In the 18th-19th-century ‘criminal conversation’ legal action, a spouse could sue his wife’s lover for economic compensation. The wife was not party to the action, even though she was implicitly ‘on trial’. This article argues that the absence of the wife’s perspective permitted the court to manipulate her image conservatively and enabled English Marriage Law to evade enlightenment pressure for reform. The counter-pressure she may have exerted is deflected elsewhere. This article shows that women’s private defences could infiltrate the public imagination obliquely, if not the legal process directly, using as examples three very different letters: a purloined love letter from an adulterous wife, a fictional letter of frank testimony from Wollstonecraft’s Maria, and a forensic analysis under a masculine pseudonym from an indignant ‘victim’.
Corps de l’article
The courtroom is a site of competing private narratives; the trial verdict accords to one of these narratives the status of being, on the balance of probabilities, probably true; at the least, it suggests that it is the narrative that was the most rhetorically convincing. However, once transposed into the wider culture, a verdict tends to slough off its rhetorical contingency and appears to have a higher truth value. Hence the highly-rhetorical narratives in the “criminal conversation” adultery trials of the eighteenth and nineteenth centuries had more cultural power than they merited. One of their most significant characteristics was that the wife had no say at all in the court proceedings; so, as Lord Brougham put it to the House of Lords after over a century of such trials, “the consequence not infrequently is that the character of the woman is sworn away” (Caroline Norton “A Plain Letter to the Lord Chancellor on the Infant Custody Bill” 7). The first part of the essay will suggest how the strong patriarchal narrative that was achieved at the expense of all these missing female perspectives, despite its widely-acknowledged invalidity, helped the courts to hold off the pressure for reform of marriage law in the revolutionary period. The second consideration will be to look at “defences” which surfaced in other genres: the writings discussed here are novelistic and epistolary. The letters are indirect in some way. One is a purloined love letter published to prove guilt; another is fictional and misunderstands trial procedure; a third uses a false identity and is mainly about another legal matter. The title quotation refers to the Lacanian notion that a letter “arrives” and delivers its message somewhere, even if it goes astray.
This account, which centres mainly on 1790-1810 and then looks ahead to 1839 for a final word, will work on two levels: textual detail and cultural effect.
The “criminal conversation” action of the eighteenth and nineteenth centuries, in which a husband sued his wife’s lover in trespass to recover damages to compensate for his loss of her consortium, was technically a private matter of civil law, though played out in a very public arena. It was more public than most trials, since the court would generally be crammed with sightseers as well as the parties and the professionals; every word would be recorded not only by stenographers for the law reports, but also by those intent on producing prurient periodical-articles and pamphlets out of its riveting narratives. Yet despite the circus of publicity, there was a very marked silence at the centre of the action, as the wife’s version of events played no part. This effectual censoring of the woman’s story, preventing her perspective, and only hers, from contributing directly to any wider debate, is the result of various procedural rules, which I will go on to explain. One half of the vacant space is filled by a particular genre of highly literary narrative, put forward for the plaintiff husband; then widely disseminated in populist pamphlets; beyond the immediate result in the courtroom, such publicity empowered that narrative to have an important material effect in the culture of marital law, unhampered by female objection. Though prevented from figuring there, various representations of the woman’s viewpoint emerged elsewhere in other public genres. Responses to that particular disempowerment, displaced defences, appear in letters and in fictional writing. This article considers three examples. A private love letter, though inadmissible in court: when published it gives illicit, direct access to a single story, and serves a very different public function in a new context. At the other extreme, an aggregate of female experience is subsumed in the story of one imaginary gothic victim and the political letter she composes, in Mary Wollstonecraft’s Maria. A real letter about legal policy is made to carry a private story. It will become clear how porous these genres are, since the private and public, the legal and literary, blend in different degrees. I intend to discuss each on its own terms, but also to take account of how they vary in public power as displaced legal counter-narratives.
The comprehensiveness of the wife’s exclusion can be understood through a brief summary of the layers of procedural logic which produced it. According to an eighteenth-century rule, neither of the parties to any civil action was permitted to be a competent witness. This of course meant that the two individuals who were parties to the crim con action, the husband and the lover, were not able to speak on their own behalf. The need to distance the parties seemed to be particularly strongly felt for marital cases, since, even when the Law of Evidence Amendment Act of 1851 later rendered parties to most other civil proceedings competent to testify on their own behalf, those who drafted it went out of their way to keep adultery proceedings among the few exceptions. Nevertheless, it must be said that the adversarial eloquence of their professional legal representatives more than compensated for the absence of the two male parties to the action. Of those involved, only the wife was silent and unrepresented, an omission explained, of course, by her role in patriarchal ideology. As a femme covert, she was contained within her husband’s legal personality and hence could not be a separate party, though she was frequently subject to attack from both sides; nor could she be a witness against her husband. Multiple layers of legal logic prohibit her from making her crucial contribution to the narrative.
