IN THE HISTORY OF PENDENNIS (1848–50), William Thackeray calls upon the binary model of Victorian intellectualism in order to define the status and responsibilities of an author of fiction. For Thackeray, himself an initiate of the Middle Temple, the antagonist which permitted such a clarification of artistic privilege was the law, as conceived in utilitarian and mechanistic terms. Perhaps inspired by the ensign of the Inner Temple, the Winged Horse – suggestive of Thackeray's favorite trope for his own creativity, Pegasus-in-Harness – Thackeray effects a deft appropriation of the humanist history of the law for the services of literature, thus divorcing current legal praxis from its traditional role in the protection of liberties and the creation of English identity. Only the author can appreciate and animate the law's history, which is itself a tale of synergistic legal and literary productivity:1
On the relationship between the two discourses in the nineteenth century see Dolin and Kornstein.
I don't know whether the student of law permits himself the refreshment of enthusiasm, or indulges in poetical reminiscences as he passes by historical chambers, and says, ‘Yonder Eldon lived – upon this site Coke mused upon Lyttleton – here Chitty toiled – here Barnwell and Alderson joined in their famous labours – here Byles composed his great work upon Bills, and Smith compiled his immortal leading cases – here Gustavus still toils, with Solomon to aid him;’ but the man of letters can't but love the place which has been inhabited by so many of his brethren, or peopled by their creations as real to us at this day as the authors whose children they were – and Sir Roger de Coverley walking in the Temple Garden, and discoursing with Mr. Spectator about the beauties in hoops and patches who are sauntering over the grass, is just as lively a figure to me as old Samuel Johnson rolling through the fog with the Scotch gentleman at his heels on their way to Dr. Goldsmith's chambers in Brick Court; or Harry Fielding, with inked ruffles and a wet towel round his head, dashing off articles at midnight for the Covent Garden Journal, while the printer's boy is asleep in the passage. (Pendennis 317; ch. 29)
Thackeray thus peoples the precincts of the Inns of Court with belletristic figures, both “real” and imaginary, privileging the latter as the means by which the humanist history of the law may be accessed and transmitted. On a more pragmatic level, Thackeray is attracted by the potential social mobility of the law's acolytes – years of ardent research may result in “one of those prodigious prizes which are sometimes drawn in the great lottery of the Bar” (
Pendennis 317; ch. 29) – but, as he compares the work of Warrington the writer with Paley the law student, he justifies the bohemian life of the literary artist as more generous and liberal:
[Paley] has not been throwing himself away: he has only been bringing a great intellect laboriously down to the comprehension of a mean subject, and in his fierce grasp of that, resolutely excluding from his mind all higher thoughts, all better things, all the wisdom of philosophers and historians, all the thoughts of poets; all wit, fancy, reflection, art, love, truth altogether – so that he may master that enormous legend of the law, which he proposes to gain his livelihood by expounding. (Pendennis 318; ch. 29)
This passage speaks more of Thackeray's defensiveness about the career he has forsaken than about the law itself; the “legend of the law” in this passage refers less to the glorious myths of legal origins promulgated by the likes of William Blackstone and Thomas Erskine than to a tedious taxonomy of soulless definitions and remedies.
In an incisive study entitled “Satire and Science in Victorian Culture,” James Paradis draws upon Northrop Frye's work in order to define irony and “its militant form, satire” as uniquely able “to explore paradox and dualism” (144). For Paradis, irony is structural or dialogic in form, arising as a contrast between “closed” and “open” ideologies which habitually privilege the latter at the expense of the former (161–70). Yet whilst Thackeray's narrative strategies in the passage from Pendennis may seem somewhat transparent, his defensiveness betrays a sensitivity to the nuances of the discursive struggle between legal and literary discourses which characterised the 1840s. Animated by a confluence of factors which clustered around the criminal trial and the scaffold, this was a time of formative significance for both narrative realism and legal rhetoric, and the conflicting ethical agendas of each profession were revealed by both earnest moral analysis and biting satirical farce.
The Work of the Victorian Bar
IN 1836, just prior to Victoria's accession to the throne, an important piece of legislation – the Prisoners' Counsel Act – was passed (after some fifteen years of deliberation).2
On the history of the Act, see Cairns.
This Act enabled barristers to address the jury on behalf of prisoners charged with felony (in cases where the defendant could afford representation). In the terms of John Langbein's analysis, the Act effectively “lawyerized” criminal trials, professionalizing the voices which could be heard in a Crown court (“Criminal Trial” 306). The eighteenth-century model of the criminal trial had been a rather brutal affair; legal historians such as John Beattie and Langbein explain that the criminal trials of the era were heard quickly-the average time was some thirty minutes
3 Beattie, Crime and the Courts in England 1660–1800 and also Beattie, “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries.”
– and they were often decided in clusters, with the jury hearing a number of cases before retiring to reach multiple verdicts (Langbein, “Criminal Trial” 276). Regardless of illiteracy or illness, the prisoner had to present his own defense to the charges against him. Langbein describes this old view of the criminal trial format as “the ‘accused speaks’ theory” (“Historical Origins” 1047–48), and it was supported in turn by the conception of evidence as that which is “evident.” As William Hawkins observed in 1721, “it requires no manner of Skill to make a plain and honest Defence” when language is regarded as the transparent garment of thought and facts are believed to speak for themselves (2:400). During this time, a lawyer could assist a client in the preparation of his statement outside the courtroom; in court, he could cross-examine a witness on the client's behalf, but he could not assume the right to tell the client's story – to create a persuasive narrative from the fractured facts.
Jonathan Grossman has suggested that the treason trials of 1794, where the defendants were allowed lawyers, entrenched the adversarial trial format in the public imagination (ch. 1).4
On the State Trials, see Barrell.
