Fictional discourse as law’s mirror and cradle: Metafictional qualities of law in literature

“A fearful and wonderful institution” Representing law in sensation novels

“It is curious to note how much of modern fiction has a legal tone about it. Some its very best efforts it owes to the law.” Thus observed an essayist writing in the popular British magazine Belgravia in 1869. But after that promising beginning, the author goes on to take novelists to task; for “while the law from the novelist’s point of view, in truth, is often a fearful and wonderful institution,” it seems as though many of the novelists who use legal themes and procedures to fuel their plots are rather ignorant about that institution.¹Exempting from this reproach Dickens, Collins, and Bulwer Lytton—as well as a certain “lady novelist,” most certainly Belgravia editor Mary Elizabeth Brad-don—the author offers several examples drawn from recent popular novels of mistakes about law or legal procedure. As it happens, these examples constitute a catalogue of nearly every' plot device most commonly associated with sensation fiction, from bigamy to lost or stolen wills to murder. But as the author ticks off examples of legal ignorance, the essay’s force shifts. While, at first, it seems to be taking writers to task for failing to adhere with sufficient rigor to the conventions of realist representation, it turns out that this is not entirely' the case. What began as a demand for adherence to realist conventions ultimately collapses its critique on itself, admitting that only a legal expert would notice these mistakes, and for that reader, the errors about law would offer an extra boost to the novel’s entertainment value. According to this author, the accuracy' of the depiction of law and its procedures both matters a good deal— and it doesn’t at all. Law has become a resource for literary’ effect, which at once links the world of the novel to the world outside it, and operates as an autonomous set of devices for the production of ever more intricate and suspenseful plots.

What this article refers to as “novelists’ law” forms an intriguing site upon which to signal some of the broader tensions coursing through an apparently' “unserious” popular genre. In this apparent critique of novelists’ deployment of law, we see not only a delineation of sensation as a Victorian sub-genre, but a suggestive way of rethinking the relations between law and popular narratives. Taking the Belgravia article as an instigation, this chapter proposes that the intersection of a Victorian popular genre and law helps us think both about the place of sensation in the literary landscape and of the place of law in relation to its subjects. Exploring the significance of that “novelists’ law,” including these mistakes or errors in representing legal procedures and discourse, clarifies the stakes of the representation of the “fearful and wonderful institution” in popular mid-century fiction. But, to the extent that sensation fiction also marks a key moment in the development of mass print culture, this exploration also permits us to engage some issues that ramify beyond the Victorians. What does the tension between a certain kind of commitment to realism, on the one hand, and, on the other hand, legal quirk and procedure deployed as plot infrastructure, indifferent to accuracy, tell us about the intersections of popular fiction and law? About the relations between fiction and the emergence of a modern form of legal consciousness?

The “sensation”—or, sometimes, “newspaper” or “railway”—novel is said to emerge in the early 1860s, with the publication of Wilkie Collins’s The Woman in White (1859-1860) often pointed to as the first of the genre—although Charles Dickens’s Bleak House (1853) is clearly a major predecessor. It is not insignificant to note here that the very' existence of genre itself owes no small debt to law; the repeal of the “taxes on knowledge” had made for a much more prolific, if more commercial, press. Anxieties about the ramifications of this commerciality animate critics of sensation; as one lacerating review put it, “a commercial atmosphere floats around works of this class, redolent of the manufactory’ or the shop.”²Founded in 1866, the journal Belgravia was a decidedly' middle-brow publication known for its serialization of sensation novels, which appeared interleaved with articles about aristocratic life, current events, celebrities of the day, and popular trials.³ For many years, Belgravia was edited by the “queen of sensation,” Mary’ Elizabeth Braddon, known for her bestselling Lady Audley’s Secret.

