imagination in the process of discovering facts for presentation as evidence, the use of
narrative testimony to present evidence, and the reduction of the scope of the exclusion-
ary rules of evidence. The novel itself is an imaginative exploration of both positive and
negative consequences from different ways of thinking about evidence to establish facts.

Concerns about the inﬂuence of novel reading existed before Bulwer-Lytton
wrote Paul Cliﬂord. The author incorporates that concern in his depiction of Paul’s copy-
ing of the activities of a famous‘highwayman he had read about as a child. At the same
time, Bulwer-Lytton shows how the novel can be used for other purposes, particularly to
inﬂuence legal reform. Although the novel exposes injustice and the disparity between
the classes, it does so through the narrator and the rhetoric of the characters. It does not
illustrate social conditions as a realistic novel would; it makes them the subject of ex-
tended speeches. These speeches are mini essays inserted within ﬁctional prose that eas-
ily could be set inside Bulwer-Lytton’s nonﬁction prose, England and the English. In this
way, readers have no doubt about what problems the novel addresses and of the solutions
proposed to solve them.

Felix Holt’s speeches and some of his lessons to Esther are examples of this same

rhetorical technique. In fact, Paul and Felix share a common earnestness and sincerity,

315

especially in their courtroom statements. The narrator describes Paul when he rises to
speak as “noble” (439; ch. 36), a word Esther Lyon also attributes to Felix (573). Paul’s
speech is emotional and appeals to the pity of his listeners at his victirnhood and their
own. He denounces harsh laws, places accountability on social circumstances, and re-
minds his listeners of the absence of bloodshed during his raids that were only against the
rich who have the power to make and enforce the harsh laws. Felix’s statement to the
court is less emotional. He defends the consequences of his assault on the constable as
unintentional, and he attempts to place blame upon the victim. He inserts a digression
about civil disobedience that few rmderstand. He asserts his intellectual superiority and
higher moral standards over his audience. Paul’s statement connects him to the crowd in
the courtroom because of their common circumstances. Even the harsh Judge William
Brandon agrees with Paul’s social criticism. In contrast, Felix’s statement enforces the
line between him and his audience and angers the judge. Esther’s testimony more resem-
bles Paul’s statement for its inclusiveness of the audience. While Paul’s statement and
Esther’s actions unite them with their audience, Felix aﬂi-onts them for not being equal to
his standards. The responses to the emotions and drama of idealism within the novels
themselves attest to idealism’s persuasiveness over Felix’s harsh, intellectual pragma-
tism. Bulwer-Lytton’s imaginary implication that an ideal is possible through Paul’s work
in America also adds to the persuasiveness of the novel. The ideal within the novel sup-
ports the message of the ideal of the novel.

Bulwer-Lytton’s writing style is full of ﬂourish, complicated syntax, and exces-
sive punctuation. He builds a story around extraordinary events, coincidences, high emo-

tion, and a symbolic mysterious disease. Instead of showing social problems through de-

316

scription, his characters and narrator give speeches in which their complaints about soci-
ety are repeated and exaggerated for emphasis. If an artist cannot or does not choose to
create lasting pictures in the mind, as Dickens would later, this is an effective way to
make an impression. Exceptions to the speech scenes are the brief attempt to describe the
harsh conditions of prison life and the two ﬂeeting scenes at Paul’s ﬁrst trial depicting the
imprisonment of a child and the judge’s refusal to release a woman whose innocence has
been determined through subsequently found evidence. The novelist’s artistic weak-
nesses, if they are weaknesses, do not impair the conveyance of the novel’s message, es-
pecially considering how closely Bulwer-Lytton seems to be following Bentham’s prob—
lem/ solution or censure/expositor format. Signiﬁcantly, Bulwer-Lytton’s writing style in
the novel is similar to Bentham’s style, particularly in its excessiveness, metaphors, and
bombastic tone. It complements and identiﬁes the Benthamite message of the novel.