Certainly the speeches of men such as Thomas Erskine and Joseph Chitty created a Romantic mythology of the Bar as an arena for the adventurous exploits of great men;
5 the independence of the Bar and the publicity of judical proceedings were valorized as quintessentially English traits. But legislative intervention in the field of criminal advocacy proved more controversial: the Prisoners' Counsel Act, which enabled lawyers to narrate their client's stories to the jury in the third-person form, also acted to silence the prisoner. Langbein describes this development as a move from the “old ‘accused speaks’ theory” of the criminal trial to “the newer ‘testing the prosecution’ theory,” which only became possible with the division of the testimonial and defensive functions of responding to a criminal charge (“Historical Origins” 1048). The exclusion of the prisoner's own voice from the court-room and its subsequent replacement by the evasive rhetoric of lawyers was to create tremendous controversy;
6 criticized as an institutional defense of villainy, it was seen to taint legal discourse with the vicarious guilt of the criminal. This perception of the work of Old Bailey lawyers injected a new antagonistic vigor into the social commentary of authors such as Charles Dickens, and this in turn animated combative generic discussion.
The implementation of the Act virtually marked the beginning of the Victorian era, and in literary terms it coincided with the early stages of the “Newgate novel” controversy; how to speak on behalf of a felon was a question of ethics, and it was being addressed by the Bar at the same time that novelists such as Charles Dickens, Edward Bulwer-Lytton, William Harrison Ainsworth, and Thackeray were arguing about the ethical implications of the representation of criminality in fiction.7
On the so-called “Newgate novels,” see Hollingsworth.
Both groups sought to justify the propriety of their own practices by promulgating the binary model favored by satirists, deliberately misremembering and misrepresenting the activities of their opponents. The press castigated both authors and barristers for the expression of inappropriate sympathy towards violent criminals,
8 On authorial treatment of offenders in Victorian narrative see Pettit; on Victorian conceptions of “criminal man,” see Leps, and on Victorian penal policy, see Wiener.
and the crux of the dispute was the extent to which the influence of a text may move a potentially transgressive agent to action. In a sense both professions were competing to find the most authoritative way of describing and identifying transgression and redemption (or condemnation); the law spoke the language of rights, duties, evidence, and procedure; literature claimed the higher moral ground of an appeal to the emotions, passion, sensation, bodily pain. Ethical debate coalesced around the duties and responsibilities each group owed to the public: both professions were exploring strategies for the representation of transgression or evil in narrative form and concomitant questions of accountability.
9 The terms in which this discursive struggle were conceived suggest a mutual fascination with such concepts as passion, intention, and violence. That imaginative representation stood in a derivative relation to the drama of trials and (particularly capital) punishment was articulated by Edmund Burke in his Philosophical Enquiry into the Origin of our Ideas of the Sublime and Beautiful (1757):
Chuse a day on which to represent the most sublime and affecting tragedy we have; appoint the most famous actors; spare no cost upon the scenes and decorations; unite the greatest efforts of poetry, painting and music; and when you have collected your audience, just at the moment when their minds are erect with expectation, let it be reported that a state criminal of high rank is on the point of being executed in the adjoining square; in a moment the emptiness of the theatre would demonstrate the comparative weakness of the imitative arts, and proclaim the triumph of the real sympathy.
For Burke, sublime feelings were rooted in pain and terror, and generated in a social context by the operation of sympathy, “a sort of substitution, by which we are put into the place of another man, and affected in many respects as he is affected” (Burke, 43). This informs the theoretical structure of representation, as the lawyer or the politician stands in place of his client's or his constituent's interest. The aporetics of sympathy are not uncontested,
10 See, for example, Weisberg.
yet it was this associative cluster of substitution and terror which was to bring legal rhetoric and literary aesthetics into collision during the 1840s.
Crime and Narrative Complicity
THE DEPLOYMENT of rhetoric by legal and literary advocates in the service of felons – a discursive and narratological defense of violence – fed a well-documented “murder-mania” in the 1840s, allowing moralists to conceive of both professions as complicit in the criminal culture of early Victorian England. The charge of complicity – the allegation that a party has acted as an accessory before or after an act which constitutes a crime – brought the spoken and written word into a synergistic relationship with motive and action, the representation of which provided the telos of many a narrative structure. The idea of complicity, with its legal resonance and its attributions of moral culpability, thus provides a point of access into a cultural debate which generated some of the earliest examples of Victorian realism.
In his Dictionary of the English Language, published in 1755, Samuel Johnson provided this definition of an accessory to a principal's crime:
A man that is guilty of a felonious offence, not principally, but by participation; as, by commandment, advice, or concealment. And a man may be accessory to the offence of another, after two sorts, by the common law, or by statute: and, by the common law, two ways also; that is, before or after the fact. Before the fact; as, when one commandeth or adviseth another to commit a felony, and is not present at the scene thereof; for his presence makes him also a principal…Accessory after the fact, is, when one receiveth him, whom he knoweth to have committed felony. Accessory, by statute, is he that abets, counsels, or hides any man committing, or having committed an offence made felony by statute.18
On Ainsworth's response to the alleged confession, see the Examiner 12 July 1840.
Writing in
Chambers's Edinburgh Journal in 1849, the editor observed that whilst “crime [may be] a symptom of mental disease,” the propensity to action is inflamed by “the exciting and abhorrent details of slaughter offered by the public journals”:
That the journals do exercise this influence – that they are, so to speak, accessories before the fact to three-fourths of the more extravagant murders that occur in England – we confidently believe. A curious proof of this occurs in the fact, that the crime assumes, from time to time, the character of an epidemic. A murder occurs: the journalist does his work; and the poison he gives forth floats over the country like a pestilence. (“Murder-Mania” 209)
In an influential piece which appeared in the
Edinburgh Review in 1824, Lord Denman suggested that the nation's newspapers had turned to the coverage of crime after the cessation of war with France; in a sense, peace licenced newspapers to investigate domestic drama (171).
11 This article is unsigned, but it is attributed to Thomas Denman by the Wellesley Index to Victorian Periodicals 1: 465–67.
