In the very last year of what had been a tumultuous decade, Joseph Johnson & Co. published The Victim of Prejudice. Johnson was a notorious publisher of radical journals, and an equally notorious patron of radical writers, young and old. Mary Wollstonecraft was a protégé, her husband William Godwin a close friend (Waters, Reference Waters2004, pp. 451, 419–23). The Godwin–Johnson ‘circle’ was renowned, to some notorious. Another member of that circle, one of Johnson’s must trusted editors, was the author of The Victim of Prejudice, the thirty-nine-year-old Mary Hays.Footnote 1 Three years earlier, in 1796, another of Johnson’s friends, the prominent Dissenting publisher George Robinson, had published Hays’s first novel, the Memoirs of Emma Courtney. Both novels were written to shock, and both succeeded. The later mid-Victorian audience would cast Hays outside the margins of canonical respectability; where she has, by and large, remained.Footnote 2 A woman who had enjoyed a ‘sort of popularity’, Henry Crabb Robinson observed on hearing of her death in 1843, but who was too prone to ‘liberal’ opinions (Kelly, Reference Kelly1993, p. 264). Hays was one of those women who the Reverend Richard Powhele had half a century earlier castigated as ‘unsex’d’, in chief part because they wrote, not just about women and sex, but about the inadequacies and injustices of English legal and political institutions (Ty, Reference Ty1993, pp. 1–2, 13). Even the modern critic, whilst keener to reinvest Hays in the literary feminist canon, as a pioneer indeed of a ‘politics of the personal’, tends to do so warily.Footnote 3
The purpose of this article is to revisit Hays’s two novels, and to do so more particularly as an exercise in literary jurisprudence. Both novels, as we shall see, focus on the situation of women in late eighteenth-century England, along the way engaging a variety of social, political and legal issues. In doing so, they present a chronicle of intrinsic historical importance. At the same time, however, they also serve to reinvest contemporary debates which continue to oscillate around precisely the same interests, more particularly the cultural and discursive prejudices which attach to the situation of women in modern society. The semi-autobiographical Emma Courtney hazarded the thought that young women had needs, emotional and sexual, and that they had a natural right to ensure they were met.Footnote 4Victim of Prejudice, however, was altogether darker, depicting images of rape and sexual assault, and in doing so presenting a stark and excoriating critique of the private violence and deprivation which the public subjugation of women demanded. Two particular passages, one in each novel, gained an immediate notoriety. Both were designed to cause an especial consternation; and both did.
I would give myself to you
The first of these passages could be found in chapter six of the second volume of Emma Courtney, where the eponymous heroine, despairing of her dithering paramour, and giving up on the receding prospect of ever marrying him, declares with an alarming frankness, ‘my heart flutters – I breathe with difficulty – My friend – I would give myself to you – the gift is not worthless’ (p. 124). What could possibly have led a well-brought up, respectable middle-class lady to utter such a diabolical invitation? Before we engage some of the answers to which Hays expected her horrified audience to seek recourse, we should perhaps set the passage within its immediate context.
The Memoirs of Emma Courtney is written in the testamentary genre; a genre that had become increasingly popular during the latter decades of the century, particularly amongst Dissenting writers. Hays came from a large south London Dissenting community. The personal context is thus important; even if it is, as ever, elusive. By 1782, aged just twenty-two, Hays was in regular correspondence with Robert Robinson, the editor of the leading Dissenting journal, the Political Catechism. By the end of the decade, she had read across the canon of late-eighteenth-century radical Dissent, including the likes of Theophilus Lindsey, Joseph Priestley and Richard Price. The young Hays was evidently attracted by the ‘ardour for liberty’ which the latter famously identified in his incendiary 1790 sermon, A Discourse on the Love of Our Country, with its sure prospect of ‘the dominion of kings changed for the dominion of laws, the dominion of priests giving way to the dominion of reason and conscience’ (Price, Reference Price1991, p. 195). Early writings, perhaps most obviously her 1791 Cursory Remarks on an Enquiry into the Expediency and Propriety of Public or Social Worship, evidence the depth of Hays’s commitment to an incipient politics of radical Dissent.Footnote 5 The publication of her Letters and Essays two years earlier confirmed as much.Footnote 6 The influence of William Godwin, the famed philosopher of ‘rational anarchy’, and author of the vast Enquiry Concerning Political Justice, published in 1793, was particularly important. Written as a paean to the ‘age of reason’, and a certain belief in the equal ‘perfectibility’ of men and women, the Enquiry recommended a ‘species of liberty’ that was as horrifying for its espousal of principles of democracy as it was for its libertarianism.Footnote 7
Hays was an ardent admirer of Godwin’s, confessing in an early correspondence that his novel Caleb Williams had ‘excited in my own mind a sensibility almost convulsive’.Footnote 8 The intellectual heart of Emma Courtney was to be written around this correspondence; recast as the epistolary narrative which develops between Emma and her mentor Mr Francis. The third figure in this testamentary menage à trois was also based on a real figure in the life of the young Mary Hays; William Frend, the Cambridge mathematician to whom she had confessed her affections, but who had proved to be maddeningly non-committal. Mary Hays was writing from the heart, expressing her innermost feeling and frustrations, and she wanted her readers, particularly those closest to her, to appreciate the fact. Frend was Harley, just as Godwin was Francis, and Hays was Emma. As she advised her own dithering paramour, Emma Courtney was written as a ‘confession’, to ‘engage my mind, to sluice off its impressions’ (Kelly, Reference Kelly1993, p. 93). When Godwin, whilst praising the ‘energy of feeling’ in the novel, observed that the plot seemed implausible, Hays responded ‘my story is too real’, the expressions of sexual frustration ‘proof of a lively and strong imagination, of a sanguine, an enterprising, an ardent, an unconquerable spirit’ (Kelly, Reference Kelly1993, pp. 94–95). Anything Emma Courtney felt, or expressed, was felt and expressed by Mary Hays (Todd, Reference Todd1989, p. 237: Rogers, Reference Rogers1987, p. 140).