This discussion already has alluded to traces of Bulwer-Lytton’s idealism in Trol-
lope and Eliot’s novels. In Paul Cliﬂord, which does not attempt a realistic depiction,
these elements contribute to the persuasiveness of the novel because they are consistent
with the idealistic proposition of the novel. However, characteristics of the ideal appear
out of place in a novel in the realistic tradition,. Despite a movement away from the un-
real of the ideal in their imaginary depictions, novelists in the realist tradition must have
understood that some elements of the earlier tradition had persuasive merit. One obvious
element is the characterization of the major characters. Felix Holt and Esther Lyon are no
less the perfect hero and heroine in Felix Holt than Paul Clifford and Lucy Brandon are in
Paul Cliﬂord. Both men are ideal physical specimens who surpass other men in physical

strength and size. They also are uncommonly intelligent and educated, considering the

317

class in which they spent their boyhoods. Both women are beautiful in every way imag-
inable, naive and unworldly but willing to be taught, and both are motherless daughters of
kindly, eccentric, and slightly misguided men. Heroes and heroines are not the ordinary
people that supposedly make realistic novels. Eliot’s depiction of two such extraordinary
individuals, although pretty and nearly sentimental when Felix and Esther are together,
impairs the believability of F elix’s ability to be a teacher of working men and the credi-
bility of Esther’s learning/conversion. He is a ﬁgure that appears too exalted to work ef-
fectively with the lower class. Felix’s classlessness——too high for the lower class and too
principled for the middle class—impairs his position on class flmctionality. Felix only
connects from a human standpoint with the eccentric Mr. Lyon and the woman who loves
him. While the ideal in Bulwer-Lytton’s novel contributes to its value, in Eliot’s realistic
novel its lingering traces appear incongruous because they weaken the plausibility of its
major characters.

Trollope’s characters are less physically perfect; in fact, Felix Graham is de-
scribed as a bit ugly. Lady Mason’s uncommon retention of her good looks as an older
woman is less the attribute of a heroine or ideal than a symbol of her otherness in relation
to society and her ability to entice and seduce. However, Trollope does employ occasion-
ally the emotional extremes that are typical in idealistic ﬁction. The author’s characteris-
tic moderation and balance in most aspects of the novel are set-aside in the melodramatic
scenes of Lady Mason’s physical collapses and hysterical tears. Knowing her adeptness
at deceit, readers can never be convinced of the sincerity of the remorse these episodes

are intended to convey, and they make Lady Mason less the sympathetic ﬁgure that the

318

narrator subsequently tries to make her. Again, elements of the ideal when incorporated
into a novel of the realistic tradition tend to vitiate the credibility of realism.

Unlike the two other realistic novels, The Woman in White does not contain char-
acteristics of idealism, even in its portrayal of the sensational, wronged women, and vil-
lains. The contest of wits that takes place in the novel is not a struggle between the per-
fect good hero and the perfect evil villain. Collins is interested in the strengths and weak-
nesses of the mind. Critics cite Collins’ intricate plots and the attention he paid to outlin—
ing them as his artistic achievement. The intricate way he incorporated Hartright as the
general narrator with the multiple narratives of the other characters into a legal model
without losing the continuity of the story exempliﬁes his mastery in plot construction.
The novel is long, but it never fails to maintain suspense. Its force lies in its multiple
demonstrations of the persuasiveness of design. Hartright ﬁrst announces his legal design
in the Preamble, subtly controlling the readers’ expectations. He pretends to be working
with the ofﬁcial ideal, a legal method. Readers have no reason at that time to discount his
credibility. The First Epoch of the novel tends to follow that design, while inserting clues
that on the one hand, this design may consume itself and, on the other hand, that one or
several more powerful designs operate beneath the surface design. Throughout the novel
the narrator frequently comments on his design. He mentions or explains a deviation from
his original plan. The designs are indicia of the narrator’s intentions and multiple mo-
tives, not one of which is fully understood at the novel’s end. Thus the plotting, the artis-
tic design, is as important to the novel’s force as its content. The design enforces the
novel’s message about the diﬂiculty of determining truth and the legal method’s limita-

tions in that function.

319

The praise for Collins’ plotting in the novel should not minimize the strength of
Collins’ characterizations. Marian Halcombe’s uncertain identity and struggles with her
anger, tendency toward physical aggression, and frustration at the subservient role society
inﬂicts on women coincide with the elements of maleness in her physical appearance.
Count Fosco is an equally unforgettable character. His greater than life appearance coin-
cides with the greater than life homage his wife pays him, the honors supposedly be-
stowed upon him for his scientiﬁc achievements, and his unshakeable mental and emo-
tional strength in meeting crisis situations with equanirnity and reserve. Mrs. Catherick’s
self-control, fed by hatred of Sir Percival and Frederick F airlie’s reclusive self-obsession
are also characterizations that create lasting impressions. We know, or imagine we know,
too much of these characters to consider them the caricatures of idealism. Yet each of
them carries secrets that the novel never reveals. Fittingly, the person readers know the
least about in physical appearance or internal development and motivation is the narrator.
These omissions, particularly regarding Hartright, effectively coincide with the novel’s
message of the truth unknown.