For the wife, this must have been a real-world traumatic loss of identity akin to those replicated and explored within the structural conventions of gothic literature of the period. It seems alarmingly similar to the pattern which Eve Kosovsky-Sedgwick describes as recurrent in gothic narratives, there is conventionally some “absolute, often institutional” prohibition on communication, which isolates the individual; the “important privation is the privation exactly of language, as though language were a sort of safety valve between the inside and the outside which being closed off, all knowledge, even when held in common, becomes solitary, furtive and explosive” (The Coherence of Gothic Conventions 14, 17). The woman’s lack of voice and consequent loss of identity in court is akin to such a gothic nightmare: it is, but it is not, “her story.” It is the business of each of the two adversarial lawyers to construct and manipulate images of her to persuade the members of the “special jury” to favour his own client’s interest; and the story is mediated yet further in the jury’s deliberations, to become the verdict.
II Domestic Economics, Public Order
First of all, it is necessary to establish the distinctive style of narrative retailed on behalf of the litigating husband, and to suggest how this narrative packaging of a relatively small minority of marriages could end up affecting all. Particularly from the 1770s onwards, the cases proliferated (Stone 255). Despite the action being technically a “private” matter, the kind of publicity I referred to above (audiences, pamphlets, the coverage in newspapers and periodicals) meant that some impact in the public sphere was inevitable. Indeed, towards the end of the century, it is evident that counsels were deliberately heightening their rhetoric to give it broader public relevance.
To begin to make that point, I wish to contrast the discourse of a 1729 case with one of 1802. In the early case of “Abergavenny v Lydell,” the defendant’s counsel is reported to have argued that a low award of damages would be appropriate, on the grounds that the action was “not laid for debauching the lady, but for destroying the health, satisfaction and comfort of the plaintiff; that, from the time the fact was committed to the time of her death was so short, that the injury his lordship sustained in his health could not be great” (British Trials, 1600-1900 no. 689, 8). One of course now registers first the startling erasure of the woman, but the key forensic detail is the bald technical suggestion that the economic damages relate only to a calculable infringement of an individual man’s rights. This is the materialist extreme of a very functional economic discourse, which one might expect from a defence counsel in a damages-limitation argument, trying to exclude ongoing mental pain; however, it is noticeable that the “prosecuting” counsel too confines himself to the one individual’s loss, albeit in more emotional terms in “the ties of mutual love [are] broken.” This emphasis is radically different from that in addresses to the jury around the end of the century. The speeches of Thomas Erskine, the advocate who acted successfully on behalf of plaintiffs in a substantial number of these cases over a thirty-year period, are the zenith of the kind of rhetoric which puts in the foreground not the effect of the trespass on the individual’s material and emotional relations, but an extrapolation to their communal significance. In this approach, it is not just the ties of mutual love which are broken, but “the institution of society and the laws of God are held in contempt and trampled upon” (“Boddington v Boddington 1797” British Trials 1660-1900, no. 153, 15).
It is my argument that the style of narration created by this action’s economic logic, together with the silencing of the wife’s perspective, has a particular effect on contemporary public perceptions of marriage. I want to differentiate this from the argument made by Lawrence Stone. He has argued that this was a personal moral crusade waged by Erskine and Lord Chief Justice Kenyon, in “a new doctrine” in the cases following the outbreak of the French revolution from 1789-1802, turning what Stone calls a “private civil action into a public criminal one” (Stone 273-278). However, both the practice of such rhetoric and its consequences were more general than Stone allows. Erskine’s approach was neither new nor unique, though it was significantly more concentrated and persuasive than other earlier examples. Furthermore, this was not a new conversion from private to public, as the leverage present within the trespass action enabling the defendant to be pseudo-criminalised had been exploited throughout the eighteenth-century. It peaks with Erskine’s spectacular personal eloquence, but nevertheless his speeches should be viewed as representative of a cultural practice, which played a part in the evolution of marital law and order.
Because interest in their scandalous or moral content gave these cases a public platform, their counsels were well-placed to influence contemporary perceptions at a point when English patriarchal marriage was potentially under threat from enlightenment or revolutionary alternatives. The direction of their rhetoric was to promulgate the ideology of marriage as an institution of communal metaphysical significance, rather than the radical alternative of marriage as an individual agreement subject to contract.