Fictional exploration of this theme followed shortly afterward: the first so-called “Newgate novel” made its appearance in 1830 with the publication of Edward Bulwer's
Paul Clifford. Other works which also attracted this questionable sobriquet were based on incidents taken from the Newgate Calendar (1773); it was reprinted regularly and its cases were recycled as plots in subsequent generations, both feeding and creating a strong public memory of atrocious crime. In
Eugene Aram (1836) Bulwer tried to turn the eponymous murderer into a tortured Faustian hero; Ainsworth told the tale of
Jack Sheppard (1840), and Thackeray (vitriolically opposed to the work of the other “Newgate” writers) pitched in with a burlesque biography of the murderer Catherine Hayes in 1839.
Punch pursued Bulwer-Lytton and Ainsworth mercilessly. In “Murderers as they are and Murderers as they Ought to Be,” passages from
Eugene Aram were set alongside evidence from his trial: hence, his fictional aspirations could then be juxtaposed against his brutal threat in actuality to kill his own wife should she seem likely to give evidence against him. “Felons as they are and Felons as they Ought to Be” appeared next, criticizing
Jack Sheppard in similar terms (
Punch 2 [1842]: 82, 98).
Dickens also pursued an interest in crime which he shared with the barristers of the Old Bailey, and, given Punch's treatment of his colleagues, his attacks on the morality of the Bar perhaps suggest an attempt to deflect criticism away from his own regular recourse to Newgate and the scaffold; Oliver Twist, The Old Curiosity Shop, Barnaby Rudge, Martin Chuzzlewit, Bleak House, and A Tale of Two Cities all bear testimony to his fascination with violent death and/or state-sanctioned murder. As the Bloody Code was progressively dismantled, and as penal policy shifted, in Foucauldian terms, from an inscription of punishment on the body of the malefactor to the surveillance and reform of his mind, Dickens's fiction refracted the older anxieties about murder, desecration, and providential revenge which persisted in popular culture. In Barnaby Rudge, for example, Barnaby bears the mark of Cain on his wrist, as a consequence of his father's denial of responsibility for an old murder and his father's progress toward the gallows is marked by providential signs – for example, the blood stains at the site of the murder will not fade until the murderer's identity is disclosed. That a fictional trial may lead inexorably to the death of a character embeds a narrative in the referential frame which generates sublime feelings; to speak on behalf of one about to die (such as Fagin in the condemned cell in Oliver Twist), or to reanimate an extinguished consciousness (such as the murderers anatomized and dissected in “A Visit to Newgate” in Sketches by Boz) was to tether fiction to Burke's notion of terror transmitted by sympathy and to yoke narrative to the imperative power of the state. Dickens explicitly acknowledged this nexus of punishment and state-enforced silence in Darnay's appearance at the Old Bailey in A Tale of Two Cities:
The sort of interest with which this man was stared and breathed at, was not a sort that elevated humanity. Had he stood in peril of a less horrible sentence – had there been a chance of any one of its savage details being spared – by just so much would he have lost in his fascination. The form that was doomed to be so frightfully mangled, was the sight; the immortal creature that was to be so butchered and torn asunder, yielded the sensation. Whatever gloss the various spectators put upon the interest, according to their several arts and powers of self-deceit, the interest was, at the root, of it, Ogreish. (62; ch. 3)
And so too, perhaps, was the interest of novelist, lawyer, and reader.
Complicity and the Rhetoric of Romanticism
THE POINT at which the divergent currents of Romantic theories of rhetoric were to converge was the extension of full legal representation to those accused of felony. Once a barrister was allowed to address the jury on behalf of a prisoner – once “clothed” with the rights of the prisoner – could he lie to the court? Could he seek to influence the emotions of the jurors rather than simply appeal to their judgment? The integrity of legal rhetoric was put to the test in 1840 when Francis Courvoisier was charged with the murder of Lord William Russell. Courvoisier was a Swiss national, and the prosecution alleged that he wanted to steal enough money from his master to return to his homeland. Courvoisier retained Charles Phillips as his defense counsel. Phillips had joined the Middle Temple in 1807 and he was called to the Irish Bar in 1812. Seeking to establish himself as a public orator in the cast of his countrymen Richard Sheridan and Burke, he soon acquired a reputation for ornate declamations and sentimental speeches. His poem “The Emerald Isle” was published in 1812, followed by “A Garland for the Grave of Sheridan” in 1816, and an anthology, Specimens of Irish Eloquence in 1819, but as he sought to promote such decorative and passionate language in the forensic forum of the courtroom, Phillips attracted inevitable criticism.
In 1816, Phillips delivered a famous speech for the petitioner (the abandoned spouse John Guthrie) in the criminal conversation case of Guthrie v. Sterne, in which he self-consciously constructed models of female domestic propriety worthy of the eighteenth-century novels of sensibility,12
appropriating the language of Burke's sublime to persuade the jury of his client's cause. Ireland, Phillips asserted, “reverenced…the nuptial contract…[T]he slender curtain, that shades the sanctuary of the marriage-bed, has in its purity the splendour of the mountain snow, and for its protection the texture of the mountain adamant” (
Speeches 2). Prior to her seduction, Mrs. Guthrie was the heroine of this sentimental tale – yet the very fact of litigation forecloses the possibility of reconciliation or union at the conclusion of the narrative. He characterizes Sterne, the wily seducer, as a sentimental rake, prepared, like Lovelace in Samuel Richardson's
Clarissa (1747–48), to adopt the language of feeling for manipulative purposes:
[A]ccording to his own description, he was in religion a saint, and in morals a stoic; a sort of wandering philanthropist; making, like the Sterne who, he confessed, had the honour of his name and his connexion, a Sentimental Journey, in search of objects over whom his heart might weep, and his sensibility expand itself. (Speeches 7)
Phillips asks the jury to imagine the plight of the deserted husband: “Imagine you see him, in the reverie of his grief, trying to persuade himself it was all a vision, and awakened only to the horrid truth by his helpless children asking him for their mother! – Gentlemen, this is not a picture of the fancy; it literally occurred” (12). In the typology of the biblical Fall, Mrs. Sterne's image is conjured up for the all-male gaze of the court to dissect; she had moved from the “cloudless chastity” of her earlier life to “the loathsome refuse of an adulterous bed; festering in the very infection of her crimes” (14). In conclusion, Phillips tried to postulate a motive for the seduction – ambition:
‘I had heard, indeed, that ambition was a vice, – but then a vice, so equivocal, it verged on virtue; that it was the aspiration of a spirit, sometimes perhaps appalling, always magnificent; that though its grasp might be fate, and its flight might be famine, still it reposed on earth's pinnacle, and played in heaven's lightnings; that although it might fall in ruins, it arose in fire, and was withal so splendid, that even the horrors of that fall became immerged (sic) and mitigated in the beauties of that aberration! But here is an ambition – base, and barbarous, and illegitimate; with all the grossness of the vice, with none of the grandeur of the virtue; a mean, muffled, dastard incendiary, who, in the silence of sleep, and in the shades of midnight, steals his Ephesian torch into the fane, which it was virtue to adore, and worse than sacrilege to have violated!' [A burst of applause from the whole Bar and Auditory followed the delivery of this passage.] (21)
Finally, he urged the jurors to bring in a verdict which would “save [their] firesides from the contagion”:
At the conclusion of this brilliant and unexcelled display of eloquence, a burst of joyous and approving exultation arose in the Court, well merited by the able Advocate, who had affected the Jury even to tears, throughout the delivery of this powerful appeal to their judgment, feelings, and justice. (23–24)
The jury found for Phillips's client, awarding him five thousand pounds. Yet as Phillips moved the audience to spontaneous applause and reduced the Jury to tears, he appropriates some of the characteristics of the sentimental rake; it seems that he too was in search of topics upon which to display his enlarged sensibility. The publication of the speech provoked both admiration and outrage, creating a public curiosity “unparalleled in extent since the press teemed with the productions of the immortal BURKE” (Preface, Phillips,
Letter).
