Riding the Black Ram: Law, Literature, and Gender 9780804773683

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RIDING THE BLACK RAM

T H E C U LT U R A L L I V E S O F L AW Edited by Austin Sarat

S U S A N S A G E H E I NZ ELM AN

Riding the Black Ram Law, Literature, and Gender

STANFORD LAW BOOKS An Imprint of Stanford University Press Stanford, California

Page xxvi illustration: “Steward’s Court of the Manor of Torre Devon.” Etching attributed to Theodore Lane (1800–1828). Published by G. Humprhey, London, 1820. The Elton M. Hyder, Jr. Collection, Accession 0982. On loan to The University of Texas School of Law, Jamail Center for Legal Research, Tarlton Law Library. Courtesy of Michale Horn, curator.

Stanford University Press Stanford, California © 2010 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Library of Congress Cataloging-in-Publication Data Heinzelman, Susan Sage. Riding the black ram : law, literature, and gender / Susan Sage Heinzelman. p. cm. — (The cultural lives of law) Includes bibliographical references and index. isbn 978-0-8047-5680-8 (cloth : alk. paper) 1. English fiction—History and criticism. 2. Law and literature— England—History. 3. Women and literature—England—History. 4. Women—Legal status, laws, etc.—England—History. 5. Law in literature. 6. Women in literature. I. Title. II. Series: Cultural lives of law. pr830.l39h45 2010 823.009'3554—dc22 2009035617 Typeset by Bruce Lundquist in 10/14.5 Minion

For Kurt, It’s all I have to bring today— This, and my heart beside— —Emily Dickinson, #24

Contents

Preface Acknowledgments



1 “Termes Queinte of Lawe” and Quaint Fantasies of Literature: Chaucer’s Man of Law and Wife of Bath

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1

2 Public Affairs and Juridical Intimacies: Seventeenth- and Eighteenth-Century French and English Women Novelists

24

3 Black Letters and Black Rams: Law, Gender, and the Novel in Early Eighteenth-Century England

47

4 How to Tell a Story That Might Prevent a Hanging: Mary Blandy, Parricide, 1752

72

5 Statues, Statutes, and Queens on Trial

92

Postscript Notes Bibliography Index

115 121 147 161

Preface

At a crucial moment in late seventeenth- and early eighteenth-century England, two discursive realms, each claiming to represent what was real and true, underwent significant change. No longer regarded jurisdictionally and aesthetically as intimately related, law and literature (specifically, the novel), appeared to part company and assume separate disciplinary formations with fixed boundaries. By the mid-eighteenth century, one consequence of this distinction between legal and novelistic discourse was the articulation of territorial claims about what was true: law staked its claim in epistemology (fact as a kind of truth), the novel in ­ethics (character as a kind of truth). Moreover, each discourse granted the other the privilege of a monopoly, what I term a “gentlemen’s agreement,” in articulating those claims. I use this term deliberately to draw attention to the gendered quality of this arrangement, under which a certain kind of judicial and literary subject, appropriate to advance a Protestant, proto-capitalist economy, appeared. The historical timing of this emerging distinction between legal discourse and novelistic discourse coincided with the gradual marginalization of women writers in the literary marketplace—a marginalization achieved in part by linking their public texts with their licentious and secretive private characters. Thus the moral and ethical claims made by the genre were reinforced by their apparently natural embodiment in the personal character of the novelist. When women writers as active agents were forced out of a rapidly expanding and profitable profession, they were replaced by authors like Henry Fielding and Samuel Richardson, whose claims for the moral value of the novel preemptively marked women’s productions as dangerous or irrelevant. Moreover, the aesthetic preference for what would be retroactively termed “realism” in the English novel only emphasized the

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inadequacy, both morally and aesthetically, of women-authored romance histories and amorous narratives. Thus what appeared to be an aesthetic preference for one kind of narrative over an earlier version was, in part, the result of a set of gendered preferences articulated through specific generic representations. While the English novel gradually became associated with a certain way of representing reality, so, too, did legal discourse appear to consolidate and then override its relationship to theological forms of proof and logic, apparently banishing other and earlier ways of representing the subject’s structural and individual relationship to the law. As professing the law gradually became restricted through the eighteenth century to an all-male elite, the law itself became more codified and centralized, marginalizing the rural practice of customary law as well as the more informal and familiar relationships among judge, jury, plaintiff, and defendant. That sense of a shared and local understanding of the law was in part replaced by the numerous legal texts, treatises, and summaries that were published in the seventeenth and eighteenth centuries for the benefit of a literate and upper-class (and mostly male) citizenry. I offer this critical moment in the history of the novel and the history of the common law as one (and not the only) instance of how gender infuses different discourses and helps define their status. This book addresses the affiliation between law and literature through the lens of gender to reveal hitherto unacknowledged blind spots in our contemporary account of their relationship. To begin: the claim that literature is extralegal and that law is extraliterary is not, and has never been, true. Despite the vigorous policing of boundaries between the two discourses, each absorbs and rewrites rhetorical strategies and symbolic structures of the other, an argument now generally accepted in the field of law and literature studies. My argument will show how the struggle to set up distinctions that would hold the law apart from (and more powerful than) literature has consistently been conducted through and on the body of the woman. In this discursive contest, the woman’s body is paradoxically represented both as the embodiment of uncontrollable sexuality and as the pure and idealized virgin. These conflicting notions of womanhood justify the necessity of gendered legal restraints and restricted literary representations.1 Laws are thus written to limit the damage done by women’s inability to constrain their bodies and so that men’s property can be properly transferred from one generation to the next. Similarly, certain literary genres associated with neoclassical aesthetic and political forms were off-limits to women authors, who were constrained to popular genres or



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apparently unrealistic forms of representation, like scandalous tales of love or the romance. I am suggesting that these limits are neither accidental nor coincidental but the result of historically specific conditions under which law and literature collude, a collusion that is obscured by those very gender constructions that it produces. This book undertakes a comparative, historical analysis of these moments, focusing on both the occasions when the collusion renders women powerless as well as those when women are empowered by the generic confusion of legal and literary forms. One might think that no genre could be further from law than romance, in part because of romance’s seemingly natural relationship to women and the feminine. Romance narratives from the twelfth century through to the twenty-first invoke a world of enchantment and magical transformation that stand, apparently, in opposition to the intellectual rigor and empirical bias of legal narrative. And yet, as Fredric Jameson and others have argued, romance reflects and produces political and social consciousness, and its contours embrace both the real and the unreal, both the public and the private. Romance, then, engages directly with questions of gender representation.2 I distinguish between two ways of approaching these gendered social and political representations—one articulated by the term nomos, as employed in Robert M. Cover’s 1983 essay, “Foreword: Nomos and Narrative,” and the other, a necessary supplement to nomos, that I term nostos. In his now-canonical text, Cover asserts that “We inhabit a nomos—a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.” The legal world may narrow that normative world to formal legal procedures, the principles of justice, and the “conventions of a social order” but, Cover insists, “the formal institutions of law” are “but a small part of the normative universe.”3 Constituted not just by legal rules, nomos comes into being through narrative. Indeed, Cover contends that law’s narrative is itself structured by “alternative contending narratives and contending nomoi.”4 Cover’s etymological derivation of nomos comes from the translation in the Greek Septuagint of the Hebrew word “Torah” (the Law). Nomos also reflects, however, its original Greek meaning of sorting, or ordering, as in taxonomy, as well as the allotment of property, as in a pasture or district, the space temporarily occupied by nomads within which they lived according to those particular laws and social conventions that marked them off from other nomadic or settled communities. Thus the term implies a sense of a bounded universe, a regulated society, or a set of institutions and the disciplinary narratives by which those institutions secure their place in the

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social consciousness. These narratives do not merely articulate the laws, regulations, and mores of a particular social group; as Cover suggests, the myths formally constitute the very meaning of those laws and regulations. Together, law and narrative make meaning and thereby produce a version of history. For Cover, nomos refers “to the corpus of all related normative material and to the teaching and learning of those primary and secondary sources. In this fully extended sense, the term embraces life itself, or at least the normative dimension of it.”5 Under this definition, nomos cannot be reduced to a catalogue of laws but includes a broader sense of equity upon which a community generally agrees. Nomos, then, has the flexibility that norms do, and recognizes that strict obedience to the law sometimes results in a failure of justice. Cover’s nomos might be said to accommodate what Aristotle calls the “Lesbian law,” a term that describes those instances when the law should defer to a higher principle of equity, which Aristotle defines as a correction of law where it is defective owing to its universality. In fact this is the reason why all things are not determined by law, that about some things it is impossible to lay down a law, so that a decree is needed. For when the thing is indefinite the rule also is indefinite, like the leaden rule used in making the Lesbian moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts.6

Despite the flexibility that results from his inclusion of the principle of equity, Cover’s normative dimension, Marie Ashe argues, excludes “women’s experiences of law, narrative, and religion” through “its elaboration and privileging of male kinship relationships” and by narrating a universe that is “uncritically male­dominated.”7 It seems, then, that even Cover’s “fully extended sense” of nomos is itself in need of supplement, or more specifically, in need of a term that acknowledges the gendered nature of nomos. For this I offer nostos. Like nomos, nostos describes a universe of meaning, one produced by narratives that define a community and its constitutive myths; nostos, however, specifically articulates the gendered nature of nomos. Nostos, in the sense of nostalgia, has traditionally been associated with Odysseus and his homesickness. In turning to The Odyssey, however, I wish to emphasize not Odysseus’s nostalgia—his longing to return to Ithaca, to his homeland, to Penelope—but rather Penelope’s narrative, her construction of a nostos of her own, of a gendered universe of desire and community. In making this distinction, I am not asserting that nostalgia is gendered male while nostos is embodied in and identified with women; rather I am suggest-



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ing that nostalgia conventionally understood aligns itself with and articulates the narratives of a normative universe (a nomos), while the narratives of nostos actively rework and thereby disclose the operations of gender in that normative world. ­Odysseus’s nostalgia is produced by and reinforces a universe rife with war, heroism, and the exchange of women, and his longing is expressed as a desire to return to a particular, individualized version of that universe, embodied in the body of his wife, Penelope. (Even when in the arms of Calypso, whose beauty and wisdom he recognizes as far greater than Penelope’s, Odysseus’s nostalgia for Ithaca is repeatedly rehearsed in terms of his longing for his wife). But Penelope also has a story to tell: one that discloses the many ways in which not only men but women actively engage in negotiating and producing the gendered and hierarchical structures of power and knowledge. Penelope’s story recognizes her as equal to Odysseus in her cunning and management of the household: despite her fixity in the home, Penelope’s behavior metaphorically resembles Odysseus’s. Her wiliness in refusing to submit to the suitors, her refusal to be defined by the constraints of her gender, exhibit the same flexibility and ingenuity that defines her husband’s heroic behavior. That behavior does, however, mark her as unruly in respect to normative laws.8 Nevertheless, Penelope’s negotiations with power, produced by her desire to maintain the nomos for Odysseus, are vital to the security of the home and state, without which Odysseus has nothing to claim upon his return from Troy. Nostos, then, is not just a supplement to nomos but the necessary supplement; while nomos produces narratives of regulation as well as equity, nostos identifies and produces otherwise unarticulated and gendered narratives of desire. These narratives, like those juris­generative (world-creating) narratives that Cover claims constitute nomos, are endlessly generative, although not necessarily always liberatory for women.9 In his account of nomos, Cover argues that law “may be viewed as a system of tension . . . linking a concept of reality to an imagined alternative—that is, as a connective between two states of affairs.” Those two states might be termed reality and what Cover, quoting George Steiner, calls “alternity: the ‘other than the case.’”10 I would suggest that nostos is precisely that alternity: a world­—creating narrative parallel to nomos that is always on the verge of disrupting the narratives generated by nomos and that such disruption finds frequent expression through the bodies of women. In articulating the play of legal and literary discourses, my argument shuttles, like Penelope’s weaving, among strands of literary, legal, and historical narratives. I do not claim to present a seamless, historical account, although the

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chapters do for the most part move chronologically. There is, however, a consistent focus throughout the book on the strategic management of the figure of the unruly woman. That figure is sometimes an historical woman, sometimes a fictional character, but either way, one whose real or imagined excesses simultaneously provide the material for and yet inevitably call up the disciplining and disciplinary powers of both literary narrative and the law in specific, gendered ways. I have named this trope of excess and discipline “riding the black ram,” a metaphor for woman’s disruptive presence literalized in the nineteenth-century political cartoon featured on page xxvi depicting Queen Caroline’s entrance into the House of Lords. The trope recurs in various forms throughout my argument—for example, as Geoffrey Chaucer’s Wife of Bath riding flamboyantly to join the pilgrimage, as Paulina injecting herself vociferously into the sham trial of Hermione in William Shakespeare’s The Winter’s Tale, or as an example of quaint folk law in an early, eighteenth-century treatise on women’s legal status. The trope suggests both the naturalizing effect of this repeated set of images and narrative strategies and its inevitable sexualization.11 Moreover, in a conventionally nostalgic move, each version of the trope seems tied either explicitly or implicitly to the past, usually localized in some juridico-political institution, such as manorial customs, parliamentary privilege, or ancient laws that find their origins, as English common law does, in time immemorial. Thus the leitmotif functions to organize gendered and hierarchical social relationships, as well as to invest the disciplinary versions of those relationships with the illusion of a timeless, self-evident, natural gender hierarchy that deflects critical analysis of their history. Even though women’s legal status and their concomitant juris­prudential and literary depictions have undergone considerable change over the centuries, their representations remain strangely constant, as if they have been removed, to quote R. Howard Bloch, from the “world historical stage.”12 Many critics besides Bloch have noted the ancient mythical roots of gender stereotypes. Interdisciplinary studies, for instance, have generally acknowledged historical influences on the representation of women. Thus far, however, most critical analyses of law and literature have been restricted to the comparative study of specific legal or literary texts within a distinct historical period. This synchronic analysis must be supplemented with diachronic analysis if we wish to uncover the historical roots of certain gender, genre, and disciplinary stereotypes, as well as to critique the complicity among disciplines and their generic forms in promoting these gender hierarchies. As scholars such as Wai Chee Dimock have argued, we



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must analyze “the historical and historically shifting relations between law and literature” to reveal the gendered nature of their relationship, one that has contributed to the persistence of certain representations of women.13 This book’s return to history will link previously unrelated texts and contexts, thereby offering what one might call a critical nostos, a new way of reading the familiar which alters the paradigm that still dominates feminist critical theory. This theory represents women, and other groups feminized by their relationship to power, as constantly struggling for recognition from others with power, as if they themselves were not always already powerful. To promote this critical nostos, the present study asks three questions: (1) Why is it so difficult to rewrite the narrative of women’s unequal status? (2) What narrative and generic strategies have enforced the impression that women’s position vis-à-vis power and knowledge must repeatedly be reclaimed, restated, or reimagined? And (3) why do the powerful appear to be detached from the struggle to make meaning, from the contest to define the terms and structures of our lives, even though they are as caught in the contestation for meaning as the seemingly powerless? This shift in perspective requires that we drop the terms “powerful” and “powerless” as synonyms for male and female, for men and women, and replace them with ones that are historically specific and therefore both more precise and more nuanced. I begin the book with “‘Termes Queinte of Lawe’ and Quaint Fantasies of Literature: Chaucer’s Man of Law and Wife of Bath,” in which I juxtapose two Chaucerian tales to illustrate the historically specific and gendered nature of the relationship between law and literature, or to put it somewhat reductively, between narratives of nomos and of nostos. Claiming the authority of legal and religious texts to dispel the fantasies of romance and compel adherence to a juridico-religious sensibility, Chaucer’s Serjeant-at-Law offers a hagiographic narrative that focuses on the exilic journey of Constance, daughter of the Christian Emperor, whose beauty is used to convert the heathen to Christianity. The very opposite of those unruly women like the Wife, the dutiful and submissive Constance nevertheless produces the same responses when she engages with the non-Christian world: she incites the desire to discipline, exercised in this tale by the mothers of those sons Constance converts from Islam to Christianity. In his effort to control the representation of women’s desiring (fantastic) body, the Man of Law doubly displaces their sexual desire from the apparently non-desiring body of Constance on to the incestuously desiring bodies of her powerful mothers-in-law and then, through the power of fantasy that limns the Man of Law’s narrative, onto the genre of romance itself.

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In what I take to be a response to the Man of Law’s misogynist professional narrative and his attempt to replace (or at least control) fantasy with law, the Wife of Bath insists on her kind of authority that she names “experience.” In the prologue to her tale, the Wife simultaneously confirms the authority of texts and their interpretation (although her own readings are subversive) and also contests that same version of textual authority by offering her body, specifically her “queinte,” or her genitalia, as the foundational authoritative text, the sacred text of her nostos. In thus aligning the text of her body both with and against the textual body of religious and political authority, the Wife complicates the gendered distinction between the material and the nonmaterial, the body and the spirit. She suggests that what looks like authority is a certain kind of experience disguised as an official claim to truth, while experience, frequently dismissed as merely female knowledge, exposes the contingency of supposedly universal truths.14 In the “Wife of Bath’s Tale,” the gendered associations of authority and experience are arraigned within a court adjudicated by Queen Guinevere.15 Once again, the Wife complicates the gendered distinctions that accompany forms of knowledge and their generic forms both by politicizing the medieval romance genre and simultaneously reinvesting that genre with the magic of fantasy, now equated with the woman’s desiring body. The story of the knight’s penance for the rape of a young woman equates women’s experience with juridical authority. Read together, then, the “Man of Law’s Tale” and the “Wife of Bath’s Tale” suggest the complexities of two gendered narrative orders. Nostos, articulated through the Wife’s revision of the pastourelle and Arthurian romance, interrupts and supplements the nomos, the normative world of the Man of Law, articulated through the narratives of the law and Christian hagiography. At the same time as the Wife’s interruption reveals the necessity of nostos as a supplement to the normative, it also demonstrates its inevitable participation in the dominant discourse. The second chapter, “Public Affairs and Juridical Intimacies: Seventeenthand Eighteenth-Century French and English Women Novelists,” continues the juxtaposition of the romance genre with juridical narrative, focusing not on individual narrators but on the function of the genre itself as a participant in the struggle for access to politics. Employing Peter Goodrich’s insights into the history of the relationship between eros (which I argue informs nostos) and nomos, I suggest that there is a history of women’s writing and theorizing about the public sphere that has been lost in favor of a predominantly and nationalistically English and male version of the history of the novel.



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The chapter situates the early English novel, traditionally associated with Daniel Defoe., Richardson, and Fielding, in the context of seventeenth-century French women novelists, such as Anne de Montpensier, Marie-Madeleine de Lafayette, and Marie-Catherine de Villedieu collectively known as les précieuses. With texts such as Lafayette’s 1678 nouvelle historique, La Princesse de Clèves, these novelists destablilized the distinction between romance and history, both politicizing the romance as inevitably entwined with the public sphere and fictionalizing history as the product of and producing the intimate sphere of affective relations. Placing the early English novel authored by women in the context of these French novelists reveals a different narrative of the generic development of the novel from the still-dominant model of the novel’s formal development proposed by Ian Watt in The Rise of the Novel (1957). Watt’s history privileges male authors and an English origin and relies on the elevation of realistic fiction over the (French, female) romance narrative, analogizing the realism of the English novel to the evidentiary realism preferred in courts of law.16 To illustrate the limitations of this oppositional critical narrative, I situate Aphra Behn’s Oroonoko in the context of apparently exclusive distinctions—English versus French, realist versus romance, male versus female, public versus private—to indicate how unreliable such generic conditions are as predictors of aesthetic value. Variously catalogued as a romance, a travel narrative, and an antislave narrative, Oroonoko refuses to be accommodated neatly within the boundaries of distinct narrative genres, providing us with an opportunity to rethink how it folds the public and the private sphere into each other. In particular, the investment of Oroonoko’s private relationships with the violence of the public sphere politicizes the intimate, even as his wife Imoinda voluntary submits to death at his hands (to spare her public humiliation), thereby turning violence into an erotic act. In the context of colonial tyranny, Imoinda’s decision to die does not necessarily signify her powerlessness but the adoption of a different form of sovereignty than that embodied in the colonial representatives of the English state. In this interpenetration of the public and the private, the political and the intimate, nomos and nostos, Behn’s narrative resists those retroactively constructed generic and gendered distinctions that have marginalized women’s contribution to the history of the novel. The midpoint of the book, Chapter 3, “Black Letters and Black Rams: Law, Gender, and the Novel in Early Eighteenth-Century England,” probes more deeply into the marginalization of women in the official history of the novel, arguing that in the early eighteenth century, the discourses of law and the novel began to take

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on their modern disciplinary formations. Each discursive system sought to align itself with an exclusive, masculine, and professional network of social relationships, legal or literary, representing itself as a discrete and official symbolic system distinct from other culturally acknowledged discourses of authority. Despite their effort to separate themselves, however, they were inevitably linked by struggles over whose claim to truth was more valid. As law moved away from the informal and customary toward the formal and centralized, so, too, did the generic conventions associated with the novel tolerate less variety and consolidate around certain middle-class didactic principles. Despite appearances, however, texts such as the 1732 legal guide A Treatise of Feme Coverts; or, The Lady’s Law resist such classifications. Invoking the trope of the widow on the black ram confessing her sexual transgressions before a manorial court, the anonymous author of this treatise dismisses such legal events as premodern and irrelevant. His marginalization of such customary law is intended to reinforce the power of the centralized, official system; however, he achieves the opposite effect, demonstrating first, that the legal and the literary are mutually constitutive, and second, that the boundaries between the official and the unofficial are difficult to police. In both cases, despite the political necessity of enforcing such divisions and thereby insisting on natural gendered ideologies, we witness the confusion of generic and discursive forms. I offer as an example of this generic confusion Mary Delarivier Manley’s 1714 novel Rivella. Rather than classify Rivella as a pre-novel or judge it as a failed version of the real novel, I argue that Rivella reveals the complicated affiliation between legal and literary discourse and disturbs the apparently fixed generic characteristics that have retrospectively defined the novel. Rivella is a fictional autobiography that deftly employs the expectations of the romance tradition to claim legal authority for its author—not merely because she is the legal producer of the book, but because her literal and figurative movements between the various parties of a tangled lawsuit suggest the inevitable reliance of one narrative form upon the other. Moreover, the presence of the author/persona at both intimate and public negotiations of power and authority—in the bedroom, the salon, the courtroom, the Hall of Westminster—argues for a much more broadly conceived understanding of these two spheres of activity and their relationship to gender. In Chapter 4, “How to Tell a Story That Might Prevent a Hanging: Mary Blandy, Parricide, 1752,” what I have called a “gentleman’s agreement,” or the discursive complicity that produces a certain kind of literary and legal subject, is played out



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in the trial of Mary Blandy. The analysis reveals the gradual hardening of discursive boundaries whereby the novel leaves to the law the question of truth (the epistemological), and the law leaves to the novel the question of virtue (the moral). I explore three published accounts of the 1752 trial of Mary Blandy for the murder of her father: William Roughead’s The Trial of Mary Blandy (the trial narrative, published in Notable English Trials in 1914); Henry Fielding’s Examples of the Interposition of Providence in the Detection and Punishment of Murder (1752); and Mary Blandy’s Miss Blandy’s Own Account of the Affair Between Her and Mr. Cranstoun (1752).17 The story of Mary Blandy’s courtship by William Cranstoun, who supplied the poison that killed Mr. Blandy, was filled with the deceptions and infidelities to which women on the marriage market were subject, including a father who lied about her inheritance and was swayed by the aristocratic pretensions of Mary’s lover, and a suitor who lied about his marital status and continued his liaisons with other women after his engagement to Mary. The juxtaposition of the three narratives (paralegal, providential, and personal apologia) discloses the official investment in certain privileged narratives of authority and the still-powerful influence of the religious in the construction of the nomos. Those concerns are also shared by Fielding’s story of God’s intervention in securing Mary’s apprehension. Even Mary’s own narrative romanticizes the same set of ideological beliefs despite its insistence on her innocence. Although Mary’s narrative conforms to the ideological expectations of her audience, she nevertheless weakens her authority by speaking publicly, especially when that narrative is so closely identified with her body and its desires. Unable to speak her innocence (because the very need to speak proves her guilt), and relying on the association of the (now culturally debased) romance tradition with female sexuality, Mary undermines her claim to innocence by aligning herself with the fictional representations of the novel. Ironically, despite their insistence that divine intervention disclosed Mary’s crime, the prosecuting lawyers also rely on representational strategies associated with the novel. Without direct proof, the prosecutors argue that the chain of circumstances that leads to Mary’s knowing or unknowing participation in the death of her father takes on the force of fact. Anxiety about increasing competition for access to truth from sources other than the traditional juridico-religious texts thus provokes this alignment of the circumstantial narrative with judicial and religious authority. This alignment suggests that, despite the seeming opposition between these two discourses, narrative techniques specifically associated with the novel held considerable force in courts of law.

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The final chapter, “Statues, Statutes, and Queens on Trial,” argues for a historically contextualized and nuanced reading of literary and jurisprudential texts. Drawing on cultural representations of three queens—two real, one fictional— the chapter exemplifies the transformative methodology employed in this book, in which literary and legal narratives and their respective ideologies are contextualized historically in order to reveal the persistence of certain gendered and sexualized tropes that sustain gender inequities. Queen Caroline, Anne Boleyn, and Hermione from The Winter’s Tale are exemplary female figures whose politicized sexuality provokes the disciplinary consequences of law and women’s exclusion from the public sphere. And yet, simultaneously and paradoxically, invoking the law to exclude them necessarily brings about their entrance into the public sphere, thereby dismantling that gendered division between public and private at the instance of its creation. Such, I argue, is the effect of the political cartoon lampooning Queen Caroline and her Italian lover, published in 1820 during Caroline’s trial for treasonous adultery.18 The cartoon shows the queen, supported by the cheering mob, riding a black ram with the face of her lover into the House of Lords. Inevitably linked to these ideological distinctions between gendered spheres of influence are the legal hierarchies and structures that appear to enforce them: thus the official, codified, and centralized statutebased system struggles against local folk law’s more flexible system of authority. In the rest of Chapter 5, I trace this struggle between the two forms of law’s authority and their relationship to concepts of sovereignty and subjection as those ideological conflicts are exemplified in the female body. In Shakespeare’s Henry VIII and The Winter’s Tale, the just exercise of sovereignty by the king—Henry VIII or Leontes—is analogized to the just exercise of power and respect in marriage. In both plays, the queens on trial—Katherine of Aragon and Hermione—challenge their husbands to act justly in their marriages but also to enact that justice as part of their proper relationship to their subjects. As such, the queens stand in for the most public of beings—the polis itself; moreover, in giving birth to the next sovereign, the queen also symbolically gives birth to the nation itself. It is her reproductive body therefore that unites the king with his subjects and makes the exercise of his power possible. The Winter’s Tale explores, in its very form, the necessary hybridity of political, social, and legal systems. The formal dissonances of this play—it is neither romance, nor tragedy, nor comedy—resemble those discussed in Behn’s Oroonoko (Chapter 2) and Delarivier’s Rivella (Chapter 3), and embody the tense yet mutu-



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ally enabling construction of gendered ideological spheres by which the political, the social, and the legal come into being. As modeled by the three women in the play—Hermione, Perdita, and Paulina—different forms of power are represented as different forms of desire that infuse the spheres of influence normally aligned with men. Confronting tyranny in both its familial and political forms, these three women invest the rigor of law and sovereignty with mutability and justice, an investment made visible when Paulina enlivens the statue of Hermione, presumed dead for sixteen years. Hermione’s (putative) transformation from stone to human flesh celebrates the inherent instability of all human law, an instability that prevents its ossification into dead law and also guarantees the constant reimagining of the historical relationships between law and literature and their generic boundaries. It is precisely this reimagining that I explore in this book, that is repeatedly embodied in the figure of the woman, and that makes justice possible. To speak of reimagining is to invoke once again the concept of nostos as a gendered revision of the normative. But nostos also implies homesickness, a longing to return to a once-loved place, a home. These contradictory impulses—both a looking forward and a looking back—are captured in the Freudian term unheimlich, or the uncanny. According to Freud, the uncanny, the unfamiliar, was once homelike and familiar. The prefix “un-” is the sign of repression.19 As this book will argue, what is and continues to be uncanny is the suppression of the gendered narrative, despite the ever-present and strangely familiar nature of the woman’s body.

Acknowledgments

A book this long in the making accrues many debts, some of which cannot be adequately acknowledged merely with thanks. For those who have supported me through this project giving me advice when asked, encouragement when needed, and who have had the wisdom to remain silent when speaking would not help, I am deeply grateful. In particular, I would like to thank Janis Bergman-Carton and Evan Carton, whose unwavering support and friendship enriches my life in inestimable ways and who have come to my aid more often than I would like to remember. I would also like to thank Lisa Moore, whose encouragement and tough love have always been there whenever I have asked, and Mia Carter and Ann Cvetokovich: one could not hope to do better in having such passionate scholars, teachers, activists, and friends as colleagues. More recently, I have benefitted from the staunch friendship and enthusiastic support of Janine Barchas, who has many times reminded me of the privilege of doing what one enjoys for a living! To my many colleagues in the Department of English at The University of Texas, I express gratitude, especially to those who have read and commented on portions of the manuscript: Doug Bruster, for his wisdom on Chapter 5; Liz Scala, who read and commented on Chapter 1; Phil Barrish, who read a very early version of Chapter 1 and made me go on working; Lance Bertelsen, for his personal and intellectual support over the many years of our friendship; and Liz Cullingford, for her friendship, encouragement, and unfailing sense of wicked humor. I have also benefitted from the kindness and support of many at The University of Texas School of Law, especially Dick and Inga Markovits and Sandy Levinson. Many thanks to Mike Horn, curator of the law school’s Hyder collection, who graciously assisted me in reproducing the cartoon of Queen Caroline.