In particular, Erskine raises the individual case to a level of epic, social significance through importing English literary associations. For instance, by introducing echoes of Miltonic discourse with florid sentimentality, he characterises the particular relationship as a paradise now lost after the sexual fall, thus recasting it as an icon of metaphysical public importance. “It is rather like the entrance of sin and death into this lower world”, he says; “the undone pair were living like our first parents in Paradise, till this demon saw and envied their happy condition […]; But for the crime of the Defendant, she would have been […] the happiest of womankind.” Now, the woman is “lost forever to the husband by the arts of the adulterer” (Erskine “Markham v Fawcett 1802” 175).
To summarise the implications briefly, in this paradigm the defendant is characterised within a range of discourse which suggests the demon lover, who without civilised scruple invades the plaintiff’s home and with systematic temptations transforms the woman from chaste and devoted wife to someone forever lost to the morally decent world. Strategically constructing the defendant as the unscrupulous instigator permits the plaintiff’s counsel to concentrate on portraying the wife as being, up to that point, utterly blameless, then utterly lost. The economic raison-d’être of this action makes this rhetoric necessary for the husband. To win the highest damages, it is obviously best to deflect blame from attaching to the woman, suggesting instead that through her seduction, a character of remarkable (and quantifiable) value has been utterly lost.
Such rhetoric has little to do with the real story of the protagonists. It is difficult to judge the appropriateness of the hyperboles. These are only persuasive, representative tropes. For instance, the editor of a pamphlet summarising the court action of “Loveden v Barker” fluently reproduces the tenor of the discourse (Miltonic at fourth-hand): after claiming the wife was “for ever impregnable” to all the common “feeble assailants of conjugal fidelity”, the logic leads into the trope that this was the best of women beset by the worst of men:
such a woman could only be lost to her husband by the unrelenting and ever-vigilant ingratitude of an intimate friend, reposing unsuspected in the bosom of his family. The tainted and malignant breath of the “false worm” has blighted virtue’s most delicate blossom.
We will return to Mrs Loveden and her story later. Given the Paradise Lost narrative paradigm followed here, in the gap between this description and the fact that such a woman has transgressed one might hear the missing beat of Milton describing Eve as falling because she wanders away from the support of “her best prop” (IX.433). The husband in almost every case is indeed standardised as “a pattern of conjugal and parental affection” (Erskine “Markham v Fawcett” 175), “too generous and noble” to suspect (Erskine “Boddington v Boddington” 9).
The actual or potential results of the corrupting seduction by the defendant are, of course, projected in as extreme terms as possible. Technically, the original action seeks to compensate a particular kind of damage which is in part emotional and in part economic: the lover’s intrusion into the family integrity introduces the possibility (not certainty) that property might be inherited by a “spurious” heir. The negative social reaction to uncertain paternity might conceivably compound both economic and emotional damage.
The thing to notice here is that this is not simply one family’s loss, since the rhetoric brings in the threat of repercussions for the whole of society in an epic cycle of destruction. It draws the jury together to defend the institution of marriage itself, not merely to judge compensation for one husband. The jury must consider “whether such a case can be indulgently considered without tearing asunder the bonds which unite society together” (Erskine “Markham v Fawcett” 186).
Erskine suggests that the “desire which is natural to a man” might cause chaos, hence society needs to defend its boundaries by “that sense of propriety and dishonour, which the law has raised up, and impressed almost with the force of a second nature.” This is taking the jury through the insight that it is not what law does directly, but what it “raises up” that creates social mores. In the context of this action, it is the discursive model and not the law itself which is doing most work to defend boundaries. The proof of its cultural acceptance can be found in an Edinburgh Review essay of 1815 which expresses the view that it would not be possible “to find in the whole compass of Lord Erskine’s orations, one single instance of the business in hand, the great work of convincing or persuading, sacrificed to imagery or mere declamation, that is sentence-making, and speaking for speaking-sake […]” (“Irish Oratory” XXV. L 397-8).
It was of some significance that eighteenth century English trials represented marriage as a public institution so eloquently, since, increasingly throughout the century, there was a particular tension between the public institution and the case for marriage as private contract.
Psychoanalyst and professor of law Pierre Legendre has suggested that “the power of institutions is a product of their use of images […] to train the subject aesthetically. It was for this reason that the classical tradition marked out a pre-theoretical space and time of rhetoric, a time which is well reflected in a maxim such as “Nothing is more beautiful than order” (Law and the Unconscious 17). This is extended by theorist Peter Goodrich as “the first lesson of the aesthetics of law is that to capture the subject for the institution involves a delicate and complicated play of attraction and threat, and needs to be understood in the psychoanalytic terms of desire. Aesthetics teaches us that the institution of the subject requires the inscription of an image of the social as an object of love” (Legendre 17). The embedding of Miltonic images in these trials acts as such an “imagistic form” of authority. The politics of the moral rhetoric works to establish the desirability of an indissoluble marriage based on an essentialist submission of the female. The institutional marriage is better for public order, and in such speeches Erskine makes the subject love and desire that order in preference to the freedom of the contract.