Such an affirmation was not calculated to reassure her larger audience. And neither was the context within which Hays has her breathless heroine offer her ‘gift’. The ‘prejudice’ of ‘custom and prescription’, more precisely the ‘cruel’ conditions of a ‘capricious testator’, precludes the possibility of marriage to Harley (pp. 52, 79-80).Footnote 9 Emma was fully aware that the institution of marriage, as her guardian had advised, ‘must of necessity’ be primarily ‘an affair of finance’ (p. 30). But she is not cowed. ‘It is a pernicious system of morals which teaches us that hypocrisy can be virtue’, that the institution of marriage should be servant to the laws of property rather than those of the ‘human heart’ (p. 79). As any disciple of Godwin’s Enquiry knew, the tyranny of ‘positive law’ is necessarily ‘an evil, an usurpation upon the private judgement and individual conscience of mankind’, and it behove all ‘friends of reason and the human species, to admit as little of it as possible’ (Godwin, Reference Godwin1985, pp. 206, 379). Emma Courtney did; in the offering of her chastity to the terminally indecisive Harley, making a gesture that was intended to be every bit as revolutionary as any of the fantastical images of bestial femininity conjured by Edmund Burke his Reflections on the Revolution in France. It was indeed a gesture which, as Emma confesses, ‘made me almost criminal in my own eyes’ (p. 135).
There were few images better calculated to disturb than that of the sexually assertive woman. As Martin Wiener (Reference Wiener2004, pp. 30–31) confirms, the readership of 1790s England was seduced by a peculiarly virulent ‘sex panic’. Sex, it seemed, was everywhere; in novels, in newspapers, in the drawing rooms of middle England. Conservative journals such as the Critical Review and the Anti-Jacobin sought comfort in various misogynist mythologies, supposing that such sexuality was the preserve of the working class, of the neurotic and the mad, insinuating a necessary affinity between adultery and prostitution (Ty, Reference Ty1993, pp. 19–20; Clark, Reference Clark1987, pp. 76–83). In time, feminism would become aligned in the pejorative imagination with ‘hysterical’ sexuality, prostitution, illegitimacy. It was not simply that impassioned women were hysterical or mad, resonant in the popular imagination of the rampaging harridans raised by Burke or successive editors of the Anti-Jacobin. There was something else, every bit as troubling. The stability of middle England was grounded on sexual propriety, the confident assumption that virtuous wives bred legitimate children. But that confidence was eroding, and fast (Kelly, Reference Kelly1993, pp. 5–6; Vickery, Reference Vickery2003, pp. 39–40, 282–83, 288).
So what could possibly have driven Hays to confess, through her protagonist, a willingness to prostitute herself to such base lust? Her affinity with the Godwinians was of course suggestive. But it was barely sufficient a reason for such an exceptional statement. The answer, or so many supposed, was reading. The ‘learned lady’ was subject to a particularly venomous ridicule (Kelly, Reference Kelly1993, pp. 176–77). It is clear that Mary Hays was encouraged to read widely from a young age, developing a particular passion for protestant theology, science and the classics (Luria, Reference Luria1977, p. 524). And so is Emma Courtney. The young Emma develops an ‘avidity for books’, liberated by ‘ten to fourteen novels a week’, together with a steadying diet of Plutarch, Descartes and various other studies of ‘high-toned philosophy’ and ‘republican ardour’. Rather less steadying, of course, was the inevitable encounter with Rousseau. Emma, needless to say, was thrilled by La Nouvelle Heloise, leaving an ‘impression made on my mind which was never to be effaced’, and producing ‘a long chain of consequences, that will continue to operate till the day of my death’ (pp. 25–26).Footnote 10
It was precisely these kinds of consequences that so many found so troubling. The thought that precisely such women as Emma Courtney, overfed on a rich diet of Rousseau and Godwin, were in fact passing their spare time, not just thrilling at stories of adultery and seduction, but also partaking in the same, was no less horrifying than the prospect of Burke’s harridans paddling across the Channel (Binhammer, Reference Binhammer2003, pp. 1–2). The dissipation of the female mind began in the pages of novels such as Heloise. It was not simply that reading novels suggested a certain domestic negligence, as James Fordyce had supposed in his bestselling Sermons to Young Women (Kelly, Reference Kelly1993, pp. 11–12). There was a deeper moral anxiety. As a 1792 pamphlet entitled the Evils of Adultery and Prostitution foretold, ‘The increase of novels will help to account for the increase in prostitution and for the numerous adulteries and elopements that we hear of in the different parts of the kingdom (Binhammer, Reference Binhammer2003, p. 1). Indeed, as an incipient medico-legal jurisprudence would come to insinuate, reading novels like Heloise could eventually make women mad (Gilbert and Gubar, Reference Gilbert and Gubar2000, pp. 55–56).