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Acknowledgments

This work would not have been possible without the Association for the Study of Law, Culture, and the Humanities. That community has provided me with a generous measure of intellectual and emotional support over the last ten years and continues to make my professional life more pleasurable than I could have ever imagined. I, like many other interdisciplinary scholars, owe a special debt to Austin Sarat for his mentorship and leadership; he is a model of the liberalminded, rigorously ethical scholar, and he makes us all look better. Others have made crucial interventions in my career by reading my work and offering commentary; in particular, I would like to thank Nan Goodman and Bill McNeil, who have offered important insights and correctives at just the right moment, and with great good humor and wit! I am also deeply grateful for the friendship, intellectual companionship, and encouragement of Keith Bybee, Marianne Constable, ­Jennifer ­Culbert, Peter Fitzpatrick, Piyel Haldar, Ravit Reichman, Sylvia Schafer, and ­Martha Umphrey. I would like also to acknowledge the work of Peter Good­ rich for his insistence on the pleasures of the text, legal and amorous. This book was finally completed while I served, first as Associate Director, and then as Interim Director of the Center for Women’s and Gender Studies at The University of Texas at Austin. I would like to thank those who cheered me on, asked what they could do help, and expressed concern for my well-being when life got too frantic, especially Gretchen Ritter, Hillary Hart, and, most especially, the staff at the Center—Jackie Salcedo, Nancy Ewert, and Pat Heisler—who made the last push on the book possible. Without the extraordinary editorial skills and organizational discipline of ­Michelle Ty, this book would still be “in progress.” Michelle’s keen critical insights and brilliant interventions were crucial in clarifying my claims, while her “­titanium-hard” deadlines were critical to its completion! I owe her an enormous debt of gratitude. I am also indebted to Stanford University Pres editorial staff Carolyn Brown and Joa Suorez and copyeditor Laurie Schlesinger for their kind assistance and the many editorial suggestions that have improved this manuscript. There are those whose loving kindness and wise intervention have repeatedly made a difference—a conversation while sharing a cup of tea, a meal, or a glass of wine—these moments have quietly but assuredly moved me forward: many thanks to Betty Sue Flowers, Joni (Omi) Jones, Peg Syverson, and Zipporah Wiseman. To my beloved children, Calum and Clare, and those they love, Erica and Dane: you bring joy and inspiration to everything I do, and your support over the years (beginning with the time Calum locked me in my study until I finished an article)



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has been more than any mother has a right to expect from her children. And to my own mother: your laughter and joie de vivre has repeatedly lifted my spirits when I needed it most. And finally, Kurt: how can I ever thank you for your patience, your willingness to read the manuscript over and again, and your insistence that I finish it? I dedicate this book to you.

ch ap te r on e

“Termes Queinte of Lawe” and Quaint Fantasies of Literature Chaucer’s Man of Law and Wife of Bath Quaint: queinte:-Latin cognitum: known Of persons and things: knowing, canny, cunning; Of speech: full of fancies or conceits; Of the woman’s body: ingeniously wrought, uncanny, genitalia (vulgar: cunt). From definition of “quaint,” Oxford English Dictionary

It would be too reductive to claim that The Man of Law speaks for nomos, or regulation, and that the widowed Wife of Bath speaks out of nostos, or desire, but we can provisionally adopt these terms to conceptualize the relationship between these two tales of Chaucer’s Canterbury Tales. As an allegory of the complicated and gendered relationship between literature and law, these tales offer a way of understanding how disciplinary knowledge can be managed to secure the appearance of stable gender identities. Shuttling historical, legal, and literary analyses, I place these two tales in juxtaposition—as the widow responding to the lawyer—to reveal what happens when forms of knowledge (and the power implied by their possession) reveal themselves to be arbitrarily, rather than inherently, embodied in gender stereotypes.1 Chaucer’s Canterbury Tales have assumed canonical status in literary history, a status confirmed by the fact that they are often “translated” into children’s literature.2 They are the storehouse of a particular set of images and metaphors that through repetition have come to signify women’s problematic and apparently fixed relation to religious and secular authority. This signification through repetition, what I call “historical inscription,” is itself a form of disciplining, limiting potentially transformative representations of gender, and reinforcing the authority of the

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discipline of literature itself. In addition to its place in literary history, Chaucer’s late fourteenth-century representation of the Man of Law marks two significant moments in the ascendance of English common law: first, Chaucer draws attention to the role of lawyers and the law in affairs both great and small.3 No one, he suggests, remains untouched by the network of legal, religious, and political alliances that marks the beginning of modern conceptions of the state. Those alliances, of course, promote and define certain rights and responsibilities in a specifically gendered and socially hierarchical manner. Second, the growing value attached to the Englishness of the common law—as distinguished from the Roman continental tradition—would be seen, retroactively, as inextricably linked to a specific kind of national identity and literature that relied upon and reinforced those gender and class distinctions. In the opening lines of her “Prologue,” the Wife of Bath refers to two supposedly distinct types of knowledge—“authority” and “experience”—which one might also call the juridico-religious and the literary. The distinction between these two ways of knowing is constantly under threat, as are its gendered affiliations, and such instability inevitably transforms the nature of political power. The play of competing discourses—not simply juridico-religious and literary but also the familiar and the foreign, the aristocratic and popular, the formal and customary, the written and the oral, the Christian and pre-Christian, the material and spiritual—is ubiquitous in Canterbury Tales, but the Man of Law and the Wife of Bath offer us two precise and gendered versions of this discursive contest. As two of the twenty-nine pilgrims in the “General Prologue” journeying from London to the shrine of the martyred St. Thomas à Becket in Canterbury Cathedral, the Man of Law and the Wife of Bath enact a contest between the centralized and professional face of the law and what Clifford Geertz calls “the informal logic of actual life,” a logic that includes constant negotiations with different forms of political and social power.4 It was a contest familiar to Chaucer’s audience and even now provides fertile ground for scholars who look to those occasions when law on the books bumps up against lived experience. The Man of Law is of the company of Serjeants-at-Law (servientes ad legem), one of the king’s legal servants belonging to the Order of the Coif who “had exclusive rights to plead cases in the Court of Common Pleas.”5 During Chaucer’s time, there would have been about twenty such Serjeants from whom were selected the judges of the king’s court and the chief baron of the Exchequer.6 As a practitioner of the common law, the Man of Law is part of that tradition of English common



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law that might be said to have been baptized, if not born, during the reign of Henry II (1154–89), the king responsible for the death of that same “hooly blisful martir” to whose shrine the pilgrims are traveling .7 Becket was martyred in 1170, murdered by royal assassins for defending the church against the jurisdictional encroachments of Henry II. The king crafted new laws governing the relationship between church and state and systematized the Curia Regis, royal courts that heard both criminal cases and land disputes. In these royal courts, citizens could bring suits that would then be heard by officers the king had appointed rather than by local authorities. Beginning with Henry II, we can trace the gradual centralizing and enlarging of the power and scope of the common law, a system of juridical government that inevitably reflected and reinforced the gender asymmetry of the state. Despite the growing ascendancy of a centralized system of law, however, local knowledge and custom (customary law) still shaped (and would continue to shape) much of the social and political life outside London and offered a more flexible legal space to those formally excluded from the royal courts either by birth or gender, like the Wife of Bath.8 As a woman, the Wife’s official relationship to law mimicked her relationship to the greatest source of authority in medieval society, the church. Theoretically, she would be “excluded from a wide variety of legal functions, including acting as witness, making contracts and administering property.”9 The growth of common law during the medieval period may have actually lessened the limited representation of women in the courts: in the twelfth and early thirteenth centuries, for example, a woman “could only bring charges against an offender for rape, miscarriage, or death of her husband. She could not bring charges for theft, burglary, or death of any other relative.”10 As property, she could make claims only when that property was diminished in value—through assault on her body or her spouse. Since legally she owned nothing, she could not claim to have been robbed of anything. As is obvious from the Wife of Bath’s matrimonial history, however, women of noble and bourgeois rank participated actively in the management of domestic affairs, especially in matters of family property: many sales contracts, leases, and donations, for example, were signed by women, or by men who identified themselves through their mother’s name. In particular, widows were named executrices in their husband’s wills and frequently undertook to manage their husband’s affairs, running businesses, protecting their children’s interests, and representing themselves in court.11 Some widows could achieve a degree of social independence in business, as well as authority in

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matters of trade and law. Some even controlled, as the Wife does, the distribution of their property, although even she would not officially claim the financial and legal sovereignty she appears to hold over her husbands, largely on account of her merchant status. As Judith Bennett argues, widows were anomalies in a world where women rarely took on public duties: As long as [the widow] remained unremarried . . . she shared with all other widows the status of a female endowed with extensive public authority; as a result, widows fit awkwardly into the social hierarchy of the medieval world. In a world of male householders, they were female heads of households. In a legal system that so often distinguished clearly between the public rights of males and females, they took on some of the public attributes of men. In an economy that most valued landholding, their peculiar land claims threatened the proper devolution of assets from father to son.12

Even though during the 1300s “women as plaintiffs in both criminal and land law gained greater access to the courts,” and the development of the jury trial provided some women with peers more closely aligned to them in class, if not in gender, women nevertheless disappeared from the courtroom in one major capacity: “[I]n the early thirteenth century, we see women acting as attorneys, even for their husbands. By the end of the thirteenth century, lawyers have become an almost entirely male professional class. The common law courts have become increasingly the arena of men.”13

The Man of Law’s “Queinte Termes” and the Romance of Nomos According to the narrator’s account in the “General Prologue,” each pilgrim has agreed to tell a story to pass the time on the journey. The one who, in the opinion of the Host of the tavern where their pilgrimage begins, “telleth in this caas / Tales of best sentence and moost solaas” (“tells in this way, tales of best significance and most comfort”) will be rewarded with a prize (I, 798). The Host invites the Serjeantat-Law to fulfill the terms of the contract and begin the contest. “Biheste is dette” (“A promise is a debt”), responds the lawyer, for whom “the act of tale-telling is all in a day’s work” and who claims the law and its authority as “oure text” (II, 41, 45).14 In the “General Prologue” to Canterbury Tales, the Sergeant is described, as Carolyn Dinshaw suggests, not merely as a man of the law but a man “made up of law”; he has in his Year Books all the cases and decisions made since the Conquest and he knows every statute by heart (“And every statut koude he pleyn by rote” [I, 327]).15



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Since the common law of England “legislated land tenure, commercial relations and transactions, and the structure of the family” and reinforced royal prerogatives, the Man of Law might be said to embody “patriarchal ideology and its expressed system of law.”16 However, even if the Man of Law “stands” for the justice of the royal courts, the pilgrims would also see him as a representative of the less formal practice of law in customary (or local) courts with which they were likely to be more familiar. The Man of Law offers as his version of the best “sentence and solaas” a fourpart, providential narrative of Christian, imperial patriarchy that romances the suffering of the faithful in their relationship to God’s authority and will. Beginning and ending in Rome, the Man of Law’s tale recalls the Roman legal system, codified by Justinian in the sixth century and taken up by the Christian church in its canon laws and papal decretals. Roman Law, like the Bible, was perceived as the work of antiquity and not the work of man, its origins wreathed in the mists of time. Thus the Man of Law links his own practice of English common law to the jus commune (ecclesiastical and Roman civil law) and thereby establishes his authority to speak of things both religious and juridical. This is the story he tells: Constance, the beautiful Christian daughter of the Emperor of Rome, is given in marriage by her father to the Muslim Sultan of Syria after he, so captivated by merchants’ reports of Constance’s beauty, has promised to convert his entire kingdom to Christianity rather than lose her.17 Unlike both the boisterous Wife of Bath, whose enthusiasm about marriage is vexed by her unwillingness to cede authority to her husbands, and those sainted female ­martyrs who died rather than lose their virginity, Constance accepts her fate without complaint, with Christian piety and female passivity, reaffirming the conventional, allegorical reading of the relationship between the Christian soul and suffering. The Sultan’s mother, angered by her son’s apostasy and her forced conversion, kills him and casts Constance adrift in a boat, bidding her sail back to her father. Aimlessly drifting for years, Constance finally lands in Northumbria where she is once again the instrument of religious conversion, this time of the pagan king of Northumbria, Alla, whom she marries. For a second time, however, Constance is the victim of a wicked mother-in-law who tricks her son into casting Constance and their child, Maurice, out of the kingdom and adrift on the ocean, where she is threatened with rape and death by a professed Christian. Constance and Maurice finally return by chance to Rome where she is united with her father and where Alla, coincidentally, has arrived on a pilgrimage to atone for his treatment of his

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wife and son. Constance is restored to her husband—the transfer of woman from father to husband is enacted yet again—and after the death of Constance’s father, Maurice becomes the Emperor of Rome and its Christian kingdoms. This tale of Constance, the Man of Law claims, draws its authority from its association with antiquity. The repeated pattern of exile, false accusation, punishment, and conversion has the formulaic quality of an oral narrative, reminding us both of the importance of memory in constructing the social during this era before the printing press and of the significance of the oral tradition in training lawyers.18 The tale also has the predictability of a familiar genre of storytelling that appears to be distant from the law or the church—the “once upon a time” of chivalric romance. Like the ideological narratives of church and state, however, romance is driven by a desire for closure, however temporary and expedient that resolution may be. And so, as befits the narrative protocols of his profession and its reliance on precedent, the Man of Law turns back to what has gone before. Putting his trust in authorized narratives to sanction the “truth” of his tale, he fashions a nomos: a Christian romance, a tale of constancy, that asserts the immutability of Christian faith (in God, in law). Like the creation of legal doctrine through precedent, however, this constancy is continually undermined by the inevitability of change: every effort to assure the stability of the story by retelling it inexorably confirms its impermanence and thus generates yet more longing for the immutable, which can only be satisfied by yet another story. It is precisely this longing for an ever-elusive constancy that instigates the tale of Constance and models the repetitious structure of desire itself (and the nature of narrative) in the recurring trope of conversion, which might be thought of as the substitution of one desire for another. (I use the term “desire” here in its Lacanian sense—as the object that can never be achieved and which is veiled in the fantasy that both perpetuates its existence and establishes its contours.) Situated, then, at the very heart of the Man of Law’s narrative and functioning narratologically as its modus vivendi is what I have termed nostos. Ironically, it appears that the desire for a juridico-religious truth, the desire for a kind of nomos that will resist change and secure order, inevitably produces precisely that which threatens it. Like legal historiography, hagiography depends upon repetition whereby like facts will produce like results. In the case of the saint’s life, this means that all suffering is an imitation of Christ’s suffering and leads to salvation. At the same time, both narrative genres distrust the empirical reality in which the original event is grounded as subject to human limitations (of truthfulness, of faith). This tension between the representation of a transcendent secular or spiritual belief and its



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quotidian basis pervades the “Man of Law’s Tale” and is most trenchantly personified in Constance’s body. Geraldine Heng argues that Constance’s desire is, in accordance with the Man of Law’s larger purpose, “stringently regulated, disciplined, and . . . effaced.”19 I would argue, however, that the need to control Constance’s excess (as sign, as woman) so that she can represent desire and its submission (to law) for both the Christian and the Muslim, for both the selfsame and the other, produces not an empty cipher but rather an enigmatic text. Rather than restraining interpretation and thus controlling knowledge, enigmatic texts incite interpretation and a promiscuity of meaning that threatens to escape the control of those in authority. Moreover, just as the desire for a permanent truth is sabotaged both by the nature of desire itself and by the instability of the narrative that articulates that desire, so the longing for Constance (felt by the Sultan and Alla and necessary to generate the conversion from Muslim or pagan to Christian) constantly threatens to subvert the hagiographic romance of Constance’s missionary zeal and to convert it into another kind of romance in which erotic passion triumphs over divine love. As Heng has argued, romance is a genre that is defined not by “any intrinsic subject matter, plot, style, or other content” but by the repetition of structures of desire through “innumerable transformations.”20 In hagiographic romance, she contends, “the sexual formula and alchemy of an erotic trajectory that has served medieval romance for centuries since the genre’s inception must give way to a different order of love.”21 The “Man of Law’s Tale” embodies the conflict between these two different kinds of romance, two different kinds of love, a conflict exacerbated by the location of both eros and caritas, erotic and divine love, in the body of a woman. In his narrative, the Man of Law suggests that this “different order of love” might be achieved through/despite the body of a woman, but only with an atypical woman (a fantasy) such as Constance, whose constancy and self-sacrifice conjures up the ideal Christian womanhood of the Virgin Mary and belies the stereotypical infidelity and insatiability of real women like the Wife of Bath. It is through and on Constance’s body, forever traveling between the Christian and the non-Christian, between father and husband, that the “diversitee / Bitwene hir bothe lawes” (“the difference between both their [that is, the Christian and the Muslim] laws”) is reconciled, although she herself plays no active part in that reconciliation; indeed, it is precisely because she can function as the (fantasy) object of desire for both Christian and Muslim that she has value (II, 220–21).22 Constance’s body promotes

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desire and thereby becomes the text upon which the imperial law of the Father, “oure lawe,” can be reinscribed with each act of female submission and male conversion, although the trafficking of the female body disrupts the strict one-to-one correspondence of the allegorical figure (II, 41).23 While Constance, the faithful and law-embodying daughter and wife, is without active desire—that being the sign of her Christian fidelity—her mothers-in-law manifest their “otherness” in acting upon their desire—a sign of their infidel(ity). Doubly damned, as non-Christians and as women, these cunning ones “naturally” plot to undermine Christian patriarchal governance. Thus in this tale, the woman’s body functions, paradoxically, as both the sign of complete submission to the Father’s law and as the sign of its inevitable subversion. Ironically, women’s bodies represent simultaneously the need for law, for the containment of desire, and the consequences of desire, law’s effects. In this way, it might be argued that women cannot help but discipline themselves. The desire for the conversion of the non-Christian to the one true faith mirrors the Man of Law’s belief in law’s uniformity and predictability. In its repetitious structure and its focus upon the necessity for the subjection of the female, the “Man of Law’s Tale” enacts in its narrative form those cultural transformations and exchanges in systems of trade, law, and ideology essential to imperialism. The story articulates a central ideology: women are goods to be trafficked among men in the interests of commerce, faith, and empire; indeed, even before Constance travels to Syria, merchants “trade” reports of her beauty. Moreover, although women cannot themselves acquire knowledge, they nevertheless carry the burden of reproducing both the material and spiritual conditions of the empire: its religion, its law, and its political structures. Thus Constance’s religious devotion is evidence of a saintliness rendered in terms of her willingness to travel far from home, like the merchant trader, to convert the heathen and to spread the Law/laws of the Father. Constance is an “object” obliged to follow orders “rather than an active, desiring subject,”24 just as “at the level of narrative form her exemplary role is a function of the generic authority of hagiography.”25 It is precisely this objectification of the passive, suffering woman of the hagiographic romance that the Wife of Bath will challenge in her revision of Arthurian romance narrative. “The Man of Law’s Tale” is a Christian parable that teaches, as Constance says, that “Wommen are born to thraldom and penance, / And to been under mannes governance” (“women are born to servitude and penance, and to be under man’s governance”) (II, 286–87). Moreover, the tale teaches by analogy and rhe-



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torical questions—a pedagogy employed in the law—that the Other, the Muslim, is also destined to be under Christian governance. As the mother of Maurice, who becomes the Christian Emperor of Rome, Constance is also the mother of the community of the faithful who are subject to the governance of church and state. In particular, since she brings Christianity and its system of laws to England, her story retroactively “legitimize[s] a certain form of authority. . . . She is . . . the origin, the spiritual mother who gave birth to the authority of the Christian monarchs of medieval England,”26 an authority that is both religious and legal, both spiritual and secular: “If the people of England are historically united by the common possession of laws—common law, the ‘Laws of the English’—medieval romance in the form of the Constance story ensures that we remember that the English are also united by religious faith—‘lawe’—canon law, sacred literature, catechism, exhortations and creed, ‘credence,’ that bind each community.” Indeed, the Man of Law, “true to the vocabulary of his profession, evinces a preference for describing both Christianity and Islam as systems of law . . . rather than of ‘creance’ [belief].”27 Moreover, in his struggle to impose order on the variety of experience, to regulate disorder, the Man of Law tells a didactic tale that, in the social world of the pilgrimage, holds the same authority that the statutes, cases, and judgments have in the world of the common law. The story is saturated with legal concepts drawn from common law; it invokes treason, perjury, debt, contract, laws of evidence and of accusation, as well as degrees of punishment—strategies by which the law invests a community with its sense of identity and difference from those who follow other laws. The Man of Law has a professional interest in hagiographic narrative, in promoting a metonymic discourse in which the figure of Constance “stands in for” Christian missionary zeal and its suffering in a world of heathens.28 As Kathleen Kelly, paraphrasing Clifford Geertz, puts it, “the saint’s life is a story that Christians of late antiquity and the Middle Ages told themselves about themselves. And they told it over and over again. . . . One of the effects of this repetitive performance is to elide ‘real’ experience, real suffering, real death in order to privilege an Imaginary and imaginary past.”29 That imaginary past is also the place where the common law claims to find its source, in time immemorial. Hagiographic romance thus brings together the two tropes of nomos and nostos—of regulation through repetition and nostalgia for an alternative narrative of suffering and desiring—but the cultural authority of the Christian narrative transforms all desire into pale versions of itself. The Host pronounces the Man of Law’s story a “thrifty” tale and, indeed, if one thinks of telling a story as the exchange of one thing for another in a sort of

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allegorical equivalency, then the lawyer has tried to be economical in his representation: he has endeavored to produce an instrumental text, a parable in which signs refer, in a seemingly unambiguous and unmediated way, to their “authorized” meanings, a narrative in which a woman’s body “stands in for” Christian piety.30 The allegory of conversion, represented by Constance’s repeated exiles and returns, “privileges meaning over event and the general and exemplary over the specific” and, like law, functions both as precedent and prediction.31 The lawyer has tried to draft his story as he would a legal document—so as to restrain the inevitable excess of representation and the ambiguity of language. He is, of course, doomed to failure. Despite his obsession “with retention . . . , [his] anxiety about circulation, [his fear] of the flow of things, of media, be they money or women or words,” the ambiguity of language constantly threatens to defeat him, as when the name of the pagan King of Northumbria, Alla, not only recalls that of the Muslim divinity, Allah, but is a palindrome that captures the cunning of language and its essentially figurative (and therefore immaterial) nature.32 To the Man of Law, literature merely supplements and illustrates his political, religious, and legal ideology, and the tale of Constance represents the highest values of that ideology—constancy and fidelity, “the two principles that are fundamental to the legal doctrine of precedent and religious authority.”33 Through repetition and the drive toward similitude, with its consequent restraint of female desire and the erasure of difference, the Man of Law aims not merely to tell a story about constancy but to structure his narrative as the embodiment of that value. Despite his best efforts, however, Constance’s hagiography constantly threatens to become something else: a secular romance structured by material rather than spiritual desire, a story of how men desire women and their bodies, how they trade those bodies, and how that desire constantly disrupts families and communities so that it must finally be subjected to a higher “lawe,” one that must appear to be the necessary consequence of women’s nature, not men’s. Such subjection is the inevitable implication of the Man of Law’s “sentence.” For women, like the Wife of Bath, it is a judgment without much “solaas.”

The Wife of Bath’s “Queinte Fantasye” of Lawe When the Host calls for another professional storyteller to speak—a doctor or priest—who should ride into this male-dominated arena but the red-stockinged, large-hipped, loudmouthed, five-times widowed Wife of Bath, protesting that she



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can’t tolerate another tale with “termes queinte of lawe” (“quaint terms of law”) (II, 1189). Like the widow on the black ram who has to confess her sins to the court, the Wife of Bath proposes that “her joly body . . . shal a tale telle” (II, 1185). “She is female, English-speaking, probably illiterate, bourgeois, a business woman, and a member of the laity. From these positions she questions the authority of the clergy, the Latin theological tradition, the courtly ideal, the aristocratic genre of romance, and the male establishment.”34 The Wife is no dreamer; she understands the authority vested in the legal and theological discourses that control women’s lives, especially the anxiety that surrounded widowhood, an anxiety manifest both in the number of laws that governed widows’ property rights and the evidence left in court materials that documents extensive widows’ litigation.35 She can, however, offer a hypothetical alternative to legal authority, a supplement to those “termes queinte of lawe.” The Wife’s tale glosses the tale of Constance with a reading that suggests that the Man of Law’s narrative of Christian, female martyrdom is another of those patriarchal tales whereby women’s desire is converted into the root of their suffering and the cause for their sentence, just as the non-Christian’s belief is turned into heresy. It is desire in its specifically erotic and gendered form that provokes the Wife’s answer (her nostos) to the Man of Law’s parable of Constance (his nomos); indeed, in what appears to be a frontal attack on patriarchy, she inscribes that alternative discourse in the very site that conventionally has signified her inferiority. The Wife offers her “queinte,” her “bel chose” (her “beautiful thing”). That which has been designated as a mere commodity and a sign of sin she claims as the source of her “sentence” and her “­solaas,” her significance and her pleasure. Challenging the lawyer’s “termes queinte” with her own “queinte” (her cunt)—an instance of her lawyerlike matching of one kind of cunning with another—the Wife insists that her body is not merely an object of exchange that facilitates masculine commerce and ideology but has meaning beyond that assigned by law and theology, a meaning created by the Wife’s own desire. She offers her own experience as an alternative to masculine authority, arguing that such knowledge is sufficient evidence to legitimate her narrative. “­Experience,” she claims, “though noon auctoritee / Were in this world, is right ynogh for me / To speke” (IV, 1–2). Moreover, she fashions her “termes queinte” out of her own body, its desire, and the suffering which that desire has produced; but those signs are, ironically, precisely the same—the body, desire, and suffering—that shape Christian salvation ideology and which have governed the Man of Law’s story of Constance.36 Just as the Man of Law finds

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his Christian parable inexorably transformed into something more than a strict defender of ­juridico-religious authority, so the Wife of Bath finds her “experience” transformed into something like conventional Christian doctrine. Neither storyteller, it seems, can prevent that which threatens to undermine his/her belief in the primacy of a certain kind of (gendered) knowledge. The Wife of Bath brashly rides into an increasingly professionalized, masculine world, claiming her body and its experience as a site of meaning and pleasure—a somatic authority.37 She appears to reject those theological and legal authorities that have marked the woman’s body as the source of evil and sin.38 In a prologue to her tale that is as self-indulgent as the Man of Law’s is restrained, the Wife proposes to offer her experience of one woman’s woe as a counterstatement to the authority of the early Church Fathers and their commentators. Despite her unruly persona, the Wife presents her argument like a skilled lawyer, preemptively acknowledging that classical and theological complaints against women are well-founded but insisting that women’s behavior is warranted by male misogyny. She presents courtship as business wrangling and marriage as a property battle waged over her body and her wealth. It is a dangerous strategy and seems to confirm precisely that which she would deny. In the almost entirely male court of public opinion that the pilgrims represent, the Wife argues like a lawyer and a priest, “glossing” (interpreting) Biblical texts and the commentaries of the early Church Fathers in which she finds her own oppression authorized. Like the contemporaneous heretical practitioners of Lollardy, the Wife of Bath asserts her right to interpret those sacred texts previously reserved for the expert and, moreover, makes the heretical claim that what she knows and what God knows might be synonymous. Just as women had been excluded from the priesthood by the early Church Fathers, so now they were gradually being barred from the secular priesthood, the law. In her sermon, or opening statement, to the pilgrims, the Wife demonstrates that these two professional discourses—one spiritual, one secular— are not merely entwined in their structural and ideological effects on the female body but also ground their doctrines on a difference that is literally and metaphorically represented in that gendered body. The Wife “flaunts not only her preaching” but also her prosecutorial skills: her manner of conducting what might be called a trial of gender relations is adversarial, her rhetoric, oppositional, as befits the genre.39 Employing traditional legal tactics and rhetoric, the Wife takes the evidence of women’s deceit and duplicity and shapes that evidence, circumstantially, to produce a narrative of man’s sexual



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and economic greed, a narrative that explodes the imperial romance of women’s commodification represented in the Man of Law’s tale of Constance. Her reading is a “cunning” one, a faux-naïve literalizing of figurative language—as, for example, when she asks how more virgins could be engendered if everyone, following St. Paul’s advice, remained chaste. In literalizing the figurative content of authoritative patriarchal texts, she reveals their cunning; she simultaneously discloses that authorized scriptural glosses are a function of misogyny, indicating that men, as well as women, can be duplicitous (or “queinte”). Her perversely literal reading (gloss) of scriptural and exegetical texts reminds her audience both of the essentially figurative (and therefore interpretable) nature of language and the power that resides with those who tell the story.40 The Wife knowingly misreads biblical texts in order to offer her audience an alternative to the antifeminist tradition. Moreover, the Wife’s argument reveals that the law, whether secular or spiritual, is not “some abstract eternal principle but rather the embodied subject.”41 Indeed, the law manifests itself only in its effects upon the body—penance, punishment, imprisonment, exile, and the selfimposed habits of subjection. In particular, the Wife locates the force and effect of “lawe” (religious belief and secular law) upon the sexualized body of the woman. The Wife’s physical body is neither the sealed and therefore enticingly vulnerable body of the virgin, nor the maternal body of the mother, nor the chaste body of the widow who has renounced remarriage—all versions of female sexuality figured in Constance—but rather the sexually active, economically independent, and constantly garrulous body of a widowed merchant.42 She thus provokes the pervasive male fear of women’s carnality, the “fear of woman’s shamelessness” and of their “verbal licentiousness,” characteristics that are “at once frightening and exciting.”43 As Lee Patterson argues, this “double bind of antipathy and allure precipitated by feminine speech is wound more tightly when the woman happens to be old,” and especially so when she is a widow.44 As one who knows about sex and can now use that knowledge freely, she is untrammeled by the social and legal restraints practiced on other women; circulating in society (“wandrynge by the weye,” [I, 467]), the Wife “owns” herself in a way denied to virgins and wives. The “ingenious” nature of the Wife’s “queinte”—it is both deceitful and marvelous—apparently demands the discipline of those “termes queinte of lawe.” What men insist women must hide (the pudendum) so that it can be found and possessed by them, the Wife proudly owns and names as her “cunt.” Where those misog­ ynistic sacred texts speak of the sewer that is a woman’s body, of its temptations

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as the “gateway to Hell,” the Wife celebrates her “bel chose” as that which should be enjoyed, not enjoined. By employing the texts and rhetorical strategies that had been used to denigrate women but “glosing” them in a different voice, the Wife of Bath prepares her predominantly male audience for the quaint “fantasye” (III, 190) of her tale (tail), in which she supplements the hagiographic romance of Constance and her heathen lovers with a revision of an Arthurian romance, a story of knightly dishonor and female virtue. Like the Man of Law, the Wife begins nostalgically—she recalls “th’olde dayes of the Kyng Arthour. . . . I speke of manye hundred yeres ago,” a time “[o]f which that Britons speken greet honour” (III, 857–63, 858). Here, Arthurian romance recalls and cements a national identity, as did the Man of Law’s tale of Constance, by invoking a mythical past that is markedly English. Moreover, the choice of an Arthurian romance, a genre that occurs only once in Canterbury Tales, as the occasion for the Wife’s narrative of violence, marital trials, and reconciliation, is significant, given her concern with relationships of power and desire.45 Employing the generic conventions of the medieval pastourelle or chanson d’aventure, in which a knight rapes or seduces a maiden to signify his entrance into manhood, the Wife scripts the corruption of the world, which the Judeo-Christian tradition locates in a woman’s body, in an alternative site: the sexual violence of men. In so doing, she answers the Man of Law’s fantasy of the submissive, female Christian body with her fantasy of the powerfully transformative female body.46 It is, she argues, the violence done to women by men that spoils the uncorrupt, Edenic space—in the old days, it was an Arthurian knight, now it is lewd men of the church (“lymytours and othere hooly freres” [III, 866]). Unlike Eve, who is traditionally represented as complicit in her downfall, the young woman of the Wife’s tale is raped when walking alone by the river. (The Wife denies the mostly male audience the pleasure of imagining the rape by withholding the details and thus prevents the erotic fantasizing of sexual violence that usually accompanies medieval romances.) Sentenced to death by the king, the knight is temporarily reprieved and, in a parody of the courts of love that argue for the merits of a lover’s complaint against his beloved, turned over to Guinevere’s court for judgment by her all-female jury, “[t]o chese wheither she wolde him save or spille” (“to choose whether she will save or kill him”) (III, 898).47 The young man agrees to what is, in effect, a suspended sentence: he assents to a contract in which he puts up his body as surety, promising to return within a year and a day with the answer to the question, “What thyng is it that wommen most desiren?” (III, 905). In placing his body