Rewriting many of the conventions of earlier Gothic novels, sensation fiction expressly displaces the maze-like architecture of the Gothic castle to the level of plot. Twists, turns, surprises, suspense are all characteristic of plots featuring battles over wills, bigamy, imposture, murder and attempted murder. Most often, these crimes take place in the upper-class or bourgeois private sphere: whereas criminality' in English fiction had most often been represented as a dimension of life among the dangerous classes, here it moves to the drawing room and the salon. In fact, while violent crimes against the person are far from unheard of in sensation novels, where they arise, they do so in the context of non-violent crimes or civil disputes. While readers of sensation fiction have long remarked that the genre thematizes the instability' of identity, less noted is the fact that this instability' is articulated in terms of the disparities between civil identity’ and subjectivity'. Assuming a number of different identities, Braddon’s Lady Audley' commits arson and attempted murder—but only' to conceal fraud and bigamy. In Braddon’s later John Marchmont’s Legacy, a will produces many' complications, including, as is the case in Collins’s Woman in White, the villain falsely' imprisoning the legal heiress. Charles Reade’s Griffith Gaunt features a heroine on trial for the murder of her estranged husband—who, as it turns out, is not dead after all, though he experiences a kind of civil death and resurrection. And in Collins’s Man and Wifi, the heroine’s quandary' is uncertainty about whether she has unwittingly entered into a Scottish irregular marriage with her best friend’s fiance. Apparently Eliminating at the way some contemporary novelists treat the ever-popular bigamy plot, our Belgravia essayist points out that all too often novelists seem to think that marriage certificates or entries in parish registers are sufficient evidence of a marriage, but, in fact, “nothing is more difficult of absolute proof [than] a secret marriage.”⁴ Principally at stake in much sensation fiction are not criminal biographies or criminal acts; it is the ways in which law mediates characters’ identities and circumscribes their relations to each other that forms the central focus.

Scholarship on nineteenth-century literature and law has often represented the relationship as rivalrous; in the work of Kieran Dolin, Jan-Melissa Schramm, Lisa Rodensky, and Alexander Welsh, literary' realism emerges as a competitor to the claims of law to represent a normative reality. It is, from one standpoint, unsurprising that scholarship has highlighted rivalry', for this is frequently' how the relation between law and literature is constructed in the period itself. As Thackeray' cheerily admits in “The War Between the Press and the Bar” (1845), novelists have contributed to the public representation of lawyers as a “dangerous, slippery', wicked set of practitioners.”⁵ Dickens famously' satirizes not only the practitioners, but the institutions of law and government themselves. If law and lawyers often come off poorly' in nineteenth-century fiction, legal professionals are not only avid to point out novelists’ mistakes, but to refute their claims about the ethical status of legal practice and the clarity of legal language. In one of his several essays on law and the novel, Fitzjames Stephen, the leading criminal law jurist of the period, laments “the almost universal inability of novelists to write about law without making mistakes.”⁶Dickens is one of his favorite, if not his only, targets. In “The License of Modern Novelists,” for instance, Stephen remarks that Dickens’s “notions of law, which occupy so large a space in his books, are precisely' those of an attorney’s clerk,”⁷ while Charles Reade is a “petulant litterateur who has arraigned [the authorities] at Aw Bar.”⁸

At stake in this rivalry are a number of factors, central among them the increasing dominance of the novel as the major form of cultural production; as Stephen himself repeatedly' notes in his essays of the 1850s, the novel’s influence is great, particularly on younger readers. Equally consequential is the growing professionalization of the legal field. Julie Stone Peters’s remarks on the disaggregation of disciplines, a particularly nineteenth-century' project, are apposite here; she suggests that the emergence of law and literature as distinct arenas of knowledge production owe as much to “attempts to rationalize the legal sphere by' ridding it of the customary and natural law traditions” as it does to the emergence of modern aesthetics as a sphere free of the instrumentalist claims of utilitarian calculus.⁹ At a moment when it seemed that law had more and more of a presence in people’s everyday lives, its language and procedures appeared more and more incomprehensible to the layperson. Discussing legal professionals’ mid-century “attempt to define the marks of exclusive expertise,” Nicola Lacey sees “a double bind”:

[TJhe most obviously legally exclusive techniques were precisely those whose complexity opened them up to the Benthamite critique of law as deliberately fostering archaic and obfiiscatory fictions. Modernizing the law ... implied making it more transparent. But this seemed to cut across the need for cognitive exclusiveness.¹⁰

We might speculate, then, that the novel as a genre took advantage of this double bind: if, at moments, novelists appear to concur with Bentham’s distaste for opaque language, they also exploit its literary' possibilities.