Sometimes when a writer is bound to a speciﬁc form, such as a sonnet, that exer-
cise requires more imaginative powers than if the writer did not have to follow estab-
lished rules. Fitting one’s imaginative powers into certain literary rules or on to some-
thing as if it were a template as the writers in the tradition of realism did requires control
and mental directness. Bulwer-Lytton’s idealism was not so bound to a tradition, and his
imagination could soar a bit more. Lawyers as writers most often must be more like the
realists. They are bound to legal forms. Like the realists, their imaginations are limited to

the form but not limited in what they can imaginatively produce with what they must

320

work with. Their imaginations also are determined by the focus of their message. Like
Trollope, their imagination must remain appropriate to the focus.

When legal thinking progresses to legal imagination the experience obtained from
a familiarity with the literary imagination provides choices for the legal imagination. At
times lawyers can release themselves to the “unbridled thoughts” that Hartright indulged
himself with in The Woman in White (88). These are the times when lawyers and others
thinking about law can exalt the profession to a more transcendental height and imagine
how law could provide “equal justice under law”I unfettered by Felix Holt’s pragmatic
“the nature of things” (400) yet within the realms of practical applicability instead of the
incomprehensible abstractions of Von Bauhr’s elysium in Orley Farm. The legal imagi-
nation here looks toward an ideal. That imagination is the ﬁrst step toward reaching the
ideal. Reform and improvement come from imagining what is possible under Trollope’s
“the best” rather than accepting the best that is. As we learn from Trollope, though the
pinnacle sought may be unachievable, “such efforts are seldom absolutely wasted” (136;
ch. 17). This imagination persuades because it touches a common chord, a desire to feel
good about things as Mr. Wace does in Felix Holt, The Radical after seeing Esther at her
wedding. It results in change when that emotion is grasped and acted on in the context of
realistic empiricism.

However, the imagination is important in law in other ways than imagining what
the law “ought to be.” As James Boyd White correctly states in The Legal Imagination,
“the activities which make up the professional life of the lawyer and judge constitute an
enterprise of the imagination” (208). White suggests that lawyers can determine their

own style of self-expression or establish their own imaginary limits, just as the novelists

321

within this discussion established their individuality. Like novelists, much, but not all,
imaginative creativity of a lawyer is intended speciﬁcally to persuade. Persuasion is not
exclusive to the courtroom. Lawyers need to be able to persuade their opponents and
sometimes their clients, especially during settlement and contract negotiations or during
mediation proceedings.

White says that the legal imagination begins when a lawyer ﬁrst interviews a new
client and begins to imagine who the person is. In words reminiscent of Eliot’s looking to
the beyond through the sympathetic imagination, White says the lawyer adopts “a social
and narrative imagination, a capacity to envision different versions of the future” (208).
Much as we saw in Esther Lyon, White says “[t]he lawyer must be able to tell himself
imaginary stories about the future” (209). That future covers a broad range. For example,
in preparing a civil claim the lawyer needs to imagine the response of the opposing party
to the form and content of the initial pleadings. The selection of a cause of action must
meet the remedy the client seeks as well as be able to withstand pretrial motions attacking
the claim. Lawyers also have a responsibility to prompt their clients’ imaginations before
they make decisions such as whether to proceed to trial or to settle. That means imagining
the realistic consequences of a trial: the toll on expenses, time, and emotion that extends
beyond clients to their families; the uncertainty of a favorable verdict; the response and
possible counter-claims of the opposing party; the reliability and persuasiveness of wit-
nesses; the impact of an unfavorable verdict on themselves as well as on their opponent.
All of these activities of the imagination form choices and lead to decisions in the prac-
tice of law and each activity can be compared to the decisions and choices based on the

imagination of a writer of realistic ﬁction.

322

Like Collins’ Hartright, a lawyer is what White calls the “auditor” of other peo-
ple’s stories so that the lawyer reconstructs the past imaginatively with a view to the fu-
ture. As we saw in the Woman in White, the lawyer/auditor, according to White, “organ-
izes what is seen and claims a meaning for it.” Collins’ novel is also a demonstration of
how the imagination assists in the discovery of admissible facts that eventually form a
story reconstructing past events. But the reconstruction is misleading when the facts are
formd to ﬁt into a story the imagination has created a priori before the facts are known.
White points out that trial preparation is an art that imaginatively creates from the facts a
version of past events so that it results in a meaning consistent with the client’s claims,
withstands comparisons with other possible meanings, and convinces the trier of fact
(209). The trier of fact, like a reader of a novel in the realistic tradition, imagines the real-
ity of that version and of the sometimes-competing versions in reaching a verdict.