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under the power of the queen, he inverts the “natural” order in which the female body is contracted to male authority. In the tradition of the chanson d’aventure, the knight searches without success until he meets one who can save him: an old woman with whom he makes what he believes to be a nonbinding contract—he will grant whatever she requests of him if she answers Guinevere’s question. Provided with the hag’s response—that women desire “sovereignitee” (ownership/respect) over their own bodies and over their love—the knight returns to the court to fulfill his first contract. He gives the right answer, and his surety, his body, is now returned to him as whole and honorable as it was before he committed the rape—which is more than can be said for the young woman he raped, who, as befits a woman too damaged for marriage, seems to have disappeared from the narrative, although her complaint has at least been taken seriously and cannot be assuaged merely by the payment of compensation. The old woman now demands that he fulfill his second contract: he must grant her wish—that she become his wife. Horrified, and assuming that she only desires material wealth, he begs her to take all his goods but “lat [his] body go” (III, 1061). But, as the Man of Law would say, “biheste is dette” (“a promise is a debt”). The queen’s court forces the knight to keep his bargain. Their marriage imitates, with a difference, the usual form of contractual obligation between man and woman. Here the power lies with the woman (who nevertheless brings none of the usual material qualities that benefit the husband), and the man is the one who is compelled to consent. The old woman thus “forces” the knight to yield his body as he once forced the maiden to yield hers. That crime now has its ironic fulfillment, not in a publicly celebrated marriage of the hero and his chosen wife, but in the secret and embarrassing ceremony between the knight and the woman he has been forced to accept, mirroring the furtive nature of the act of rape and its consequences for the woman. The ceremony is a parodic reversal of the classical seduction of the heroine by the hero. The medieval romance narrates the chivalric rescue of the aristocratic maiden by the knightly hero and frequently includes the socially inferior, scapegoat victim whose fate foreshadows, in a lower register, that of the heroine. In the Wife’s tale, however, the scapegoat (the raped maiden) returns in the form of the old woman who “rescues” the knight from shame by teaching him how to be knightly. This revision of the romance narrative thus constitutes a model of how justice is achieved— by retelling a familiar story (nostos) to demand a rethinking of conventional moral and legal certainties and thereby to recognize the role of gender. On their wedding

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night, the hag taunts the knight by asking him why he finds her so revolting and asks if there is nothing she can do to “amend” his discomfort; her mockery of his thwarted desire recalls the amendment, the transformation, that he has fashioned in the young woman he has raped. The knight accuses his wife of ugliness, agedness, poverty, and low class, to which she responds by suggesting that her ugliness and age will prevent him from having to worry about her infidelity. And as to her poverty and class, well, as Christ himself argued, “gentility” (“gentilesse”) comes from God; gentility is not an inherent quality of the aristocracy but is made manifest in one’s actions—as the knight’s own villainous behavior has proven. She concludes her “pillow lecture” (recalling the many lectures the Wife has delivered in her “Prologue”) by offering her husband yet another contract: to have her foul and old until she dies and thus be true and constant, or else to have her young and fair and take his chances that, in a world full of sexual predators like himself, she might be unfaithful. He responds by putting himself in her “wise governance; / Cheseth yourself which may be moost plesance / And moost honour to yow and me also” (III, 1231–33). Without benefit of the “spectacle” of the court (of law and crown) and its exercise of patriarchal power, the knight submits to his wife’s “glossing” of her own body in the private and intimate space of their bedroom. The silence of the raped maiden has been redeemed by the garrulous discourse of the knight’s wife; her insistence on choice and autonomy now redresses the knight’s erasure of the maiden’s selfhood. Free to realize her own “termes queinte of lawe,” the old woman “amends” herself, transforming the impurity of age, ugliness, and peasantry into the purity of youth, beauty, and aristocracy; moreover, she contracts to be always so, and always constant. (One cannot help remembering the Wife’s own account of her sexual demands as a young woman on her aged husbands— perhaps the knight will regret her eternal youth as he ages!) In her sermon, the old woman has suggested to her husband (and to the men on the pilgrimage) that rather than focusing on the unconstrained (unpropertied) body of the woman—the conventional Judeo-Christian justification for law’s necessity—perhaps he should focus on the unrestrained nature of men’s desires. In demanding that he be forced to lie with her, his “foule” wife recalls the force with which he has raped the young woman. Moreover, the forced marriage parodies the law’s response to the crime of rape that directs the victim to marry her rapist and thus retroactively legalize the assault as marital intercourse.48 When his aged wife reveals her vile body to the knight, she confronts him with a symbolic representation of the effects of his sexual violence against the young woman. Thus when the



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knight freely acknowledges that his wife’s body is her own property to dispose of as she pleases, he makes some kind of restitution for his theft of the maiden’s virginity, although his punishment for this theft is very brief. In the Wife’s “Prologue,” canon and secular law are the discursive systems that articulate and enforce inequitable gender relationships: such is the “sentence” of the “lawe.” It is that same legal model that necessitates that King Arthur sentence the rapist to death—not because he cares about the damage done to the young woman but because she is someone’s property—her father’s, her brother’s. The rapist has not only “trespassed” on that property but has deprived it of any value in the marketplace of marriage. In her story, the Wife responds to those social and legal systems that have made rape a property crime rather than a crime of sexual violence, and, as such, the tale is a direct rejoinder to the story of Constance, unpropertied by both the king’s law and the law of the church. In this tale, the power of the law is embodied in multiple forms, all of them female—wife-widow, queen, and witch—and its power is exercised over men, albeit only temporarily and with the king’s permission. In the Wife’s romance, law is transformative and offers a matriarchal model of negotiated justice and equity—the rapist can learn to see women’s desires as equal in value to his own—and this is the “solaas” of the Wife’s “sentence.” It is a solace, however, that remains only a fantasy, as the Wife well knows. While she may appropriate, as Patterson argues, “clerical misogyny . . . in order to articulate feminist truths, . . . she remains confined within the prison house of masculine language; she brilliantly rearranges and deforms her authorities to enable them to disclose new areas of experience, but she remains dependent on them for her voice.”49 Although she may be “confined by language,” the choice of romance as the genre through which to examine the structures of desire and power temporarily liberates the Wife to explore the fantastic: “romance bypasses the paradigm of true and false to shift attention onto representation as magical performance.”50 In focusing on magical performance in a story about men’s violence against women, the Wife does more than divert us from questions of truth and falsity: her tale implies that truth and falsity are not, finally, the determinants of what is just— that truth and falsity are, perhaps, irrelevant to both the theory and practice of justice. Her narrative proposes that power relationships, such as those invoked in and sanctioned by courts of law, have nothing to do with truth and falsity but everything to do with enchantment; or, put otherwise, while those power relationships are not “real” in the sense of being materially present as with physical force, they are representations of something that produces a powerful effect. Such might

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also be said of gender relationships which are similarly constructed and affirmed through narratives that “enchant” subjects into endowing them with a materiality that can thereafter be imitated. Unlike the “Man of Law’s Tale,” where power is represented as the conversion of the unlike into the like—of Muslim and pagan into Christian, of Eastern into Western, of female desire into male fantasy, of alien religious and social customs into the familiar and reliable customs of the common law—the Wife’s tale is driven by the preservation of difference: the difference between the past and the present, between men and women, between the king’s law and the queen’s law, the young and the old, male desire and female desire, the court and the country, rape and seduction, dishonor and chivalry, the “real” and the “fantastic.”51 Justice occurs only when the knight acknowledges these differences and their individuated embodiments in himself and his wife; he must also acknowledge that they are irreconcilable by any set of court-ordered rules. Justice, the Wife insists, is a “magical performance,” and the hag is its improbable embodiment.52 Only “magical performance” can reconcile differences, and then, as with justice, only temporarily and through narrative: Or, as Jacques Derrida puts it, “for a decision to be just and responsible, it must, in its proper moment, if there is one, be both regulated and without regulation: it must conserve the law and also destroy it or suspend it enough to have to reinvent it in each case, rejustify it.”53 The “Wife of Bath’s Tale” is both a fictional trial narrative and a fictional trial of narrative in which the old woman personifies the “magic” of narrative, of mythos itself; she is the charm of literature. The “loathly lady” holds the power to force us, like her knight-husband, to submit to a narrative not of our own making, to be made to yield to “an external force” and yet, simultaneously and paradoxically, to long for that surrender. The hag embodies that “desire to be transformed,” to be “otherwise-than-ourselves,” which, as Desmond Manderson insists, is the very nature of desire and lies at the heart of narrative’s power. Such transformative power must be, by definition, temporary although it may be situated within a narrative that has the appearance of permanence and transcendence.54 The knight thus has to learn that meaning (like honor and “gentilesse”) is contingent, a “reality” produced by choice and not an inevitable accompaniment to his aristocratic birth. He also has to learn that there is a difference between obedience provoked by the threat of punishment (from Arthur or the queen) and obedience (to his wife’s wishes) as a contract: “the promise of obedience in exchange for love establishes something like a social contract and certainly establishes a relationship that



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is most assuredly no longer unilateral in its structure.”55 Like a child, the knight has to be taught how to “read” the mystery of narrative, just as he has had to learn how to confront the mystery of gender difference. In other words, understanding both narrative and its gendered dimensions is necessary to understanding justice. Romance, it turns out, is a jurisprudential text: or, to put in the terms I employ, the narratives of nostos must supplement those of nomos.56 The narrative provoked by Queen Guinevere, with its improbabilities, discontinuities, and magical resolutions, might seem a far call from the apparent objectivity and ordered nature of legal narrative, but it serves retroactively to emphasize one crucial aspect of the Man of Law’s performance: his tale also relies on improbabilities and magical resolutions, but couched as it is in the language of Christian faith and patriarchal law, its fantastic quality stays largely veiled, or at least unchallenged, except by the wicked Muslim mothers. In contrast, the Wife offers the kind of magic that is embodied in the sexualized and desiring body of the woman, who restores to Arthurian society the innocence that was lost through the unrestrained practice of man’s sexual desire, a reversal of the Biblical narrative of the Fall. While the “Wife of Bath’s Tale” might suggest an alternative model of justice that recognizes women’s bodies as the site of difference rather than merely as provocation for the exercise of law’s power, her fantasy nevertheless relies on those traditional legal models and terms that she is resisting, models and terms that articulate the ideology of a system that depends on “the Latinate maxim of precedent, procedere ad similia” (“to proceed toward / on the basis of the similar”).57 Her romance represents, ironically, precisely those disruptive forces that, according to the patriarchal narrative, require policing in the first place: the old crone is the type of the sexually devious, cunning, and magically powerful woman, the witch, and as such is the spectacular version of what all women have the potential to become. Her aberrant (and errant) sexuality (noted as one of the Wife’s characteristics) and her ontological instability—she is a shape-shifter—align her both with the mutability of the natural world and of language. The hag’s deceitful body, metaphor for the unreliability of women, is linked implicitly and explicitly by Chaucer to the aging body of the Wife, whose voicing of her own fantasy confirms the paranoia of her mostly male audience. Although the Wife’s fiction suggests the possibility of reconstituting gender relationships, the tale also operates to confirm the status quo. In turning herself into a beautiful and faithful young woman, the hag bows to the knight’s “worldly appetit” (III, 1218). The tale not only plays into the Wife of Bath’s fantasies of youth

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and beauty, it also privileges the male form of desire, a desire that commodifies women’s bodies. The miraculous transformation of the ugly, old, peasant woman, who represents the value of the raped maiden to the world of men—dirty, corrupt, untouchable—into the beautiful young woman confirms the sexual double standard that sanctions men’s desires while it criminalizes women’s. And, of course, the Wife’s tale of conversion is, like the tale of Constance, infused with Christian concepts of value. It is, after all, the old woman’s sermon about the “gentilesse” that comes from God that “converts” the knight and provokes his wife’s “translation” from crone to aristocratic heroine. This “conversion” of what was foul to what is fair thus reproduces in the material register what the tale of Constance has brought about in the spiritual register: the conversion of the dark Muslim by the fair Christian. The Wife’s fable simultaneously undermines and reinforces a patriarchal legal model and the narratives that promote that model. The hag, that familiar figure of the uncanny woman from romance narratives who both literally and figuratively enthralls the knight errant, embodies the “dom” (judgment) handed down by the queen. She is the law and, like the law, she takes on different shapes and demands different responses from those who would win her approval. Indeed, the elusiveness of law and justice is precisely captured in the tension between the “reality” of the Wife of Bath, whose very being is an assault upon all aristocratic and patriarchal pieties—she is independent, wealthy, upwardly mobile, sexually errant, and verbally and physically unbridled—and the character she “creates” to justify her life and articulate her hidden desires: a figure of magic and moral ambiguity (is the old woman benign or is she from the devil?), who functions in romance narratives to test the hero and demonstrate his worthiness as a member of an elite, patriarchal nobility.

Law’s Fantasies and Literature’s Cunning One might argue that the relationship between the Man of Law and the Wife of Bath is another rehearsal of that classic, gendered antagonism between philosophy and literature, law and poetics, authority and experience, and history and subjectivity.58 And yet, as I have suggested, neither storyteller can purify her or his discourse of the presence of its other—whether they will it or not, their stories are hybrids of learned judgments and individual fantasies, of legal fictions and imaginary bodies.59 At one level, the Man of Law might be seen as a mere casu-



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ist, resistant to the complexity and uncertainty that literary discourse suggests. The lawyer-narrator assumes a paternalistic stance toward his subject, Constance, “standing in for” her temporal and eternal fathers and implying a certainty and permanence in his narrative design. Through the iteration of Constance’s trials, the Man of Law seems to construct a model of divine authority, a bastion against the changeable fortunes of the world. His allegory of the soul’s journey to God inevitably invokes, however, both the impermanence of human life and the hope for eternity just as it invokes both the material reality of humankind and the miraculous presence of the divine in the Christian fantasy of the soul’s salvation. Given that the king’s law, which the Man of Law administers, is itself produced by and informs the Christian model of justice and mercy, it would be impossible for him to speak of human proceedings without simultaneously calling up those divine models, regardless of whether those proceedings were the allegorical trials of the faithful Christian, represented in the pale body of Constance, or the actual trials of his clients, which turn out to be no less allegorical in their implications.60 In a similar manner, the Wife of Bath must employ in her “Prologue” the forms and rhetoric of secular and theological antifeminists in her extended critique of the patriarchy, thus reinforcing its authority even as she argues against its power. The Wife “subjects the discipline or doctrinal discourse [of law and scripture] to the reassertion of the form of life, the fantasmatic structure or imagination, that rhetoric ideally implies.”61 While speaking of the fantasmatic, however, the Wife inevitably remains in the real, even in her tale of romance, a “body of texts whose practices require an expressional medium that is able to perform the real as fantastical, and the fantastical as the real, without the requisite necessity of explanation or apology.”62 Despite her insistence on locating her romance in the days of the fairies and King Arthur, its “reality” exists only by virtue of its relationship to that modern world that the Wife herself occupies. As Toni Morrison suggests, romance is not “an evasion of history” but rather a “head-on encounter with the very real, pressing historical forces and the contradiction inherent in them. . . . Romance [makes] possible the sometimes safe and other times risky embrace of quite specific, understandably human fears.”63 As such, the Wife’s Arthurian romance narrative functions politically to interrupt the dominant discourse while simultaneously acknowledging her complicity with specific genres, sources, and authorities. The Wife invents a romance that reimagines how the law might operate in order to contest a parable that conceals the workings of secular and religious law. Thus

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fantasy informs the real even as the real produces fantasy. The consequences of these seemingly paradoxical moves are first, that apparently dominant narratives of power—be they legal, theological, or literary—are revealed to be no more plausible than their alternatives, and second, that their power endures only so long as someone is talking and someone else is listening and interpreting. These characteristics—self-contradiction, contingency, and temporality—are not to be lamented, however, because those qualities are what compel us to tell the same stories again and again, or rather to tell different versions of the same story, thereby making judgment available. And reiteration is what makes the revision of that preliminary judgment possible—what we might otherwise call forgiveness and compassion. Those very qualities that inhere in narrative are precisely the qualities that make ethical response not only achievable but also inevitable. Moreover, those same qualities—self-contradiction, contingency, and temporality—inhere in the relationship between those disciplinary formations that strive to preserve their distinctness—like law and literature. The “Man of Law’s Tale” is disturbed by the presence of those ambiguities and inevitable “translations” and “transformations” (the magic of metaphor) that accompany his parable, and the Wife’s story embodies the very law that she would, cunningly, dissolve before our eyes. In her romance narrative, law is metaphorically represented as immutable and male: the queen’s court is seen as a momentary aberration from the fixity of King Arthur’s judgment; he grants disposition of the case to the queen out of “grace” (III, 895). Law, it seems, must be distinguished from other social constructs, like romance, that appear to depict an illusory and unstable reality. (Law itself reflects a similar division in the distinction between the fixity of statutory and black-letter law and the flexibility of customary law.) Yet, as I have suggested, this apparently illusory quality relies upon that which is seemingly immutable for its articulation and vice versa. But there is a third conclusion we can draw from juxtaposing these two tales: that the body of the woman is imperative to disclose the value of certain kinds of knowledge. In fact, one might argue that the woman’s body determines the nature of that knowledge—secret or revealed, human or divine, private or public.64 To speak about the woman and her body is to come perilously close to inhabiting that body—and thus the Man of Law is feminized by his attention to Constance’s white Christian body among the dark-skinned Muslims. What desire drives the Man of Law to tell such a tale, to draw attention repeatedly to Constance’s sexual attractions? In the “Man of Law’s Tale,” the site of both instability and immutabil-



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ity is Constance’s body, the place where the contest between divine and human desire is engaged, as it is also the site of the contest between the laws of the Christian and the Muslim. But Constance’s body does more than simply offer a text upon which these struggles can be articulated; her body, represented as the object of desire and therefore of a certain kind of knowledge, actually produces that contest. And the body of woman, I would argue, still both makes and marks the difference between forms of knowledge; her body and its symbolic value is a kind of proof text and, as such, both produces disciplinarity and also marks the estrangement of one discipline from another.

chap ter t wo

Public Affairs and Juridical Intimacies Seventeenth- and Eighteenth-Century French and English Women Novelists

The Wife of Bath romances the patriarchal plot in her story of the knight and the hag as a way of negotiating the constraints imposed both by being a woman and being unlearned (the two often being construed as synonymous, then and now). In telling the story of the witch who publicly shames the knight so that she might privately transform herself into an object of desire, the Wife implies that categories of “experience”—authorized and unauthorized, public and private, law and love—as well as the narratives that articulate those communities of nomos and nostos, are not unitary, fixed, and absolute but are intimately and inseparably connected to gender, to class, and to one another. In employing the Arthurian romance genre, the Wife unsettles its association with a reactionary, aristocratic politics by claiming a traditional narrative to express her specific desires. In the Wife’s case, rewriting a familiar story (of the loss of innocence) instigates a momentarily liberatory narrative (a nostos) in which female sexuality and power coincide: the romance narrative here articulates a specific kind of female knowledge. That women were represented in certain stylized ways in medieval romance and that women writers have been drawn to the romance form does not mean that the content of those texts is confined to narratives of intimate relationships and personal experience, or that the depiction of those relationships and experiences merely confirms the role of women as submissive and silenced. As I have already argued, the Wife of Bath’s romance invokes at every stage the real world of property, law, and politics, even in the magical, Arthurian world the knight inhabits:



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the knight discovers that a contract agreed upon with a female shape-shifter is as binding as one made with the king’s surrogate in Arthur’s court. The Wife’s tale momentarily dissolves the boundaries between the real and the fictional, as well as between the law of the king and the law of romance, and in so doing reveals both to be articulations of different forms of desire that constitute (inseparably) the political and the intimate. The romance form, I would argue, provides a space for articulating the ways in which female knowledge and its freedoms can flourish even within traditional patriarchal limitations. In a series of books and articles, most recently The Laws of Love: A Brief Historical and Practical Manual (2006), Peter Goodrich has traced this complex intermingling of public and private expressions of love and law from medieval courts of love and romance narratives through to seventeenth-century French women novel­ists. Goodrich argues that love has always been “intrinsic to public life and play [and has always driven] the emotional margins of the social realm.” In the early modern period, the “laws of love provided an extraordinary site of public debate, of codes of conduct, of rules of justice which allowed parties to negotiate their amorous identities, their sexual preferences, their emotional orientations.”1 What Goodrich suggests in his survey of the “cartography of intimate relationships” is that such relationships have always been conditioned upon and produced by amatory actions and judgments—even (and especially) when those actions seemed merely imaginary.2 My argument is that these inquiries into the nature of love (what Goodrich calls eros, but what I term nostos to stress the narratological form of such desire) constitute an expression of the private intimacy necessary for the creation of shared, symbolically rich, public space (nomos). Furthermore, such inquiries have a continuous historical resonance and resurface in the women-authored, amatory fictions of seventeenth-century France and in the novels written by women in early eighteenth-century England.3

Courts of Love and Romance Novels Arguing that law and literature must be perceived simultaneously as both literary and jurisprudential texts, Goodrich cites in his Law in the Courts of Love: Literature and Other Minor Jurisprudences (1996) the late twelfth-century scholastic treatise by Andreas Capellanus, Tractatus de amore et de amoris remedio, in order to illustrate the “contingencies and heterogeneities of different jurisdictions and

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alternative forms of law.”4 Such jurisdictions challenge the illusion of a “sovereign and unitary law” and interrupt the seamless narrative of positive law—much as the Wife of Bath rudely interrupts the apparently unitary version of Judeo-Christian jurisprudence claimed by the Man of Law.5 In book 2 of his treatise, Capellanus reports the many decisions of the various courts of love, all deliberated upon by women under the guidance of a principal figure, like Queen Eleanor of France, or the Countess of Champagne, or the Viscountess of Narbonne. Whether actual or fictive, legally binding or socially entertaining, these courts of love represent one of the many and varied ways in which European medieval society managed the public expression of intimate relationships. Their allegorical character makes possible a broad range of erotic relationships and explores the potential for a kind of law that speculatively addresses a public sphere embodied in and represented through the figure of the female rather than the male. These records also show that questions of love could be decided not just as if they were questions of law but as law. To add to that, I would suggest that to reason through the subtleties of a lover’s discourse and its claims is to bring into being an ethical account of relationships—both the most intimate and the most public kind—and that ethical account, summarized in the judgment, constitutes justice. Thus one could argue that in those narratives, just relationships literally and figuratively comprise the body of justice. Of course, if one confines all such records of speculative jurisprudence to the purely imaginative realm and assumes that this realm is disarticulated from the real world, assertions about the nature of justice might appear to have little impact upon the practical life of the law; the decisions rendered by these fictive courts might be seen, as the Wife of Bath acknowledges, as mere “fantasayes.” Apparently irrelevant to the actual practice of the law, such imaginary representations of amatory jurisprudence are linked generically to other “products of romantic fiction.” They were the “the stuff of women’s literature . . . ephemera or chimera, fantastical products of the fickle attention of the feminine mind.”6 One might reclaim these imaginary performances by arguing, as Goodrich does, that the reaction to them was sufficiently hostile to signify a “certain reality, be it corporeal substance, political practice or textual remnant, to this mere—or merely feminine—literature.”7 One might also claim, however, that even as fantasy these imaginary narratives of intimate relationships function as more than quaint female myths. Goodrich cites Slavoj Žižek’s essay on “Courtly Love, or, Woman as Thing,” arguing that such fantasy is more than mere illusion: it is “a semblance which conceals the actuality of male domination” and functions therefore as a “lure to servitude.”8 Both readings



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are plausible. But it is, as Joan Kelly has argued, pointless to ask “whether such love relationships actually existed or if they were merely literary conventions. The real issue regarding ideology is, rather, what kind of society could posit as a social ideal a love relation . . . that women freely entered.”9 Goodrich’s argument in Law in the Courts of Love relies on recovering alternative jurisprudences, or forms of judgment, “drawn from the diversities of the legal and literary past”—jurisprudences like “courts of conscience, courts of equity . . . laws of the sea, of merchants, of forests . . . of fairs, of women, of aliens . . . of towns, of hundreds, of tithings, of manors.”10 These “minor jurisprudences” have long since been repressed or ignored by legal histories that retrospectively focus almost exclusively on a single “scientific” narrative of law. Excluded or deemed mere fictions, these alternative sites of judgment nevertheless continue to cast their shadows over the dominant narrative of the common law—“a glossary of the phantoms which the tradition discarded, a negative representation of its imaginations.”11 The early seventeenth-century jurist, John Selden (1584–1654) made the case for this plurality of laws in his Jani Anglorum Facies Altera (1610), which detailed the progress of English common law from its beginnings until the reign of Henry II. Selden counterposes “the ‘reverse or back face’ of English law, its plural histories, its fragments or scraps of forgotten rule, its lost customs and its myths and other remainders of neglected laws” to the singular and unitary system of common law espoused by the lawyers in the Inns of Court, one we have already encountered embodied in the person of Chaucer’s the Man of Law.12 Anglo-Saxon and medieval customs, such as “love days” and other such amicable ways of settling disputes and creating contracts, were not perceived as subversive of formal legal practices or legal norms but as “an alternative law within the same space and temporality as that of the royal rule.”13 Sociologists and cultural critics (like Robert Cover) have only recently returned to this sense of law (or laws) as spilling over the boundaries of a narrowly conceived and dogmatically advanced set of rules and procedures located historically and spatially in the “administrative exercise of power.”14 The “tradition of courts of love [that] starts with the reception of the poet Ovid and the various translations of his Ars amatoria or rulebook for lovers” is one of the many fields upon which the centuries-long debate over women’s social and political role in relationship to men, the “querelle des femmes,” is engaged.15 That debate is also, as Goodrich points out, a debate over what kind of law (or laws) should manage women in their private and public capacities. To grant formal

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standing to courts of love administered by women, or to any of those legalities that offered alternative dispute resolution, was by implication to undermine the authority vested in secular and spiritual doctrines that advanced the inherent superiority of both man and masculinist law. Chaucer’s Wife of Bath must situate her “fantasaye” of women’s law in the ancient world of Arthurian legend, and nearly three centuries later in France, women writers collectively known as les précieuses also turned to history to reinvent intimate juridical devices that could instigate public debate over love and its role in the state. This “radical group of women centered in Paris, formed what Madame de Montpensier called ‘a kind of Republic’ within the [seventeenth-century] French state . . . [and] were central to the founding of the republic of letters.”16 Central to this radical vision in which “affairs of the heart are portrayed as indissociable from affairs of the state” was what might at first glance seem like a paradoxical insistence on the particular over the general.17 This new feminist historiography insisted on the connection of private affairs and national policies at the same time as it rejected the kind of national history that had produced and reinforced the patriarchal absolutism of Louis XIV, the “Sun King.” In this nouvelle historique, women writers like Montpensier, Lafayette, and Villedieu re­ imagined the official histories of great men and their public actions, replacing the “judicious” historian of a general history with the “injudicious” historian of an alternative and imagined (but not therefore untrue) particular history, in which historical characters voice what the “majestic” version of history leaves unsaid.18 Thus the seventeenth-century French novel played an important role in constructing and validating a plausible realm of intellectual and political freedom for women of a certain class: the novel was inextricably linked to the salon gatherings of les précieuses, and the salon represented in literal and architectural terms the spatial freedom afforded by the novel’s form. In such gatherings (often taking place in the intimate space of the patroness’s bedroom) the personal and public space each rendered the other visible just as in the narrative space of the novel, the private and public adventures of the heroine are determined by the political and social conditions that produce and reflect both spheres of action. Thus the amorous narrative does not merely supplement the political narrative, nor does the political merely provide a context in which amorous adventures take place. For these women novel­ists, history functions as a way of investigating the ongoing and complex interrelation of love and politics—a relationship that is, by definition, produced and sustained by a gendered, intimate public sphere.



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Even though these nouvelles historiques detail amorous adventures, they should be distinguished from the medieval courtly love tradition; the latter encodes a relationship that is “unique, predestined, irreversible” whereas in, for example, Madeleine de Scudéry’s Carte de Tendre—centerpiece of the first volume of Clélie (1654)—choice substitutes for fatality, private contracts substitute for the “official marriage contract,” and “a personal legal code [is] . . . an alternative to official laws.”19 Thus the Carte de Tendre functions as a map of a new social space, one that binds social and personal orders and assumes that psychological realities are both the product of and produce those social and legal realities that define women’s status. The significance of deliberately and consciously linking the gendered separation of these two worlds—the interior and the exterior, the private and the public—should not be underestimated in terms of the particular form adopted by seventeenth-century and early eighteenth-century French and English women novelists. In their refusal to restrict the investigation of sentiment to the private realm and to yield to men the domain of law and politics, these women promoted the value of a public intimate space, one that was simultaneously social and textual; indeed, it was social by virtue of being textual just as it was erotic by virtue of being political. Their novels formally embody the complex and dialectical relationship of nostos and nomos. The role of the novel as a destabilizing influence in aristocratic society and its political agenda cannot be separated from the gender of its producers—French and English women writers—and the sexual frankness that accompanied their fictional histories. Let me turn now to one of the most significant of these French nouvelle historiques, La Princess de Clèves, to illustrate how the novel embodies both this relationship between the erotic and the political and yet sustains the romance tradition that, through its association with women writers, came to marginalize the work of early English women novelists.