In response to the speech, an anonymous article entitled “Irish Eloquence” appeared in the Edinburgh Review in 1816, castigating the suggestions of craftiness which it saw as emblematic of Irish oratory:
Its characteristics are, great force of imagination, without any regularity or restraint; great copiousness of language, with little selection or propriety; vehemence of sentiment, often out of place; warmth of feeling, generally overdone; a frequent substitution of jingling words for ideas; and such a defect in skill (with reference to the subject in view), as may be supposed to result from the intemperate love of luxuriant declamation, to which all higher considerations are sacrificed.
Whilst acknowledging that “[o]ratory has its licences as well as poetry, and must not be severely scrutinized, when it deals with matters of fact” (12), the reviewer plainly prefers an “unaffectedly and feelingly simple” narrative, perhaps an expression of that English insistence on the language of plain fact which appeared with puritanism and the work of the Royal Society in the seventeeth century.
13 The
Wellesley Index to Victorian Periodicals is unable to provide a definite attribution of this scathing review (1: 454), but it suggests Henry Brougham as a possibility, given the passing references made in the piece to Lord Erskine, whose speeches Brougham had reviewed in two earlier articles for the
Edinburgh Review. In the first article, Brougham had cited Erskine's speech in defense of Lord George as a sensationally effective example of legal oratory, praising his dramatic and passionate outburst as prompting and sustaining a “flight” which carried the court with him (107–08). If Brougham was in fact the critic of Phillips's speech in the
Edinburgh Review, he was not opposed to emotive advocacy
per se, and indeed both men shared an attitude towards the duties of advocates which was to bring them both tremendous opprobrium and public notoriety. Brougham's defense of Queen Caroline in 1820 – in which he stated that it was the barrister's duty to use “all expedient means” to save his client, “at all hazards and costs to all others”
14 For an analysis of this case, see Cairns ch. 6.
– was defended by Phillips in pamphlet form, but when Phillips applied this approach to criminal proceedings it created what was perhaps the greatest legal scandal of the nineteenth century.
By 1821, Phillips was practising at the Old Bailey in London. The notorious criminal Jack Thurtell was alleged to have quoted from collections of his speeches when he made his own defense to the charge of murder in 1824 (Examiner 4 Jan. 1824), and it is also believed that Dickens used him as a model for Sergeant Buzfuz in The Posthumous Papers of the Pickwick Club, published in serial form in 1836–37.15
See The Letters of Charles Dickens 2: 86.
Phillips was approaching the end of his career at the Bar by the time he took on Courvoisier's defense in 1840. Initially, he believed his client's protestations of innocence. While the trial was still part heard, however, Courvoisier made significant admissions of his guilt and the hearing became a
cause célèbre when Phillips continued to employ many of the strategies of defense which he would have used had his client been innocent. He proceeded to implicate other servants in the crime, to accuse the police of planting evidence of guilt in Courvoisier's rooms, and to attack the credibility of an important female witness for the prosecution; in short, he implemented the strategies adopted by Brougham in his defense of Queen Caroline. In dealing with the suggestion that the motive for the murder was to obtain enough money to return to Switzerland, Phillips turned to intertextual tropes of sublimity, recycling Oliver Goldsmith's poem “The Traveller” as an emotional proof of the natural affection held by the prisoner for his native land:
16 For the text of Phillips's speech, see Cairns, Appendix 3. He makes the attribution on 196.
[I]t was not an unnatural wish for a foreigner to express, toiling for his daily sustenance, yet longing to revisit his fatherland, rugged though it be – “I wish I had the wealth of such a one, I would not be long away from my own country!” Ambition's vision, glory's bauble, wealth's reality, were all nothing as compared with his native land. Not all the enchantments of creation, not all the splendour of scenery, not all that gratification of any kind could produce could make the Swiss forget his native land:
“Dear is that shed to which his soul conforms, And dear that hill which lifts him to the storms; And, as a child, when scaring sounds molest, Clings close and closer to the mother's breast, So loud the torrent, and the whirlwind's roar, But bind him to his native mountains more.”
There never dropped from human lips a more innocent or natural expression, “I wish I had old Billy's money, I would soon be in my own country.” (Cairns, Appendix 3)
Phillips stated that Courvoisier's guilt or innocence was “known to Almighty God alone” and he concluded his peroration with an exhortation to acquit lest the jurors be haunted by the memory of an unwarranted execution. When these matters became public, the press – particularly Albany Fonblanque's influential
Examiner – argued that Phillips had greatly exceeded the bounds of adversarial licence in the service of his client:
Whether all this accords or not with professional morality, it is not for us to decide; but if it does, the public will probably be disposed to think that the profession should change its name from the profession of the Law to the profession of the Lie.