Hays was, however, undaunted, repeatedly advising in essays and correspondence that books were a vital strategic resource for the emancipation of the female mind; provided of course such minds were properly counselled.Footnote 11 Hays was fully in tune with the supposition, articulated in Mary Wollstonecraft’s Vindication of the Rights of Women, that female liberation must be an educated liberation; for ‘we are all the creatures of education’ (Hays, Reference Hays1996, p. 8). In her Appeal to the Men of Great Britain on Behalf of Women, published in 1798, Hays confirmed that the ‘regulation of the conduct of women’ was rooted in the constraints of an education which was dedicated to ‘degrading our understandings’.Footnote 12 Emma is constantly frustrated by a prejudice that is at once cultural and intellectual: ‘Why have I been rendered feeble and delicate by bodily constraint and fastidious by artificial refinement? Why do we suffer ourselves to be confined within a magic circle, without daring, by a magnanimous effort, to dissolve the barbarous spell?’ (p. 32) Little wonder that Emma Courtney bemoans the fact that ‘I feel that I am neither a philosopher nor a heroine, but a woman to whom education has given sexual character’ (p. 117).
The strategic use of literature, particularly romance literature, imported certain ambiguities; as Mary Hays was well aware. One was the counter that such literature was simply trite; the mere expression, as Emma Courtney confesses in a melancholy moment, of a ‘nature’ that is ‘peculiarly susceptible to the tender affections’ (p. 89). In the Preface to Emma Courtney Hays was keen to distinguish her novel from those ‘hackneyed’ depictions of romance characteristic of so many eighteenth-century novels. Emma Courtney, she averred, would instead present the testament of ‘a human being, loving virtue while enslaved by passion, liable to the mistakes and weaknesses of our fragile nature’ (pp. 3–4). Mary Hays was certainly not alone amongst Radical Dissenters in wanting to distinguish an affinity with the ‘cult of sensibility’; and there was nothing peculiar in critics seizing on precisely the same affinity. It was, these critics rejoined, women who read novels such as La Nouvelle Heloise who ended up offering themselves to impressionable young men like Augustus Harley (Luria, Reference Luria1977, p. 525). In time, Hays found herself caricatured as little more than a literary pimp, the fate of her heroines a salutary warning as to what might happen to young girls who read too much.Footnote 13 We shall revisit the ‘cult of sensibility’ in due course; for it carries a particular resonance with modern invocations of a jurisprudence of ‘poethics’.
A testament like Emma Courtney is not then just a confession. It is also a polemic; one which incorporated a plea, not just for educational emancipation, but for a broader despatch of cultural and political prejudice. As Emma declares, ‘modified by circumstances, the customs of society, then, have enslaved, enervated, and degraded women’ (p. 39).Footnote 14 The subjugation of women is socially constructed and can be ‘traced to the vices and errors of institutions’ (p. 49). A closer, more urgent, critique of legal and political institutions would appear in Hays’s second novel. But it makes a formative appearance in Emma Courtney, especially on the slightly breathless, rather Gothic closing chapters, in which the rejected Emma first falls ill, ‘poisoned’ by the ‘constitutions of society’, then marries the odious Montague, who proves to be an incipient wife-beater, adulterer and child murderer, and who eventually commits suicide, and then encounters a dying Harley, who confesses his love, and leaves her his young son Augustus, whom she adopts (pp. 170, 181–85, 189–91, 195).
Finally, Emma emerges, if not unscathed, at least, having inherited Montague’s fortune, considerably richer as well as wiser. The institutional roots of cultural prejudice, principally the ‘chicanery’ of the law and the ‘hypocrisy and usurpation’ of the established Church, both as likely to ‘check the freedom, and contaminate the purity, of the mind, and, entangling it in an explicable maze of error, poison virtue at its source’, have been uncovered (p. 193). In time, such institutions, and such hypocrisy, will be overcome; but not yet. If Emma’s generation has begun the revolution, it will be for little Augustus’s generation to complete it (Rajan, Reference Rajan1993, pp. 173–74). Hers has been a ‘moral martyrdom’, of the kind endured by a revolutionary vanguard which ‘daring to trace, to their springs, errors the most hoary, and prejudices the most venerated, emancipate the human mind from the trammels of superstition, and teach it, that its true dignity and virtue, consist in being free’ (pp. 195–96). Little wonder that Godwin, an indomitable optimist, the famed philosopher of ‘perfectibility’, applauded the conclusion (Kelly, Reference Kelly1993, pp. 105–106). Little wonder, too, that others did not.
I suffered a brutal violation
So, in the fourth chapter of the second book of The Victim of Prejudice, Mary Raymond describes her brutal fate at the hands of her assailant, Sir Phillip Osborne, rapist, child molester and scion of the English aristocracy (p. 117). It was a declaration intended to shock every bit as much as Emma Courtney’s rather more breathless invitation to unwedded fornication. But there was one very obvious difference between the two equally notorious passages. Emma wanted sex. Mary Raymond did not. There may have only been three years between the publication of Mary Hays’s first novel and her second. But, in terms of tone, they are light years apart. Emma Courtney and Mary Raymond inhabited very different literary landscapes (Ty, Reference Ty1993, pp. 59–61; Sherman, Reference Sherman1997, p. 143).