When thinking about law moves to imagining about law, lawyers can look to lit-
erature for ideas on persuasiveness or eﬂectiveness. The version of the client’s story they
present in argument may be more effective if they can raise the thinking of the jury to an
imaginative ideal. Sometimes, as Esther Lyon thought, a jury can be swayed to a certain
verdict through appeals to the members’ sympathetic imaginations. In determining pun-
ishment, an appeal for leniency produced from sympathy, as we saw suggested in Orley
Farm, may lessen the harshness of punishment. Appeals to sympathy have a tendency to
manipulate or cloud the facts and reduce the neutral and objective decision making the
legal system is suppose to render.

The legal imagination works in other ways as well. It was the imagination of the

original Durfey, a lawyer, that conceived the “law tricks” which ﬁrst obtained possession

323

of Transome Court for the Durfey-Transomes. Someone else’s imagination produced the
law of entailment. Different imaginations applied to statutes and case law result in con-
ﬂicts of interpretation as well as law’s uncertainty and indeterminacy. Lawmakers, both
legislative and judicial, must imagine these potential interpretative disagreements when
making law. They also have to use their imaginations to consider the consequences of
their legislation and rulings. Throughout all their use of legal imagination, lawyers must
direct their imaginative choices toward the nature of the message they want to convey or
the results they want to obtain. Simultaneously, the message to be conveyed or results
obtained should determine their imaginary limits.

Progressing from thinking about law to imagining about law shows how so many
aspects of law and the legal system may rise or fall on the limits of imagination. The legal
imagination must always contend with the inﬂuence of cultural heritage and the bormda-
ries that inﬂuence inherently imposes when judges or lawyers are attempting to imagine
how someone from a different cultural heritage may respond to what a lawyer or judge
says or does. A lawyer who cannot imagine what it would be like to be a victim of
spousal abuse cannot imagine why the victim continues to live with the abuser and con-
sequently may not be able to offer the appropriate legal assistance. In one sense, it is dis-
concerting to think that something like the law that can have such a powerful impact on
human lives can be subject to something so irnpennanent, intangible, and abstract as
imagination. Rather than a contest over competing stories, litigation becomes a touma-
ment of imaginations. In another sense, recognizing the imaginative aspect of law pierces

the concept of law as ﬁxed and impenetrable, so that law and the legal system appear to

324

be more related to human activities and susceptible to change when imaginatively per-
suaded.

The judicial imagination works several ways in law. It is subject to the persuasion
of the imagination of lawyers who argue before it. In that sense, judges are like readers.
Judges also must imagine a statement of facts that supports their decision. Another possi-
ble use of the judicial imagination is that judges may be able to render more meaningful
and just decisions if they can imagine future consequences of their decisions on the par-
ties and perhaps on society at large.

Despite these afﬁnities of the legal and literary imaginations, the novels discussed
herein possess a disconnect. Each novelist imaginatively overturns the legal disposition
or consequences of its criminal trial or legal position. Lady Mason is acquitted and avoids
imprisonment, but she surrenders Orley Farm, which would have been one of the conse-
quences if she had been found guilty. The loss of the property, her ﬁiendless exile, and
the sympathy readers are asked to feel for her relieve any qualms readers might feel over
her success in twice confounding the legal system. Paul Clifford’s hanging is commuted
to transportation. He escapes the colony and becomes successful in America. The circum-
stances that led him to crime, his work to recover from ﬁnancial losses in America, and
his exemplary conduct, including community activism and benevolence in his new home,
seem to atone for his avoidance of legal punishment. Sir Percival Glyde and Count Fosco
avoid legal prosecution. Hartright would have readers believe that Providence and the
Italian Brotherhood assumed responsibility when the law’s position was that there was
insufficient evidence to prosecute. Hartright avoids accountability for any culpability in

the deaths of the two men. His marriage to Laura and ﬁnancial security seem to reward

325

him for his self-help beyond the sanction of the law. Felix Holt receives a pardon that re-
leases him from prison and from any accountability for the death of a constable.