Lafayette’s La Princess de Clèves (1678) A distinct contrast to the multivolumed, heroic romance narratives that had dominated the French literary marketplace in the previous decades, Lafayette’s historical romance, set in the court of Henri II (1547–59) as an analogy for the court of Louis XIV, maps the unconsummated love between the young and recently married Princess de Clèves and the gallant Duc de Nemours. At the time of its publication, the novel was both praised and condemned for its depiction of the

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psychological anguish of the Princess, who confesses to her husband that she loves another man, although she refuses to name her lover. The contemporary attacks upon “the plausibility and propriety of the princess’s actions” and Lafayette’s representation of the intrigue at the French court were fueled by Lafayette’s inclusion of five interpolated, historical narratives about women, primarily from French history, which expanded the chronological parameters of the novel by fifty years. Locating the novel as an example of the “nascent genre of nouvelle historique,” critics argued that it failed to exhibit the “primary criterion” of this new genre, “that is, vraisemblance or plausibility.”20 As Faith Beasley argues, Lafayette’s novel produced a paradoxical reaction. On the one hand, critics accused her of creating an “implausible” story because she included historical narratives that appeared to be either digressions from the main story or incompatible, in their sobriety, with this narrative of improper love; on the other hand, some critics asserted that those passages from history were the only source of “vraisemblance or plausibility” in a novel that otherwise seemed unrealistic: What woman would confess her illicit love to her husband? What woman would refuse herself to her lover after her husband’s death? As Beasley has argued, however, this critical disagreement over the vraisemblance of the novel disguises the real concern of Lafayette’s contemporary critics, one that has nothing to do with the formal qualities of the novel but everything to do with what a woman ought “properly” to write about. Lafayette does not simply transgress the gendered moral boundaries of her society in writing about illicit love and describing the princess’s desire for Nemours, she also constructs a world in which women’s histoire displaces men’s History: “Lafayette highlights women as political leaders, creating their social world, and as storytellers in the salons, enunciating their vision of society.”21 That such a world can only be fully realized in fiction—because for women to act in the world as powerful political figures will always provoke an aggressive and dismissive response from men—is precisely the point of juxtaposing the fictional story of the princess with the historical narratives of real women. Lafayette points to the power of historical example in controlling women’s behavior (through the conventions, maxims, and representations that constitute history); she also implies, however, that historical narratives must inevitably be supplemented by fiction, and thus she undermines the monitory power of those apparently true narratives. In fusing these two narrative genres—the historical and the fictional— and aligning this new narrative form (call it historical fiction or fictional history)



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with a concurrent merging of the political and the intimate, Lafayette calls into question the gendered conventions—formal, discursive, and thematic—of both history and fiction. Looking at one of these historical narratives will illustrate my point: I have chosen the story of Anne Boleyn because she will reappear in Chapter 5 as a character in an historical narrative that begins in the nineteenth-century reign of Queen Caroline of Brunswick and reaches back to the era of Elizabeth I. Anne Boleyn’s narrative thus illustrates the power of repeated symbolic representations (“historical inscription”) both to reconstruct the past and to constrain the future. Anne Boleyn appears in La Princess de Clèves when the king of France advises Nemours to seek the hand of Elizabeth I in marriage in an attempt to strengthen his alliance with England and weaken the influence of the king of Spain. The court recognizes Nemours’s reluctance to pursue this alliance as an indication that he is distracted by an unrequited passion. Meanwhile, in trying to elicit more information about Nemours’s interest in Elizabeth, the Princess de Clèves must endure praise of Elizabeth’s beauty and intelligence from Madame la Dauphine, who elaborates on the queen’s reputation by describing her mother, Anne Boleyn. The story of Anne Boleyn as detailed by the Dauphine is one in which the political and religious histories of England and France are bound first, by the specific account of Anne’s life (part of which she spent in France at the court of Francis I) and her marriage to Henry VIII, and second, by the baroque intrigues of the French and English courts as each vied for imperial superiority in Europe. So intertwined with Henry VIII’s passion for Anne is his political and religious agenda that it is impossible to discern whether his wish to marry Anne provokes Henry’s separation from the pope, or his desire to separate from the Church of Rome intensifies his desire to marry Anne. The Dauphine tells the story of Anne Boleyn to educate the princess in the ways of the royal court and to indicate that those women who consent to be embroiled in national affairs are also consenting to the manipulation of their private life for the benefit of the nation. Moreover, as Anne Boleyn discovers to her cost, the queen’s agency depends on the same set of terms and institutions that determine the national agenda: politics, religion, and law—terms that escape even the control of a king because, like intimate relationships, grand events are also fueled by desire and character. The queen who rides in triumph one day will ride in disgrace the next, arraigned as a witch and charged with adultery and incest. The story of Anne Boleyn suggests that however personally and psychologically intense one’s experience of desire might be, the origin of that desire lies, in part,

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in language and actions produced by and articulated in the public realm. (Here, as with the narrative of the Wife of Bath, we have to be careful not to reify experience as if it somehow escaped that same set of conditions that produce desire.) Individual relationships are made explicit in social forms of address and rituals, like Nemours wearing the princess’s colors at a tournament, that carry meanings and intentions that are beyond the control of the individual, however powerful he may be. Similarly, history is not the record of exclusively extrapersonal relationships but is borne out of individual desire and takes its shape from the social consequences of that desire. Or, as Joan DeJean argues, “historical events cannot be understood independently of women’s [and men’s] affective choices.”22 The Princess de Clèves’s love for Nemours is as inseparably bound to the affairs of the state as Anne’s was for Henry VIII; likewise, neither Nemours nor Henry VIII’s choice of a love object originated from individual desire functioning independently from their social and political worlds. Moreover, the narrative form that those “affective choices” assumes is a critical part of how they are received in the world. The suspicion that surrounded the publication of the nouvelle historique in France and the novel in England was tied directly to the way in which both forms articulated this new vision of state affairs and affairs of the heart, of general history and its particular form, concurrently with their authorship by women. Lafayette also implies, by employing historical narratives in her nouvelle historique, that history and fiction, both of which are the products of great and small events, share representational strategies; indeed, the attempt to mark off the plausibility of fiction from the reality of history (or law) is doomed to failure. Keeping history and fiction apart is an ideological move and not the natural consequence of a specific style of writing or theory of representation. One has to purposefully mark the difference and thereby assign certain characteristics to each form, characteristics that are only retrospectively seen as inherent to that form through their repetition; in this, genre recapitulates gender. Moreover, neither form partakes innocently of the material conditions of their production: gender and class play a crucial role in determining either the veracity of the historical document or the plausibility of the fictional text. Nancy K. Miller makes a similar argument in her oft-cited 1981 article, “Emphasis Added: Plots and Plausibilities in Women’s Fiction,” as part of her larger discussion about women’s marginal status in the canonical history of the novel. She relies on Gérard Genette’s theory of plausibility and motivation to locate the gendered nature of the critical response to women writers in general and Lafayette in



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particular.23 Genette argues that the concepts of plausibility and propriety (which one might generally assign to fiction and history, respectively) are inseparably linked, and the determinant of what is both plausible and proper is a preexisting consensus about how the world works, with all the implied values and institutional structures that maintain that specific vision of the world. Miller quotes from Genette’s essay: What defines plausibility is the formal principle of respect for the norm [the normative, nomos?], that is, the existence of a relation of implication between the particular conduct attributed to a given character, and a given, general, received and implicit maxim. . . . To understand the behavior of a character (for example), is to be able to refer it back to an approved maxim, and this reference is perceived as a demonstration of cause and effect.24

Unmotivated behavior in fiction is implausible. Its equivalent in historical narratives is a set of random events unconnected by cause and effect. Miller suggests through her application of Genette’s argument to Lafayette’s novel that the princess acts in her relationships with Nemours and her husband without a socially acceptable maxim to which others might refer her behavior. She is “a heroine without a maxim, like a rebel without a cause.”25 For Miller, the discussion of Lafayette’s heroine and her implausibility is part of her larger analysis of a poetics of women’s fiction and the way in which the conventional response to women’s writing has measured the plausibility of writing against the patriarchal maxims that produce what passes for truth or what, employing the terms I have advanced, is considered part of the normative world, the nomos. As such, Miller does not question what I have suggested is the complex and mutually dependent relationship between fiction and history that Lafayette’s novel advances. On the other hand, Barbara Guetti, in her 1985 article, “‘Travesty’ and ‘Usurpation’ in Mme de Lafayette’s Historical Fiction,” argues that Lafayette usurps “historical truth, replacing it with an alternative, rival truth.” Lafayette’s historical fictions (or fictive histories) might be seen as “mere travesties,” that is “acceptable manipulations of documentary sources in the interest of vraisemblance [plausibility] and bienseance [propriety].” Guetti continues: “We could also say that she performs a similar kind of travesty in feminizing history, making women and their concerns a central focus in her stories, as they were not either in recorded history or in actual political fact.”26 But, Guetti insists, Lafayette’s “travesties” go beyond the substitution of one kind of reality for another. Indeed, Lafayette calls into

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question the distinction between the real and its travesty—one might say between history and fiction—by refusing to privilege either the social conventions or the interior self upon which the narratives of history and fiction rely. Such blurring of the exterior and interior worlds in Lafayette’s histoire produces a radical unsettling of history itself whereby it becomes a supplement to fiction, as fiction is to history, rather than a privileged and authoritative term.27 Quoting Paul de Man, Guetti speaks of “the possible convergence of aesthetics and history,” in which the novel “come[s] to the aid of history, supplying the plausibility real history often lacks . . . [but] also threaten[ing] to undermine its authority entirely.”28 Such “bordercrossing” is especially dangerous when engaged in by women authors whose access to the authority of History (and its discursive co-conspirators, such as law and politics) was officially limited.29 In La Princess de Clèves, Lafayette renders visible those sites that are usually “historically invisible”—the feminine, the aesthetic, and the intimate—by foregrounding what appears to be a traditional rendition of history.30 The novel’s opening extended narrative, detailing the complex relationships at the court of Henri II, has been dismissed by critics as merely background to the story of Nemours and the princess. But, as Beasley argues, Lafayette’s choice of historical portraits (twentyseven in all) places her in the tradition of women’s writing and “distinguishes [her] . . . from official historians” by emphasizing the interplay between personalities as the source of historical causality.31 The battlefield of love, upon which such historical figures as Anne Boleyn play out their destinies, does not merely replace the military battlefield or the high-stakes struggle of opinion and policy that is politics; rather, we come to understand that amorous relationships both embody and produce those political and martial struggles. As such, “the real political realm is located on the interpersonal level and . . . political acts consist of confrontations between individual personalities.”32 What Lafayette and other French women novelists imply is that personal relationships and individual characters are the stuff of politics and the fate of nations hangs on the particularities of its subjects’ affairs. Domestic and foreign policy is represented thereby as an extension of the individual’s particular history. In La Princess de Clèves Lafayette’s extensive historical introduction to the story of the princess, as well as the interpolated historical accounts of women who have suffered because of their passion, foregrounds the role of women, not merely as pawns in the marriage game, but as “active political agents” whereby “intrigues of the court become the privileged realm of political activity.”33 Goodrich names



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this realm an “intimate public sphere”; as such it is a sphere that unites nomos and nostos, or law and love.34

French Romance and the English Novel I want now to suggest that the way in which English women novelists are configured in the canonical history of the novel is the result of a twofold critical bias against the gender (women) and nationality (French) of those who first imagined a realm of activity for women, a realm that was neither public nor private but insistently both political and intimate. As Dena Goodman has argued, there was no settled distinction between public and private spheres, and “individuals needed to negotiate their actions, discursive and otherwise, across constantly shifting boundaries between ambiguously defined realms of experience.”35 Feminist critics have drawn attention to the political and legal nuances of the work of early women novelists like Aphra Behn, Eliza Haywood, and Delarivier Manley, but even so most of these critics have not acknowledged the influence of French women writers, and thus English women novelists seem to spring from an aesthetic and historical vacuum and can be easily marginalized in the history of the English novel. The foundational text that articulates the canonical history of the English novel is Ian Watt’s The Rise of the Novel (1957), a text that makes little mention of the contribution to the genre by either French or English women writers (except in terms of quantity and by invidious comparisons to Defoe, Richardson, and Fielding). Watt defines the distinguishing characteristic of the novel as its “formal realism,” which is conveyed through “a set of narrative procedures which are so commonly found together in the novel, and so rarely in other literary genres, that they may be regarded as typical of the form itself.”36 Characteristic among these narrative procedures is the specificity of individual characters, as opposed to “character types,” a specificity that requires particular names, local habitations, recognizable causeand-effect relationships, and their concomitant temporality. Thus the English novel that Watt identifies as beginning with Defoe is, he claims, markedly different from the ideal characters and heroic plots of the romance, a form closely associated with France. Not only are the characters within the novels to be distinguished from the aristocratic heroes of the romance, Watt links the fictional individualists of the novels to the growing importance of those English readers who consumed these fictions—readers from the commercial class, one that united a Protestant spirituality with a capitalist economy.

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Watt does acknowledge the French influence on the development of a modern sense of the individual, arguing that the “greatness of Descartes was primarily one of method . . . , and his Discourse on Method (1637) and his Meditations did much to bring about the modern assumption whereby the pursuit of truth is conceived of as a wholly individual matter, logically independent of the tradition of a past thought.” The novel, “whose primary criticism was truth to individual experience,” is the literary form that “most fully reflects this individualist and innovating orientation.”37 It is not to novels written contemporaneously with Descartes, however, that Watt looks to contextualize this statement. On the contrary, he rejects ­seventeenth-century French fiction because it “stands outside the main tradition of the novel,” now implicitly defined as a specifically English genre. Moreover, novelists like Lafayette “for all [their] psychological penetration and literary skill, . . . [are] too stylish to be authentic.”38 Watt reinforces this distinction between “stylish” fictional language and the language of English novels that authentically represents what Watt calls the real by comparing the “novel’s mode of imitating reality” to the “procedures of another group of specialists in epistemology, the jury in a court of law. Their expectations, and those of the novel reader coincide in many ways.”39 Setting aside, for the moment, the obviously gendered nature of this comparison (no woman would sit on an English jury until 1920), one also wonders how Watt overlooks the “stylish” (as in stylized) manner of legal terminology that must also be part of the jury’s epistemological experience of the court of law. Watt’s rendition of the novel’s mimetic reality assumes that experience is a singular and monolithic concept (akin to his definition of the real), unmediated by class or gender and that the language of experience (be it of law or of love) can therefore render this concept transparently and truthfully. He also assumes that the formal and linguistic conventions of the court of law would be understood and interpreted by the laity in precisely the same way as those who practiced it. The relationship between the real event and its legal representation in a court of law is surely no less transparent than a neoclassical representation of historical events and their fictional counterparts in the fiction of Lafayette.40 There is, certainly, a formal and stylistic difference between the French “romans” and the English novel, but they are distinctions of degree rather than radical epistemological and, by implication, moral differences. That Watt’s formal analysis should devolve finally into a set of assumptions about the moral standing of the English novel is ironic given that his critical argument intended to revise F. R. Leavis’s moral history of the novel.41



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One reason why these aesthetic prejudices seem impossible to overcome is that Watt’s analogy results from the imposition of gendered terms and assumptions. Let me isolate just three of these. First, Watt assumes that in the early eighteenth century, the legal system in general and court testimony in particular could be clearly identified as a stable epistemological category against which an equally stable generic form, the novel and its representation of reality, could be measured. The second assumption, which follows from the first, is that Watt presumes that these two discursive formations—the literary and the legal—are discrete and separate categories of knowledge and representation. In other words, the legal and the literary occupy separate cultural spaces and produce separate, although related, cultural representations. In fact, Watt, and those critics who accepted his demarcation of discursive regimes, would come to determine the excellence of a particular novel precisely on the grounds that it marked and enforced the boundaries between the fictional and the nonfictional, between the literary and the legal (or political or scientific), in ways on which readers could agree.42 The third assumption upon which his distinction between the English and French novel relies is that as an epistemological and experiential category, romance is a debased form because it creates an illusory reality and cannot engage the crucial relationship between the individual’s moral being and the social systems that reflect that particular morality—the female authorship of these romances confirms their instability as moral forms, the aesthetic replicates the moral.43 In Watt’s analysis, the English novel’s “rise” is partly attributable to its successful defeat of the dangerous and seductive power of romance, understood as a foreign and inauthentic aesthetic representation. In his extensive revision of Watt’s theory of the rise of the English novel, The Origins of the English Novel, 1600–1740, Michael McKeon complicates the relationship between the French and English novel, arguing that the English novel grew out of generic instability produced by complex and intertwined social, aesthetic, and political transformations in the seventeenth and eighteenth centuries. In particular, McKeon argues that the romance narrative “continues to suffuse the period. . . . The Restoration and early eighteenth century experienced an enormous outpouring of fiction that . . . must surely be associated with the antiindividualist and idealizing tradition of romance.”44 McKeon suggests that the romance form is not merely accommodated within the form of the novel but has an independent existence through much of the period that Watt claims the English novel and its formal realism was dominant.

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In his subtle analysis of the dialectical relationship between genre theory and the history of genres, McKeon argues for the generic instability of both the romance form and the novel until well into the eighteenth century. In fact, he suggests that both forms coexist until the middle of the century when the term “the novel” was employed to name a genre that could only be identified as such retro­ actively. That the category of the novel only names that which already exists as a category of analysis may explain why, despite the presence of many women novel­ ists in the early part of the eighteenth century, the literary history of the novel names so few. By the time a canonical literary history of the novel came to be written, the normative definition of the novel essentially shut out those women whose romances and erotic narratives had originally made the form so popular. This particular literary critical move is endemic in the history of literature—one that marginalizes the contribution of women by retroactively claiming a priority of form and content that produces the very terms and definitions that devalue their contribution.45 Like Watt, McKeon approaches the distinction between the novel and romance from an epistemological perspective: he argues that the novel achieves its “modern, ‘institutional’ stability and coherence . . . because of its unrivaled power both to formulate, and to explain, a set of problems that are central to early modern experience.” Those problems, McKeon argues, produce two sets of inquiry: questions of truth and questions of virtue. Both questions, he asserts, “pose problems of signification: What kind of authority or evidence is required of narrative to permit it to signify truth to its readers? What kind of social existence or behavior signifies an individual’s virtue to others?”46 Despite what might seem an obvious connection between these questions and issues of gender, McKeon rarely invokes women’s fictional narratives in his analysis of the historical transformation of these epistemological and social categories. Thus in his densely argued and detailed account of the rise of the novel, McKeon succeeds in unsettling Watt’s conceptual categories—both in terms of genre and class—but replaces them with ones that are similarly blind to the gendered ideologies that construct both literary and cultural histories. In so doing, McKeon replicates precisely the manner in which, as Catherine Gallagher and William Warner have demonstrated, women writers were “disappeared” from the literary and social histories of the period.47 The last two decades have seen many responses to the work of Watt and McKeon whereby the cultural significance of late seventeenth- and early eighteenth-century women writers in the construction of the literary history of the novel has been



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fully acknowledged.48 Although there is not space within the limits of this book to engage in a comparative study of French and English women’s writing, I want to suggest in the final section of this chapter the ways in which the recognition and elaboration of an historical link between the French novel and its English counterpart can enrich our readings of English novels by women writers. I hope thereby to indicate the limitations that rigid nationalist and disciplinary critical agendas impose on women’s historical representation and aesthetic productivity, limitations that continue to constrain the recognition and evaluation of women artists.

Aphra Behn: French Romancier or English Novelist? That Aphra Behn, like other late seventeenth- and early eighteenth-century English women writers, was familiar with French literature is evident from her numerous translations from the French, such as her 1685 translation of La Rochefoucauld and the 1688 translation of Jean-Baptiste de Brilhac’s Agnes de Castro, which was published in a single volume with Oroonoko in 1696. Behn’s potboiler, Love-Letters between a Nobleman and His Sister (published in three parts between 1684 and 1687), is set in France, and the nobleman, Philander, (who is based on Ford, Lord Grey of Werke, who seduced his wife’s sister and was active in the Duke of Monmouth’s 1685 rebellion against James II) is a follower of Cesario, the French prince of Condé, who plots to overthrow his king. The love letter constitutes evidence in the court of love, testing the authenticity and depth of feeling of the two parties. It also serves another important function.49 As a letter intended to be read only by one other but which has circumstantially become the property of the larger social world, the love letter exemplifies the real and symbolic tensions between the intimate and the public. The letter embodies the intimate connection between the lives of the characters and the public spaces they inhabit; it incorporates the intimate devices of their personal lives and the public strategies of their social ones and frequently is employed to reveal the treasonous behavior of the citizen and the infidelity of the lover. In her essay on this novel, “Beyond Incest: Gender and the Politics of Transgression in Aphra Behn’s Love-Letters between a Nobleman and His Sister,” Ellen Pollak suggests that Behn may have emphasized the love interest over the political aspects in her adaption of the Ford affair because she recognized “the greater acceptability for a woman of the role of romance historian over that of political poet.” 50 Pollak thus seems to confine Behn’s choices to two—either romancier or

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political commentator. Despite her own claims, however, Pollak’s essay yields to the complexity and instability of both the political and the sexual categories in Behn’s novel, and she argues that “Behn’s complex structuring of her tale makes evident . . . the profound interimplication—indeed the mutually constitutive nature—of sexuality and politics.” Sexuality and politics are more than analogically connected through the plot—“rather [it is] a relationship of discursive interdependence in which the categories of the private and the public, materiality and meaning, desire and the law reveal their inherently contingent and unstable identities.” Although Pollak relies on the “political nature of individual desire” in her analysis of the incestuous relationship between the nobleman, Philander, and his sister-in-law, Sylvia, she fails to connect Behn’s insight to its most likely and historically contemporaneous source, the French novelistic tradition.51 Instead Pollak suggests that Behn sets the precedent for Richardson’s Clarissa, Jane Austen, and Frances Burney—once again imposing those categories derived from Watt’s account of the English novel and thereby obscuring foreign and specifically female literary histories. I follow Ros Ballaster and Deborah Ross in insisting on the importance of the French tradition in assessing Behn’s place in the history of the English novel. As Ballaster argues: “The popular association of the late seventeenth-century (French) romance with a female readership and female literary production established a continuity between the female-authored ‘novel’ in England and the earlier romances despite their significant differences.”52 Actively deploying the history of French romance fiction in her analysis of the English novel, Ballaster connects that history to “significant and distinctive conditions of access for the woman writer into explicitly political discourse.”53 She recognizes that Behn’s “fictions . . . of seduction, betrayal, and tragic love . . . address and rework . . . ideological dilemmas,” but argues that the “female plot” becomes merely a “serviceable fiction,” one that “reflect[s] and refract[s] male plotting.”54 This critical move, which aims to rehabilitate the female-authored, amatory fiction by contextualizing it within a specific political history, in fact reinforces the conventional reading in which the woman’s agency is reduced to either resisting or yielding to male seduction. Under this reading, political plotting marginalizes the amatory plot, the latter recognized only as metaphor, as the vehicle for the real thing. Ballaster does acknowledge that Behn’s deployment of the “self-concious and self-reflective . . . persona of the female narrator habitually problematizes the rhetorical function of femininity in relation to masculinity within her fiction.”55 That



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insight, however, does not seem to change her readings of the texts substantially— especially that of Oroonoko, where she argues that “the form of a sentimentalized romance” articulates a “political message,” one that “is more evident [than in Behn’s other fictions] only because of the masculine gender of its protagonist.”56 Ballaster’s insistence on evaluating the success of Behn’s fictions in terms of how “the form of a feminocentric tale of love” conveys the “contingencies” of the political simplifies the mutually constitutive nature of the political and the amatory and reduces complexity to a duality.57 This duality reinforces a gendered hierarchy and renders the woman only as the object of men’s desire, much as amatory fiction functions in a hierarchically gendered relationship to the political. My argument, by contrast, emphasizes the influence of the French romance and petite histoire on Behn and suggests that imposing retroactively identified generic categories obscures Behn’s deft handling of multiple generic characteristics in her history of Oroonoko. Like other novels written by late seventeenth- and early eighteenth-century English women writers, Oroonoko is constantly subjected to critical efforts to classify its generic nature—as if that, in itself, would yield a satisfactory interpretation of the novel. As Patricia Pender argues, “Oroonoko’s oxymoronic form combines elements of biography, autobiography, heroic tragedy and romance, producing a veritable concatenation of textual kinds.”58 The author describes her story as a “true history” composed of Oroonoko’s own narrative of his life in his native land of Coramantien, Africa, his enslavement by English slavers, and his captivity in the New World, as well as eyewitness accounts of Oroonoko’s life in Surinam. Integral to Behn’s story of the royal prince who suffers humiliation and death at the hands of the English settlers is the story of Oroonoko’s marriage to Imoinda, who also ends her life in captivity in Surinam. In part, then, the novel is a conventional romance narrative, but it is also a story about what constitutes the proper form of government—in an African tribal kingdom, in England, and in its colonies—and who has the authority to enforce the law over the governed. As such, it negotiates the “competing claims of romance and realism.”59 The narrator, a white woman, functions in this text as a representative of the colonizing powers. Her “travel brochure” account of the native inhabitants and Surinam is, of course, itself an act of colonizing, particularly in her sentimentalized, JudeoChristian analogy of Surinam to the Garden of Eden. Thus her narrative not only depicts the political in action but is itself an act of political commentary on both the imperial project and the romance of Oroonoko and Imoinda. Oddvar Holmes­ land is only the latest in a long line of critics who read Behn’s narrative through

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fixed genre categories: he defines Behn’s narrative as a mixture of romance, novel, and travel narrative and in thus relying on genre as a hermeneutic, he occludes the political under the general category of the novel.60 Given the generic categories that he invokes, Holmesland must question the tension between romance and realism in the novel, arguing that it interferes with the formal and ideological effects of the text. Holmesland asserts, for instance, that “[t]hough Behn’s message is closely associated with romance chivalry and a feudalist ethos, its aim is to bridge ideological schisms” between the “aristocratic, romance-prone ideology” and the “more rationalist, progressive age.” 61 We can recognize in this argument the presence, once again, of Watt and McKeon’s critical terminology and historical trajectory, one in which the rational, realist novel form (which is allied, generically, to the travel narrative) is privileged over the romance narrative, the English over the French, the rational over the romance. Such a theoretical position implies that these generic identities are necessarily in conflict and that the romance narrative—by definition a more conservative and archaic form—will inevitably be relegated to a less politically and socially effective role despite its influence in popular culture.62 Moreover, Holmesland’s adoption of this conventional opposition between ­realism and romance forces him to situate Behn (and her narrator) as contradictory and ideologically unstable in their effort to “bridge ideological schisms.” Variations on this critical perspective—instability or narrative ambivalence—are another version of the generic instability or uncertainty that critics seem to feel must be resolved. I would argue that our inability to categorize Oroonoko according to traditional generic conventions provides precisely the clue we need to understand its narrative strategy. The novel metaleptically employs several generic conventions in order to generate altogether new categories of experience that intersect and open out into a place where the amorous does not merely supplement the political, nor do the legal and political merely provide a context for the amorous. The question is not: To what genre does Oroonoko belong? Rather, it is: Does Oroonoko’s generic “contradictoriness” constitute the modus operandi of the story rather than its problem?63 What if the narrative deliberately juxtaposes the stories of heroic romance and colonial tyranny, of desire and politics, of nostos and nomos? Such a reading would insist that the relationship between realism and romance is not antagonistic but mutually constitutive of an intimate public realm, one that can accommodate both the personal nobility of the royal prince, ­Oroonoko, and his desire for Imoinda, as well as the political consequences of that nobility and de-



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sire. This realm contains both the “romance of colonialization” articulated through the narrator’s representation of Oroonoko and the political and aesthetic consequences of that representation. Indeed, the consequences of desire, just like the material results of politics, are themselves the inevitable consequence of this ongoing tension between the intimate and the political. That tension is not only acted out on the bodies of Oroonoko and Imoinda but is most noticeably embodied in the figure of the white women narrator, who vacillates between her allegiance to the slave owners and colonizers and her sympathy for the two ­lovers. As Ballaster points out, the narrator exploits her apparent powerlessness as a woman to position herself with Oroonoko and to distinguish herself “from the tyrannical white colonists.”64 In her anxiety over the violence that might be done to her white, female body by the black slaves, the narrator separates herself (literally and figuratively) from the enslaved Oroonoko and Imoinda, but not until she has introduced the black body into English history.65 But this “little history” of the royal slave cannot persist as an amatory romance—the progressively more violent scenes of bodily pain and torture that end the novel appear to close off the relationship between the narrator and Oroonoko, to mark, as clearly as the whips that scourge his body, the nature of the relationship between them. As with the racial and cultural differences that mark the Muslim from the Christian in “The Man of Law’s Tale,” no discourse can convert the unlike into the like, the colonized into the colonizer. The deaths of Oroonoko and Imoinda are fraught with the same tensions that have determined the narrator’s relationship to her subject—on the one hand, a romance narrative that ensures Oroonoko’s martydom and, on the other, a narrative of judicial violence spawned by the colonializing rhetoric of the Europeans. One witnesses two death scenes, one intimate and one public, which enact the affective form of this relationship between the intimate and the political on the bodies of Imoinda and Oroonoko, just as the bodies of the enslaved have felt the imprint of colonial law. No longer content to wait for the English to free him and the pregnant Imoinda, Oroonoko stirs up a slave rebellion. The language he employs to foment their revolt distinguishes between the political claims made by those who have won their slaves honorably in battle, as they do in Coramantien, and the personal claims of the plantation owners acted out upon the bodies of the slaves. Despite vigorous resistance from Oroonoko and Imoinda, the rebellion is put down, and, tricked by a promise of a pardon, Oroonoko surrenders. He is immediately bound to a stake,

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whipped ferociously, rubbed with Indian pepper to enflame his wounds, and then chained to the ground. The body of the once-royal Oroonoko becomes less than animal. He becomes merely the flesh upon which the law of the colonial council can be performed, a state that Paul Strohm, evoking Walter Benjamin, calls “‘mere’ life or ‘bare’ life, life stripped to its essence and undefended against whatever rebuke the state or temporary sovereign chooses to administer.” The body can either receive the “imposition of symbolic meaning” as an “assertion of the sovereign’s power” or destabilize that power by an act of martyrdom.66 That act of martyrdom must be properly managed so that it is perceived as a sacrifice, as a sacred act, rather than as merely dying. It is in pursuit of this symbolically significant death that Oroonoko turns to Imoinda—a moment that coincides with his rejection of the name imposed upon him by the colonialists, Caesar, and his reassumption of his African name, Oroonoko: “you shall see that Oroonoko scorns to live with the Indignity that was put on Caesar.”67 Despite his reclamation of identity, however, Oroonoko remains bound by the narrator’s conflicting (and conflicted) representation: she continues to call him Caesar, thus suggesting the legal, political, and mythic power that accompanies colonial appropriation and the impossibility of return to a pre-colonized condition. Oroonoko’s desire for revenge and for a meaningful death cannot be separated from the desire he feels for Imoinda, for both are motivated by the recognition that there is no going back. Their political subjectivity is inextricably linked to their erotic relationship and embodied in Imoinda, whose womb bears both the literal and figurative sign of their romance (and their previous royal condition), as well as the mark of their captivity. Thus when Oroonoko plans to exact revenge on those who have tricked him—a revenge he knows will bring death—he must first invest his relationship with Imoinda with the same symbolic resonance that he believes his own death must acquire, one that is both political and erotic. By assuming the position of the sovereign and requiring that Imoinda’s death be an act of willing submission, Oroonoko elevates her beyond the status of “mere life” and allows her death to rise to the level of a symbolic martyrdom enacted out of political necessity and in the name of love. (Of course, Oroonoko also behaves like the English in that he claims ownership of Imoinda’s body and of their child, finally completing the narrative of male desire and power begun by his grandfather in Cormantien.) Putting aside for the moment her allegiance to the English, the narrator allows Oroonoko and Imoinda the kind of death appropriate to their noble status. She combines the languages of law and love in her account of Imoinda’s