To clarify what such rhetoric is combating and to what it is pandering, it is necessary to consider how marital law developed in Europe throughout the eighteenth-century, and how it was poised in England. Natural law theories were developing throughout the century in Europe, and in these, the legal and political order depends on the justice of the contract. We can render this from the familiar Hobbesian version: the first natural law is “to seek peace, and to follow it;” the second is “that a man be willing, when others are so too […] to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself;” this “mutual transferring of right, is that which men call contract” and “in this law of nature, consisteth the Fountain and original of justice […] the definition of injustice is no other than the not performance of covenant” (Thomas Hobbes Leviathan 190-192, 202). Ursula Vogel points out that the line of reasoning led towards the idea that the indissoluble marriage, for women as well as men, was an infringement of natural law: even the restriction of justified divorce to grounds of desertion and adultery was illogical. The resulting emphasis was on the voluntary consent of the individuals, at the expense of traditional emphases on the sacramental aspect or the institutional context.
In the language of the revolutionary legislation, finally, the contract became so closely associated with the postulate of individual freedom that the resistance to divorce could be portrayed as implying nothing less than the loss of the most sacred rights of liberty (Vogel “Private Contract and Public Institution: The Peculiar Case of Marriage” 185). The development of the consensual divorce followed. In natural law’s contractual discourse, marriage derives from agreement between two equal agents. Where the functioning of the patriarchal family and the identifiable paternity of children to inherit is the social priority, it shapes the contract towards the male constraint over the female body and behaviour. However, in contractual discourse it is considered to be only a consensual, and thus withdrawable, submission on the part of the woman. Vogel goes on to argue that natural law can not be made to justify “the suggestion that female subjection is essentially, or invariably entailed in the individualist premises of the modern contract.” She cites for instance, Pufendorf’s concession that other kinds of marital contract, not containing a term necessitating female submission, would be “legitimate if properly contracted;” natural law theory held that social convention could not in any case “override or obliterate the contractual test of justice which demanded recourse to the original equality of individuals and their voluntary agreements” (Vogel 186). The main point for my purposes here is that natural law’s contractual reasoning clearly threatened patriarchy. Hence the Napoleonic Code of the post-revolutionary period identified the disintegration of the family as the source of disorder and consequently sought to reinstate the “institution” of marriage to counteract revolutionary individualist and contractualist principles. My argument would be that we can see this reactionary stage occurring in practice much earlier in English law: by manipulation of this apparently private tort action, English courts were able to etiolate the evolutionary development of marital law and fend off the European enlightenment’s innovations.
As I have said, the format of the criminal conversation case traditionally subsumed any individualist perspective which the transgressive wife might have had, as a matter of technical process. I would suggest that the high-profile orations which were then able to frame the wife at this crucial historical point were not only a sensitive indicator of the desire to protect patriarchy and its gender hierarchy, but moreover were also an effective instrument to help conserve it: they were very persuasive to juries.
As Stone points out, the increase in crim con actions after 1770 “was to some extent the secondary by-product of a concurrent rise in parliamentary divorces. Success in obtaining a bill for a parliamentary divorce was increasingly dependent on both a previous sentence of separation in an ecclesiastical court, and a previous award of substantial damages by a jury in a crim con action at common law” (Stone 260). There was a paradoxical symbiosis between the private desire of the male elite and general public policy, since the legal action which facilitated the severance of marriage for an individual husband did so in terms which opportunely rhetorically bolstered the state’s preference for institutional marriage. Divorce was not to be seen in terms of the withdrawal of consent by contracting parties, and there were several attempts to prevent women who had transgressed from benefiting from a divorce by remarrying. In conclusion, this is one of the consequences of the aesthetic required to net the highest damages, which is the pseudo-criminalising of the interloper male defendant, and the encasing of the wife in a gender position constructed from essentialist views of dependency and submission.
III. Private and Public Resistance, Effective Dissent
Now, to turn to women’s writing: as I have said, the wife’s being without a defence in court seems an instance of the kind of suppression which is figured in the literary “gothic” genre. The women concerned may not be entirely silent regarding their version of the story – there may be other media, other places, where it was communicated. In this section of this essay, I will consider two examples of writing which challenges in various ways, sometimes conflicted, indirect or ironic, the “pastness in the present” which is this action (Mighall xvi). It also challenges the consensus that the institution promoted within it is the desired legal order.