This would suggest that the relations between law and the literary' in the Victorian era are more complex than a “model of rivalry'” might permit us to see. Even, or especially, if this rivalry' argument can be supported with regard to high literary realism, sensation fiction seems to offer an alternative scenario. As Clare Pettit remarks, “much Victorian fiction seeks to resituate the law in a wider cultural debate.”¹¹ The anonymous Belgravia essayist hints at such an alternative view, describing a form of fiction that, with regard to its treatment of law, is mediated by certain standards and expectations of literary' production associated with realism, but only' to the extent that it falls short of them. That falling short has, as one of its effects, the confirmation of the specialized professional knowledge of the novel-reading lawyer, who will enjoy spotting novelists’ errors. On this view, the relationship between law and literature is far from rivalrous; through its misrepresentations, popular fiction affirms the distinction between itself and the discourse of the lawyer. In so far as the novelist makes mistakes, law as a specialized field of knowledge, discrete from other symbolic fields, becomes visible—as does this particular genre of fiction. With their appeal both to the general reader and the professional, sensation novels underscore, and perhaps even play' a role in, the disaggregation of the discourses of law and literature. Law is rhetorically constituted as a “fearful and wonderful institution,” in so far as it is represented as requiring a kind of occult knowledge, at which novel-writers, avowedly excluded from it, can only gesture in the manufacture of plots. If novelists refer to this arena in their work, it is literally as a fiction: legal procedures and institutions acquire a kind of shadow-life as literary devices.

On the face of it, then, it could seem that these “legal fictions” function to buttress the power of law and the authority of its practitioners as its privileged interpreters. We might also see operating here something like what Jacques Ranciére describes as the “partition of the sensible”: “the implicit law that parcels out places and forms of participation in a common world by first establishing the modes of perception within which these are inscribed.”¹² With regard to sensation fiction, we can track in the contemporary critical reception an attempt to constitute such a mode of perception, specifically a mode of reading. In his 1869 Quarterly Review takedown of sensation fiction, for instance, Henn' Mansell polices the boundaries of appropriate literature for a rising middle-class readership, delineating these novels, “written to meet an ephemeral demand, aspiring only to an ephemeral existence,” from those works which exhibit a “deep knowledge of human nature, graphic delineations of individual character, and representations of the aspects of Nature or the workings of the soul.”¹³ Sensation novels present a social danger, because one reads them with the body: they “preach to the nerves,” inciting visceral responses rather than reflective, or appropriately aesthetic, ones. For all of Mansell’s worries, more recent analysts of the politics of sensation fiction have seen a more or less conservative trend in these novels. Critics such as Jonathan Loesberg and Patrick Brantlinger have pointed to the genre’s emergence in an era of parliamentary reform, arguing that sensation novels themselves register anxieties over shifting power structures and an expanding public sphere; writing particularly of Belgravia as an example of Victorian popular print culture, Alberto Gabriele has made the case that the magazine simultaneously instigated and contained critical affect toward the upper classes. In short, the precise class politics of sensation are legible in a number of different ways, but in so far as these novels thematize law and legal proceedings, negotiating a distribution of the sensible between law and fiction and between sensation and realism, they appear to expose a particular relation between modern law and its subject.