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death, as Oroonoko is represented as both the adoring lover and the sacrificier, and Imoinda appears as both the “Heroick Wife” and the victim: (with a thousand Sighs, and long Gazing silently on her Face, while Tears gust, in spight of him, from his Eyes) he told her his design . . . and . . . the necessity of Dying; he found the Heroick Wife faster pleading for Death than he was to propose it. . . . He . . . took her up, and imbracing her, with all the Passion and Languishment of a dying Lover . . . the Lovely, Young, and Ador’d Victim lays her self down, before the Sacrificer; while he, with a Hand resolv’d, and a Heart breaking within, gave the Fatal Stroke. (95)

By representing the death of Imoinda as a martyrdom both to love and to an order of law higher than that imposed by the colonialists, the narrator simultaneously maintains her sympathetic engagement with her subject, Oroonoko, and distances herself from those with whom she would be naturally allied in race and power—the white plantation owners and their law-making council. She further distances herself by making the members of that council the detritus of English prisons and the savage Irish, “who understood neither the Laws of God or Man” (93). Imoinda’s death prefigures Oroonoko’s in its insistence on bringing nostos and nomos, desire and politics, into an alliance that imbues Oroonoko’s death with symbolic significance. After Imoinda’s death, Oroonoko languishes by her body for eight days, and when apprehended by the English, he seems likely to suffer an ignominious death at the hands of the mob. He is saved—preserved for martyrdom, as it were—by the love of an African slave of high rank, Tuscan, who cries out: “I love thee, oh Caesar; and therefore will not let thee Dye, if possible” (98). Oroonoko’s eventual death is one that takes on significance only in the narrator’s retrospective retelling—the tortuous dismemberment of his body cannot itself be elevated into a noble death. On the contrary, the love that has sustained Oroonoko up to his capture and execution is degraded into a pornographic scene of violence, the erotic and the political manifest in the “rude and wild” rabble and the “inhumane” justices who enjoy the mutilation of Oroonoko’s genitals and quartering of his body for public display to deter further slave revolts. Notably, the narrator is absent during this mutilation, having left out of fear of Oroonoko’s revenge. Only by linking this “frightful Spectacles of a mangl’d King” with the “Brave, the Beautiful, and the Constant Imoinda” can the female narrator adequately attest to the significance of Oroonoko’s life and death as a representative historical event—one that recalls for Behn’s English audience the recent history of Charles I and his “martyrdom” at the hands of the parliamentary forces in 1649 (100). One

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notes again the significance of the “constant” female figure in the articulation of the political; like Constance in the “Man of Law’s Tale,” Imoinda both submits to and yet resists the masculine world of politics and law. That world requires her body as its text upon which the legal and political can be articulated. In this sense, the body of the woman is analogous to the body of the colonized, to the enslaved, both in its individual and collective condition. Thus the English, female narrator whose observations have bound the colonizer’s world to the colonized represents both the political and legal regimes of the English, as well as the resistant political and legal regimes of the enslaved.68 Through this generically hybrid tale of love and politics in the colonial world of Surinam, Behn suggests that narratives of romance and of law are twinned representations of the affective registers by which relationships are constructed. Despite the all-embracing nature of the slave economy that seems to compel a strict calculus of individual and social relationships—one is either property or propertied— the romance narrative of Oroonoko and Imoinda suggests that those legal and political relationships, which might seem to determine the fate of the individual, are riven through with emotional choices and the politics of nostos. This literary mapping of the intricate interweaving of public and private, of the political and the intimate, imitates the way in which the women writers of the late seventeenth and early eighteenth centuries simultaneously situated their lives, as authors and women, in the domain of literature and in the domain of public experience.

ch ap te r th re e

Black Letters and Black Rams Law, Gender, and the Novel in Early Eighteenth-Century England La condition juridique de la femme reflète l’idée qu’un société se fait de l’ordre, qu’elle énonce et protège par son droit. Nicole Arnaud-Duc, “Women Entrapped: From Public Non-existence to Private Protection”

And in some Parts of England, by the Customs and Tenures of Manors, a Widow that has a Bastard, forfeits her Estate, unless she comes into the Court of the Manor, in the Presence of the Steward and all the Tenants, and pronounces the following Lines, riding on a Ram, Here I am, Riding upon the Back of a black Ram, Like the Whore as I am; And for my Crincum Crancum, I have lost my Binkum Bankum; And for my Tail’s Game, Have done this Worldly Shame; Therefore pray, Mr. Steward, let me have my Land again. Upon this Penance she is restored to the Possession of her Estate, for that Time. A Treatise of Feme Coverts; or, the Lady’s Law

In the last chapter, I argued that the canonical history of the novel imposes upon the late seventeenth- and early eighteenth-century women’s novel specific generic categories, along with their associated aesthetic and political values, which have excluded these novelists from the accepted tradition. The association of women authors with a romance tradition that was retroactively marked as foreign, stylized, and conservative raised the male-authored novel to the privileged position

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of representing the real. The political and social efficacy of this version of the real was reinforced by a parallel move in the development of a canonical history of the common law: those customs traditionally associated with rural and noncentralized courts gradually lost their authority and were represented as merely the quaint remnants of a romantic version of ancient law. One might say, using the term I have employed to mark a nonnormative version of political and social regimes, that nostos appeared as unreconstructed nostalgia. In an effort to restore nostos, this chapter reconstructs the history of its demotion by tracing coeval changes in legal and literary representations of the widow in Britain. I explore the relationship between the codification of a certain kind of law and the privileging of a certain kind of novelistic aesthetic, suggesting that to achieve a homogeneous, representative judicial subject, the romance narrative and its concomitant idea of a flexible legal sphere had to be suppressed.

Riding Backward: Women and Law The spectacle of the promiscuous widow reclaiming her land quoted in the epigraph above is described in A Treatise of Feme Coverts; or, The Lady’s Law (1732).1 The spectacle reminds us, of course, of another apparently promiscuous woman who rides into a male-designated space: the Wife of Bath flamboyantly dressed in red, interrupting a male-constructed representation of women and their relationship to law (and “lawe,” or faith). Feme Coverts, a self-help law book printed for women (and, in this case, printed by a woman named Elizabeth Nutt) was designed, claims its anonymous author, to inform the “fair Sex . . . how to preserve their Lands, Goods and most valuable Effects.”2 Mixed in with this “serious matter” are anecdotes from customary law, labeled by the author as “Things of Entertainment.”3 This story of the promiscuous widow is one of those “things.” Customary law provided for flexible and local interpretations of civil and criminal offenses and thus allowed women a more expansive field of possibilities for negotiation and agency than might exist under statutory and common law.4 While it was the custom in some manors that a widow possessed her dower lands only as long as she remained a widow and chaste (dum sola et casta fuerit), there is no evidence that the widow was required to undergo the ram-riding ritual of humiliation. The forfeiture could often be reversed with the payment of a fine (a variation of medieval “leyrwite”) at the manor court.5 The anecdotal custom of riding the black ram was most likely a seventeenth- or eighteenth-century fanciful version of



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medieval law, perhaps inspired by those who supported the centralized power of the state and its governmental agencies—the courts and the legislature—to the detriment of custom.6 As I have already argued, the trivializing of customary law should be distinguished from the appeal to “custom,” as in the “immemorial custom of the common law,” that would continue to ground law’s authority and came to be understood as an appeal to an officially sanctioned historical memory.7 The distinction between these “gothic” legal institutions of the past, represented now as customary law, and the apparently reasonable management of personal and public relationships in the early eighteenth century that Feme Coverts promotes was emblematic of Whig history (a narrative that assumed the inevitable progression of humankind toward scientific enlightenment and a liberal political state). Such a contrast between ancient customs and modern law would underscore the progressive nature of a society in which the law was a fit subject of study for an audience beyond the practitioner elite. From the mid-seventeenth to the mid-eighteenth century a considerable number of legal digests, legal dictionaries, and instructional manuals for the lay lawyer and women were made available.8 The dissemination of legal knowledge to the laity did not progress uncontested: many argued against this dangerous “commoning” of the common law, while others saw it as a sign of the intellectual and political maturity of the nation. As Richard J. Ross argues, printing legal texts transformed the legal profession as well as the laity because print helped along the recognition that law was made rather than found; facilitated the formation of the modern notion of precedent, the solidification of a group identity within the profession, and the breakdown of the oral learning exercises in the Inns of Court; and both provoked and carried a common law apologetic and nationalist literature.9

The “solidification of a group identity within the profession” by the end of the eighteenth century was also attributable to the gradual codification of professional standards for legal practitioners, as well as to the publication of a highly successful narrative of law’s development from “time immemorial”: Blackstone’s Commentaries on the Laws of England (1765–69). The Commentaries follow the tradition of legal compendia such as “Glanvill” (twelfth century), Fortescue’s De Laudibus Legum Angliæ (ca. 1470), Littleton’s Tenures (1481), and Coke’s Reports (1600). They were the record of Blackstone’s lectures on law given at Oxford University between 1755 and 1765. Blackstone’s talks were considered part of the general education of the gentleman and were accessible to nonprofessional lawyers. His purpose in

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memorializing his notes was both to correct errors in unofficial versions and to restrict the clandestine sale of such texts. The Commentaries were quickly celebrated, however, as the repository of the official account of English common law—especially so in colonial America where Blackstone’s clarity of expression and emphasis on natural law filled the gap left by the absence of both a trained bar and a tradition of legal education. Although Blackstone published his Commentaries to clarify confusions in unauthorized versions of his lectures, one of the inevitable consequences of its publication was that it made law’s reasoning accessible to the layperson. Despite the seemingly self-evident nature of legal reasoning or judicial opinions to the professional practitioner of the law, the nonlegal reader brought an unconventional eye to the texts and thus suggested new interpretations and disputes. Fears about opening authoritative texts to public scrutiny were not unprecedented; they constitute part of the sacrilegious nature of the Wife of Bath’s insistence on interpreting the language of the Bible and the Church Fathers in her own interest. The printing of the Bible in English during the Reformation, as well as the debate over the printing of law books in Tudor and early Stuart England, intensified the anxiety about who should have access to the printed word. “The power of print to undermine hierarchy and inflame dissension as readily as reinforce order,” argues Ross, “had become a commonplace by the middle of the sixteenth century.”10 Hierarchy is produced, in part, by a stable and unquestioned relationship between the present and the past; the print revolution unsettled that relationship, provoking radical inquiry into the exact nature of historical authority and evidence, and eventually displacing Renaissance humanist historiography with Baconian empiricism. Law and its institutions would not be exempt from this reassessment of the authority of the past. Inspired by the work of French jurist Jean Bodin in his Methodus ad facilem historiarum cognitionem (Method for the easy comprehension of history) (1566), English intellectuals demanded a reassessment of the origins and privileges of institutions, both civil and ecclesiastical. . . . [This was] not an appeal to authority, a search for support in the opinions of revered figures of the past, nor in the application of a priori reasoning such as that of antiquity, but a fresh unprejudiced examination of things themselves with the aim of seeking explanation from them by processes of inductive reason.11

The publication of law books that revealed the sources of law’s authority contributed to this “reassessment of the origins and privilege of institutions.” Anxiety



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was focused almost entirely on the “publication of national law—of the common law, Chancery and royal prerogative courts. . . . Publication of local law posed less of a threat to the professional and Courtly interests.” Those unfriendly to the publication of law texts directed criticism less to the “texts detailing the content of the law (such as statutes and manuals for lay legal officials) and more . . . [to the] monographs opening the ‘judgments’ and ‘fictions’ of the law.”12 The printing and publication of law books desacralized the law, converting it from a singularly authoritative institution into one of the many discourses contesting for authority in the marketplace of ideas. One did not need be a member of the privileged elite to understand how the law worked its magic; indeed, the very solidity and permanence of the printed text ironically deprived the law of its majesty and aligned it with other, apparently less noble, representations of the age, like the novel, which also dealt in “judgments” and “fictions.” The novel united the age’s concern with the particularities of experience—the empirical realities of an individual’s life— with those “judgments” and “fictions” that an astute reader could inductively extract from the narrative. Feme Coverts proposes a similarly “novelistic” reading experience, offering the particularities and generalities of women’s relationship to the law, together with anecdotes and “Things of Entertainment,” to mark how far law had progressed. Encouraging women to read law books specifically written for them might suggest a somewhat enlightened attitude to women’s rights but such reading would also, of course, remind women that their unruly bodies were the necessary cause of legal intervention and constraint. Women thus embody the (now ancient) illogicality of the law but are also the reason for the law’s rational and enlightened present condition. This double-edged relationship of women to the law is replayed in their relationship to the novel: the novel’s apparent triviality and excess is naturally linked to women’s authorship, and yet women are encouraged to read novels so that they might learn how to shape their moral selves. The author of Feme Coverts specifically relies on the anecdote of the unregulated widow to instruct his female readers in the necessity of laws governing their behavior. The verse that the widow must recite is a confession that she has threatened more than her own good name. She has undermined the very ground upon which the common law was constructed, that is, property—here recognized in both its real (as in real estate) and female forms. Her recitation of sins is not merely a confession of her promiscuity but also her admission that her body has disordered the law of property and succession. She has jeopardized her claim to her husband’s

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copyhold by producing a bastard who might disinherit the lawful heir, and she has jeopardized her dead husband’s still-present claim on her living body. She has not only been sexually promiscuous “for [her] Tail’s Game,” she has threatened to break the legal contract that entails her, as property, to the estate of her dead husband until she exchanges that relationship, by marriage, with another husband. Publishing texts to inform women of their legal rights and suggesting that they should consider themselves fairly treated under the laws of the nation not only promotes a political domestic agenda; women’s rights are also implicated in foreign policy, especially as a way of distinguishing the enlightened laws of eighteenthcentury England from the baseness practiced in Europe, especially in France. Patrick O’Brian relies on this traditional comparison of the laws of England to those of France in his historical novel, The Mauritius Command (1977), set in 1810 during the Napoleonic Wars. Mr. Farquhar, a gentleman “bred to the law,” who is en route to his position as governor of Mauritius—newly “liberated” from French occupation by the English—asserts the superiority of English law over Bonaparte’s “new French code.”13 Mr. Farquhar has been led to reflect upon the difference between English and French law by “considerations on the inheritance of landed property” (164). For him, the law’s wisdom lies in the way in which it protects property from illicit dissemination; or, put another way, the law’s effects are most precisely realized in its ability to distribute men’s property, including women’s bodies and their products, in an orderly and predictable fashion. Mr. Farquhar cites the manorial custom as an example of the particular English nature of the common law as opposed to the Napoleonic French Code, a code that “quite overlooks the illogical, [one] might say almost supra-logical and poetic side of human nature” (164–65). He continues: Our law, in its wisdom, has preserved much of this [illogicality], and it is particularly remarkable in the customary tenure of land, and in petty serjeanty. Allow me to give you an example: in the manors of East and West Enbourne . . . a widow shall have her free-bench—her sedes libera, or in barbarous law-Latin her francus bancus—in all her late husband’s copyhold lands dum sola et casta fuerit; but if she be detected in amorous conversation with a person of the opposite sex—if she grants the last favours—she loses all, unless she appears in the next manor-court, riding backwards on a black ram, and reciting the following words . . . (165)

Mr. Farquhar thereupon repeats the rhyme through which the widow appeals for the return of her forfeited lands: “Here I am / Riding on the Back of a black



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Ram / Like the Whore as I am.” He claims that “the universal, contented acceptance of her reinstatement” is to be attributed “largely to the power of poetry.” When Mr. Farquhar cites the widow’s ride on the black ram as an example of English law’s appeal to the “illogical . . . poetic side of human nature,” he obviously does so to promote English law over the French and by extension, the English national character over the French and their “logical automata” (164). Mr. Farquhar’s promotion of English law, as representative of the English nation, echoes longstanding encomia on the unique wisdom and ancient history of the common law (see, for example, the praise of Fortescue, Coke, and Blackstone). Its uniqueness lies, according to these authorities, in the mixture of custom and codification to form a legal system reliant upon local performance and habit, on the one hand, and the synthesizing and codifiying practices of centralized and powerful authorities, on the other. And yet, despite Mr. Farquhar’s praise, the mixed nature of En­ glish law was fast disappearing, soon to be replaced with a less flexible standard of theory and practice. I will argue in Chapter 5 that one sees only a trace of that flexibility in the satirical cartoon that is represented on page xxvi of this book: the struggle of Queen Caroline to proclaim her innocence before the House of Lords. Caroline’s alignment with the struggle of the common people to gain a hearing for their grievances marks both the Queen and the “mob” as unseemly and disruptive. The Queen’s sexual promiscuity is coupled with the unruliness of the mob, who vainly try to present their petitions. But their guilt, like the Queen’s, is a foregone conclusion— indeed, their presence in that august chamber merely confirms it. Opposed to the claims of customary legal practice as exemplified in riding the black ram is the majesty and authority invested in the House of Lords, here sitting as a court of law. Articulated in this early nineteenth-century cartoon is an opposition between two kinds of law: on the one hand, a legal system that is popular, custom-based, identified with the lower social orders, potentially dangerous and therefore marked as female (nostos) and, on the other, a legal system that is elite, statute-based, identified with the upper social orders, stable and marked as male (nomos). That such a recognition of two kinds of justice could be represented visually suggests the shift that had taken place over the course of the last one hundred and fifty years, although presumably the representation of this custom must have had some residual power to call up memories of manorial practices in order for it to be effective as satire.14 The mix of the formal and the informal that was once identified as specific to common law and the proud source of its national character, its Englishness, now

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existed only as material suitable for entertainment. Customary legal performances once had the same authority as statutes and formal law to bring about punishment and restitution; dramatic representations of law, understood as symbolic rather than doctrinal events, once had at least as much suasive power as written texts and legislation to restore order. In the political cartoon, such manifestations of alternative forms of justice are made to appear both ridiculous and subversive, although, again, perhaps their very representation in such a high-powered contest between the crown and the people suggests that the effort to marginalize folk law, to trivialize its practice in relationship to formal black letter law, had not been completely successful and that folk law still had continuing authority in popular culture.15 In the gradual centralizing and codifying of the legal system that culminated in the nineteenth century, written texts (and printed texts) came to be equated with the law, as opposed to law as actualized in individual and communal practices; the former was identified with a literate and sophisticated clientele, the latter with an oral and local community.16 While the publication of law books focusing on national law might have promoted a sense of identity, even at the cost of demystifying the law, ignoring local law led to its eventual marginalization in both jurisprudential and political affairs. The erasure of folk law is already underway in Feme Coverts when the author insists upon referring to “old Laws and Customs relating to Women” as “very merry,” even though the “Makers of them might possibly be grave Men.”17 Unwilling to relinquish the masculine authorship of even “merry” laws, the author of the treatise nevertheless consigns them to a legal past that must be distinguished from the written, and thus more regulated, law of the present, the superior value of which is, of course, embodied in a treatise like Feme Coverts itself. Those “merry laws,” then, take their place alongside the medieval courts of law and romance narratives that are dismissed as mere entertainment and the particular (and illusory) resource of women petitioners. Despite the author’s demurral, however, Feme Coverts does embody precisely those qualities that O’Brian’s fictional attorney praises: a legal system that is a mixture of poetry and logic, of informality and formality, of custom and fixed procedure, of fiction and regulation. Or, as Peter Goodrich argues in his essay “Poor Illiterate Reason,” [t]o study the common law historically is to study it as tradition, as a plural set of practices . . . , as a mixture of image and myth, oral memory and written text, custom and judicial legislation. . . . It is to study a body of texts and contexts in which fiction is as



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forceful as analysis, image as significant as rule and the play of memory as strong as the logic of argument.18

Even as Feme Coverts maintains that the common law’s treatment of women can be systematized, it is also drawn irresistibly toward reason’s other. Thus regulation comes inextricably linked to excess: the inclusion in Feme Coverts of what the author dismisses as this very merry tale of the widow and her bodily excesses helps to popularize legal concepts of property, but at the same time it inevitably disrupts law’s formal discourse and reveals the ever-present vulnerability of that serious version of law to other juridical systems, a vulnerability I have already explored in Chapter 1.19 My focus here is the changing representation of the law, a change that corresponds roughly to that historical moment when the intensification of commercial enterprises and the rapid dissemination of knowledge previously transmitted only in manuscript or oral form necessitated a more stable and centralized judicial system. Concern for self-regulation in the legal profession in the early eighteenth century, as well as a concern about what constitutes evidence (and who is authorized to decide), are just two of the reasons for regulating and stabilizing what the law means and how it works. It should not surprise us, then, that other cultural discourses, like literature, would also demonstrate a similar desire for self-regulation and would struggle to articulate what makes a morally sound but commercially viable society, a struggle that would inevitably be figured in gendered terms.

Mere Entertainment and Serious Matter The designation of the widow’s performance as a merry tale and mere entertainment reminds us both of the performative origins of law—it is a dramatic enactment or resolution of some conflict—and also of its origins as narrative. I am not merely suggesting that storytelling takes place within the boundaries of what we consider the legal, but that law is itself a form of narrative, whether considered in its quotidian, institutional, or historical forms. The author of Feme Coverts insists, however, upon a distinction between black letter law, which he presumes to be neither storytelling nor entertaining (that is, not a merry tale), and those anecdotes that he would exclude from the serious discussion of law’s effect and affect. It is, however, precisely this exclusionary distinction between that which is merely merry and that which informs, or between that which entertains and that which

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instructs, that confirms how radically heterogeneous and unstable such cultural discourse is, despite its best efforts to represent itself as hard-edged, or as having a recognizable inside and outside. In other words, if legal discourse is to claim a stable and self-sufficient identity, it must constantly seek to delegitimize that which seems mere entertainment, even though such intrusions into the serious matter of the text are precisely what help to define law qua law. This mixture of what I would term regulation and, following Bender, “novelization” is inherent to the heteroglossic legal and literary discourse of the eighteenth century.20 The instability that finds itself marked as feminine in law is, as I have suggested in my discussion of the dialogue between the Man of Law and the Wife of Bath, an instability inseparable from narrative and its effects (that is, it is the function of contingency, memory, and temporality) and recalls the way in which another power­ful, early eighteenth-century cultural discourse—the discourse of and about the novel—also fixated upon that which seemed to be changeable (and was therefore originally marked as female and in need of containment). It appears to be more difficult to distinguish what must be excluded from what should be privileged when considering the discursive domain of the novel as opposed to the realm of the law. One cannot rely upon the apparently recognizable differences between the dominant and the marginal, as in statute versus customary practice, or writ versus anecdote. One might, it seems, readily distinguish between that which is law and that which is storytelling, but how can one differentiate between licensed storytelling and that which is unlicensed? William B. Warner’s argument in Licensing Entertainment (1998) helps us understand how certain of these hierarchical distinctions were constructed and enforced, primarily those between the so-named scandalous romances of early eighteenth-century women writers and the apparently serious moral narratives of male writers. Warner’s account of the cultural history of the novel “offers a deliberate alternative to the story of heroical authorial innovation, given its definitive modern shape in Ian Watt’s Rise of the Novel,” a text that relies primarily upon a jurisprudential metaphor for its definition of the novel.21 Warner insists, rather, upon a “complex interplay between the emergence of novel reading for entertainment and the antinovel discourse, between that discourse and programs to elevate novel reading, and between elevated novels and the institution of the novel as a type of literature.”22 The campaign to make novel writing and reading respectable required those novels of amorous intrigue associated with the popular women writers of the late seventeenth and early eighteenth centuries—like Aphra Behn, Delarivier



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Manley, and Eliza Haywood—to be overwritten by male writers such as Defoe, Richardson, and Fielding in order to promote a “higher cultural purpose.”23 Not all attempts to demote women writers were subtle: antinovel critics and writers viciously attacked these women for the promiscuity of their lives and their pens, the two being inseparable. In Book IV of The Dunciad, for example, Pope explodes in rage against that disreputable scribbler, Eliza Haywood, one of the most popular novelists of her time: prize in a pissing contest, she is represented as a “Cowlike goddess” whose publisher, Curl, sucks from her distended breasts and whose filthy and numerous children, her novels, hang about her skirts.24 In The Dunciad, a text that both condemns the profligacy of Grub Street writers and enacts that very profligacy in its multiple versions and commentaries, Pope “condenses female authorship, easy virtue, and cultural filth. . . . [I]t is Haywood’s textual promiscuity . . . that makes her a type of Dullness, the poem’s explicitly female goddess of cultural disorder.”25 Like the widow who rides the black ram, Haywood’s body is the source of unlicensed production, her romance novels the illegitimate bastards of her monstrous fantasies. Popular women writers were parodied and caricatured as hags, whores, and consorts of the Devil, as emblematic, in other words, of what made licensing necessary in literature and restraint necessary in law. Behn, Manley, and Haywood were figured not simply as publicly displaying that which should be hidden but also as illicitly claiming public space with their narratives, and thus challenging the privileges of male writers. What these women writers threatened by their scandalous, amatory romances were precisely some of those fictions, inscribed in the body of legal texts, about the proper relationship of gender to power that made them appear scandalous in the first place. Writers like Delarivier Manley claimed the right to make private trouble public scandal, to make domestic violence public narrative, and to make political intrigue the stuff of the novel.26 I will examine in detail the relationship between law, literature, and gender in Manley’s autobiographical fiction, Rivella, later in this chapter. It is not surprising, then, that women writers seemed to many contemporary male writers to be versions of those midnight hags whose illicit deeds filled the news sheets. If Mary Toft could give birth to seventeen and a half rabbits, what monstrosities might not be produced by women whose power to represent reality seemed, at times, demonic, especially if that reality somehow stripped away the conceits of male privilege? Thus Pope’s characterization of Haywood in The Dunciad not only invokes Milton’s depiction of Sin, Satan’s daughter and incestuous lover in

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Paradise Lost, he also reminds his audience that the magical power of transformation assigned to women’s bodies, their tendency to assume the shapes of animals and monsters, as well as to reproduce themselves in both physical and textual monstrosities, is the natural consequence of the ungovernable nature of their bodies and the fantastical power of their imaginations.27 This ideological symmetry between the women writers and monstrous female forms is an acute expression of the fear that readers would be so entertained that they would be enchanted and thus transformed by the work of these interlopers into the literary marketplace. As Paula McDowell remarks in The Women of Grub Street, this fear is succinctly captured in Pope’s explanation to his publisher of why he satirizes apparently obscure figures: Obscurity renders them more dangerous, as less thought of: Law can pronounce judgment only on open Facts, Morality alone can pass censure on Intentions of mischief: so that for secret calumny or the arrow flying in the dark, there is no publick punishment, but what a good writer inflicts.28

Like witches, who engaged in “secret calumny,” women writers of popular novels were guilty of inverting the proper order of things, of making fiction seem true and calling the truth into question. They not only produced fantastic fictions; they embodied, as inverters of the real (read male) world, those fantastic fictions themselves. But, and here comes the persistent and unresolvable dilemma, if they were not real, how could they be regulated? As fantasies, the law had no hold over them (as the Wife of Bath well knows)—“since Law can pronounce judgment only on open Facts.” Thus the question of judgment and punishment, which rightly belongs in the domain of the law, a domain increasingly represented in the eighteenth century as existing outside of literature, is thrown back into the very cultural space— the literary—that is being contested. Pope suggests that only a good writer can inflict the appropriate “publick punishment.” Rather than supporting his claim as a writer to a culturally privileged position, Pope’s self-promotion reminds us that all claims to representation are unstable and deeply contested. If we juxtapose the Wife of Bath, the witch persona in her romance Tale, the fantasy of the promiscuous widow riding into court on the black ram, and the representations of women writers as transgressors of both literary and legal codes, we begin to see how legal and literary discourse have always worked in complicity to convert the figure of the woman speaking or writing into a sexualized, frightening, and fantastic fiction. It thus falls upon the judicious and rational poet, like Pope, to



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reinscribe the proper, that is, hierarchically gendered and classed, order of things, an order that aligned itself with the “serious matter” of “the Law.” This reinscription called upon classical authorities to sanction such an appeal to ancient rules and order in aesthetic, social, and political representations. This neoclassical turn also aligned the English nation with the imperial states of Greece and Rome and thus established their own political, legal, and aesthetic registers as advancing an apparently timeless and natural agenda that inevitably encompassed the law. It was to the law’s benefit, in other words, to insist upon an antiquity and magnanimity that transcended the passing and self-interested demands of an increasingly literate (and female) public. Appealing both overtly and covertly to the seriousness and antiquity of English law as the model of and source for rational inquiry into truth and virtue, writers who wished to distance themselves from popular fiction could claim to represent both a realistic and moral universe, even if depicting the immoral. Indeed, such an alignment with the legal universe is central to the specific nature of their realistic representation. The stature, self-sufficiency, and Englishness ascribed to the common law was useful to those English novelists who wished to promote their version of the genre as a serious, moral narrative—in other words, as the kind of storytelling that only a serious, moral individual might write for the purposes of entertaining other serious, moral individuals and instructing those naturally less serious, less moral individuals (that is, the uneducated class and female readers), who might otherwise succumb to frivolous, continental tales. The purpose of this strategic alignment of the novel and the law was to produce (or at least to construct) a specific legal and literary subject: a proper legal subject does not indulge in mere entertainment (like writing or reading the scandalous narratives of women writers), except as a way of drawing attention to the seriousness of the law. Furthermore, a respectable literary subject entertains by representations of the judicious and the rational. The dignity of the English law was thus aligned with the elevated English novel, as practiced, for example, by Richardson, and that which was suppressed to effect this appearance of stability and respectability was its unstable prehistory.29 Just as English common law was formalized by distinguishing it from mere entertainment (that is, customary law associated with a more informal and flexible standard of practice), so the serious English novel had to be sharply separated from its continental tradition and from scandalous local imitations. We see how these institutional representations of the law and the novel served to promote social and political interests when we compare, on the one

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hand, the way in which English law was distinguished from French law and, on the other, the way in which the English novel was elevated over its French counterpart. Warner describes this “articulation of nation and novel” as one that draws on a nexus of oppositions to advance a sexist and nationalist agenda: Repeatedly it is claimed that England is to France as the (elevated) novel is to the romance, as fact is to fantasy, as morality is to sensuality, as men are to women. (Terms can be added to this series: genuine and counterfeit, simple and frothy, substantial and sophisticated.) Grounded in a caricature of France as effeminate and England as manly, this loaded set of oppositions is simultaneously nationalist and sexist.30

Similarly, “nationalist and sexist” are yet another set of oppositions—those that characterize English law—only now the hierarchy is reversed. O’Brian’s English chauvinist, Mr. Farquhar, draws his praise of the superior virtues of English law from a long history of such comparisons: English law is to French law as poetry is to prose, as inspiration is to regulation, as sensitivity is rigidity, as women are to men, and as Fortescue insisted, as nobility is to baseness (he was referring explicitly to the use of torture).31 English common law is responsive to its subjects’ needs and rejects the tyrannical imposition of royal authority, be it in religion, politics, or law. Mr. Farquhar’s fictional assertions are echoed in the eighteenth century’s critical rejection of the rigidity of French neoclassical drama and in the arguments for the role of the imagination, not just reason, in judgment—a case made by Joseph ­Addison in an article of The Spectator published in 1712 (411).32 The way in which these two institutional narratives of literature and law are characterized in almost exactly opposite terms suggests how treacherous cultural history can be when called upon to witness its own construction. In particular, we might notice the complex way in which the feminine shifts its symbolic import, being viewed both as that which provides English law with its flexibility and poetic logic, as well as that which, through its association with lay practice and folk law, threatens the centralization and professionalization of the law. Such doublefacedness is precisely the point of John Selden’s Jani Anglorum Facies Altera (1610). In this text, as Goodrich asserts, the “two faces (facieque biformi) of English law . . . are variously British and Norman, pre- and post-conquest, native and foreign, saturnine and mercurial, antique and contemporary, before and behind, and, finally, both male and female.”33 Such ambiguity reminds us of the artifice of social discourses, of what constitutes the law, as well as what constitutes the novel, and thus requires us to view the law’s version of itself in the early eighteenth century with as



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much skepticism as we view the novel’s version of its own importance and dignity. Each representation mutually enforced the other, and both promoted the interests of those who practiced law and literature and sought to invest those practices with certain values.34 As Richard Kroll, paraphrasing Carol Kay, remarks: “the novel often metaphorically requires the law as a shared site of negotiation.”35 To illustrate the necessity of this skepticism and to enforce my argument that early eighteenth-century, women-authored texts employ romance narratives to disclose the gendered legal relationships of a society, I turn to Delarivier Manley’s Rivella (1714)—a text that, until recently, was written out of the canonical history of the novel as mere entertainment and therefore not worthy of study.