We should like to know the breadth of the distinction between an accomplice after the fact and an advocate who makes the most unscrupulous endeavours to procure the acquittal of a man whom he knows to be an assassin. (28 June 1840)
At this point the notion of complicity resurfaces; if a journalist could be “an accessory before the fact” to felony, then lawyers, too, worked as accessories, seeking the “manumission of murderers” in Anthony Trollope's memorable phrase (
Orley Farm 86). Dickens followed this trial with enormous interest and his outrage at this apparent attempt to secure the acquittal of a guilty man generated both serious criticism and perhaps satire.
17 For his criticism of Phillips's conduct of the case, see Letters 2: 86–91 and 491–92. The memory of Phillips's audacious address may also have shaped the Attorney-General's speech to the jury in Darnay's trial for treason in A Tale of Two Cities: “[t]hat, they never could lay their heads upon their pillows; that, they never could tolerate the idea of their wives laying their heads upon their pillows; that, they never could endure the notion of their children laying their heads upon their pillows; in short, that there never more could be, for them or theirs, any laying of heads upon pillows at all, unless the prisoner's head was taken off” (66).
However, when Courvoisier, in his final confession, registered the influence of Ainsworth's
Jack Sheppard on his decision to commit the crime, authorial criticisms of the Bar seemed a little more self-referential.
18 Both Dickens and Thackeray were present at the execution of Courvoisier on the 6th of July, and Thackeray's famous piece “Going to see a Man Hanged,” published in
Fraser's Magazine in 1840, describes the ethical position of the spectator or witness watching this murderer's demise. In an act of substitution consonant with Burke's theory of the sublime, he imagines Courvoisier's last night alive, and he goes on to describe the vast crowd which gathered at the scaffold. But his narrative breaks down at the point of death – “I am not ashamed to say, that I could look no more” – and he, too, feels the contamination of crime: “It seems to me that I have been abetting an act of frightful wickedness and violence performed by a set of men against one of their fellows” (156).
The rhetorical excess of Phillips' defense of Courvoisier generated tremendous debate, but it also took its place in an oft-rehearsed catalogue of cases which demonstrated the alleged amorality of the Bar. In 1845 Sir Fitzroy Kelly's sentimental defence of the notorious murderer John Tawell also attracted criticism.19
See also the Examiner 16 Aug. and 15 Nov. 1845. Tawell's trial was reported in the Examiner on 15 March and his execution on 29 March 1845.
Tawell's wife was at that time unable to give evidence on his behalf, and instead Kelly read out a letter she had written to her husband on the day of the alleged murder; it was an ordinary domestic letter which began “My only loved one – My thoughts have been with thee throughout the day …” and it was signed by “thy beloved wife:” The learned counsel shed tears once or twice while reading this letter, and then proceeded to say that no man could receive such a letter as that and do an act which would make his affectionate wife a widow, and his children fatherless” (
Examiner 29 Mar. 1845). This appeal to the epistolary form of the sentimental narrative failed, and Tawell was convicted. What had motivated Kelly's display of sensibility – compassion or a determination to act upon the jurors's feelings? The
Examiner's denunciation was quickly forthcoming:
Mr. Fitzroy Kelly shed no tears for Sarah Hart [the victim], or for her orphaned little children. The fate of the victim does not touch the heart of Mr. Fitzroy Kelly. He had no retainer for emotion, no fee for sensibility in that cause. He does not weep for the murdered, nor, indeed for murderers, unless they happen to pay him for it.
Tears such as brazen counsel shed appear never to fall except in some peculiarly bad case. Chitty sobbed for Thurtell exactly as Mr. Fitzroy Kelly wept for Tawell; but Thurtell's, though a foul and savage act of assassination, had not all the hypocrisy, and heartlessness, and sordid calculation of Tawell's crime.
Again, the allegation was one of complicity; those “who bring about the example of the impunity of crime are morally responsible for the crimes committed in consequence of such evil encouragement” (29 Mar. 1845).
Public Memory, Satire, and the Victorian Bar
EACH LEGAL SCANDAL of the 1840s generated incisive satirical commentary, with humorous allusions dependent upon a simultaneous sense of shared public repulsion and public voyeurism in response to acts of violence. The journalistic repetition of cases where lawyers exceeded the limits of adversarial license created a public memory to be drawn upon for caricature as and when required. Punch, itself named after the murderer who cheats the hangman, began in 1841, the year after Courvoisier's trial, and although its editorial staff (Douglas Jerrold, John Leech, and Mark Lemon) remained opposed to capital punishment throughout the 1840s, it took every possible opportunity to denounce what the Times labeled as the public's “morbid fascination” with criminals (Punch [1841]: 227). Hence Phillips, and later Kelly, were worthy targets of their ire. The very first volume of Punch lashed out at the Irish dialect of Dr. Tully Cicero Burke Sheridan Charles Phillips Hobler Bedford in a piece entitled “The Lambeth Demosthenes” (Punch 1 [1841]: 219), and set forth a lengthy parody and pastiche of Phillips's conduct in both the Courvoisier case and in adultery hearings such as Guthrie v. Sterne. In the mock adultery trial called Bonbon v. Punch, “Charles Phillips” appeared as counsel for the deserted wife:
Mr. Charles Phillips, having successfully struggled with his feelings, rose to address the court for the plaintiff. The learned gentleman said it had been his hard condition as a barrister to see a great deal of human wickedness; but the case which, most reluctantly, he approached that day made him utterly despair of the heart of man. He felt ashamed of his two legs, knowing that the defendant in this case was a biped…Gracious Heaven! when he reflected – but no; he would confine himself to a simple statement of facts. That simplicity would tell with a double-knock on the hearts of a susceptible jury.