Private letters might throw light on the perspective of the wife in the case. The title-page of the pamphlet which contains the “Loveden v Barker” trial announces that it also contains “the intercepted correspondence between Mrs Loveden and Mr Barker”. In these letters, the reader can see the wife trying to transgress against the received idea that the contract is absolute, enclosing all her space and time (British Trials, 1600-1900 945). I am concerned here only with the structure of the statements, and not with a “thick” analysis of culpability and melodramatic facts: though these too can be gathered from the trial pamphlet. The content of the letters is concerned on a very prosaic, informative level with the problem of manoeuvring within constraints. She describes to her lover the lack of opportunity for a moment’s converse anywhere during the day, since every area of parkland seems occupied by workmen felling trees, and “the shrubbery from Chamberlain’s to Dyke’s is undergoing complete rummage;” she has even checked the possibility of there being some vacant building or barn in which to meet, but “nowhere do I see it possible to obtain an asylum even for a few minutes;” finally, in extremity, she suggests that letting her lover in through her window at night is the best solution (Loveden 216-217). One might surmise from this plan that the marital contract which should fill this space is actually leaving it empty. Thinking of time, she expresses distaste at an approaching wedding anniversary, signifying consciousness of years indissolubly tied up (Loveden 216), and signs herself out of the letter by superimposing over the marital vow, a pseudo-vow: “may our attachment be co-eternal, may our esteem continue as fervent through our lives as at present it so abundantly promises, and may we affectionately live and die adoring each other” (Loveden 218).
In the same parallel contractual spirit, on her body’s own terms Anne Loveden expresses a kind of standing offer: there is an enclosure in this letter which explicitly advises him of her menstrual cycle, and promises that she will “for greater security, regularly mark, as you direct, the period of its appearance, from whence you can always compute without difficulty.”
This letter is conceived as a private commitment, almost too private to be expressed in words:
Now love, you cannot but consider me MOST INDULGENT; I flatter myself too MOST EXPLICIT: but I am so much ASHAMED of what I have said, that I shall instantly seal it up, and expect that you as readily and immediately commit it to the flames. [ …]
I have written on the thinnest paper I could find, that I might not be too weighty altogether.Loveden 218-219
She is no doubt speaking literally about postage costs, but the phrase serendipitously suggests the attempt to avoid the risk of there being consequences. She wishes her private communication to leave no trace in the public space. In fact it leaves a very permanent trace. Though her letters were said to be too “shamefully gross and indelicate” to be read in court as evidence to incriminate the defendant, the opportunistic publisher prints the full text of this letter in this cheap pamphlet. Publication is justified by a claim that there is a public duty to draw attention to transgression of sexual boundaries akin to the need to point out “the dark assassin and the midnight robber” (xvi). “Daily experience evinces that, in all the well-ordered families, which constitute the ornaments of social life, there is a domestic, a censorial tribunal, which passes judgment, and executes it by a prudent vigilance over the culprit and his motions” (xiv). This extra-legal “censorial tribunal” is clearly the rhetorical counterpart of Erskine’s account of the “wise institutions of all civilised nations” raising up a “sense of propriety and dishonour” as guard against the passions. The publication of her inadvertent self-incrimination is required in order to expose the defendant.
The intercepted letters, which never reached their real addressee, are misdelivered in being thus exhibited as public documents. Though they interestingly reveal the wife’s silenced perspective, it is to eavesdroppers and in subversion of her intentions. How might they be displaced defences, if they then attract mainly vilification? Lacan suggests that every letter misdelivered actually reaches its proper destination (Žižek 3). Žižek interprets the idea in this way: “its true addressee is namely not the empirical other who may receive it or not, but the big Other, the symbolic order itself, which receives it the moment that the letter is put into circulation, i.e., the moment that the sender “externalises” his message, delivers it to the Other, the moment that the Other takes cognizance of the letter and thus disburdens the sender of responsibility for it” (supra n. 10 xxxiii). We might say that what is displaced into this medium is not of course the law’s requirement of evidence and defence of innocence, but an assertion of her capacity, her competency. That is, such letters present someone other than the femme covert of the trial, who would on the one hand lack legal personality and capacity, and on the other be a passive subject of the corrupting power of the defendant. Instead, the letter shows the writer as agent actively constructing an alternative contractual space distinct from the institutionalised space, resisting the concept that her time and presence, her consortium, has been absolutely conveyed as the subject of a permanent, indissoluble contract. Bringing in Hobbes and natural law again, we could see this as the writer enacting in her own case the superiority of the first law “to seek peace and follow it”, over the second law, “the mutual transferring of right” “which men call contract.” In other words, if the contract is contrary to personal peace, there is a natural right not to be tied by it. By simply writing it, she enacts it for herself, but publication forces the symbolic order to “take cognizance of it.” Peter Goodrich analyses the role of the love-letter in a study of the fantastical jurisdiction of the seventeenth-century French “Courts of Love” and moves to arguing that, linked as it is to the form of the early legal writ, the love-letter can be law “in an alternative public sphere.” This letter perhaps corresponds to what he might term the “strongest form” of that idea; since, when the publishers drag the letter into the normative public sphere alongside the law, in order to make it reveal only transgression, it instead reveals an alternative basis for law (Goodrich “Epistolary Justice” 261).