In each instance, the authority of the literary imagination weakens the authority of
the law and the legal system. The literary imagination imposes its own punishment, com-
bined with forgiveness, upon Lady Mason. The literary imagination allows for lmex-
pected mercy in Paul’s sentencing, makes life brieﬂy difﬁcult for Paul, and then allows
him to succeed on his own merits. He creates himself in a new land without the interven-
tion of circumstances or the stereotyping of birth or environment. Felix Holt receives a
pardon because Esther’s moral synthesis inspired those in power to render mercy. No
mercy or leniency occurs in The Woman in White. Hartright neither gives nor receives it.
He obtains his revenge and reward extralegally.

These resolutions are something else than the sympathetic treatment toward a
criminal that Alexander Pettit correctly identiﬁed in mid-Victorian novels. In one respect,
they do indicate the operation of a moral judgment over legal judgment that Pettit notes.
They imply that a realistic portrayal of the “what is” of the legal system is incapable of
rendering justice that satisﬁes the authorial imagination or the author’s “ought to be.” So
the author must imagine beyond the legal determinations to depict, not necessarily an
ideal but what ought to be in the disposition of these legal cases. Even Bulwer-Lytton’s
idealism resists stretching the limits on what the law can do. IfBulwer—Lytton changed
the tenor of the legal system’s operation at Paul’s sentencing, he would undercut the
novel’s criticism of the criminal law. Judge William Brandon must instruct the jury to
ﬁnd Paul guilty because the facts show him guilty. Paul’s victimization from circum-

stances and his claim to beneﬁt only from the rich do not legally absolve him. The jury

326

follows the judge’s instructions. To do otherwise would be jury nulliﬁcation. However, in
ﬁnding Paul guilty, they recommend mercy. The judge’s sentence reﬂects that recom-
mendation. It alone is such an out-of-character qualiﬁcation that it surprises the lawyers.
A recommendation of mercy is the best the law can provide. It takes the extralegal ma-
neuverings of Lord Mauleverer to execute it. With the sentence modiﬁed from hanging to
transportation, Bulwer-Lytton is free to usurp imaginatively the legal judgment with an
authorial and moral judgment in the same way as the other three novelists.

Two processes are at work here. These extralegal dispositions coincide with the
focus of the novels in which they are depicted. In order to proceed with their focus and to
conclude persuasively, the legal disposition cannot stand in the novels. The realists and
even the idealists cannot realistically and persuasively imagine a legal disposition that
concurs with their focus. They must add a second disposition from other sources. Each
novel’s conclusion condones another system of law-like conduct that acts outside the law
based on individual concepts of right and wrong and justice.

Realistically, the legal system cannot do the right thing according to this second
code. These second dispositions imply that the legal system cannot render justice, at least
not in the cases depicted, so other forces must intercede. That force is the individual or
the community. In only one novel, The Woman in White, is this force providential, and
that attribution is questionable. In Orley Farm, Providence does intervene for purposes of
sympathy, not for Lady Mason’s acquittal or subsequent punishment. The intervening
force in Trollope’s novel is purely human in the form of Mrs. Orme on behalf of herself
and the community. Some of Eliot’s characters indicate they believe, like Blackstone,

that Providence will take care of the country without their intervention. However, the in-

327

tervening force in Felix Holt, The Radical is the response of the most prominent men of
the community to Esther’s actions. An external intercession is a rather drastic concept to
incorporate in our thinking about the thinking about law and the legal system as depicted
in the novels. Its message is that in their imaginations the authors depict an existing op-
erative system among individuals external to the legal system. If realism is accepted for
its representation of the “what is,” then this system, as depicted by Trollope, Eliot, and
Collins, is probable and plausible. In addition, it is part of the movement toward Bulwer-
Lytton’s idea of the ideal. We might consider this system another lingering trace of ideal-
ism in realism and argue that the authors must exceed the limits of realism in order to be
persuasive and satisfy their focuses. Either way of thinking takes us to an overturning of
the legal disposition.

Readers accept this system external to and superceding the legal system because
each novelist has imaginatively persuaded them of its plausibility or its participation in
reaching the ideal. Each novelist has persuaded the readers that the extralegal disposition
is the right thing to do or that it is the appropriate way to resolve the legal conﬂicts of the
novel. Their persuasiveness sanctions its existence. This acceptance is the strongest indi-

cia of each writer’s imaginative force and the enduring force of each novel.

328

 

Notes

' The inscription over the entrance to the U. S. Supreme Court.

 

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'-

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4
.5—

329

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