Critical reception of such an ‘uncommon book’, as Robert Southey reported of Emma Courtney had been variable; ‘much praised and much abused’, but almost uniformly identified as being rather too ‘Godwinite’ (Luria, Reference Luria1977, p. 527; Kelly, Reference Kelly1993, p. 110). Plainly written by an author whose ‘head seems to be full of the sophistries’ of Rousseau and Godwin ‘and writers of that class’, the Analytical Review observed (Kelly, Reference Kelly1993, p. 108; Binhammer, Reference Binhammer2003, pp. 2–3; Ty, Reference Ty and Lang-Peralta1999, p. 135). It was thought by many that the relationships depicted in Emma Courtney presented a verbatim testament to the depravities of the Godwin–Johnson circle; a supposition which imported the titillating supposition that their relations were as much about satisfying base lust as contemplating metaphysical wonder or political revolution. Not that Hays again seemed unduly daunted, as a series of letters to the Monthly Magazine, in which she sought to defend her novel, confirmed. The time had come when the fanciful myths of ‘chivalry’, which exist primarily to justify the ‘deeply entangled’ injustices of ‘property’, should be replaced by harsher depictions of the real ‘tyranny’ of female subjugation (Kelly, Reference Kelly1993, pp. 108–109). The same alignment, of cultural and jurisprudential tyranny, was reiterated in her Appeal to the Men of Great Britain, published the year before Victim of Prejudice, but in large part composed alongside; the injustice of ‘their laws’ masked by the associated mythologies of ‘female virtue’ (Kelly, Reference Kelly1993, pp. 113–15). Not just undaunted, it seemed; more determined still.
Victim of Prejudice is again written in testamentary form, opening reflectively in media res.Footnote 15 Injustice has already been wrought. The present has been overcome by the past. The fate of Mary Raymond, as will become graphically apparent, is preordained; destined to be raped, abused, constrained, incarcerated. Presently ‘immured in the gloomy walls of a prison’, Mary addresses her prospective audience in terms of their putative and shared subjugation, ‘victim of despotism, oppression, or error, tenant of a dungeon, and successor to its present devoted inhabitant. . .whose unconquerable spirit, bowed but not broken, seeks to beguile, by the retrospect of an unsullied life, the short interval, to which will succeed a welcome and never-ending repose’ (pp. ii–iii).
The opening images, recounting her orphaned childhood in the care of Mr Raymond, who in echo of Emma’s Mr Francis, ‘cherished notions somewhat singular respecting female accomplishments’, her development into a ‘vivacious and sparkling’ young woman with a ‘mind inquisitive’ and then her sojourn in the household of the benign curate Mr Neville, are quickly overshadowed by darker presences, foremost amongst whom is Osborne (p. 5). From the very outset, Osborne is attracted by the sexuality of his young prey, and the thrill of scheming her fall; a ‘true daughter of Eve’, he leers when he first encounters the twelve-year-old Mary (p. 14). Next time they meet, in a passage redolent with sado-masochistic imagery, Mary is subject to the ‘discipline’ of Osborne’s whip, groped and then kissed with an ‘odious violence’ (pp. 21–22). Her horrified guardian, fearing that in ‘cultivating my mind, in fostering a virtuous sensibility, in imbuing my heart with principles of justice and rectitude, he had not been betraying my happiness’ hastily sends Mary away (pp. 30–31).
But not far enough. For like all Gothic anti-heroes, Osborne proves to be demonically prescient, forever popping up when his victim is feeling most alienated and most vulnerable. It is an inebriated Osborne, predictably enough, who rescues Mary from the rising tide shortly after she arrives at the home of Mr Neville, another benign Godwinian who seems unable to protect her from ‘resistless prejudice’ (p. 41). Osborne, equally predictably, then embarks upon a concerted strategy of stalking his prey around the village, with a ‘disgusting audacity’ (pp. 51, 96). When Mr Raymond dies, Osborne offers to keep Mary in his London home, as his mistress. It is when Mary refuses that she finds herself incarcerated in his bedroom, forced to witnesses evenings of ‘Bacchanalian’ excess, and eventually, ‘in terror’, raped (pp. 113–15).
Depictions of rape were not uncommon in eighteenth-century literature, and neither were aristocratic rapists. Richardson, whose Clarissa dominated the generic literary landscape, famously eschewed physical depiction.Footnote 16 Hays was not so coy (Ty, Reference Ty1993, pp. 65–6). ‘Why should we seek to deceive?’ she asked in her essay On Novel Writing. ‘Why should we not’ instead, ‘paint’ the terror as it is really experienced, ‘mingled with imperfection, and discoloured by passion?’ (Ty, Reference Ty1993, p. 65). The rape of Mary Raymond, and more particularly still the ensuing evocation of feelings of horror and self-loathing, are unsparing. Most stark, however, is the dawning sense of impotence and abandonment; the realisation that against the prejudice of society and its legal institutions, and against the crushing contempt of her violator, Mary is powerless. Osborne later ventures a half-hearted apology, explaining that he might have drunk a little too much, and that she should not take things too seriously. In reply Mary asserts her dignity, articulates her anger, and reveals the depths of her naivety:
‘I demand my liberty this moment; I insist upon being suffered to depart. No one has a right to control me. I will appeal to the tribunal of my country; I will boldly claim the protection of its laws, to which though art already amenable.’ (p. 117)
Osborne merely laughs at such ‘romantic lamentations’:
‘What testimony or witness can you produce that will not make against you? Where are your resources to sustain the vexations and delay of a law suit, which you so wildly threaten? Who would support you against my wealth and influence? How would your delicacy shrink from the idea of becoming, in open court, the sport of ribaldry, the theme of obscene jesters?’ (pp. 118–19)Footnote 17