Rivella: Novel, Memoir, or Romance? Rivella, the fictional, autobiographical memoir of Delarivier Manley, is not an easy book to read, and its difficulty is not confined to the complications of the plot, the elusive nature of its putative subject, Rivella, or even the historical knowledge required of a modern reader. Rivella is difficult for all these reasons but also because the text requires that we accept the “protean, diffuse, contradictory” embodiments of the protagonist as representative of the historical and gendered complexity of the relationship between law and literature in early eighteenth-century England.36 In other words, Rivella is not just the fictional persona of the author Delarivier Manley but embodies the historically specific and gendered affiliation between the literary and the legal. In this sense, the eponymous heroine is both a fictionalized version of the author and an allegorical figure who requires to be read as such. Mary Delarivier Manley wrote and published her fictional autobiography in 1714 to preempt an apparently hostile account of her life that had been commissioned by the publisher Edmund Curll, who hoped to exploit Manley’s notoriety as writer of scandalous secret memoirs and amatory fictions. (In 1709 Manley had been arrested and jailed for seditious libel, the consequence of writing a scurrilous, but very successful, political novel, New Atalantis, which attacked the Whig government by revealing their amorous adventures—plus ça change !) The title page of Rivella aligns itself with those generic categories from which the official version of the novel will eventually be distinguished: “The Adventures of Rivella; or the History of the Author of Atalantis. With Secret Memoirs and Characters of several considerable Persons her Contemporaries” (39). Mixing the adventures of the romance genre with the history of autobiography and memoirs,

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the narrative also delivers portraits of the famous and the infamous in the manner of scandalous journalism. Moreover, this narrative is filtered through the point of view of Sir Charles Lovemore, Rivella’s admirer and biographer, whose voice has, in turn, been preserved by the former amanuensis and Gentleman of the Chamber to a young Frenchman, the Chevalier D’Aumont. It is, claims the anonymous translator, this original French version that has been translated into English, the connection to France emphasizing, of course, the text’s unreliable nature. It is hard to imagine more layers of transmission, more complicating frames, than the ones that preface this story: at once a reminder of the seventeenth-century, amatory French romance and a parody of romance’s apparent and deliberate distance from real and contemporaneous events, both a continental narrative and a claim to describe a still-living celebrity, Rivella invokes a plurality of genres, just as its narrative invokes a plurality of laws. Those who would judge Rivella by the standards of the later eighteenth-century novel would treat such plurality as evidence of a lack of sophistication, much like the mixture of genres in Behn’s Oroonoko confounded critics of her time and ours alike. I would argue, however, that this instability precisely captures the complexity of the relationship between law and literature at this particular historical moment, even as it captures the complexity of literary genres and jurisprudential theory and practice. Rivella begins with the Chevalier D’Aumont requesting that his companion, Sir Charles Lovemore, tell him “as many particulars relating to [Rivella’s] life and behaviour as [he] can possibly recollect” (46). Long an admirer of Rivella, Lovemore describes her life, beginning with her birth, and proceeds to tell of her early life as the daughter of the governor of the island of Jersey. He tells of his own unrequited passion for her as a young woman, her first love affair with a soldier under her father’s command, and her bigamous marriage to her already married cousin, John Manley, followed by her social success and infamy as the author of the New Atalantis. Despite the apparent romantic drift of the narrative and the Chevalier’s interest in Rivella as a “mistress of love,” it is Rivella’s involvement as mediator between the two parties to the Albemarle lawsuit—the Duke of Montagu and the Earl of Bath—that occupies a large part of the text (approximately thirty percent of the story) (46). Briefly, the Albemarle lawsuit originated as a result of two wills left by Christopher Monck (1653–88), 2nd Duke of Albemarle (“Mr. Double” in Rivella). He married Elizabeth Cavendish in 1669 and served as governor of Jamaica from 1686–88. In his first will, made in 1675, Lord Albemarle made John Granville (1628–1701),



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1st Earl of Bath (“Baron Meanwell” in Rivella) and a cousin of his father, the primary beneficiary, as he, Albemarle, was designated in Bath’s will should Bath die first. While in Jamaica, Albemarle was persuaded by his wife to make another will (1687) in order to revenge herself on Lord Bath, who had persuaded her husband to part with a house of which she was very fond. In this second will, Lord Bath’s portion of the estate was bequeathed to Christopher Monck (1674–1701), the adopted son of the Duke of Albemarle. The lawsuit between Bath and Christopher Monck was joined by Elizabeth Cavendish’s second husband, the 1st Duke of Montagu (1638–1700) (“Lord Crafty” in Rivella), in 1691 and lasted until 1698 when a compromise between the three parties was reached. That legal business should occupy such a significant portion of a narrative about a woman writer who was infamous for her politically aggressive, amatory fiction (New Atalantis, 1709) reminds us that the two modes of representation and action—law and love—were especially interwoven in the life of a woman. Indeed, Lovemore exclaims, “Behold Rivella in a new scene, that of business; in which however Love took care to save all his own immunities” (86).The final section of the narrative returns to the character of Rivella, the consequences of her political attacks upon the Whig government, and her poor treatment by her political allies, closing with Lovemore’s judgment that her true brilliance lies not in her intervention in political affairs but in knowing “how to live” and in making “such noble discoveries in that passion [of love]” (114). Lovemore tries one last time, as he has throughout his relationship with Rivella, to confine her to the private realm, to those amatory fictions she has written and that he has spun around her character. He even believes that he has persuaded Rivella that “politicks is not the business of a woman, especially of one that can so well delight and entertain her readers with more gentle pleasuring theams [sic],” and that she has therefore turned “to write a tragedy for the stage” (112). The subject matter of this tragedy, Lucius, the First Christian King of Britain (1717), is not, however, “more gentle” than politics: the play intertwines the arts of politics and love in the same way that Rivella’s own fictional life has done. The tragedy engages both the military and amatory adventures of the hero, Lucius, as Richard Steele’s prologue to the play makes clear: But the ambitious author of these scenes, With no low arts, to court your favour means; With her success, and disappointment, move, On the just laws of empire, and of love. (137, emphasis added)

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Manley’s semifictional, semiautobiographical “adventure,” Rivella, complicates discursive distinctions and offers us instead a narrative that is both allegorical and particular, both fictional and factual. It encompass both kinds of representation— both the imitatio of the novel and the advocatio of the law. The eponymous heroine of the narrative is both an accomplished author of memoirs and romances and the mediator in a complicated legal property dispute. The boundary between the character who models an allegorical romance heroine and the skillful legal advisor to the aristocracy is fluid and, indeed, by the end of the text, one comes to see both narratives as interchangeable. Such interchangeability is the consequence of how fraught with issues of law and property is the heroine’s condition as first, a single and then, a married (and abandoned) woman, and how limned with romance and desire is the legal battlefield upon which the two lords skirmish. It is to this complex and gendered interdependence of literary and legal representations that I will now turn.

Rivella: A “lady who could so well give laws to others, yet was not obliged to keep them her self ” Rivella is not just an autobiographical persona; she also embodies a specific historical relationship between the literary and the legal. That historical relationship is defined, in part, by the instability of the generic categories that the narrative invokes—the amatory, the romance, the confessional, the journalistic, the legal— as well as their essential interdependence. Thus the eponymous heroine is both a realistic representation and an allegorical one, both a re-presentation of Delarivier Manley and an allegorical account of the way in which cultural representations perform their meaning through, on, and about the body of the woman. To grasp the particular relationship between law and literature that is mediated through the persona of Rivella in Lovemore’s narrative, one has to begin by recognizing that the questions of property that are played out in the Albemarle lawsuit between Montagu and Bath cannot be isolated from the questions of sexuality and desire that permeate the story of Rivella’s life. In her edition of Rivella, Katherine Zelinsky argues that “[e]quivocal itself, Rivella raises questions about its own truthfulness, obscuring clear distinctions between fact and fiction in its complex interplay of discrete discursive modes and practices—historical, juridical, romantic and otherwise—with which Manley constructs her self-portrait” (11). Building on what Zelinsky has identified as the “complex interplay” between different dis-



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cursive modes, I would suggest that we should inquire into this text’s particular historical circumstances. Although it is inevitable that we read this text through our own experiences as critics and readers, we should try to suspend the inclination to categorize the text according to already existing genres and allow it to teach us how it might be read—which is, coincidentally, precisely the manner by which allegorical narrative proceeds. As Zelinsky argues, “Lovemore interweaves amatory and juridical strains, as Rivella’s adventures in love recurrently turn on questions of guilt or innocence,” but the narrative also demands that we recognize the amatory within the juridical, and vice versa; the romance narrative reveals that nostos and nomos are mutually produced (27). The romance narrative that details Rivella’s amatory adventures depends, as do all romances, for its affective power upon both the positive and figurative presences of the law: she steals from her father to enrich her lover; she marries a man who is already married; she enters into an adulterous affair with a married man. All these amorous adventures are subject to legal restraints, such as laws prohibiting bigamy and theft. Lovemore’s romance narrative is also internally constrained, however, by the “laws of love” that figure as what I have termed intimate juridical devices: Lovemore is forbidden from disclosing too much; he must “represent” Rivella’s reputation and behavior as if he were an advocate. Moreover, Rivella herself is both literally and figuratively “on trial” throughout the narrative, exposing herself to public gaze when she is forced before the court on charges of seditious libel and when she seeks out her ex-husband, Manley, in the court of Westminster. By contrast, however, the body of the woman also privatizes the public space of the court, and thus a public, yet intimate, space emerges, one in which Rivella’s personal and juridical self are inseparable, much as the representation of Queen Caroline on a black ram collapses the intimate and the political.37 Just as the juridical shadows the amatory in the form of the romance narrative, so does the amatory inhabit the juridical. Rivella becomes embroiled in the complicated Albermarle lawsuit only because of her attachment to an interested party and because the account of the legal, political, and personal maneuverings of the parties is crisscrossed with desire and amorous adventures that profoundly alter its outcome. Marriage, seduction, and all the apparatus of the romance seep into the account of the lawsuit: Montagu (one of the parties to the lawsuit) marries Elizabeth Cavendish (the inheritor of the Albemarle estate) in a suspiciously arranged ceremony, during which the bride seems unaware that the ceremony is

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taking place; another party to the lawsuit has been tricked into marriage with the daughter of a poor merchant; Rivella’s lover, Cleander, a supporter of Montagu, finds himself charged with corruption, and Rivella must intervene on his behalf with her ex-husband, John Manley, who is an advocate for Montagu’s adversary in the lawsuit, Lord Bath; and so on. Law, it seems, is not only present in legal spaces like the courtroom, the prison, the bar, and the bench, or in legal texts such as wills, confessions, testimonies, and legislation. Law also permeates quotidian experience, especially the amorous kind, and its literary representations. The disputed legal documents—the two versions of the Duke of Albemarle’s will—disappear from view as a juridical text, appearing in the narrative only as the ghostly rem(a)inder of a dead man’s imposition of his will on his widow. Thus the amatory and the juridical are intertwined and create an imaginary (but not, therefore, an unreal) space that is neither public nor private, neither masculine nor feminine and which lies outside of the jurisdiction of either literature or law.38 This imaginary space should not be taken merely as that which stands opposed to reality or the embodiment of experience; on the contrary, this space is precisely where law happens and where literature simultaneously records the consequences. Rivella’s generic inconsistency marks the text not as a failed version of what literary critics have retroactively claimed as the proper novel form but as an example of the complex and insistent heterogeneity that remains over time a significant aspect of novelistic discourse. As I have argued, if we examine the traditional metanarrative of the novel’s formation, we find repeated in the critical history a desire to formalize a specific set of conventions associated with the novel, a desire manifest, in part, by the explicit connections drawn by eighteenth-century novelists between the narrative and epistemological conventions of the novel and those of the law. These same connections are cited by Ian Watt in The Rise of the Novel, a text that remains the single most powerful model of that genre’s formation. The version of the law that grounds Watt’s analogy is, as I have suggested, a unitary one, rather than the more complexly and discursively interrelated representations of amatory and legal practices found in the works of early women novelists.

“Questions of Virtue and Questions of Truth” The association of the novel with serious matters allows it to become the literary equivalent of the law and of political, religious, and social doctrine, settling in the fictional domain the battle between the legal and the illegal, the moral and



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the immoral, and arbitrating what literary historian Michael McKeon calls “questions of virtue and questions of truth,” or what we might otherwise term social and epistemological uncertainty.39 As Warner has demonstrated, to accomplish such work, the genre gradually shifted its character from an early seventeenthcentury form—the somewhat salacious, continental romance—to its specifically English form. Defoe began the work of disassociating the English novel from continental romances (and from their women authors) by claiming the status of truth for his narratives, labeling them as history and thus pointedly distinguishing them from the secret (covert) histories of Behn, Haywood, and Manley— the femes coverts. Moreover, as Warner points out, Defoe’s development of “the double-voiced memoir narrative enables him to make a particularly cogent intervention in the print market. . . . [The memoir narrative] allows him to write other print genres, like criminal biographies and the erotic secret history, to which he has moral objections. At the same time, he can offer his own moral texts as a corrective and substitute for the pleasures of the narratives he would replace.”40 Thus readers would have the pleasure of following the sexual adventures of Moll Flanders or Roxana, at the same time as they aligned themselves with the moral editor of such memoirs in condemning the practices they enjoyed. By the 1740s, Richardson and Fielding consciously distinguished their “new” species of writing from the popular novels of women writers who were, being women, naturally cast as alien and immodest and whose right of ownership in the form of the novel was constantly compromised by their gender. Both Fielding and Richardson claimed that their version of the novel—the literary and aesthetic equivalent of law’s empire—could convincingly portray the personal choices that produced a morally reliable social order. They disagreed about what technique best represented that social order, a quarrel exemplified in Fielding’s parody in Shamela (1741) of Richardson’s enormously popular novel, Pamela (1740); however, they both agreed that the novel could construct epistemologically and morally sound representations of a reality that was shared by author and reader alike (and that even women like Richardson’s Pamela and Clarissa could be witnesses to a certain kind of truth about their world).41 Part of the definition of the novel shared by these authors relied upon an agreement between author and reader about what constituted sufficient evidence of moral design, and about how that evidence should be narrated; how, in other words, the reader could be shaped into a sufficiently informed judge of the moral choices made by fictional characters. By mid-eighteenth century this ­jurisprudential

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­ etaphor was the governing fiction of the novel (and one that Watt employs retm roactively to pass judgment on the novels of the early eighteenth century). Clearly, the access to and knowledge of the legal system possessed by most men of a certain status strengthened the tendency to turn to jurisprudential metaphors in questions of judgment. Such was especially the case with Fielding, of course, who was himself a magistrate and whose novels draw extensively on his legal career.42 Both the social status of the novel and the effort to naturalize legal discourse benefited from this alliance between law and literature. Fictional narratives read like court transcripts, with detail piled on detail; autobiographies and biographies read like criminals’ confessions, and criminals shaped their confessions and life histories as if they were fictions; readers were asked to read “judiciously” and to take on the role of the judge in their assessment of characters. And what better way to inculcate the pervasive and growing professional force of the law than through the novel, a form of narrative that appeared to reproduce the way ordinary citizens thought about their lives and told their stories? It seems, then, no historical accident that the professionalization of the legal system as we understand it today—its concentration in the hands of trained readers and writers, its cultural representation as a formal rather than popular discourse— and the development of a serious, moral narrative, the novel, that is likewise concentrated in the hands of the trained practitioner, should have occurred at precisely the same historical moment: from approximately the last quarter of the seventeenth century to the mid-eighteenth century. This professionalization solidified what Wilfred Prest identifies as “a fundamental transformation of the professional sector [that] occurred between the mid-sixteenth and mid-seventeenth centuries. During those years the legal profession was in effect reconstituted along modern lines.”43 As I have already indicated, particular representations of legal or literary institutions advance national agendas. If this is so, then it follows that disciplinary narratives, besides working at the national level, must also work at the social level. The official history of the common law and the canonical account of the rise of the novel partake in certain shared qualities, one of the most important of which is, paradoxically, the insistence that they are two different social formations with their own spheres of authority and action. Blinded by the disciplinarity of contemporary culture, many critics continue to treat literature and law in this period as separate discursive systems, opposing the reality of the law to the fictiveness of the novel. Often the same critics who have reevaluated the construction of the canoni-



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cal history of the novel, and thereby greatly complicated our understanding of the relationship between the popular novelists and those who have been dubbed the fathers of the English novel—Defoe, Richardson, and Fielding—these same critics have nevertheless continued to represent the law as a monolithic and self-evident discourse, regardless of whether the writers, Grub Street or self-styled serious writers, contested or promoted the dominant legal system. Although there has been extensive appreciation of the presence of the law in the novel of the early to mid-eighteenth century, there has been little or no consideration of the reverse. That is, neither literary nor legal critics appear to have considered that if the boundary between legal and literary discourse allows law to seep into novelistic representations, then one should expect to see novelizing narratives in formal legal texts (as opposed to popular representations of judicial proceedings or trials).44 What has been noted, however, is just the contrary: law has been traditionally seen as impervious to other discursive systems; indeed, this imperviousness operates as one of law’s primary fictions of authority. That it is a fiction should be apparent from the ongoing complaints from English legal commentators about corruption from foreign systems of law, or the vulgar readings of the people, or the levity of certain legal customs, even if they are imagined ones, like riding the black ram; this mixture of rules, customs, and fictive antiquities has always been perceived as untidy at the least and dangerous at the worst because it “dissipates . . . the palpably coercive unitary conception of common law.”45 The representation of the history of the law and the history of the novel as discrete formations is no accident, such discreteness being intimately tied to the construction and validation of a certain kind of social order and, by extension, to a certain kind of subject. Even though, as I have suggested, the law is infiltrated with novelistic moments and the novel generates both a truth-function and a claim to verisimilitude by its invocation of legal concepts, there nevertheless exists in their self-definitions a kind of “gentleman’s agreement” not to tread on the other’s territory. I use the term “gentleman’s agreement” deliberately because it seems to me that these two discourses represent and accrue moral authority, not only as I have suggested by insisting upon disciplinary separateness, but also by inscribing a vision of order, of faith in the judicial process, and of the properly trained judicious reader, that must be kept safe from the forces of excess, promiscuity, and disorder, identified with women and the lower social orders. To accept, then, at face value a reading of the common law in the eighteenth century as a self-evident, sufficient, and formal

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discourse—and thus as a reliable and worthy source for novelistic representation—is to confuse what those jurists and writers invested in law’s authority and literature’s moral value wished it might be, with what it was. As with the worthy spokesman of the common law, so the reliable narrator or protagonist of the elevated novel (who was frequently connected in some way with the legal system) represented certain gender- and class-identified interests and a belief in an inherent sense of moral rectitude. Such a narrator/protagonist could be depended upon to model the kind of narrative that could be taken seriously. The alert reader would learn how to judge evidence and how to determine reliable witnesses from unreliable ones by following the advice of the narrator or the experiences of the protagonist. What was represented fictionally in the novel was another version of what was played out every day in the courts of law: the struggle over what constituted evidence and who was privileged to debate its value. The contest between writers over what constituted a reliable representation of the world, a contest that engaged both class and gender bias, coincided with the contest in law between those who would formalize, codify, and professionalize the law and those who would maintain the powerful presence of customs and rituals that required only the knowledge of communal traditions, a shared memory, rather than the knowledge of legal forms and procedures known only to the educated. From this point of view, the rejection of customary law is the rejection of a poetic or fictive system in favor of a system of legal representation that is sustained by conventions of interpretation limited only to the elite. It is this latter version of the common law with which the elevated novel strategically aligned itself. Unsurprisingly, one of the major consequences of this critical analogy between the novel and the law—an analogy that moves beyond formal considerations to include moral and political values—has been to exclude women from the history of the novel. Such exclusion began when women novelists became popular and was couched in the same terms as women’s threat to legal order—that is, in terms of their excessive sexuality and social volatility. This version of the history of the novel still dominated critical narratives until recently, despite the recovery of many lost women writers. Nevertheless, women novelists appeared only in the prehistory of the true novel, which had become, by definition, the form of the novel that could be analogized in its formal and functional qualities with jurisprudential form and function: the author as judge, reader as jury, and text as sentence and regulation. Thus both the critical utility of connecting novelistic epistemology with legal epistemology, and the definition of what constitutes the



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generically recognizable form of the novel absolutely depend on the exclusion of gender as a constitutive factor. Just as the canonical history of the novel requires simultaneously the presence of women writers in its prehistory as transgressors of generic codes and yet the absence of women in the production of the proper novel, so too does the production of the representative judicial subject require both the presence of women as transgressors of the legal code and the absence of women subjects in the enactments of that code. My opening quotation from Feme Coverts illustrates this double requirement precisely: the promiscuous widow must physically represent herself as a potential transgressor of the legal and moral practices of her society so that the reestablishment of those practices, embodied in the figure of her male steward who can restore her estate, can be symbolically played out before her tenants. Her physical presence as a transgressive figure is necessary to reinscribe her absence as an active legal and moral agent. What I have tried to sketch out in this chapter is a hypothesis about the way in which official histories of institutional formations arise. I have argued that the official history of common law and the canonical history of the rise of the novel indulge in positivist versions of discourse formation at the cost of marginalizing other, more complicated, internally inconsistent, versions. Both histories depend upon the absence of women’s bodies in all but their promiscuous sexual figurations, those sexual excesses being precisely the warrant for legal and literary disciplining. The invoking of sexual excess inevitably calls up images of social disorder, and thus both histories naturalize the gender and class hierarchy that the novel and the law, understood in their privileged forms, seek to represent.

chap te r f our

How to Tell a Story That Might Prevent a Hanging Mary Blandy, Parricide, 1752

On April 6, 1752, Mary Blandy was hung for murdering her father, a lawyer of Henley-upon-Thames in Oxfordshire. She was charged with poisoning him by feeding him a “love philter” under the instructions of her lover, Mr. Cranstoun, who claimed he only wished to encourage Mr. Blandy’s consent to their marriage. The love philtre was actually arsenic, a fact that Mary denied knowing. Mr. Cran­stoun, who was already married under Scottish law to a Roman Catholic of a Jacobite family, was rumored to be attracted to Mary by the pretty sum that would fall upon the man she married. Her father hoped to attract the right sort of man for his daughter, pledging to settle £10,000 on her at marriage. At his death Mr. Blandy was worth only £4,000. The leading Crown lawyer at Blandy’s trial, Mr. Bathurst, who became lord chancellor in 1771, excused Mr. Blandy’s deception as “a pious fraud.”1 The fascination attached to a woman who murders in a state of love far outlasts questions of her guilt or innocence. The violent woman, like the figure of the witch, focuses a culture’s moral and epistemological anxieties, those questions of virtue and questions of truth that Michael McKeon identifies as the “enabling foundation of the novel.”2 Destabilizing moral and epistemological certainties, and the relationship of those certainties to a gendered world, these aggressive women briefly transform the world, making the familiar seem strange, and playing treason with what ought to be. We have seen in the previous chapter how the struggle to represent what we might call the most real version of the real was played out between the law’s claims



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as a truth-telling discourse and the novel’s claims as a truth-representing discourse. I am suggesting that by 1752, this same struggle surfaced in the trial of Mary Blandy and was eventually resolved by means of a complicity between law and literature: the novel left to the law the question of truth, and the law left to the novel the question of virtue—the law’s empire was epistemological; the novel’s empire was moral. Only the jurisprudential, the theological, the historical, or the empirical were culturally authorized to make inquiries and render judgments about truth and lies; only a certain kind of novelistic representation, one that had specifically distanced itself from the (French) seventeenth-century romance novel and its English cousin, the amatory tale, could render judgments about the moral consequences of sin and criminality. Other literary forms provided only dubious representations of what really happened; limned as they were with bias and moral instability, they lacked plausibility (so unlike the cause-and-effect logic of legal, scientific, or providential narrative) and verisimilitude. In this chapter I juxtapose several versions of the death of Mary’s father, Francis Blandy, to suggest how different discursive strategies both produce and reinforce gendered conceptions of narrative authority. For example, read against the theologically infused legal transcript collected by William Roughead, Mary Blandy’s own account of her romantic relationship with Cranstoun cannot compel more than sympathy for her female gullibility. Between Roughead’s formal account of the trial and Blandy’s impassioned plea of innocence I situate magistrate-novelist Henry Fielding’s Examples of the Interposition of Providence in the Detection and Punishment of Murder (1752)—one of over forty contemporary pamphlets that analyze her character and the trial. This historical narrative, I argue, demonstrates how fictional discourse aligned itself with the culturally weighty narratives of law and theology and against female-authored romance narratives.3

A Public Romance What follows is my own version of the public events surrounding the death of Francis Blandy—a retelling that relies upon the representations made by Blandy herself, her lover Cranstoun, and the prosecuting and defense lawyers in the court, as well as the account in Roughead. As such, it inevitably duplicates the omissions and rhetorical strategies adopted by the original authors and reporters of the events leading up to Francis Blandy’s death; like those original narratives, my version can only speculate about what really happened.

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Francis Blandy, a lawyer in Henley, had repeatedly hawked his twenty-six-yearold daughter on the marriage market and even spent a season at Bath to catch a husband for Mary; repeatedly, Mary was wooed, and repeatedly, her father prevented marriage because the prospective husband was insufficiently wealthy or prestigious to satisfy his social ambitions. Eventually, however, a certain captain in the army won Mr. Blandy’s approval, and in 1746 Mary became engaged. Unfortunately, the captain’s regiment was soon ordered abroad and, as Roughead’s sentimentally pious account has it, “the stern summons of duty broke in upon . . . [Mary’s] temporary Eden” (3) and the engagement dissolved. Finally, through her father’s business relationship with Lord Mark Kerr, Mary met Captain the Honorable William Henry Cranstoun, grandnephew of Lord Mark, who had taken a house at Henley named “The Paradise,” an irony that neither the prosecuting attorney nor Roughead misses in characterizing Mary as Eve and Cranstoun as the serpent. Thirty-two-year-old Captain Cranston appeared to be as physically unprepossessing as he was morally ugly. Cunning and lecherous, he had fought with the English as a first lieutenant in Sir Andrew Agnew’s regiment of marines in the 1745 Jacobite rebellion and was stationed in Henley, raising volunteers to fill up the Hanoverian lines depleted by the Scottish rebels. Captain Cranstoun was the fifth of seven sons of a Scots peer, William, 5th Lord Cranstoun, and his wife, Lady Jane Kerr, eldest daughter of William, 2nd Marquis of Lothian. Cranstoun’s father had died in 1727, and his eldest son, James, had become the sixth Lord Cranstoun. Mr. Blandy apparently encouraged Cranstoun’s attention to Mary, but it was not until the following summer, in 1747, that Cranstoun simultaneously declared himself to Mary and told her of a Scottish lady who, he said, falsely claimed to be his wife. Accepted provisionally by Mary, Cranstoun formally asked Francis Blandy for his daughter’s hand in marriage, telling him nothing of the “action of declarator of marriage” that had been raised by his wife against him in the Commissary Court at Edinburgh in October 1746. Unfortunately for Cranstoun, his great-uncle, Lord Mark, more particular about such matters than the nephew, wrote to Francis Blandy informing him that his daughter’s fiancé already had a wife and a child in Scotland. On May 22, 1744, Cranstoun had privately married Anne, daughter of David Murray, merchant of Leith and son of the late Sir David Murray of Stanhope, baronet. After living with his wife “in a private manner” for six months, Cranstoun returned to his regiment in London, with the marriage still unpublished for fear



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that, as the lady was of a Roman Catholic and Jacobite family, Cranstoun’s chances for promotion might be prejudiced. On February 19, 1745, Anne Cranstoun gave birth to a daughter. Despite having already privately acknowledged to both her family and his own that he was married to Anne Murray and that the child was indeed his daughter, Cranstoun disavowed his marriage—a politically expedient gesture, given that the Murrays had supported Prince Charlie and that Anne’s brother, the current baronet of Stanhope, had been taken prisoner at Culloden, tried at Carlisle, and was under sentence of death. (That sentence was later commuted to transportation.) Cranstoun claimed that Anne Murray had been his mistress—and that, although he had promised to marry her if she would become a Presbyterian, her refusal to convert freed him from his engagement. He said he had pretended to be married merely to save her honor before her family. Roughead suggests that Mary Blandy believed Cranstoun because she desperately feared that she would be left an old maid. Likewise, both Francis and Mrs. Blandy were blinded by the aristocratic connections of their putative son-in-law. Mr. Blandy “in the vanity of his heart ha[d] been heard to say he hoped still to live to be a grandfather to a lord.” 4 Certainly Cranstoun’s story, regardless of the light into which it cast him, was common enough to be believable. Many young women had been seduced and ruined by a secret marriage, and Cranstoun’s excuses would have confirmed for the Blandys that they were dealing with a man of fashion.5 Cranstoun remained with the Blandys until the spring of 1748, five or six months from the time he had asked permission to marry Mary. Then he left, on regimental business, for London and Southampton. While Cranstoun was absent, Mrs. Blandy fell ill; only the arrival of Cranstoun was able to restore her to health. He remained with the Blandys for another six months, at their expense, until his regiment broke at Southampton, when he set out for London. By this time, Mr. Blandy was considerably less enthusiastic about Cranstoun’s courtship of Mary; he had, by now, received directly from Cranstoun’s wife a copy of the Commissary Court’s decree in her favor.6 For the moment, however, Cranstoun seemed able to persuade Mr. Blandy that an appeal to the Court of Session would be successful in reversing the judgment against him. In 1749, a few months after Cranstoun left the Blandys, Mary went with her mother to London to seek medical advice about Mrs. Blandy’s health, and stayed in Doctors’ Commons with Mrs. Blandy’s brother, Sergeant Henry Stevens. With extraordinary nerve, Cranstoun proposed a secret marriage, perhaps hoping that

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the English courts would weigh more heavily in any determination of legitimacy than the Scottish courts. In his own account of the Blandy affair, Cranstoun claims that the marriage indeed took place at Mary’s request, “lest he should be ungrateful to her after so material an intimacy.”7 Despite the medical attention she received in London, Mrs. Blandy died on September 30, 1749, believing until the end in Cranstoun’s goodness and sincerity. She begged her husband not to oppose the match after her death. Mary had to borrow £40 from her godmother, Mrs. Mountenoy, so that Cranstoun could come down to Henley for the funeral. Mary forwarded Cranstoun £15 so that he could pay off the bailiffs who had kept him confined to his lodgings in London. He remained with Mary and her father for several weeks; for the first time, Cranstoun introduced Mary to the idea that Mr. Blandy’s rancor against him might be softened with a love powder he could obtain from “the famous Mrs. Morgan” of Scotland.8 At the appearance of a dunning letter, Cranstoun, borrowing another £15 from Mary, set off to London to pay his debts. He did not return until the following August in 1750, almost a year after he had left Henley, and only then after Mr.  Blandy reluctantly agreed to his visit. Without any progress in his Scottish affairs, ­Cranstoun was made to feel decidedly unwelcome by Mary’s father. According to Mary’s account, Cranstoun had brought some of the “love powder” with him, and to prove its potency, he apparently introduced a little into Blandy’s tea and miraculously transformed his hostility into amity. Mr. Blandy appeared to suffer no ill effects. Francis Blandy was not the only one who needed to be mollified: while at Henley, Cranstoun confessed to Mary that he had a daughter by a Miss Capel a year before he had met her. Mary forgave him and hoped he had repented his follies. It was harder for her to forgive him, a day or so afterward, when she discovered a packet of letters among his clothes from a woman he was keeping in London, presumably supported partially by Mary Blandy’s own loan to Cranstoun. Somehow Cranstoun was able to persuade Mary to forgive him again, invoking her own mother’s words “not to give him up.” Soon after, Cranstoun’s mother became dangerously ill in Scotland and, once again relying on Mary for his solvency, Cranstoun set off to see her. It was November 1750, the last time Mary saw him. Determined to end the affair with Cranstoun, Francis Blandy ordered Mary to write to him telling him not to show his face until he had settled his marital difficulties. Unknown to Mr. Blandy, Cranstoun’s appeal against the Commissary Court’s decision had been dismissed, and he was barred from marrying Mary while his wife lived.