It is a private sphere permeated by the expanding grasp of law, rather than any determinate political alignment, that sensation fiction registers in particular ways. In the course of the British nineteenth century, law’s reach extended in many directions; reforms bearing on finance, the law of contract, trusts and estates, women’s civil status, as well as multiple attempts at criminal law reform, mark the mid and late century especially. We can add, of course, the two major parliamentary reforms in 1832 and 1867. In addition to a print public sphere increasingly saturated by law and law’s stories, there was a perception of law’s expanding presence in the private lives of middle- and upper-class individuals. Many sensation novels, whether their authors get the procedural details correct or not, seek to represent the effects of this intervention. Perhaps more to the point, the effects that these novels tend to represent are indifferent to the particularities of procedure or rule; they are frequently, pace Mansell, psychic or corporeal effects. For this is neither the ancien régime body, at the mercy of the sovereign, nor even at stake necessarily is the institutionalized body in the grip of the state, “only ... touching the body in order to reach something other than the body itself,” as Foucault memorably remarked.¹⁴ At stake is not, in other words, the body that the logic of Victorian culture marked as criminal, but rather that of the putatively law-abiding citizen, the autonomous liberal subject in all its supposed abstraction.

One example is provided by Wilkie Collins’s 1870 Man and Wife. Collins’s avowed aim with this novel was to do what he could to hasten the reform of

“the present scandalous condition of the Marriage Laws of the United Kingdom.”¹⁵ Indeed, the disparities of marriage laws across the United Kingdom had recently been the subject of a Royal Commission and there had been at least one highly publicized and, in fact, sensational legal case bearing on this issue.¹⁶ But the novel itself is less a reformist screed than a suspense-filled, highly entertaining examination of how law constitutes and effects its subjects. Attempting to salvage her compromised honor, the heroine of this novel plans to meet her seducer at a secluded inn on the border of the Highlands to enact an irregular marriage. That seducer sends his friend instead, and complications, including the possibility of bigamy, ensue. More than simply finding themselves before an institution or a collocation of rules, prohibitions, and obligations expressed in language that they do not understand, the characters in this novel find their lives shaped by forces of law that they cannot perceive until they are already deeply embroiled in them—and which even then remain occult. The power of law is manifested by jurisdictional differences; one only discovers oneself as a subject of law when confronted by the disparities between English and Scottish laws. And this discovery is frequently traumatic; English characters not only find civil status and social position compromised, but identity itself threatened through a chance encounter with disparities in territorial jurisdiction.

The novel underscores that there is no place outside of law. The domestic sphere is defined and striated by legal frameworks, though in the course of their everyday life individuals may not recognize this fact. Rather than cognitively assessing their interpellation by law, characters experience it as a physical impact; early in the novel, the heroine’s mother is told that her husband has determined that their long marriage is invalid, due to a loophole in English marriage law. The impact is immediately physical: “she dropped ... senseless at his feet.”¹⁷ When, much later, the heroine is told that she is likely married to her best friend’s fiance, she too faints dead away at the words, underscoring the repetition of the mother’s fate in the daughter’s life. That legal status is inherited is not surprising, but here it operates less like title or property and more similarly to inherited physiological conditions as they circulate in nineteenthcentury medicine; a woman’s legal status is not simply a formal attribution, but forms a deeply inscribed component of subjectivity', a component that might well remain latent, or unconscious, until circumstances awaken it. Completing the repetition of her mother’s story, the heroine Anne flees and assumes another name, but it is clear that, rather than exiting a crushing legal order, she has only been repositioned within it.

Seeking a professional opinion avails nothing. The novel’s main lawyer character, the benevolent Sir Patrick, is quick to point out that legal authorities are “everywhere at variance” on the question of Scottish irregular marriages. And, crucially, it isn’t simply' that nobody' knows the law, but that the law is impossible to know: “No individual opinion in a matter of this kind is to be relied on,” Patrick explains. Everyone is left equally' confused before the mysteries of

Scottish marriage law, with its curious capacity to alter the civil status of individuals without their knowledge. Where even the specialized knowledge of professionals fails, law is represented as a curiously mystical disembodied institution, wielding inexorable authority over the private fates of citizens.