Haunted by the ‘visionary’ spectre of her mother, a horrified Mary just ‘shuddered, groaned’ (pp. 119, 123). Her fate had indeed been foretold. Shortly before her own rape, Mary had received her mother’s posthumous testament of violence and violation. Written from prison as she awaits her own inevitable fate, it tells of her destruction, overcome by the ‘revel of an hour’, duly ‘branded with infamy’, abandoned to a life of dissipation and prostitution (pp. 60, 63).Footnote 18 The testament is written to advise, not just ‘to contemn the tyranny that would impose fetters of sex upon her mind’, but also to counsel Mary against falling victim to the same fate (p. 69). And the same prejudices, for it is against these that the young Mary must, most urgently, set her guard:
‘[B]y enlarging the circle of my observation though in the bosom of my depravity, my understanding became enlightened: I perceived myself the victim of injustice, of the prejudice, of society, which by opposing to my return to virtue almost insuperable barriers, had plunged me into irremediable ruin.’ (p. 66)
Above all there is jurisprudential prejudice, the embedded, institutional prejudice of the law:
‘Law completes the triumph of injustice. The despotism of man rendered me weak, his vices betrayed me into shame, a barbarous policy stifled returning dignity, prejudice robbed me of the means of independence, gratitude ensnared me in the devices of treachery, the contagion of example corrupted my heart, despair hardened and brutality rendered it cruel. A sanguinary policy precludes reformation, defeating the dear-bought lessons of experience, and, by a legal process, assuming the arm of omnipotence, annihilates the being whom its negligence left destitute, and its institutions compelled to offend.’ (p. 68)
But as she reads the testament, the young Mary realises, not just the intractability of her fate, but its consequence. She is not merely orphaned, but illegitimate. As Mr Raymond confirms, ‘In the eye of the world, the misfortunes of your birth stain your unsullied youth’. A ‘shuddering horror crept through my heart’, she recalls, imagining her mother’s fate, and anticipating her own (p. 72). And justifiably. As Hays (Reference Hays1994, p. 232) observed in her Letters and Essays, ‘young women without fortunes, if they do not chance to marry. . .have scarce any other resource than in servitude or prostitution’. The young Mary had harboured hopes of marriage to another of Mr Raymond’s wards, William Pelham, whose principle function in the novel is the same as that of Augustus Harley in Emma Courtney; to crush these hopes. Orphans rarely marry well, unless they have large inheritances. Bastards more rarely still. It is not, as Mr Raymond soberly advises, what marriage is for (pp. 32, 36, 55). And it not just this hope that is crushed. Mary must also reconcile herself to a public prejudice which will assume that sexual depravity runs in her blood. Her fate is set.
Where the final passages of Emma Courtney had assumed a lighter Gothic tone, of various misfortunes attended, and in time ameliorated, Victim of Prejudice progresses inexorably to a closure of unremitting misery and injustice. There will be no happy endings. Hounded by Osborne’s calumnies, shunned by society, Mary falls ever further into ‘deplorable destitution’, constantly harassed by employers who presume that she will indulge their every sexual whim, and assaulted when she does not (pp. 139–40, 142).Footnote 19 Incarcerated in a debtor’s gaol, Mary wonders ‘For what crime was I driven from society?’ (p. 141). With a sense of grim inevitability, Osborne pops up to reiterate an offer of marriage, a ‘legal settlement’ which might save Mary from the more ‘loathsome’ aspect of the ‘law’. Rejected, he leaves his ‘victim’ to her ‘romantic whims’ (pp. 15–16). After a brief interlude during which she is bailed by Mr Raymond’s old servant, the indebted Mary is driven back to gaol, pursued by ‘the bigotry of prejudice, the virulence of envy, the spleen and the corruption engendered in the human mind by barbarous institutions and pernicious habits’ (p. 163).Footnote 20 Osborne reiterates his offer of marriage, suggesting that she would lose nothing by allowing him to complement the moral ‘title’ he has to her body with a ‘legal’ one (p. 164). Mary again declines: ‘I sink beneath a torrent, whose resistless waves overwhelm alike in a common ruin the guiltless and the guilty’ (p. 168).
The subjugation of Mary Raymond is inexorable and brutal, borne of a consuming need to engage the real horrors suffered by real women in late-eighteenth-century England. Eighteenth-century literature was, of course, suffused with Mary Raymonds, some raped, most deceived, all fated by the pretences of morality and the harder demands of the ‘system of property’, as Hays (Reference Hays1994 p. 234) put it, to suffer the inevitable consequences. A few days after her rape, Mary encounters William Pelham on the street. On hearing her misfortune, he likewise offers to keep her as his mistress; ‘all that’ now ‘can be reasonably demanded’ (p. 127). ‘Thy destiny’, her erstwhile lover observes, on parting, ‘is indeed severe’ (p. 129). Amidst the myriad pressing anxieties of sexual excess and moral degeneracy, the consequences of illegitimacy, and the spread of disease and criminality, the distinction between the victim of rape and the victim of seduction tended to be fine. Moreover, an incipient medico-legal culture was already minded to assume that some women were destined to fall, not because they were unfortunate enough to encounter an Osborne, but because they were genetically, and culturally, predisposed to do so.Footnote 21 Obsessed by her mother’s mental frailty, Mary Raymond increasingly comprehends her fate in precisely these terms.
Hays, however, was not so easily persuaded. For her the reasons are at once more varied and more prosaic, and for the modern reader accordingly rather more familiar too. Most importantly, and most urgently, Mary’s mother has no money, and thus no choice; a misfortune recognised in the establishment, most commonly by Dissenting congregations, of numerous ‘magdalene hospitals’ and ‘foundling homes’. Women prostitute themselves in order to eat; a logic which men culturally inscribe and legally proscribe, and then gleefully exploit. Part of the cultural inscription, moreover, is the pretence of horror; the hypocrisies of which Hays identifies in her ‘Advertisement to the Reader’ at the outset of Victim of Prejudice, in which she unmasks ‘the mischiefs which have ensued from the too-great stress laid on the reputation for chastity in women’. It is the ‘voluptuousness’ of men, and the ‘baneful tendencies’ of their insatiable appetites which has for centuries demanded the ‘sacrifice of hetacombs of victims’ (pp. 1–2).