The lady was a native of Switzerland – yes, Switzerland. Oh that he (the learned gentleman) could follow her to her early home! – that he could paint her with the first blush and dawn of innocence, tinting her virgin cheek as the morning sun tinted the unsullied snows of her native Jungfrau! – that he could lead the gentleman of the jury to the Swiss cottage where that gentle Felicite (such was that lady's name) lisped her early prayer – that he could show them the mountains that had echoed with her songs…– that he could conjure up in that court the goats whose lacteal fluid was wont to yield to the pressure of her virgin fingers – the kids that gambolled and made holiday about her – the birds that whistled in her path – the streams that flowed at her feet – the avalanches, with their majestic thunder, that fell about her. Would he could subpoena such witnesses! then would the jury feel, what his poor words could never make them feel – the loss of his injured client. (Punch 1 [1841]: 245–46)
This mock-pastoral idyll draws upon public remembrance of the motive in
Courvoisier's case, whilst simultaneously parodying the language of sensibility and sublimity; it also gestures towards the narrative nature of evidence, as legal representation (like other forms of mimesis) cannot fully make present that which is absent. The conclusion to the trial reveals the sham at the heart of hired rhetoric:
“Gentlemen of the jury…I leave you with a broken heart in your hands! A broken heart, gentlemen! Creation's masterpiece, flawed, cracked, SHIVERED TO BITS! See how the blood flows from it – mark where its strings are cut and cut – its delicate fibres violated – its primitive aroma evaporated to all the winds of heaven. Make that heart your own, gentlemen, and say at how many pounds you value the demoniac damage. And oh may your verdict still entitle you to the blissful confidence of that divine, purpureal sex, the fairest floral specimen of which I see before me! May their unfolding fragrance make sweet your daily bread; and when you die, from the tears of conjugal love, may thyme and sweet marjoram spring and blossom above your graves.”
Here the emotion of the Court was unparalleled in the memory of the oldest attorney. Showers of tears fell from the gallery so that there was a sudden demand for umbrellas.
The learned counsel sat down, and, having wiped his eyes, ate a sandwich.
As “Phillips” em
bodies the sufferings of his client in terms reminiscent of a gothic melodrama,
Punch exposes the rhetorical absurdities, the luxurious metaphors and rich descriptions which form part of the barrister's contract of service; the insincerity of the expressions is emphasized by the final satiric onslaught – “the learned counsel sat down, and, [having completed his deliberate manipulation of the feelings of the jury], ate a sandwich.” Counsel for
Punch, on the other hand, stated the facts plainly and the jury was inevitably persuaded to agree with him, thus exposing the ethics of (mis)representation (
Punch 1 [1841]: 245–46).
It was perhaps inevitable that criticism of the Bar was most intense during the so-called “War between the Bar and the Press” which erupted in 1845 when two of the disciplinary bodies of the Bar (the Oxford and Western Circuits) prohibited their members from reporting for the newspapers, ostensibly in an attempt to prevent personal antagonism from influencing the selection of reported cases. Journals such as the Examiner interpreted this edict as a suggestion that reporting was a disreputable activity in itself and responded accordingly. Countering the tendency of the Bar to conceive of its past in terms of feats of individual eloquence – the activities of the “great men” of Romanticism – Punch and the newspapers created a satirical mythology of the Bar's own malefactors in order to justify a strong attack on the Bar's amorality. The first illustration (Figure 1) reproduced from Punch conceives of the discursive struggle as a jousting tournament which the Bar is in the process of losing. The rhetorical excesses of counsel in a number of notorious cases – Brougham's defence of Queen Caroline in 1820, Chitty's assistance of the murderer Thurtell in 1824, Phillips's apparent duplicity in the case of Courvoisier in 1845, Kelly's tearful defence of the poisoner Tawell in 1845 – were rehearsed and repeated again and again as examples of the dangers of rhetoric for hire. This is Thackeray's memory of the exploits of the Bar's “great men”:
If an honest man is to be bullied in a witness-box, the barrister is instructed to bully him. If a murderer is to be rescued from the gallows, the barrister blubbers over him, as in TAWELL'S case, or accuses a wrong person, as in COURVOISIER'S case. If a naughty woman is to be screened, a barrister will bring Heaven itself into Court, and call Providence to witness that she is pure and spotless, as a certain great advocate and schoolmaster abroad did for a certain lamented QUEEN CAROLINE. Let the Press be warned, and suffer, as best it may, this separation from the Bar. Poor Peri turned out of Paradise, peep in and see how the periwigged angels there innocently disport themselves! Peep in and see them at their work: this one doing the “artful dodge”; that one screening the frauds of his client; another howling over the fate of a murderer who gives him so many guineas; another insulting a timid witness, or accusing an innocent woman – See all these things O Press! Send your commissioners in the train of these spotless men of law – and have your say…Don't fail to point out their evident merits. Hold up their respectability to public admiration. (Punch 9 [1845]: 64–65)
The amorality of the Bar thus justifies its surveillance by the watchful press, which acts, in its own estimation, as a custodian of ethical and honest representations. A leading article in the
Examiner quoted this passage from
Punch with approval, observing that “[i]n a dictionary in the year 3000 may appear, under the head of Lawyers corruptly so-called, but properly Liars, a class of men who indiscriminately advocated right or wrong for personal hire” (29 Mar. 1845). This mythology of the Bar's malefactors functioned as something of a satiric inversion of the law's appeal to precedent; if the law was shaped by the gradual accumulation of authoritative judicial decisions and relied upon the formal memory contained in the public record of these proceedings, then the legal satire of the era was equally dependent upon a public memory of the Bar's previous excesses. In response, the
Law Magazine objected to the journalistic recital of the law's misdemeanors, when “petty instances of professional misconduct are…hawked from paper to paper to swell the chorus of the cry” (“The Newspapers” 166).
“Tournament Between the Press and the Bar.” Engraving, from Punch 9 (1845): 128. By permission of the Syndics of Cambridge University Library.
A more imaginative attack on rhetoric for hire appeared in 1845, entitled “The Anatomy of a Barrister's Tongue,” in which Professor Plodder presented a paper on its “Anatomical Peculiarities.” The barrister's tongue, he had discovered, displayed an “admirable adaptation to circuitous or roundabout movement, so essential to the practice of pleading.” Professor Plodder then went on to name its unique muscles:
The Simulator and Dissimulator muscles; which enabled the Barrister to feign what he did not feel, and to dissemble what he felt, according to the exigencies of his case.