We could say this particular late sensation novel indexes the emergence of a modern state, marking a centralization of power that entails soliciting its citizens to see themselves as unmarked subjects of law, a process engaged by rendering uniform laws regarding the registration of marriages, births, and deaths, among other technologies. It is not insignificant, in this light, that the unmarked subject is represented as middle or upper class. To the extent that the fast-paced, suspense-filled plot depicts a fairly unlikely scenario—real-world difficulties around jurisdictional disparity with respect to marriage laws notwithstanding—this is also an instance of what Belgravia ruefully refers to as “novelists’ law,” the real legal world’s fictional shadow, providing entertainment value in a burgeoning mass culture. But law here is not simply a scaffolding for a page-turner; its ability to shape the domestic sphere and alter the psychic landscape of its subjects forms the infrastructure of the plot, an infrastructure that Collins might not have been able to explore had he adhered rigorously to the facts of procedure and rule. And so while the animating problem of the novel is legible as historically linked to the consolidation of the modern state, its deeper concern is the constitution of the modern legal subject of that state. The nature of that concern, however, is readily represented neither by mid-century realism nor case law, nor even the endless Royal Commission reports that Victoria’s reign produced.

Collins is a particular case; while, like more than one nineteenth-century novelist, he had studied law as a young man, he retained a fascination for legal peculiarities and loopholes—of which Scottish irregular marriage is one. The peculiarity, the residual customary practice, the “weird case,” seem particularly appropriate for the exposure of a broader dynamic specific to the relations constituted between its citizens by modern law. In Man and Wife—but, I would contend, in other sensation novels as well—the embodied psyche emerges as a kind of excess to the legal subject supposed by formal legal discourse: desiring, gripped by unreason, fragile, violent, and autonomous only in fantasy. John Kucich has described Collins’s apprehension of legal systems as “tragic” in so far as the novelist conceptualizes law as both unreliable and indispensable.¹⁸

Collins is very much of his sensational generation in this regard, for what the sensation novel renders sensible is that the modern legal subject’s excess cannot be understood simply as a series of independent affects and embodiments that law can control or regulate; these affects, emotions, and embodiments are in fact law’s constitutive other. In this relation, the effects of law are best articulated through a particular kind of fictionality. At the moment when Benthamite jurists are driving for greater transparency of language and for codification to displace legal fictions, popular novelists are transforming law into a “fearful and wonderful institution.”

Notes

1 Anon, “Novelists’ Law,” Belgravia: A London Magazine 7 (February 1869), 124.
2 Henn' Mansel, “Sensation Novels,” The Quarterly Review 113 (1862), 485.
3 For more on Belgravia, see Alberto Gabriele, Reading Popular Culture in Victorian Print (New York: Palgrave Macmillan, 2009).
4 Anon, “Novelists’ Law,” 126.
5 William Thackeray, “The War Between the Press and the Bar,” Punch 9 (August 1845), 64.
6 James Fitzjames Stephen, “The Relations of Novels to Life,” in Cambridge Essays (London: Saville and Edwards, 1855), 167-8.
7 James Fitzjames Stephen, “The License of Modern Novelists,” The Edinburgh Review 106, No. 215 (July 1, 1857), 128.
8 Ibid., 151.
9 Julie Stone Peters, “Law, Literature and the Vanishing Real,” PM LA 120, No. 2 (March 2005), 449.
10 Nicola Lacey, “The Way We Lived Then: The Legal Profession and the Nineteenth-Century Novel,” Sydney Law Review 33, No. 4 (December 2011), 616.
11 Claire Pettitt, “Legal Subjects, Legal Objects: The Law in Victorian Fiction,” in A Concise Companion to the Victorian Novel, 71-90, ed. Francis O’Gorman (Malden, MA, and Oxford, UK: Blackwell, 2005), 87.
12 Jacques Ranciere, The Politics of Aesthetics, trans. Gabriel Rockhill (New York: Continuum, 2005), 85.
13 Mansell, “Sensation Novels,” 486.
14 Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage, 1979), 11.
15 Wilkie Collins, Man and Wife (Oxford and New York: Oxford UP, 1995), 5.
16 The Royal Commission on the Laws of Marriage was convened in 1865 and published its findings in 1868. The case in question is Thelwall r. Telverton, which is echoed in Collins’s novel.
17 Wilkie Collins, Man and Wife, 38.
18 John Kucich, The Power of Lies: Transgression in Victorian Fiction (Ithaca: Cornell UP, 1994), 85.