Associated myths are duly cast down. Mary Raymond falls from on high. She may have been an illegitimate orphan, the daughter of a prostitute and a murderer, but she was also a member, albeit adoptive, of the landed gentry. She should have been safer than most. Except, of course, that few women are ever really safe, even middle-class ones. Her rapist, furthermore, is a scion of the aristocracy; a common trope in seducer fiction, and one which gestured to a larger debate regarding the seeming inadequacies of the English ruling classes (Kelly, Reference Kelly1993, p. 168; Maasen, Reference Maasen1999, pp. 175, 178, 183). Montague in Emma Courtney had aristocratic pretensions. But Osborne, in his strategic mendacity as well as his vaunting arrogance and physical violence, is an altogether more convincing and frightening variant of the species. All men are capable of rape, all women of being raped.
And violence can be inflicted anywhere. The patriarchal literary tradition was intended to somehow naturalise female subordination, in return conveying not just a quality of virtue to those who accepted their condition, but the reassurance of a benign domestic tyranny. The woman who submits to marriage and who therefore resigns herself to a private life is not only virtuous, but safe. As John Ruskin sought to maintain, even a century on, the ‘home’ must always be ‘the place of Peace; the shelter, not only from all injury, but from all terror, doubt and division’ (Shanley, Reference Shanley1989, p. 191). The insinuation was patent. A virtuous woman stays at home. A woman who steps outside alone takes her chances, abroad in a public world in which sexuality is promiscuous and violence endemic. Emma Courtney took her chances, and by and large got away with it. Mary Raymond does not. And there is a collateral, if marginally countervailing, insinuation. It is not just that Hays’s protagonists are inclined to take their chances. It is also that there is nothing intrinsically safe about the English hearth or, as Mary Raymond discovers, the English bedroom; quite the contrary.Footnote 22 The idea that public depravity began in the home, particularly in the homes of alcoholic men, once again found a strong echo in Dissenting temperance literature. Hays had already adopted this very line in her Appeal (Rogers, Reference Rogers1987, p. 133). Sexual violence is inflicted everywhere, and suffered everywhere.
In the final passages of the novel, as death approaches, Mary composes her own testament, one that echoes almost allusion by allusion that she had received from her own mother:
‘The victim of a barbarous prejudice, society has cast me out from its bosom. The sensibilities of my heart have been turned to bitterness, the powers of my mind wasted, my projects abortive, my virtues and my sufferings alike unrewarded, I have lived in vain! Unless the story of my sorrows should kindle in the heart of man, in behalf of my oppressed sex, the sacred claims of humanity and justice. . .Ignorance and despotism, combating frailty with cruelty, may go on to propose partial reform in one invariable, melancholy round; reason derides weak effort; while the fabric of superstition and crime, extending its broad base, mocks the toil of the visionary projector.’ (pp. 174–75)
Three years earlier, as she completed the final drafts of Emma Courtney, Hays could dream of happier endings. No longer.
I have deserved a better fate
In a letter of 1804, written to Henry Crabb Robinson, Hays confessed:
‘Mine has been a singular and romantic life, its incidents arising out of a singular and romantic mind. I am not suited to the times and persons among which I have fallen, and I will say – that I have deserved a better fate.’ (Ty, Reference Ty1996, p. xxxvii)
She was, of course, still only forty-four. Half her life remained to be lived. And she was not finished with writing. In time she would turn to children’s writing, to instructive manuals on education and morals, to grand histories of English Queens.Footnote 23 And there would be occasional pamphlets on political matters, questions of social justice, the condition of the ‘labouring poor’, and a couple more novels: The Brothers, published in 1815, and Family Annals: or the Sisters, published two years later, both of which were essentially didactic and written to reaffirm a commitment to a revitalised early-nineteenth-century evangelicalism. But by the end of the 1790s, Hays, like Godwin, and like most of her generation, knew the radical moment had passed.
Critics had found Emma Courtney troubling enough. Victim of Prejudice caused even greater consternation. Written in ‘a manner highly dangerous to the peace and welfare of society’, the appalled reviewer in the Critical Review soberly advised, an expression of ‘splenetic irritability’ plainly intended to ‘nourish the contagious and consuming fever of perverted sensibility’. There was nothing to be gained, it counselled, and much to be lost, in the promotion of ‘indiscriminate imputations on society and the laws’. The sorry fate of the heroine, readers of the Review were assured, was ‘very uncommon‘, the ‘offspring’ of a hysterical authorial ‘imagination’ (Hays, Reference Hays1994, pp. 253–55). The novel could, the Anti-Jacobin Review agreed, ‘excite no sentiment but disgust’. If there was any ‘prejudice’ abroad, it could be traced to uppity women reading too many fanciful novels (Hays, Reference Hays1994, pp. 253–55). It must, the reviewer concluded, be questioned whether:
‘it is most for the advantage of society that women should be brought up as to make them dutiful daughters, affectionate wives, tender mothers, and good Christians, or, by a corrupt and vicious system of education, fit them for revolutionary agents, for heroines, for Staels, for Talliens, for Stones, setting aside all decencies, the softness, the gentleness, of the female character, and enjoying indiscriminately every envied privilege of man?’ (Kelly, Reference Kelly1993, p. 125)Footnote 24
Hays cannot have been surprised that the ‘cry of slander’ went up. And she was, again, seemingly undaunted. She wanted to impugn society and its laws. This much had been affirmed in her Appeal, in which, against the fanciful ideas of chivalric ‘justice’, she castigated a jurisprudence which was written by men for men, exclusively for ‘their own conveniency, comfort and dignity’ (Ty, Reference Ty1993, pp. 62–63; Sherman, Reference Sherman1997, p. 151). Adopting the architectural metaphor preferred by jurists such as Blackstone and Burke, she observed of this jurisprudence:
‘[T]hey look upon it as probably the wisest, and as certainly the easiest method for themselves, to let remain as long as it can, a fabric; which though from the beginning not built of the best materials, and certainly upon the very worst possible foundations; and which though propped up. . .by trash, and rubbish of every sort, that best suited the conveniency of successive undertakers; yet accommodates one way or other all parties – but particularly well, those who only have it in their power to make a change.’ (Rogers, Reference Rogers1987, p. 139)
But if Hays was undaunted, others were not. The mood was turning. By the close of the decade England was possessed by a virulent anti-radical backlash, one which had mutated into a still more virulent anti-feminist backlash. The publication of Godwin’s adoring Memoirs of the Author of the Vindication of the Rights of Women, written in the months following his wife’s death in 1797, with its vivid description of suicide attempts, depression and illegitimate children, merely served to confirm the associated prejudices of the conservative press. With Wollstonecraft dead, furthermore, critical ire focused all the more on her chief ‘subaltern’, Mary Hays (Kelly, Reference Kelly1993, p. 90).