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Some time in the spring of 1751, Cranstoun sent Mary a supply of Mrs. Morgan’s powder, along with some Scotch pebbles—highly polished stones that were a hot fashion item. Despite doubts about the powder’s effects on her father’s health, Mary mixed some in his tea. Apparently Mr. Blandy took some of the tea, but on at least two occasions he left it untouched, much to the great misfortune of one of the maidservants, Susan Gunnell, and an old charwoman, Ann Emmet, both of whom became violently ill after drinking the leftover tea. According to the evidence introduced at her trial, Cranstoun wrote to Mary advising her that when she wished to “clean her pebbles,” she should put the powder in something of substance so that it should not “swim a-top of the water. . . . I am afraid it will be too weak to take off their rust, or at least it will take too long a time” (9). On Monday, the 5th of August, Francis Blandy ate some gruel prepared for him on Mary’s instructions; on Tuesday, the 6th, he was seriously ill, in agony and vomiting. The Henley apothecary, Mr. Norton, was summoned. That evening, he ate some more gruel and was again struck down with vomiting and intense pain. Once again, Ann Emmet finished off Mr. Blandy’s uneaten food and once again, she became seriously ill. Mary Blandy’s concern over the gruel and her insistence that no fresh gruel be made alerted the maidservants. Susan Gunnell tasted the white gritty “settlement” at the bottom of the pan; immediately, the pan was locked in a closet overnight and, on Thursday, August 8th, Susan Gunnell carried the pan to Mrs. Mountenoy, who sent for the apothecary, Mr. Norton, who removed the pan for further examination.9 Mrs. Blandy’s brother, the Reverend Mr. Stevens of Fawley, arrived on Friday the 9th, and Susan Gunnell told him of her suspicions. She was advised to tell Mr. Blandy all she knew, which she did the next morning. Apparently, Mr. Blandy did not question the possibility that his daughter might be trying to murder him and wondered only where she might have obtained the poison. According to the testimony of Susan Gunnell and servant Betty Binfield, Mr. Blandy attempted to force a confession from Mary on several occasions that morning. In fact, Mary was seen throwing letters (and, it turned out, what was left of the powder) onto the fire. After she left the kitchen, the maids rescued from the fire a folded paper packet with the words “The powder to clean pebbles with” inscribed, apparently, in Cranstoun’s handwriting. There was still some powder left, and this they gave to Mr. Norton when he visited later that day. Mary insisted that a famous physician, Dr. Anthony Addington of Reading, be sent for. He arrived at midnight. Confirming Mr. Norton’s diagnosis that

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Mr. Blandy was suffering from the effects of poison, Dr. Addington warned Mary that her reputation and life would be in jeopardy if her father died. Mary’s response, according to the prosecution, was to write to Cranstoun on August 11th, alerting him to the danger: Dear Willy: My father is so bad, that I have only time to tell you, that if you do not hear from me soon again, don’t be frightened, I am better myself. Lest any accident should happen to your letters, take care what you write. My sincere compliments, I am ever yours. (71)

The letter was intercepted and shown to Mr. Norton, who read it to Mr. Blandy, who apparently remarked: “Poor love-sick girl! What will not a woman do for the man she loves?” (71). Confronted with the evidence of her complicity, Mary begged her father’s forgiveness while maintaining her innocence of any knowledge of the powder’s lethal effects. There followed, according to the testimony of the servants, a scene of daughterly repentance and paternal forgiveness that rivalled the sentimental romances of the day. Mr. Blandy died three days later, on Wednesday, August 14th. By this time, Mary had been confined to her room, guarded by Edward Herne, parish clerk of Henley. The next morning, Mr. Herne left Mary unguarded when he went to dig a grave for Mr. Blandy. Wearing nothing but a half sack and petticoat without a hoop, Mary ran out of the house. Her dress and manner quickly attracted an angry crowd, and she was forced to take refuge in the Angel Inn. Mr. Alderman Fisher, one of the jurymen summoned to the inquest, escorted her home. On Friday, the 16th of August, the jury found that Francis Blandy was poisoned and that Mary Blandy “did poison and murder him.” The constable was issued a warrant to conduct Mary to the county jail at Oxford until her trial. That night Mr. Blandy was buried; Norton, the apothecary, Littleton, his clerk, and Harman, his footman, were mourners.

Questions of Truth: A Judicial Romance In Roughead’s account of the trial, the language of sentimental romance, of love and betrayal, that he has employed to characterize the courtship of Mary, falls away in favor of the language of law and theology. This juridico-religious language marks the apparently bright line between affairs of the heart and affairs



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of the state. This boundary, however, becomes blurred as the court invokes gender stereotypes and values that inevitably reveal how love and law, private and public, are inextricably connected. That overlapping of spheres of influence and action occured even before the trial began when the secretary of state, also the duke of Newcastle, asked Lord Chancellor Hardwicke whether the Crown would assume the cost of prosecuting Mary Blandy because her relatives—the parties that would normally prosecute— were unable to undertake the burden. The lord chancellor heartily endorsed the Crown’s assumption of the cost of prosecution, asserting that “it would be a Reproach to the King’s Justice, and I am sure would create the justest concern & Indignation in His Majesty’s own mind, if such an atrocious Crime of Poisoning and Parricide should escape unpunished” (143). His letter concludes: “Forgive me for adding one thing more that it should be pointed out to Mr. Attorney [the Attorney General, Sir Dudley Ryder] to consider whether the crime of the Daughter, who, as I apprehend, lived with & was maintained by her Father, may not be Petty Treason” (144). Petty treason, “which was an aggravated form of murder,” consisted of one of the following three acts: “homicide of a master by his servant; of a husband by his wife; and of an ecclesiastical superior by his inferior.”10 It was also judged petty treason for “a son to kill his father, or master, to whom he was bound apprentice, or by whom he was maintained, or to whom he rendered any necessary service, though he received no wages.”11 It is unclear exactly under what category the secretary of state would have Mary Blandy charged with petty treason, given that the law seemed unable to imagine a female version of the patriarchal and paternalistic relations listed. Clearly though, she had abused, to use William Blackstone’s language in his commentary on this category, “a natural, a civil or even a spiritual relation” that subsists between a superior and an inferior, and had forgotten all “obligations of duty, subjection, and allegiance.”12 In this case, a crime against the familial patriarch constituted not only a “petty” but a “petticoat” version of a crime against king and state.13 On March 2, 1752, the grand jury for the county of Oxford found a true bill against Mary Blandy. On March 3, 1752, Mary Blandy appeared to answer the charges against her. In his opening statement, Henry Bathurst, solicitor general, suggests how the natural structures of affiliation—familial, theological, and jurisprudential—must

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be marshaled against the threat of Mary Blandy’s undaughterly, unnatural, and finally, unnarratable behavior: [W]hat will be thought of one who has murdered her own father? who has designedly done the greatest of all human injuries to him from whom she received the first and greatest of all human benefits? who has wickedly taken away his life to whom she stands indebted for life? who has deliberately destroyed in his old age, him by whose care and tenderness she was protected in her helpless infancy? who has impiously shut her ears against the loud voice of nature and of God, which bid her honour her father, and, instead of honouring him, has murdered him? (61)

The stockpiling of rhetorical questions amounts to an almost pathological refusal to narrate events, and joined with the increasing pitch of disbelief, constructs an accusation for which there is only one response: a confession of guilt. Moreover, those questions equate the father of Mary with the Father, from whom all have received “the first and greatest of all human benefits.” Emphasizing the social and political consequences of such a crime, Mr. Serjeant Hayward, Crown prosecutor, directs his comments specifically to the future lawyers and political leaders of the country in the courtroom—Oxford University students:14 [Y]oung gentleman of this University, I particularly beg your attention, earnestly beseeching you to guard against the first approaches of and temptations to vice. . . . Learn hence the dreadful consequences of disobedience to parents; and know also that the same mischief in all probability may happen to such who obstinately disregard, neglect, and despise the advice of those persons who have the charge and care of their education; of governors likewise, and of magistrates, and of all others who are put in authority over them.15

In this argument, the prosecutor presents filial disobedience as the prime cause of social instability, invoking both the first crime of such disobedience— Eve against God—and also calling upon the pervasive political threat to a stable society manifest in both internal and foreign unrest.16 The logic of this narrative of filial disobedience also parallels the logic of circumstantial evidence, to which the prosecution will allude later in the trial. Specifically, there is embedded in the train of circumstances an inevitability that begins with the first act of disobedience and ends in crime; and it is this inevitability that convinces the audience of the narrative’s truthfulness. The rhetoric of disobedience and punishment moves in a widening circle outward from the familiar and the private to encompass the net-



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work of public, social, and political bonds: from parents to teachers; to governors and magistrates; and finally, “all others” in authority. The historical and political range of the prosecution’s rhetoric, the paradigmatic nature of the story of Blandy’s crime, is suggested in the paraphrase of the trial offered to the readers of Gentleman’s Magazine: Posterity may know and blush, that such a monster in cruelty had existed in a female form, who, without provocation, had cooly [sic] and deliberately meditated and accomplished the destruction of that life which had given her being; and that children in after ages may be warned by her example, that how secretly soever such deeds of darkness are devised and carried on, they are always open to the all-seeing eye of heaven, whose providence seldom fails to bring them to the knowledge of men.17

The “all-seeing eye of heaven,” the final Author/Authority, providentially inscribes the crime of the accused in such a way that it becomes “the knowledge of men,” that is, the truth. The alignment of the theological with the legal to reveal truth was part of a larger philosophical struggle in the seventeenth and eighteenth centuries between the appeal to revelation, divine intervention, and the universal, on the one hand, and the appeal to empirical science, the logic of what can be seen, and the particular, on the other.18 A crucial text in this debate was John Locke’s Essay Concerning Human Understanding, published in 1689, in which Locke insists on the primacy of sense perceptions in understanding our experience and gaining access to the truth—a claim that made his work particularly appealing to those whose professional success depended precisely on proving the importance of a witness’s reliability through personal testimony.19 Gendered and class-based moral judgments about the nature of and inquiry into “truth” also find support in Locke’s analysis of the treachery of language, in particular the way in which rhetoric, or figurative language, obscures the object of perception (in jurisprudential terms, the evidence), like a “mist before our Eyes.” Locke specifically associates these arts of deception with women (even though he elsewhere employs the traditional figuration of women as truth and justice). Although he asserts that most men are willingly deceived, he implies that truth-seeking and truth-telling men find clarity in the (less than perfect but more reliable) language of philosophy: ’Tis evident how much Men love to deceive, and be deceived, since Rhetorick, that powerful instrument of Error and Deceit, has its established Professors, is publickly taught, and has always been had in great Reputation; And, I doubt not, but it will be thought

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great boldness, if not brutality in me, to have said thus much against it. Eloquence, like the fair Sex, has too prevailing Beauties in it, to suffer it self ever to be spoken against. And ‘tis in vain to find fault with those Arts of Deceiving, wherein Men find pleasure to be Deceived.20

Relying on the classical distinction between philosophical discourse that seeks out the truth, and rhetorical discourse that seeks merely to entertain and please and thus has no necessary relationship to truth, Locke specifically associates rhetoric with women and deceit. Locke assigns linguistic instability to those figures of speech that prevent access to the truth; like the “mist” of eloquence that obscures reality, so female beauty distracts the mind of man and makes weak and various that which should be clear and stable. The instability of language (an instability that is intensified when language generates the fictional universe of the novel or the first-person, female confessional narrative) is explicitly identified as a feminized and feminizing uncertainty, one that distracts men from the truth. That truth is secured only by the divine Author who has chosen to reveal it providentially to his all-male audience (the judge and jury) with a narrative that has intention and purpose. The accused, however, acts without motive, “without provocation”; for what provocation could exist that would drive a daughter to kill her father?21 Thus her untruth, her deceit, and her guilt are doubly condemned as treason and as motiveless treason. No narrative can possibly vindicate her because any story that she might tell is ipso facto uninspired and treacherous by virtue of the very need she has to tell it. The prosecutor’s legal narrative imitates the divine narrative in which God reveals the truth to men. Such a narrative always uncovers the “hidden work of darkness,” a phrase that reminds us of Pope’s condemnation of women authors and their witchlike capacity to work unseen harm (74). The trial account is informed not only by the individual circumstances of Blandy’s trial, but by the general condition of all women arraigned at the bar of not merely human, but divine justice. Thus God’s intervention in human affairs generates the true and single narrative of human history, one in which Eve embodies female deceit, just as “[d]ivine justice [generates] the normative model for human justice.”22 Such is the persuasive power of invoking God as witness for the prosecution against Mary Blandy: the prosecution avails itself of a narrative that is invested with all the authority that theological-jurisprudential rhetoric contains. Such divine and immediate Authorship was invoked again when Mr. Bathurst



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praised the clarity with which “Providence ha[d] interposed to bring [Mary Blandy to] trial that she m[ight] suffer the consequence” (73). He was especially grateful for the interposing hand of God, which apparently had reached into a fire and snatched, unburnt, the paper containing the arsenic powder, as well as a potentially compromising letter from Cranstoun to Mary Blandy. Because poison is “a deed of darkness,” one of the most difficult of crimes to prove by the evidence of the senses, and thus one of the most likely to elude the eye of the court, the unseen hand of God must uncover what the unseen hand of the accused has already wrought. And if God’s intervention uncovers physical evidence, so much more convincing is the belief in the accused’s guilt than hearsay or eyewitness accounts, which rely upon the frailty of the human memory. Thus divine providence converts the unfamiliar—that which is hidden and beyond reason—into the familiar and visible, and binds the legal to the theological. God’s providential intervention in human affairs, by which the trace of arsenic is preserved, is juridically represented as circumstantial evidence; in fact, the trial of Mary Blandy is one of the first to use this term in its specifically modern legal sense.23 Such a development is consistent with the increasing reliance upon trial by jury: a development that requires a coherent inferential theory of evidence that would replace the visible and conclusive evidence of trial by ordeal, or would outweigh the oath swearing by witnesses in trial by compurgation. Moreover, the modern conception of the jury, unlike its medieval equivalents, relies upon the jury­man’s ignorance of the facts of the crime.24 He is not there to tell what he knows about the facts of the case; instead, he is there to be persuaded of the guilt or innocence of the accused, a persuasion that must rely to an unprecedented extent upon verbal and visual representations of what really happened. What cannot be seen, here and now in the courtroom, must be inferred; and to begin that process, there must be at least one irrefutable fact (a “transcendental signifier” if you will) that generates the chain of inference linking apparently unconnected circumstances into a causal sequence. That single irrefutable fact or circumstance is the site of God’s intervention; thus, it is the origin of the narrative that leads inevitably to discovery, accusation, conviction, and punishment. The relevant legal test is not the plausibility of an event; rather, it is how well that particular event can be accommodated in a chain of events, and how inevitable that chain of cause and effect seems to be—this is what constitutes plausibility and thus verisimilitude. In other words: what counts as relevant circumstantial evidence is its capacity to be narrativized within a structure of logical cause-and-effect—precisely the same claim that is made on behalf of

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the English novel’s representational validity. One can see, then, how the continuing alliance of a certain form of the English novel with its counterpart in the law strengthens both and, at the same time, reinforces gender stereotypes. Alexander Welsh argues that this jurisprudential shift in the eighteenth century from evidence perceived as testimony (witnessing) to evidence as evidentiary facts corresponds to that shift in theology in which the “testimony of singular revelations, miracle or Scripture” was gradually replaced with the inferential and providential revelation of natural religion, the evidence of the senses.25 In Mr. Serjeant Hayward’s explanation of the concept of circumstantial evidence, we find traces of this earlier sense of evidence as testimony, as well as the developing modern conception of the inferential legal narrative: Experience has taught us that in many cases a single fact may be supported by false testimony, but where it is attended with a train of circumstances that cannot be invented (had they never happened), such a fact will always be made out to the satisfaction of a jury by the concurring assistance of circumstantial evidence. Because circumstances that tally one with another are above human contrivance. And especially such as naturally arise in their order from the first contrivance of a scheme to the fatal execution of it.26

In the narrative of Mary Blandy’s criminality, circumstantial evidence takes on the power and conviction of Providence. The jurisprudential narrative mirrors and sanctions the seemingly inevitable and thus totalizing logic of the Judeo-Christian narrative. “[C]ircumstances that tally one with another are beyond human contrivance,” claims Mr. Serjeant Hayward. Or as Harden White says of the narrative of history, “the events seem to tell themselves.”27 The account returns again and again to this question of narrativity and how the crime can be properly and truthfully narrated within a theological-jurisprudential rhetoric—a language accessible only to those who can speak in court with authority (the lawyers and the judges). Having established the prime cause as filial disobedience, an original cause that is sanctified by the intervention of God in the discovery of the wicked act of poisoning, the prosecution repeatedly shapes the testimony of its witnesses to reflect this originary and originating sin. Mr. Bathurst had the last word, refuting many of the defense’s assertions of Mary’s innocence. Judge Baron Legge gave the charge to the jury: “What you are to try is reduced to this single question, whether the prisoner, at the time she gave it to her father, knew that it was poison, and what effect it would have?” (41). The trial had lasted thirteen hours. Without retiring, the jury consulted for five minutes and



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returned a verdict of guilty. She was allowed six weeks to settle her affairs before her hanging, which took place in Oxford on Apri1 6, 1752. Mary’s lover, Cranstoun, fled to France where he stayed with a kinswoman, Mrs. Ross, and published pamphlets that rather ungallantly laid the blame for Blandy’s death on Mary. It hardly mattered: by December of 1752, Cranstoun was also dead. On his deathbed, he not only converted to Roman Catholicism but also arranged for a pretentious and elaborate funeral, complete with a procession.

Questions of Virtue: Or, a “sound and sober” narrative Henry Fielding’s Examples of the Interposition of Providence in the Detection and Punishment of Murder (1752) positions itself, generically, midway between the semiofficial legal version and the fictional histories published by the popular press. Structurally and rhetorically, though, it aligns itself with the authority of the courts.28 Like the prosecutor’s narrative, Fielding adopts an eschatological structure that reaches back to the first familial slaughter of Abel by Cain, and forward to the final Day of Judgment. Like the prosecutor’s narrative, Fielding’s exemplary history assumes what appears to be a natural, rather than an invented or contrived structure. Fielding achieves this effect, in part, by directly claiming authorship only for the introduction to and conclusion of the narrative, as the intervening tales, “collected from various authors, antient and modern,” had apparently fallen into their natural and circumstantial order of their own accord.29 The formal structure of the text thus imitates the apparently natural and circumstantial intervention of God in human affairs. Fielding’s text is simultaneously the evidence for providential intervention and that intervention itself: his circular argument relies for its rhetorical conviction upon the very circumstantiality of the evidence that it sets out to prove exists. The stories of divine intervention, numbering thirty-three, are taken from classical and biblical narratives, as well as popular sources. Special attention is given to stories that detail the murder of husbands by wives (usually with the assistance of a lover); wives by husbands seduced by younger and wealthier women; revengeful mistresses against their errant lovers; and sons against fathers. In all the stories, discovery of the crime is synonymous with conclusive evidence of the guilt of the accused. In other words, divine revelation still constitutes the originating site of narrative, although the witness of human senses—the bloodstained handkerchief, the fevered confession—is brought to bear on what would otherwise be only ­miraculous. Theologically, we have then both the medieval reliance upon miracles,

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and the modern reliance upon the evidence of the human senses. Jurisprudentially, medieval conceptions of divine Providence are gradually giving way to the modern concept of circumstantial evidence. Taken together, however, Fielding’s exempla also assume the structural seriality and detail of the novel. Both within the individual tales and throughout the exemplary history as a whole, circumstances pile upon circumstances, making the implausible seem plausible, the merely accidental seem predictive, and the gestural seem concrete. Fielding’s text generates precisely that aura of authenticity and authority that the novelist seeks to create. In the case of Mary Blandy, Fielding must go to some lengths to insist upon the veracity of what would otherwise seem unbelievable. In fact, he is required to overrule the tendency of his readers to disbelieve, insisting that to be skeptical of Mary’s guilt would be an “obstinate and stubborn infidelity” (4).30 Using specifically legal rhetoric, he transforms the fabulous and the mysterious into evidence of a providential intervention that cannot be dismissed. To support the truth of divine intervention, he argues the following: [That] the horrors with which the minds of Murderers are particularly haunted, and the most unaccountable, indeed miraculous means, by which the most secret and cunning Murders have often been detected, do abundantly bear testimony: not to mention the many stories of apparitions on this dreadful occasion; some of which have been so well and faithfully attested, that to reject them with a hasty disbelief, seems to argue more of an obstinate and stubborn infidelity, than of a sound and sober reason. (4)

In light of the evidence that Fielding suggests ought to convince his readers of the murderer’s guilt—the horrors haunting the mind and the appearance of apparitions—it might seem curious that his account of Mary Blandy’s guilt should emphasize exactly the opposite: the visible, nonmysterious evidence of her parricide. It is curious, however, only if one expects a consistent and coherent jurisprudential theory of evidence and narrativity. Fielding’s story of Mary Blandy perfectly illustrates the genre mixing produced by the struggle for supremacy between various forms of narrative and various theories of what constitutes evidence that I addressed in Chapter 3. Here, the stuff of the fabulous and the implausible (the romans) competes with the plausible theological and jurisprudential discourses of innocence and guilt, the experience of mystery competing with the seduction of certainty. Wearing the hats of both the fabulist and the magistrate, Fielding weaves back and forth between sometimes contradictory cultural representations of truth—a contradiction, I would suggest, that is the result of generic conflict,



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unstable truth claims, and the inevitable paradox produced by speaking of gender as if it did not exist. It was, says Fielding, Blandy’s “public and barefac’d manner,” her visible hatred of her father, her unbecoming behavior and speeches, and her boldness in her guilt that convicted her (88). Such an account of Blandy’s actions not only seems to contradict Fielding’s intent in citing her case, but also contradicts the evidence presented at her trial that there was no obvious evidence of her hatred toward her father and the claim that her deed was done in secret and alone, and therefore could not have been discovered without the intervention of God. Fielding further insists that Blandy was so bold as to draw attention to herself in her escape from Oxford jail and thus was prevented from making use of the money, and things of value in her hands, for her escape. . . . And this she might easily have effected, when she walked to Henley, had she gone on in a postchaise to London, instead of returning back to her father’s house, which she must know, from what had before passed, would lead to her being taken up, and tried. (88)

In other words, unable to explain Blandy’s actions by any “sound and sober reason,” Fielding resorts to the romance narrative to argue that her behavior is irrational and the consequence of an original infatuation (4). The very fact of her irrationality is proof of her guilt: a circular logic that perfectly reflects the potential circularity of the theory of circumstantial evidence. Because the accused is guilty, then the particular circumstance in the chain of events that retrospectively could be seen to lead to discovery, confession, and conviction becomes evidence of God’s intervention in human affairs; and that God was thus required to intervene is, of course, conclusive proof of the accused’s guilt. Finding a cause for Blandy’s unfilial behavior is essential to heal the disorder that her murder has created in the familial and state body—like a gap in the text, Blandy’s crime is an ellipsis of meaning; moreover, her crime disrupts the logical and necessary chain of cause and effect that operates in a “sound and sober world” to inscribe God’s work. As Fielding explains, “In the politic, as in the natural body, no disorders ever spring up without a cause; much less do any diseases become epidemical by mere accident. These must all have their causes, and such causes must be adequate to the effects which they produce” (2). Thus the search for adequate causation, for an explanation of disease in the natural body or disorder in the political body, becomes the equivalent of identifying the moment of the narrative’s origin: the point at which Providence intervenes in human affairs is synonymous with the discovery of the chain of inference that

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leads to an understanding of the adequacy of cause and effect. Narrative, then, in its true form—that is, in its historical, theological, and jurisprudential form— renders the logic and site of God’s intervention in human affairs visible. It also reveals that the private body (of the murderer and her victim) is synonymous with the public body of the state.