The Suppressor Veri muscle; by whose aid he suppressed the truth at his convenience.
The Suggestor Falsi muscle; by means of which he could insinuate a fallacy when necessary, into the minds of jurymen.
The Minax, or bullying muscle, which served for intimidating witnesses.
The Perturbator, or bothering muscle; for the purpose of perplexing them, so as to make them swear to what was untrue.
The Patheticus Linguae, or pathetic muscle of the tongue; used in making clap-trap appeals to British juries.
The Detractor muscle; whose function was to vilify the character of an opponent's client.
All these muscles; the Professor stated, possessed a peculiar irritability; in virtue of which they were singularly sensitive to the influence of the metal, gold, which was such as to command the action of any or all of them. (Punch 9 [1845]: 238)
In 1846, another light-hearted piece entitled “Forensic Singing” suggested that barristers should resort to melody “to express what counsel so often complain that mere words will not express – the feelings of the plaintiff in a breach of promise of marriage case” (
Punch 10 [1846]: 138). Yet
Punch also satirized the plight of the “Briefless Barrister,” unable to speak in court because he has no client to instruct him. The second illustration from
Punch (
Figure 2) suggests that the want of a brief may drive a barrister to distraction, until – like the Ancient Mariner – he compels passers-by to listen to his tale of woe. This is a quintessentially Victorian re-telling of a Romantic masterpiece.
“The Rhime of the Seedy Barristere.” Engraving, from Punch 13 (1847): 191. By permission of the Syndics of Cambridge University Library.
Contagion, Criminal Morphology, and the Chamber of Horrors
IS CRIMINALITY CONTAGIOUS? How does one recognize a criminal? These related anxieties – of transmission and of recognition – surface in both the fiction and the satire of the 1840s.20
On the recognition and detection of criminal propensity in nineteenth-century literature, see Thomas.
In
A Tale of Two Cities, Dickens observes that the Old Bailey of the 1790s “was all bestrewn with herbs and sprinkled with vinegar, as a precaution against gaol air and gaol fever” (63):
[Newgate] was a vile place,…where dire diseases were bred, that came into court with the prisoners and sometimes rushed straight from the dock at my Lord Chief Justice himself, and pulled him off the bench. It had more than once happened, that the Judge in the black cap pronounced his own doom as certainly as the prisoner's, and even died before him. (60)
“Gaol fever” thus effects substitution of a sort (the Judge may die before the felon) and an unwanted sympathy of sickness and symptom. Dickens represents several forms of contagion in
Barnaby Rudge – that of gaol disease, which is treated by the circular application of camphor to the carpet, (673), that of mob misrule which spreads like a plague through the city of London, (484), and finally – and perhaps most suggestively – the murderer's inability to retain control of his own guilty secret:
‘My secret? Mine? It was a secret, any breath of air could whisper at its will. The stars had it in their twinkling, the water in its flowing, the leaves in their rustling, the seasons in their return. It lurked in strangers’ faces, and their voices. Everything had lips on which it always trembled. – My secret!'
When asked why he revealed it, he can only say “[t]he act was not mine. I did it, but it was not mine” (561–62), an admission of compulsion which suggests both the projection of his guilt and the fear that criminal acts may somehow be transmitted through space and adhere to those who do not want to own them: “[t]here are times when, the elements being in unusual commotion, those who are bent on daring enterprises, or agitated by great thoughts, whether of good or evil, feel a mysterious sympathy with the tumult of nature, and are roused into corresponding violence” (62). Although the mechanism by which secrets are revealed was changing by the time of the composition of
Bleak House – from superstitious providence to surveillance and detection – this anxiety of transmission reappears in the unsanitary state of Tom-all-Alone's, the property tied up in Chancery Court proceedings, which breeds cholera and pestilence.
Anxieties of transmission and transmutation also provide the fuel for the most incisive satirical pieces published in Punch during this time. Writing in Chambers's Edinburgh Journal in 1849, the editor had noted that “even the wax-modeller Tussaud is politely permitted to perpetuate in her exhibition the memory of the horrors of the day, for the benefit of constitutional monomaniacs and of the rising generation” (209). Richard Altick notes that there was a wax-work in Fleet Street as early as 1711; Madame Tussaud's exhibition, which included figures inspired by Dr. Curtius's “Caverne des Grandes Voleurs,” settled in London in 1835, after several years spent touring the countryside (98). In a room in her Baker Street premises, which became known as “The Chamber of Horrors” in 1845, she gave corporeal form to public memory of crime. After the execution of the murderers John and Maria Manning in 1849, Punch led an amusing yet pointed campaign to declare the Chamber of Horrors – a “penal settlement for murderers in wax,” “the Norfolk Island of the metropolis” – a public nuisance. An irate “correspondent” suggested that even the artefacts of execution she collected would “bring new poison to Baker Street”: “These murder-tainted garments are to infect the atmosphere of my fireside. Talk of cholera, Sir, and miasma, is there not a worse moral poison, and does it not reek from the Chamber of Horrors, contaminating not only Baker Street, but all London?” Another “correspondent” suggested that Madame Tussaud required a “licence to exhibit RUSH, GREENACRE and COURVOISIER”; a “mother” complained that her daughter (“with a heart so tender it would bleed if a kitten wanted milk”) and her friends had gone to see it and had been infatuated with murderers ever since – “One's in love with Courvoisier and calls him her beau garčon!” (“Horrid Murder in Baker Street,” Punch 17 [1849]: 123). Continuing the metaphors of contagion over several issues, Punch finds fungi in the wax of the murderers “sufficient to poison all London.” The contaminant was seen to enter the moral food chain of the population by way of newspaper advertisements: Punch argued that “[i]f moral health be really the care of the state, there is but one remedy for the disease communicated by the felonious wax-namely the melting pot” (17 [1849]: 141). In a subsequent piece Punch also suggested innoculation (“waxination”), and expressed the hope that if the public shunned the exhibition, “the most hardened of criminals in the collection would very shortly melt into some more respectable character” (17 [1849]: 238). It is precisely this morphology of criminal form which troubles the Punch satirists – the suggestion that a murderer may appear as a decent and respected member of the community. Hence Punch castigated the extension of inappropriate sympathy to the murderer Maria Manning; in a mock report of her trial, two young ladies report that it was more fun than the opera: “When the creatures came into the dock, I was all in a twitter, and upon my word and honour, do you know, I felt for a moment as if murder was catching”:
[Maria Manning] wore a very beautiful cap, that I have no doubt will be fashionable, with such beautiful lace lappets and lace ruffles that – no, I never! It did seem to me impossible that such hands, with such lappets, could commit a murder; but, then, such doubts made the sweetness of the interest. (“Old Bailey Ladies,” Punch 17 [1849]: 181)
continued that “MARIA MANNING, as done in wax, is really a chef-d'oeuvre. Dear thing! she would be a treasure as a lady's maid at a hundred a-year, with all the cast dresses. Never did assassination look so amiable – so like a quality to be introduced to the bosom of families” (“The Mannings at Home,”
Punch 17 [1849]: 213). This threat to the family unit seems to provide the key to Victorian anxieties about the representation of evil in both legal and fictional narrative – that the work of authors and barristers can palliate and disguise the appearance of evil, allowing it to be “introduced into the bosom of families.”