Mary Wollstonecraft in her novel Maria imagines a woman’s letter making another kind of illicit infiltration of the public sphere, this time deliberately. This novel of 1798 attempts deliberate advocacy against the criminal conversation action and against the whole ethos of marriage of which it was a constituent, and a constitutive, part. Broadly, it is generically a gothic fiction. The plot uses many motifs conventionally associated with provoking an experience of horror on a vicarious aesthetic level, as in the works of gothic authors from Horace Walpole to Matthew Lewis. We see a husband inflicting on his wife a series of exploitative, dehumanising and illiberal procedures, under which she suffers coerced sexual relations, appropriation of her money, desertion, flight and pursuit, abduction of her child, incarceration in a private asylum, and finally the trial in which her already estranged husband seeks to exercise his rights over her against her lover. But this is not a simple work of imaginative romance literature, since it is intended to express in fictional form a political analysis of real law and gender relations, subtitled The Wrongs of Women. The startling fact that underlies the plot is that the husband’s gothically repressive and coercive acts are not illegal transgressions flouting the law, but are rather enabled by law, by the superintendence that the patriarchal law grants the husband over his wife and children; these abuses are not an individual’s isolated wrongdoing but a victimisation institutionally permitted by what the narrator calls “the partial laws enacted by man” (Wollstonecraft 115). The writer must avoid creating a suspicion in the reader that this is a feverish account by an unreliable narrator, so there is a crucial, rational male endorsement from the narrator’s enlightened uncle. By exposing abuses that were actually possible within the law, the novel subjects the current constitution of institutional marriage to a full and principled forensic challenge.
Maria, on principle avowing that she is now with her lover openly (and is not a femme covert in its other pejorative sense, which Mrs Loveden obviously was), is subjected to a criminal conversation action. It is worth initially stressing that there is evidence both in the language of the novel and in the particular details Wollstonecraft selects, that she sees the action not as merely the final indignity in the spiral of humiliations, but that she is emplotting it as the epitome and concentrated expression of the ethos of marital law at that historical moment.
The active agency which Wollstonecraft deliberately assigns to Maria should be noticed: “The being summoned to defend herself from a charge which she was determined to plead guilty to, was still galling, as it roused bitter reflections on the situation of women in society” (141); Maria seizes the proactive role, as when she “took the task of conducting Darnford’s defence upon herself. She instructed his counsel to plead guilty to the charge of adultery; but to deny that of seduction.” She wishes to affirm that she was a desiring, willing participant and not the unfortunate, misled subject of a philanderer’s wiles, which, as I earlier demonstrated, was the conventional presentation of the crim con wife. She does not avoid the court. In line with her principles she “eagerly put herself forward, instead of desiring to be absent on this memorable occasion” (Wollstonecraft 142). In particular, she writes a letter to the court, in which she states her own version of the alleged events and her own sense of marriage. As we have seen, the woman in such cases is in fact wholly silenced and excluded. Hence, as Elaine Jordan has commented, the idea of “a woman able to speak judiciously and in public” is “the most fantastic element of the text.” “A letter such as Maria writes might have remained unopened to this day, or been passed to the prosecution to make what they would of it” (Jordan “Criminal Conversation: Mary Wollstonecraft’s ‘The Wrongs of Women’” 224). Perhaps readers would have to suspend disbelief entirely to accept that a letter with such testimony as Maria’s could be admitted in the very place where the legal process deliberately censors the wife’s perspective and perpetuates all the things to which this letter objects. As the defence counsel in one case put it, “I must not read [the wife’s letters,] for the policy of the English law has said, that what a wife says concerning a husband shall not be evidence” (“Hayes v Carter” Eighteenth-Century Short Title Catalogue reel 9967, 41). Material with direct relevance to the husband cannot be read out in court.