Fame is fickle; and Hays fell out of the literary firmament, her role in the composition of an incipient literature of ‘feminist individualism’ the subject of judicious neglect (Butler, Reference Butler1981, p. 38). Two centuries on, however, Hay’s critique of social and legal prejudice has a renewed resonance for those who embrace the particular insights of a distinctively literary jurisprudence. It has, for one, a resonance with those like Melanie Williams (Reference Williams2002, pp. xxiv, 179) and Nicola Lacey (Reference Lacey2008, pp. 30–37), who recommend such a jurisprudence for its peculiar ability to trace the critical ‘collision between the feminine subject’ and the ‘judicial construction of her’. It has, further, a resonance with those such as Richard Weisberg (Reference Weisberg1992, p. 46) who advise a deeper ethical, indeed ‘poethical’ merit in such a jurisprudence; one that might ‘revitalize the ethical component of law’. Poethical jurisprudence has certainly found favour amongst a number of feminist legal and literary scholars (Aristodemou, Reference Aristodemou2000, p. 295; West, Reference West1997, pp. 184–88, 207–215; Ward, Reference Ward1995, pp. 124–28). Speaking again to a broader disciplinary ambition, Martha Nussbaum (Reference Nussbaum1995, pp. 73–78, 90–91, 115–20) recommends a ‘poetic’ jurisprudence that is more closely shaped by ‘imagination, inclusion, sympathy and voice’. The primary responsibility of the literate jurist, she affirms, is not to write about law so much as to nurture the critical ‘narrative imagination’, to nurture an ‘ability to think what it might be like to be in the shoes of a person different to oneself, to be an intelligent reader of that person’s story, and to understand the emotions and wishes and desires that someone so placed might have’ (Nussbaum, Reference Nussbaum1997, pp. 10–11).
This, it can be argued, is precisely what Mary Hays sought to do. It was, indeed, a primary aspiration of any late-eighteenth-century writer who identified themselves with the poetic injunctions of the ‘cult of sensibility’. We have already noted the extent to which Hays proclaimed this affinity most especially in Emma Courtney. Indeed much of the epistolary narrative in the novel moved around a continuing debate between Emma and her mentor as to the proper means of writing such a poetic, of accommodating ‘impetuous emotions’ within a philosophy properly framed by the faculties of reason and sensibility (p. 142). The importance of realising this accommodation was, of course, a defining theme in Godwin’s Enquiry. The extended Preface to the second 1796 edition confirmed that the ‘sense’ of ‘passion is so far from being incompatible with reason, that it is inseparable from it’ (Godwin, Reference Godwin1985, p. 9).
Hays had already proclaimed her affinity with a politics of ‘enthusiasm’ in Letters and Essays (Kelly, Reference Kelly1993, pp. 85–86; Sherman, Reference Sherman1997, pp. 149–50). ‘How impotent is mere reasoning against reiterated passion’ she declaimed to Godwin in correspondence, ‘What are passions, but another name for powers?’ (Kelly, Reference Kelly1993, p. 92). The same sentiment is articulated in the opening epistle of Emma Courtney, written by Emma to her son:
‘Rouse the noble energies of your mind; be not the slave of your passions, neither dream of eradicating them. Sensation generates interest, interest passion, passion for attention, attention supplies the powers, and affords the means of attaining its end.’ (p. 8)
There can be, as Wollstonecraft had advised, no revolutionary politics without a revolutionary passion. When she was invited to contribute pieces of literary criticism to journals such as the Analytical Review and the Critical Review, Hays was not simply tasked with commenting on the syntactical merits of sentimental novels read by sentimental women. She was also, Wollstonecraft urged, writing for revolution.Footnote 25 And for this, she must write about passion and emotion; because that, as Godwin had likewise advised, is what her audience wanted to read.Footnote 26
As Wollstonecraft (Reference Wollstonecraft1992, p. 43) had famously opined in her own novel, Mary, a ‘true sensibility’ is a vital strategic weapon in the armoury of the putative feminist revolutionary, the ability to conjure ‘the most exquisite feeling of which the human soul is susceptible. . .this quickness, this delicacy of feeling, which enables us to relish the sublime touches of the poet, and the painter’. Hays (Reference Hays1994, pp. 236–38), again, was fully in accord, affirming in an essay in the Critical Review that ‘the most effectual method of giving instruction is by interesting the imagination and engaging the affections’. In an essay entitled On Novel Writing, published in the Monthly Magazine in 1797, she confirmed once again that:
‘The business of familiar narrative should be to describe life and manners in real or probable situations, to delineate the human mind in its endless varieties, to develop the heart, to paint the passions, to trace the springs of action, to interest the imagination, exercise the affections, and awaken the powers of the mind. . .Fictitious histories, in the hands of persons of talents and observation, might be made productive of incalculable benefit; by interesting curiosity, and addressing the common sympathies of our nature, they pervade all ranks; and, judiciously conducted, would become a powerful and effective engine of truth and reform.’ (Hays, Reference Hays1994, pp. 242, 244)
Hays was fully versant with the strategies of a poethical jurisprudence.