Criminal morphology, the subject of humorous experiment in the passages quoted from Punch, also troubled authors such as Dickens; to a certain extent, the realism of the criminal form is a question of genre, with evil villains prepared to confess to their deeds with delight – like Count Fosco in Wilkie Collins's The Woman in White – siphoned off into gothic interature and detective fiction. The most threatening figures were those whose appearance belied their violent predilections, like the “assassin” lurking in the heart of the bourgeois family in the quote from Punch above. Dickens's portrayal of evil in The Old Curiosity Shop is both overtly manifest (in the deformity of Quilp) and threateningly plastic in form; Quilp seems to emerge from a statue niche as he melts in and out of the shadows in his search for Nell (270); Nell's father becomes merely a “dark form ,…a mere blot upon the lighter darkness of the room” as he steals her money (301), and Nell works for Mrs. Jarley of Jarley's Wax-works. Mrs. Jarley had attempted to please the young ladies from a nearby school “by altering the face and costume of Mr. Grimaldi as a clown to represent Mr. Lindley Murray as he appeared when engaged in the composition of his English Grammar, and turning a murderess of great renown into Mrs. Hannah More – both of which likenesses were admitted by Miss Monflathers…to be quite startling from their extreme correctness” (288). Nell, too, fears the plasticity of the waxen figures; she “imagin[ed] a resemblance, in some one or other of their death-like faces, to the dwarf, and this fancy would sometimes so gain upon her that she would almost believe he had removed the figure and stood within the clothes” (269). Morphological anxieties in nineteenth-century discourse are not restricted to the legal forum; they also surface in the scientific satire of the mid-Victorian period. As Paradis explores the simian humor found in Punch, he notes that “caricaturists…furnished a steady stream of morphological eccentricities that revealed a profoundly comic impulse in the materials of evolution” (150).
Yet it is perhaps Thackeray's delicious confusion of criminality and legal representation which provides the most humorous critique of legal complicity in the defense of felons. In 1845, he composed a piece of doggerel verse imagining, in “Punch's Regency,” a suitable punishment for Kelly's controversial defense of the returned convict, Tawell:
And KELLY, whom the world assails, But whom the Bar takes fame from, I made Lord Viscount New South Wales Where poor JOHN TAWELL came from. (Punch 9 [1845]: 94)
Thackeray refines the joke in the final pages of Thackeray's
Vanity Fair, where Becky's lawyers Burke, Thurtell, and Hayes, succeed in settling her claim for insurance monies after the suspicious death of Jos Sedley. The attorneys in this passage are all named after notorious murderers, whose deeds of horror would have been well known to the reading public. In this elision of identity between client and lawyer lies an ethically charged joke.
The struggle for the most effective description of crime and transgressive behavior, then, which takes place in satire as well as more earnest moral commentary, depends upon Victorians remembering and misrepresenting each others' discourses at a time when journalism, narrative realism, and the legal representation afforded to felons were all under close scrutiny. The defensiveness of journalists and of fictional authors – which motivates much of the satire – is perhaps a sign that they felt more insecure than members of the Bar, which had hundreds of years of professional standing behind it in the civil courts at least. Peter De Bolla suggests that the “continuation of the eighteenth-century debate [on the sublime] would be [located] in the social and economic theory of the 1840s where one would find the same obsessions with the interrelations between ethics, aesthetics and rhetoric, and that debate would more likely be understood historically in terms of the discourse of politics, or political economy, than aesthetics” (44). It could perhaps also be found in the legal commentary of the era as the ethics of representation – both fictional and legal – were tested by controversy and found wanting. Yet if this article deals with public memory and the transmission of criminal culpability by contagious or sympathetic means, in another sense it can also be read as a Victorian response to Romanticism; the Faustian outlaws who considered themselves above the law were very much a Romantic phenomenon, and in Victorian England we see public interest gradually turning from the spectacle of the scaffold towards the forensic process itself. As Joel Black observes in The Aesthetics of Murder, “[w]here romanticism had glorified the outlaw or outcast as a social rebel, the age of realism rationalized the criminal subject as Reason in the figure of the detective; this is what Foucault called ‘the appropriation of the criminal in acceptable forms”’ (46). So although they were also tainted by suggestions of vicarious guilt, journalists, barristers, and authors of fiction all finally became the accepted medium for the representation of criminality in the vocabulary of inquiry and investigation. Their shared interest ensured that they had to compete for authenticity on the same turf, so to speak, and their criticisms of one another tell us much about their own anxieties and pre-occupations at the beginning of the Victorian era.
The author would like to thank Jan Caldwell, Becky Edwards, Dan Kornstein, and Adrian Poole for inspirational conversations on law, literature, and Victorian crime.