However, without suspending disbelief, there is a way to envisage some public dissemination of the contents of such a letter, since at least one publisher, with the avowed objective of informing society against what it should be prudently vigilant, would publish the letter of a crim con “victim”, regardless of its precise content except that it should be incriminating; any love-letter might have contained such subversive ideas – indeed Anne Loveden’s did, though in practical rather than theoretical terms. It is then only a short stretch of the imagination for a woman’s letter to play some active role in the overspill of the proceedings. In such a context, the cultural priority is obviously the perspective of the “censorial tribunal” on the woman (in the phrase from the editorial of the “Loveden v Barker” pamphlet), rather than vice versa. However, the publication of the woman’s narrative is a species of Trojan horse: a woman like Maria lays herself open to condemnation in admitting all the charges, but at the same time avails herself of the chance to indict the indictor.
It does not greatly matter whether the device is fanciful or not, unless one believes that the introduction of a fantasy-procedure undermines the authority of the rest of the legal analysis in this novelised treatment – though in any case, the very process of novelising the wrongs against women as an aggregate story has already unbalanced the relation between what it is possible for an unscrupulous man to effect within the law and what is generally probable. What the letter device enables is the introduction of a stowaway from another genre, passionate and well-honed political polemic, which then takes advantage of the novel’s wide readership, its “proper destination” (Žižek 10). However, it would be interesting to connect Wollstonecraft’s invention of deliberate intervention with a sense that women whose written transgressions were forcefully “outed” were inadvertently enabled to have their say.
In whatever arena, Wollstonecraft’s own fantasy of intervention in court, or the cultural historian’s beyond-the-text interpretive fantasy of subversion by scandal sheet – as Žižek says, the Lacanian concept of a letter always reaching its destination also “lays bare the very mechanism of teleological illusion” – the author envisages infiltrating the public sphere and using the letter as if it were indeed authoritative legal communication (Žižek 10). As a “legal” communication it is generically hybrid – is it advocacy, or supplication, or self-defence? Or is it a pseudo-indictment? More deliberately than, for instance, Mrs Loveden in her letters, Maria makes a public figure of herself by becoming a scandal. With a public letter about love rather than a private “love-letter”, she attempts to challenge analytically the institution’s version of the contract. This recalls Goodrich’s generic point that the letter form is at the root of the writ and the textual authority of law.
In the letter, it is not only the facts of her particular private case, and this particular civil action that Maria is made to question, since she implicitly mounts a broad attack on the ideological basis of English marriage law, from an enlightenment perspective: Wollstonecraft’s assessment is, point by point, clearly influenced by the French revolution’s legislative reforms, from within that natural law contractual perspective which I outlined earlier; it identifies the problem as the ideologically-important essentialist role for women, which we have seen in the iconology of the crim con rhetoric. Just one example suffices here: she signals her hope for the end of a coercive essentialism when she exclaims that it is “a false morality” “which makes all the virtue of women consist in chastity, submission and the forgiveness of injuries” (Wollstonecraft 143); though she has unfortunately already consented to a contract which binds her to such demeaning terms, her language and style clearly reveal a faith that a radical, alternative model is only a rational debate away. This marks the character Maria’s confident faith in the chance of reform happening in the historical present of the novel; that confidence is there in her qualifying phrase, “With proper restrictions however, I revere the institution which fraternises the world” (Wollstonecraft 143; my italics).
Unfortunately, Wollstonecraft can not endorse her optimism: she writes a pastiche of a judge’s address to the jury which deflates Maria’s individualist, natural law idealism from the standpoint of the fixed, institutional, essentialist discourse, re-affirming as normative the “false morality” which Maria has attempted to undermine.He says,
If women were allowed to plead their feelings, as an excuse or palliation of infidelity, it was opening a flood-gate for immorality. What virtuous woman thought of her feelings? – It was her duty to love and obey the man chosen by her parents and relations, who were qualified by their experience to judge better for her than she could for herself.Wollstonecraft 145
Wollstonecraft makes him say this explicitly in the teeth of what he calls French “innovations”: “We did not want French principles in public or in private life.” With disappointment characteristic of the literary gothic, even the fantasy of speaking out is silenced. To employ Mrs Loveden’s serendipitous image, we might say that Wollstonecraft is aware that in writing such uncompromising discourse she is attempting to be too weighty altogether, and will be made light of.
It is worth concluding with the fact that in 1839 Caroline Norton, writing about the silenced wife and mother in a letter about love and order, realised the generic legislative potential of the persuasive letter; though not writing “as” that woman, since she conceals her identity behind a male pseudonym. She had been the silent woman in the middle of two adversaries in 1836, when her husband brought an unsuccessful crim con suit against her friend Lord Melbourne.