As we have seen already, the apparent affinity between the ‘cult of sensibility’, radical Dissent and women writers of the late eighteenth century, imported a range of prejudices. First and foremost, perhaps, was the supposition that because they wrote about matters of domestic governance, and of matters of the heart, what they wrote about was not a fit subject for serious public concern. Frederic Rowton confirmed as much in his populist anthology of women’s poetry, half a century later: ‘Woman has to bear invisible sway over the hidden mechanisms of the heart; and her endowments are of a meek, persuasive, quiet, and subjective kind. Man rules the mind of the world, woman its heart’ (Armstrong, Reference Armstrong1982, p. 130). Of course, in the very process of writing about such matters, in revealing to the public gaze the ‘iceberg of everyday misery’ which had hitherto lain largely unseen beneath the superficial calm of middle English domesticity, this particular prejudice was critically undercut (Vickery, Reference Vickery2003, p. 73; Surridge, Reference Surridge2005, pp. 3–4, 10). Women like Hays wrote novels because the audience for which they principally wrote, an audience of middle-class women, liked to read novels. Of course, the same necessary ambiguities remain prevalent in modern literary criticism. Thus, in his The Rise of the Modern Novel, Ian Watt (Reference Watt1957, p. 298) suggests that the ‘feminine sensibility was in some ways better equipped to reveal the intricacies of personal relationships and was therefore at a real advantage in the realm of the novel’. Jill Matus (Reference Matus1995, pp. 4–16) agrees. So does Nancy Armstrong (Reference Armstrong1982, pp. 132–38). The subsequent rise of ‘feminine authority in the novel’ coincides with the emergence of an identifiably domestic genre of literature which focused its attention, not just on matters of the heart, but on the politics of private life.
For much of the century to come, the cause of reformist, as opposed to revolutionary, feminism would indeed be fought in the parlours and living rooms of middle England, its prospective shaped by ‘what happens within the home’, not what might happen in the streets of London or Paris. Hay’s later didactic writings, and most especially her various historical studies of famous women, were written with precisely this strategy in mind. Throughout, she retained a primary concern with prejudice; for ‘the world’, as she had long before affirmed in her Appeal, ‘ever has been, and still is, more guided by custom and prejudice, than by principle’ (Hays, Reference Hays1994, p. 231). Twenty-three years later, in the Preface to her otherwise unmemorable Memoirs of Queens, published in 1821, Hays confirmed:
‘I maintain, and while strength and reason remain to me, ever will maintain, that there is, there can be but one moral standard of excellence for mankind, whether male or female, and that the licentious distinctions made by the domineering party, in the spirit of tyranny, selfishness, and sensuality, are the foundations of the heaviest evils that have afflicted, degraded or corrupted society.’
Much of the law relating to sexual abuse, of the kind endured by Mary Raymond, has been reformed; though certainly not all. But beneath the jurisprudential veneer, it might anyway be argued that the deeper prejudices have not. There is much in the fate of Mary Raymond which continues to resonate, as indeed there is in the rather more whimsical travail of Emma Courtney. As Joanna Burke (Reference Burke2007, p. 10) has recently confirmed, in an important sense, sexual violence is a discursive violence. The defining myths of rape and sexual assault have a particular cultural and literary heritage; that claims of rape should be met with a due degree of scepticism; that a woman who resists enough cannot be raped; that certain women in expressing their sexuality invite their fate; that narratives of rape should serve to warn women against the perils of transgressing certain masculine norms of acceptable sexual behaviour; above all, perhaps, that ‘no’ does not always mean ‘no’. The attendant jurisprudential myths, written again and inevitably by men, likewise inscribe a peculiarly misogynist law of rape; one that focuses on event rather than experience; that remains resistant to the idea that women rape and that men get raped; that prefers to immerse itself in essentially abstract juristic imponderables, such as the absence of ‘consent’, the presence of mind of ‘the reasonable man’, and the nature and extent of ‘coercion’ (Burke, Reference Burke2007, pp. 12–13, 213, 239, 320, 389–408).
There are, indeed, ‘disturbing patterns’ in the politics and the literature of sexual violence; patterns embedded in history and context, and patterns which are embedded in surrounding mythologies of female sexuality. Primary amongst these, once again, is the dominance of masculine writing, and the necessary ‘silence’ of the female voice. It is this discursive authority which seeks to define, and thus constrain, alternative conceptions of violence, and responsibility. Men write the discourse of rape, but it is women who are responsible for it (Burke, Reference Burke2007, pp. 436–39).Footnote 27 It is the duty of writers and lawyers sympathetic to the continuing struggle for female emancipation to write against these textual and jurisprudential prejudices, to retrieve the female voice and to impress the stark brutality of rape and sexual violence wherever it is encountered. Such, it has been suggested, is a literature of poetic ‘resistance’ (Higgins and Silver, Reference Higgins, Silver, Higgins and Silver1991, pp. 2–4). Mary Hays was such a poet.