Her particular object is to argue for the passage of a bill currently in parliament which was attempting to give to mothers some rights to the custody of children in cases of marital separation. The bill had recently been narrowly dismissed by the House of Lords, as “sacrilege and folly”, and her own involvement with it had been one of the means which conservatives had used to defeat it (Norton 5). The attempt to change the law had been damaged by a tale that she had instigated the bill to enable an appeal in her own case “because circumstances have induced her husband to withhold her children;” an “impudent attempt” to “sentimentalise” parliament “into voting for such a law, only to serve the private ends of a woman who probably deserves all she suffers” (Norton 75).
However, her public “Plain Letter to the Lord Chancellor”, as well as defending that bill, at the same time takes the opportunity of this public medium to deconstruct eloquently the crim con trial’s destruction of the woman’s identity. She gives a brisk, wry contemptuous account of the absurdity of the crim con action. Pointing out the opportunism and “got up” nature of the accusations against her, but also the way that the form of the action enables such a “got up” story to go unchallenged. Any friend could have described the facts of the circumstances and the relationship: “this might have been the defence of the woman, but the woman could make no defence […] the woman’s character is left to take its chance.”
While the advocate engaged by her husband is employing all the ingenuity of rhetoric against her; assuming her guilt, and working upon the feelings of the jury by a description of the husband’s distress […], she is condemned to remain perfectly neuter; […] dependant for the opinion which may be formed of her conduct, on the few scattered circumstances in her favour which may belong to the argument on the opposite side and of which the advocate of her husband’s adversary makes just so much use as may serve his client […].Norton 6-7
Of course, the injustice beyond the courtroom is the inequity that the defendant may be acquitted by the verdict of the jury, but somehow, the woman is not.
Having been used as a means to destroy an attempt to change family law for the better, she feels she has no choice but to bring the intimate details of her private experience into the public arena. However, targeting the action, not anecdotally, but in general abstraction, she manages to defend others as well as herself in a way that stays in the public memory and has legislative power because it contributes to later reform, which is the epitome of the silenced woman’s resistance to being “excluded” and “condemned to remain perfectly neuter.”
It was abolished by the Divorce Reform Act, 1857; see Stone 290.
Laura Hanft Korobkin gives an account in Criminal Conversation, Sentimentality and Nineteenth Century Stories of Adultery 29.
See section 4 in Schramm (66).
For the argument that this had always been inherent in the language of the seduction writ from its first uses in the fourteenth century, which survived to colour the civil trial, see Marie Hockenhull Smith, “Superego, Special Juries and A Split Law: Eighteenth-Century Adultery Trials Viewed Through Zizek’s Lens.” In 1779, Lord Mansfield acknowledged that “[a]n action for criminal conversation has a mixture of penal prosecution.” See “Birt v Barlow 1779,” in James Oldman, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 2, 1260. Stone attributes the rhetoric only to the particular moral vehemence of Erskine and Lord Kenyon.
See “Loveden v Barker 1809,” in “The Trial at Large of an Action Brought by Edward Loveden Loveden Esq, Against Thomas Barker Esq.” (Re-trial 1810) (British Trials 945).
For instance, there was no criminal law directly against adultery, though he was arguing in the House of Commons for there to be such a law.
For more detailed discussion of this and other consequences of the action, see Hockenhull Smith, “Superego, Special Juries and A Split Law”.
In 1770, ‘a bill to prohibit the marriage of a divorced woman to her lover passed in the Lords but failed in the Commons’. Similar attempts in 1779, 1800 and 1809 were responses to years in which divorces surged; see Trumbach 157-159.
See Hockenhull Smith, “‘The Children Will Be Subject to the Infamy of their Unfortunate and Deluded Mother:’ Rhetoric of the Courtroom, A Gothic Fantasy, and A Plain Letter to the Lord Chancellor,” for a discussion of the relation between remnants of a gothic, patriarchal law and the literary gothic.
Technically, it seems a hybrid action.
For discussion of this letter as an example of the political sublime, see Hockenhull Smith, “The Children Will be Subject to the Infamy”, supra note 9.
For the narrative of the case, see Chedzoy.
Stone credits her influence in both the passage of the Child Custody Act in 1839 (178), and the Divorce Reform Act in 1857 (373).
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- ———. “‘The Children Will Be Subject to the Infamy of their Unfortunate and Deluded Mother:’ Rhetoric of the Courtroom, A Gothic Fantasy, and A Plain Letter to the Lord Chancellor.” Law and Literature 18. 3 (Fall 2006): 403-430.
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