A Sentimental Romance Mary Blandy’s own account of the events leading up to her father’s death does not follow the model proposed by the prosecution and defense; and it is, in part, precisely because she cannot displace that master narrative that her own account is unconvincing. Furthermore, she is already condemned as guilty even before she details her defense because she adopts a form and rhetoric that cannot speak of innocence, no matter what its content. By modeling her tale on the romance form, Mary Blandy invites a double condemnation: her behavior and its rhetorical representation are seen as both un-English and immodest.31 By the mid-eighteenth century, romance narrative had come to be identified with a foreign, female French tradition against which the “manly” English novel should contend. Thus Blandy’s apologia aligns her too closely with a continental culture and intensifies the suspicions that surrounded any woman’s public self-representation. Blandy’s failure to render the causes “adequate to the effects which they produce” marks her own narrative as untrue (2). For “Miss Blandy’s Own Account of the Affair Between Her and Mr. Cranstoun,” relying as it does upon her memory of conversations and events and her reconstruction of motive and sentiment, contends with the apparently neutral, objective, jurisprudential discourse of the law courts and the exemplary narrative of Fielding’s history. Blandy’s telling is rooted in, to use historian John Pocock’s terms, the contingent world of private discourse rather than the continuous world of legal, theological, and historical discourse, and grounded in a detailed and domestic chronology, which she claims was “too slightly touched upon” at her trial. Her account falls under the suspicion that shadows all texts, but especially female, autobiographical ones, that truth has succumbed to self-interest, that representation, particularly self-representation, is inherently partial and not subject to final proof.32 Mary Blandy took up the pen while in prison to write her apologia. By so doing, she exposed herself as already condemned. She composed a female autobiographical narrative that could only be read officially as a defense against proven facts, and



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what, therefore, should properly be a confession of guilt. That Mary Blandy chose to defend herself outside of the courtroom had to be construed as further evidence of the depths of her deliberate treason. She had already had the opportunity to speak to the jury and the public in her trial and had clearly failed to convince them of her innocence. Properly speaking, Mary Blandy ought either to have confessed to parricide, thus satisfying her readers with closure, or remained silent as a proper lady would.33 Rather than supporting her contention that her lover duped her, her unladylike enthusiasm for making her actions explicable, for witnessing her version of events, only served to condemn her more soundly. Despite considerable popular support for her case, Mary Blandy’s apologia confirmed her unwitting complicity in a self-representation that was fictional (and thus suspect) and that characterized women either as the helpless victims of man’s deceit and sexual aggression or as taking violent revenge against those who have done them harm. Mary’s fondness for reading, reported by Roughead as something distinctive in a woman, might also have provided her with access to novels that explored female vulnerability and attacked law’s failure to provide women with protection.34 Indeed, it was the novel’s capacity to engage with the apparently more powerful cultural and legal narratives that made it potentially threatening to social stability: what cannot be acknowledged in law and theology might find expression and embodiment in the novel. The popular audience was drawn to the sentimental representation of Mary, one reflected in the sentimental discourse of newspaper accounts of her trial that spoke of her “Delicacy in Distress” (72). But this version of her story, combined with her own efforts to sentimentalize her plight, only situated her more firmly against the jurisprudential and theological discourses that had condemned her. She adopted a form particularly associated with women writers who, however much read, were frequently castigated as having abandoned the proper task of their sex—the guardianship of the private/domestic space of their husbands and fathers—and who were, therefore, asserting a sexual (and thus political) aggression unbecoming of ladies. As Janet Todd argues in The Sign of Angellica, “[L]ike the man, the woman who published could no longer be entirely appropriated or dependent. But, since women should not be independent or self-owning, this failure to be potential property was a kind of impropriety.”35 Improper sexual behavior is the sign of Mary Blandy’s guilt in the prosecutor’s narrative, as it was for those who hostilely reported that she flirted and assumed suggestive poses during her trial. Thus for Mary Blandy, an explanation is not a

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vindication but rather an implied confession that confirms the gendered nature of the discursive resources available to her. Paradoxically, both the “confession” and her refusal to confess, which explicitly denied the official audience the satisfaction that “rebellion was forestalled, subversiveness domesticated,” confirmed the consensus that her behavior was sexually culpable and that her narrative was merely a fiction that comprised only “an aggravation of her wickedness.”36 Moreover, Mary’s explanation of the apparently incriminating evidence against her did not merely have to counter the presumption of guilt, but had to revise what the prosecution had argued was a divinely ordered narrative. In attempting to substitute her own narrative, her own testimony, in place of the version offered by the prosecution, Mary Blandy not only appeared to belie the verities of legal discourse, but she also raised her woman’s voice against the voice of God: she tempted Providence. Thus Blandy’s account of apparitions, distant music, and miraculous events cannot convince those of “sound and sober reason” of the invisible but powerful hand of God, as it does in Fielding’s narrative. Rather such an account becomes a sign of her “obstinate and stubborn infidelity.”37 Mary Blandy appeals to the evidence of her own character, as if the verbal insistence of innocence were indeed proof of innocence. In her detailed recollection of the events leading up to her father’s death, she relies upon those elements of narrative that we have come to identify with the novel—what McKeon, summarizing Ian Watt, calls “the particularization of character and background, of naming, of temporality, causation, and physical environment.”38 The daughter’s text has no “theological field of action.”39 Blandy’s apologia is not the narrative of sin and the model for repentance demanded by both legal and religious authorities; rather, Blandy’s account aligns itself rhetorically and formally with the sentimental novel and thus invokes all the cultural anxieties associated with women-authored texts. The threat to jurisprudential truth lies not just in the novel’s capacity to create epistemological confusion for its readers, to obscure the difference between the real and the imagined. The threat also comes from the confrontation between the value and power of the individual and the necessarily limiting and coercive power of the state. The culture’s representation of selfhood and of individuality must be grounded in those discourses and stories most necessary to maintain order and stability in the state: the religious, the historical, the jurisprudential, and the economic. If, as Fielding’s exemplary history suggests, the operation of divine truth-telling (and thus law) relies on how adequately causes produce effects, then the narrative of an individual life must always be a potential threat to the



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exemplary nature of the historical or jurisprudential narrative. In other words, if the fictional narrative can reproduce as if it were true the logic of cause and effect, how is the divinely inspired narrative to be distinguished from the humanly crafted one? Such a danger is especially threatening when one narrates the life of a criminal, particularly a female one. The problem, simply put, is how to tell the story of falsehood, deceit, and moral degeneracy in such a way as to convince the reader of the truth of the narrative without assigning to the narrative (and its narrator) the same status as divinely sanctioned narratives of truth. Such discursive confusion may have inspired the early eighteenth century’s obsession with criminal autobiographies, biographies, and news reports of trials. Lincoln Faller suggests that this obsession might be attributed to readers’ interest in “extended narratives about ‘problematic lives.’”40 But it may not be this simple. It might also, and perhaps more significantly, be that crafting a narrative about those lives foregrounds issues of evidence and veracity in the epistemological confrontation between general statements about truth and moral virtue and individual representations of those assertions. Moreover, the specific individual narrative— the stuff of fiction—is feminized in its relation to the apparently transcendent, historical, or jurisprudential narrative. The problem was this: How did one tell a story that participated in the truth claims of an apparently objective, authoritative discourse but at the same time detailed the particularities of an individual’s life in such a way as to appeal to the ethical and emotional sympathies of the reader? The difficulty of devising a formal and substantive equivalent to jurisprudential or theological narrative that also adequately represented particular lives was, of course, exacerbated when the storyteller was a woman. Mary Blandy—guilty or innocent—probably could not have saved herself from being hung no matter what story she told in court or wrote from her prison cell. But the multiple narratives that account for her crime (or her gullibility) attest to the kinds of stories that could be heard and those that could be dismissed. From  the mid-eighteenth century on, the stories that would be heard would increasingly be ones that sought both to disguise their inherently rhetorical character in both form and style—unlike the feminocentric, French romance narrative—and to align themselves with those philosophical and scientific discourses that claimed to represent reality more realistically, and therefore more truthfully, in both an empirical and moral sense.

chap te r f i ve

Statues, Statutes, and Queens on Trial

In this final chapter I return to the cartoon of Queen Caroline first described in this book’s preface to illustrate the political consequences of the trope I have termed “riding the black ram.” I employ the cartoon to link the body of the adulterous queen with other accused adulterers, both actual and fictional—specifically, Anne Boleyn and Hermione from Shakespeare’s The Winter’s Tale. My choice of exempla—two queens, one real and one fictional—is determined by the recognition, one made evident throughout this book, that the interplay between legal and literary representations produces conventions that mask the historicity of the relationship between law and literature, making it appear static and universal rather than, as I have argued, historically specific and gendered. In other words, when we encounter these conventions in our social and personal lives, we come to see them as natural, as inevitably attached to certain ways of being in the world. To countervail the persistence of these gendered representations, we must situate women’s representation in its historical context so as to particularize the stereotypes and produce alternative versions of women’s relationship to law and its exercise.

A Queen on a Black Ram The trial of Queen Caroline for “treasonous adultery” was a traumatic event that must have raised historical anxieties about the fragility of the monarchy—especially given the frequent, often riotous, demonstrations in her favor and against her husband, George IV. No English citizen could think of Caroline on trial with-



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out recalling other sovereigns or queens who had stood in Parliament or other politico-legal spaces to defend themselves. In particular, the trial of Charles I must have haunted the proceedings against Caroline, although the stakes were not so high for either the defendant or the kingdom. Nevertheless, the judicial proceedings against Caroline clearly resembled those conducted at Westminster in 1649 against Charles by a High Court of Justice instituted by parliamentary statute. Following the formalities of due legal process, both trials emulated normal legal procedure. More relevant, however, in terms of her gender, and equally part of the historical memory, would have been the trials of other queens who were accused of crimes of the body—for example, Anne Boleyn, who was charged like Caroline with treasonable adultery at the instigation of a king who wished to rid himself of a troublesome wife.1 The 1820 political cartoon depicts Caroline riding into the House of Lords on a black ram with the face of Caroline’s Italian lover, Bergami (shades of Othello tupping Desdemona, the white ewe?). As I mentioned earlier, the cartoon, one of nearly five hundred published during the “Caroline affair,” depicts an apparently apocryphal manorial custom in which a widow must forfeit the “free bench” she holds in her late husband’s estate if she is found unchaste.2 To reclaim her property, the widow must ride into the manorial court on the back of a black ram and acknowledge her guilt. What was at stake in the trial of Queen Caroline? Why did George IV feel compelled to use the power of the monarchy and a reluctant Parliament to bring his wife to trial?3 To answer this question, we need to return to the beginning of their relationship. Caroline and George, then prince regent, were married in 1795. The marriage was over almost at the moment it began: George arrived drunk to the ceremony and took no pains to hide his dislike of his bride. One child, Princess Charlotte, was born in 1796, although George later accused Caroline of giving birth to a bastard child. That year the couple separated and never lived together again. In 1814, Caroline was paid £35,000 a year to leave England. She spent her six years abroad traveling with Signor Bergami, a handsome Italian valet, while her husband caroused at home as regent. Shelley’s sonnet “England in 1819” famously sums up state of a country ruled by a mad king and his libertine sons: An old, mad, blind, despised, and dying King; Princes, the dregs of their dull race, who flow Through public scorn,—mud from a muddy spring;

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Rulers who neither see nor feel nor know, But leechlike to their fainting country cling, Till they drop, blind in blood, without a blow.4

Upon the prince regent’s ascent to the throne in 1820, Caroline returned home to claim her own crown. Since the repressive and profligate king was extremely unpopular, Caroline quickly became the symbol of resistance to George IV. In order to mark definitively his transformation from a regent, the son of the king, to the king himself, George IV went against the advice of his ministers and persuaded the House of Lords to bring in a Bill of Pains and Penalties against Caroline. The bill, which would deprive Caroline of her title and rights as queen and dissolve her marriage to George IV, was based on the treason statute of Edward III (1352), which defined treason, in part, as “violating his consort, or eldest unmarried daughter, or the wife of his eldest son.”5 Caroline was charged with treasonable adultery, and the charges against her were heard in the House of Lords in August 1820. Despite her rank, the queen reflected the formal legal position of women in England: they “could be punished for plotting against the state, but—in law—[they] could never play the part of an active patriot within it.”6 After three months of political theater, every act of which was reported, parsed, and satirized, the House of Lords voted 123 in favor and 95 against the Bill of Pains; on the third reading the majority fell to nine, and aware that the bill would never pass the House of Commons, the king’s supporters withdrew it. Caroline died one year later, and despite the government’s wishes, her funeral cortege was allowed to pass through the city on its way to the port of Harwich, from where her body was returned to her home in Brunswick. How has historical and political analysis characterized the symbolic value attached to the queen in the many visual and textual representations of the trial? There are three general approaches to the controversy, and although they share methodologies, one can distinguish a specific focus in each. The first approach concentrates on the way in which the political nuances and strategies of the proCaroline and anti-Caroline supporters use specific aesthetic conventions and genres to represent their positions. For example, in his 1982 essay, “The Queen Caroline Affair: Politics as Art in the Reign of George IV,” Thomas Laqueur argues that the representation of the affair through literary genres such as melodrama, farce, and romance distracted the populous from the real political issues, even though the pro-Caroline agitations gave “London radicals a cause which allowed



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them back in the streets.”7 On the other hand, even though she acknowledges the extensive employment of such literary genres, Anna Clark argues that such representations actually politicized the affair and produced a new political language.8 In the second approach, Caroline becomes the symbolic expression of resistance to the oppressive social policies of George IV and his Tory ministers. Individual justice for the queen therefore becomes synonymous with social justice.9 Linked to the issues of social reform but articulated in specifically gendered terms, the third approach renders Caroline a female politician whose aggressive battle to win her rights (to be crowned queen, to have her name included in the Anglican liturgy) symbolically represents the struggle of all British women for civil and political rights.10 My reading of the trial of Caroline is indebted to all three approaches and relies on the work of many scholars. Such scholars have focused on the specific strategies and claims of both the royal court and its attendants; the parliamentary forces aligned with and against Caroline; and the shifting and multiple alliances of aristocratic and middle-class women, the working class, yeomanry, and gentry over the rights of the queen. My approach borrows from Laqueur’s generic reading but expressly articulates a gendered aesthetic that complicates a strictly historical and political interpretation. I want to link the narrative strategies that articulated the multiple political and social alliances produced by Caroline’s trial to the cultural iconographies represented in the “black ram” cartoon—specifically, the inevitability that the sexualized (and therefore promiscuous) body of the woman must intrude into the space of male privilege (will ride out from under cover, sous coverture) pricked on (to use the term employed by Chaucer in his “General Prologue” to the Canterbury Tales) by male desire.11 This intrusion into a privileged public space redefines that space as socially constructed rather than naturally configured. What I am arguing is that the privileged male space is not constituted, as logic would suggest, by the absence of women but by the “errant” presence of women, behaving qua women—in other words, behaving precisely as men would have them behave, that is, as sexual beings. As a consequence of this sexualized configuration, I am also suggesting that this political cartoon provides us with another way of thinking about intimate public space—as a space generated and sheltered by men’s narratives of desire, what one might term their “erotic politics.” Another public and intimate space that mirrors the one produced by men’s “erotic politics” was produced when the domestic nature of the dispute between Caroline and her husband provoked intense political involvement by women who recognized, in

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the attempt to punish Caroline, social and legal constraints on their own behavior. “Riding the black ram,” then, represents a proxy relationship by which the effort to manage the relationship between husband and wife stands in for and defines the sovereign’s attempt to manage his subjects. Both relationships are construed simultaneously and interchangeably as matters of public record and private concern. As Jonathan Fulcher has observed, many commentators on the Caroline Brunswick trial and its attendant public displays represent the agitations as an “affair.”12 This sobriquet aptly summarizes the way in which the queen’s body is employed by both sides to advance their cause. Loyalists, who supported the king, attacked Caroline as both a woman and wife (and, therefore, constitutionally defined only as a consort); they represented her promiscuous female body as defiling the sacred honor and dignity of the crown. Radicals and reformists, on the other hand, rushed to defend the honor of the queen as one who had, like their constitutional rights, been subject to the attacks of corrupt and despotic men. Moreover, radical tailor and early socialist Thomas Hodgskin argued, “There is something poetical and chivalrous and at the same time loyal in contending for a Queen and a woman.”13 In both cases, as Fulcher argues, the queen’s body was employed as palpable evidence of the loyalty of each party to constitutional principles. Significantly, this political loyalty was represented by the radicals in the form of a romance narrative. As I have suggested in earlier chapters, the female body brings into being the necessary authority of the law (and therefore that gendered body always already symbolizes its power) even as it subverts that power by threatening to expose its limits. Similarly, Queen Caroline both summoned the authority of the crown at the same time as her presence threatened to expose the limits of its authority (as well as, in the case of George IV, his promiscuity). As Laqueur puts it, “the power of the judicial process worked not only to repress sedition but also to give it voice and to display plainly the weakness of authority.”14 Caroline’s cause rallied disparate groups under her banner, and there were constant popular expressions of the people’s discontent with their rulers: windows of mansions broken, members of the upper class treated roughly and threatened with harm, damage to the property of Caroline’s opponents, and many anticlerical attacks on those who refused to add her name to the Anglican liturgy. Many thought the nation to be on the brink of open rebellion. The same arguments about the perceived threat that women constituted to the social and political order merely by being women were intensified when those women became active and vocal in their support of Caroline. During the trial,



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thousands of women raised their voices publicly in defense of the queen—protesting the offense to her rank and the attack upon the moral reputations of all women, or praising the queen’s refusal of all offers that compromised women’s honor. On the other hand, the daily reports of the evidence introduced at the queen’s trial were seen as the source of much mischief, “corrupting the imaginations of the young ladies and encouraging them to take part in every conversation, however indecent.”15 Fulcher argues that the extent of women’s involvement in political matters was “unprecedented” and that such overt political activity provoked the anti-Caroline faction to attack not merely the queen’s immorality but to suggest that those women who supported her shared the queen’s inability to control her passions and improperly dared to speak publicly about matters that were the prerogative of men. Such strategies are paradigmatic of how women are disciplined—by situating them and their uncontrolled bodies as the cause of legal and cultural sanctions rather than as the effect of a certain (singular and biased) understanding of law’s necessity. The very presence of women in the public sphere (like the mob featured crowding into the House of Lords in the cartoon) condemned them as immoral and indecorous; Edmund Burke noted that the combination of women in public roles and the mob’s indifference to rank in the French Revolution signaled that “the age of chivalry [was] gone.”16 As Clark argues, however, both working men and the reform-minded, middle-class citizens of London represented themselves as the knight-errant to Caroline’s innocent maiden, allowing the celebration of “moral virtue of the ‘productive classes’ as opposed to the [libertine] upper classes.”17 Caroline’s supporters also insisted, moreover, that women had to come to her aid because English men did not; their employment of the “sentimental and the domestic were not peripheral to the pro-Caroline [political] campaign: they were the campaign.”18 The loyalists cast the dispute between George IV and Caroline as a domestic dispute rather than a political or constitutional crisis so as to limit its appeal to the reform movement; nevertheless, they played out the consequences of this apparently private marital row in the House of Lords. This parliamentary space, privileged by centuries of legislative and judicial authority to address constitutional issues, was acknowledged as the highest legal authority in the land, superior even to the monarchy in the early nineteenth century. Such ceremonial weight reinforced the loyalists’ appeal to tradition in their condemnation of Caroline: they held that such ancient institutions as the House of Lords should honor those traditional codes of behavior that enforced separate spheres of activity for men and women. But, as

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Linda Colley argues, “the very stridency of the opposition to women [­taking up public political activity] was itself a give-away. It demonstrated—more eloquently than anything else could do—that in Britain the boundaries supposedly separating men and women were, in fact, unstable and becoming more so.”19 The recourse to the image of “petticoat government,” exploited by both the proand anti-Caroline forces, suggests that the range of political activity for women extended far beyond the domestic sphere.20 Indeed, as I have suggested in Chapter  2, women of the upper class had constantly engaged in what Elaine Chalus calls “social politics,” transforming apparently masculine spaces into the intimate public spaces in which they politicized their male and female friends and family.21 James N. McCord reminds us that “national and local politics were still broadly a social activity and a family business of the country’s elite” in the eighteenth and early nineteenth centuries. Even though they had no official political offices, aristocratic women were “socialized to engage in public affairs.”22 The gradual erasure of the lines between women and men’s proper spheres of activity— partly the result of pressure from abroad and rapid social and economic change at home—as well as the growing political power of the urban working classes, obscured the increasing loss of privileges and rights of women (and of the rural poor) under customary law.23 As I have already argued, the black ram cartoon represents two competing conceptions of the law: on the one hand, popular, customary law, associated with rural populations, and marked as female; and on the other, an elite, statute-based, metropolitan law, marked as male. The cartoon also demonstrates how the sexualized body of the woman embodies the exact nature of the tension between these two perceptions of what law is. The image of the woman riding, the man being ridden, articulates that chain of signifiers from women’s sexual excess to social disorder—represented in the cartoon by the mob pressing forward to present their grievances to the Lords—that necessitates the need for restraint and legal authority in the first place. Indeed, Caroline’s cause was specifically identified with “public opinion” as opposed to the more discreet and traditional sources of authority, such as the court and the parliament. Both royalists and radicals directly aligned public opinion with the power of the press. While the royalists condemned the press for its provocative reporting, the radicals saw the alignment as part of an ancient, customary expression of true Englishness, thus overlaying the veneration for customary law with the considerably more dangerous, transformative, public voice. Queen Caroline’s attorney general and radical politician, Henry Brougham, cofounder in 1802 of the Whig



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journal, the Edinburgh Review, pointedly exploited the power of public opinion and English xenophobia in his plea to dismiss the evidence of (allegedly corrupt) Italian servants against the queen. In doing so, he explicitly recalled the paid conclusions of Italian church jurists in the case of Henry VIII and Katherine of Aragon.24 Once Caroline had been vindicated, the subsequent celebrations emphasized “English virtue and the community” over “continental corruption.”25 As Laqueur argues, the occasion was carnivalesque, with local rituals and feasts in Caroline’s honor. During one such ritual, as if its progenitors were specifically responding to the black ram cartoon, “an ox with gilded horns [was] led around the town, all gaily bedecked with flowers while on its back was conspicuously painted a device surrounded by the words ‘Caroline Rex.’”26 As I have shown earlier in this study, this cartoon encapsulates a particular historical moment in the story of the complex relationship among customary law, the common law, and parliamentary legislation, a moment when customary law is ridiculed in order to consolidate an established order whose political efficacy paradoxically relies on the power of custom in cultural memory. That paradox is neatly captured in the bizarre sight of a ram carrying the queen of England on its back, effecting the transformation of the august space of the House of Lords into something like a village fair (a space that traditionally has been peopled by men and women of all classes) but also filling that space with a mob whose irrational behavior resembles that of the queen. Such a reading may be confirmed by the response of one observer, artist Joseph Farington, who articulates his anxiety about radical political thought and the influence of the mob in sexually gendered terms. These were, he wrote, “fearful times and the object was Revolution. He is feared [sic] what strumpet audacity may be able to do supported by a headlong mob.”27 The Republican, a radical newspaper, castigated George IV, however, for his “adulterous harlotry” and claimed that the “conduct of Henry the Eighth towards Ann of Cleves was manly when compared with the treatment of the present Queen.”28 This obvious historical connection was not lost on the political satirists, either: witness the cartoon of George IV depicted as Henry VIII in a scene from the “New Farce” performed at the Royalty Theatre, in which the king describes the citizens of London as “brutes and inexpert folk.”29 That George was so easily identified with his Tudor predecessor was not simply a matter of shared marital woe but of the ongoing and vexed nature of the relationship between the crown and the legislative authority of Parliament (as representative, in however limited a fashion, of the people’s voice). Three hundred years had passed, but English historical

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memory foreshortens those centuries into a brief passage of time during which the appropriate distribution of power between a constitutional monarch and the state occupies center stage and, as is still the case even in contemporary Britain, it is to Shakespeare’s plays that a British citizenry turns to recall the “templates of English historical consciousness.”30

Henry VIII, or All Is True : The Queen’s Conscience Henry VIII or All Is True, Shakespeare’s last play, authored with Fletcher, was performed in 1613 and examines the nature of justice and its relationship to law in a polity struggling to balance, on the one hand, the king’s claims through divine right to imperial authority over both church and state and, on the other, an emerging contractual agreement between ruler and ruled, subject to positive law.31 Further, the play examines the precariousness of justice under absolutist monarchy, and the tension between the subject’s conscience and her obedience to the sovereign. Like its immediate predecessors, Pericles, Cymbeline, The Tempest, and The Winter’s Tale— all plays that trouble strict generic definition and might thus be termed hybrid performances—Henry VIII does not easily fit into preconceived generic conventions. Juggling the actual historical events for dramatic purposes, Shakespeare’s final history (or romance, or historical romance, or romantic history) questions the nature of “historical truth, even of mimetic truth itself ” by insisting on a genre of authenticity that supercedes any mere staged imitation of historical events.32 In proposing a kind of reality that is theatrical in both its weak and strong sense, the play emphasizes the politics of representation upon which Henry’s power depends. This generic hybridity reflects the mixed nature of the play’s focus, which simultaneously heralds the birth of Elizabeth, daughter of Annee Boleyn and Henry VIII, and addresses the question of unbridled monarchial power and its relationship to (public) law and (private) conscience. Henry VIII thus straddles the line, as Felperin has argued, between history and myth; indeed, given the liberties that Shakespeare takes with historical events (characters dying before their time or living beyond their actual deaths; political positions misrepresented or represented with historical inaccuracy), one might argue that history itself is represented as a myth. Unlike earlier history plays, which hewed somewhat closely to recorded historical events, Henry VIII plays fast and loose with historical chronology, suggesting that the dramatist feels no obligation to restrain his historical imagination.33



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In wielding this kind of power, the playwright draws close to the absolutist monarch who feels no obligation to consider the restraint imposed on his power by the law. (This argument parallels in some respects the suggestion that Prospero is analogous to Shakespeare, the playwright, and that Prospero’s decision to abandon magic is akin to Shakespeare’s decision to retire from the world of the theatre.) In reordering history, the play suggests that events that might seem retrospectively to mark shifts of power and fortune are, in fact, acts of the king’s political imagination (an imaginative gesture rehearsed in the playwright’s representation of those events in his play). Political imagination is perhaps nothing more than the ability to envision how an event or relationship might be represented in the future when its significance can be revealed by the passage of time. It is not for nothing, after all, that Shakespeare is a leading playwright in a company known as the King’s Men. Shakespeare’s representation of Henry VIII is a model of how history inevitably becomes myth even as it is in the process of becoming “historical.” The audience witnesses this tension between historical fact and romanticized myth in the account of the pageantry and heroism of the Field of the Cloth of Gold that opens the play. From the fabulous accounts of the jousts, the description swiftly moves to an account of the ruinous cost of the war. Like the theatrical spectacle that invokes such romance, such myths are illusions, existing only as long as the actor speaks and the procession moves across the stage.34 Despite the king’s desire to represent himself absolutely in accordance with his political will (as a form of self-identification), there are those who refuse to be bound by his resolution, and it is these subjects who generate extra-­ordinary events, events that undermine the mythic narratives of the powerful. In Henry VIII, Henry’s wife, Katherine of Aragon, constructs an alternative to the “official” history Henry wishes to endorse. Her presence throughout the play—as Henry sentences first Buckingham and then Wolsey to death—suggests that even as men struggle to insist upon their version of historical events, more significant and enduring historical verities are being acted out. Those historical verities are embodied in the sexualized and reproductive body of Henry’s wife, who links the monarch to his subjects. This connection between the king and his people drew on a common political analogy, as Constance Jordan has noted: [I]n the language of medieval political thought that exploited the analogy between household and state, a king’s marital duties were specified as those he should perform

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for his people, who were said to cohere in a material body, and, in some accounts, to be figured as his wife. His sexuality was consonant with her fruitfulness, which was identified with that of the land and the productions of the body politic.35

It is especially significant, then, that Katherine relies repeatedly on her familial position as Henry’s wife, rather than her political position as his queen, to appeal to him on her own and others’ behalf—as when she pleads with him to spare the heavy taxation imposed by Wolsey upon his subjects (1.2), or when she refuses to acknowledge the call for her presence as queen at the hearing before the Church court (2.4).36 In so doing, she stresses that the king’s relationship to his subjects must be determined, as his is to her, by the concerns and affection that governs a husband in his dealings with his wife and not by the exercise of tyrannical power implied by his position as head of the family and master of his wife. In refusing to be a passive subject to her husband’s will, Katherine illustrates how the king’s subjects must act in order to solicit the proper response from their sovereign rather than merely endure the abuse of his authority. Let me draw attention to two moments when Katherine acts in a way that suggests how the king’s subjects should respond to excessive royal authority. In both cases, Katherine either interrupts a ceremony “to turn [it] to her own purposes” or creates “an alternative ceremon[y]” as a way of challenging an authoritarian patriarchal ideology.37 Katherine’s first appearance in the play occurs at a moment when the king is acting in his most formal and political manner: he is conducting an investigation of his council into the alleged treason of Buckingham. Katherine does not contest his right to assume such authority or to execute his will in sentencing Buckingham to death but rather undermines the authority of Cardinal Wolsey, whose arrogant assumption of power on the king’s behalf is corrupting the king’s relationship with his subjects (even as it enriches Wolsey both personally and politically). Katherine’s petition to Henry that he repeal the taxation imposed by Wolsey models for the king the correct (and compassionate) relationship that must exist between him and his subjects if he is to rule successfully. In placing Katherine as the king’s best and most subtle advisor on matters political as well as domestic, Shakespeare implies that she is not merely the bearer of Henry’s children but, more importantly, that she embodies the effect of his properly exercised regal power, as his children embody the effect of the proper marital relationship between their parents. Just as the line between the public and private exercise of the sovereign’s power



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has been blurred, so, too, does Shakespeare blur the question of whether Henry’s desire to divorce Katherine is a proper exercise of his regal power (an imprecision that both dignifies Katherine’s courageous response to her dilemma and prophetically celebrates the birth of the princess Elizabeth, daughter of Henry VIII and Anne Boleyn, to which the narrative of the play tends). Katherine’s refusal to be silenced at the hearing that interrogates the validity of her marriage confirms her understanding of her relationship both with the king and with those for whom she “stands in,” his subjects, as the communal “wife” to whom the king is wed. When called upon to acknowledge her presence, she “makes no answer, rises out of her chair, goes about the court, comes to the King and kneels at his feet (2.4.2).”38 Declaring herself present is no mere formality to Katherine. Rather than simply acquiesce verbally, she actively claims her place in the court. When she kneels at Henry’s feet, she makes that public, masculine space acknowledge her presence, and signifies both her own individual rights as queen, as well as her subjected status as wife. Moreover, this submission is not the act of a resigned subject but of one who dutifully lays claim to her part in the ceremonial and ritual enactment of regal authority. Without her willing submission, the king’s power is nothing more than tyrannical absolutism. Katherine’s submission to Henry marks her acknowledgement that her duty as both wife and subject requires her to recognize his authority over her; her conscience, however, requires that she protest what she sees as an injustice toward Henry’s subjects (generated by Wolsey’s burdensome taxes) and toward herself by the legalistic subtleties that would nullify her marriage to Henry. Like Hermione’s defiant submission to Leontes’s tyranny in The Winter’s Tale, Katherine’s physical submission is merely an aspect (and not the most important part) of her subjected status. For both Hermione and Katherine, that which can never be made to submit to the law, as embodied in the person of the sovereign, is their conscience: both queens insist that their words be heard as more than a mere and conventional protestation of their innocence but rather as the very sound of their souls. As Katherine claims: There’s nothing I have done yet o’my conscience Deserves a corner; would all other women Could speak this with as free a soul as I do. (3.1.30–33)

The queen’s “speaking” body, then, becomes the paradigmatic symbol of the conflict between duty and conscience. In fact, one could argue that it is only the female

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body that can fully capture the gendered power relationship of sovereign and subject, of husband and wife. In Henry VIII this conflict between duty and conscience is another articulation of the conflict that produced the Reformation, the English version of which was finally sealed by the ascension of Elizabeth I.39 As Dennis Kezar argues, “A cause and effect of the Reformation was the challenge it posed to legal authority, ultimately ‘a theology of dissent that raised conscience over law.’” 40 The divorce proceedings whose validity Katherine refuses to acknowledge might resolve the status of Henry’s marriage legally; they cannot, however, as Katherine insists, grant a truthful resolution. Even an appeal to an external (and supposedly divine) authority cannot resolve this contest between the law and the truth—neither the words of the Oracle of Delphi in The Winter’s Tale nor the opinion from Rome in Henry VIII alters the legal status of the two queens or softens the decisions rendered by their sovereign. Their insistence on a truth not recognized by court or sovereign remains, testing the limits of what the law can prove.41

The Winter’s Tale: The Queen’s Body Shakespeare’s audience had reason to fear the return of tyrannical absolutism: a version of it had already been articulated by James I of England, VI of Scotland, in his Trew Law of Free Monarchies, published in 1598 before he ascended the En­ glish throne. In his treatise, James claimed a “free and absolute” authority over his subjects and their property and rights. This authority was total and godlike, and his subjects had no power to resist, only to endure. If he were to err in that authority, their only recourse was to pray for his reformation. Resistance to the king, James claimed, would only result in anarchy.42 In his accession speech in 1604, James employed the marriage metaphor in describing the relationship of king and state as analogous to that of husband and wife: What God hath conjoined then, let no man separate. I am the Husband, and the whole Isle is my lawfull wife; I am the head, and it is my body; I am the Shepherd, and it is my flocke.43

James’s version of absolutism was not merely an extension of that practiced by Elizabeth and her father, Henry, but a more rigid version articulated at precisely the moment when “what had appeared to be a settled form of government was coming under increasing challenge from different points of view.”44 Shakespeare’s



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late romances participate in this political debate, one that is enunciated and embodied in women’s reproductive and sexual identities. In Shakespeare’s Monarchies, Jordan has spelled out the way in which the playwright’s dramatic romances “[l]ike the histories . . . speak the language of politics. . . . They relate stories not of England and France but of empires, unions and conjunctions of nations . . . [and] alliances [that] are fashioned according to the model of marriage.”45 James’s triple analogy of sovereign and subject to husband and wife, head and body, and shepherd and flock seems particularly appropriate, then, to The Winter’s Tale with its narrative of broken marriage, regal tyranny, and pastoral romance. The Winter’s Tale is divided into two parts, the first separated temporally and geographically from the second. In the first part Leontes, king of Sicily, seized with irrational jealousy of his wife, attempts to murder his best friend, Polixenes, king of Bohemia. Leontes condemns his wife Hermione to death, despite the insistence of the Oracle of Delphi that she is innocent. Leontes orders that his newborn daughter, Perdita, whom he believes is the offspring of Hermione and Polixenes, be abandoned on the shores of Bohemia. A critical scene in the first part of the play is the trial of Hermione, in which she pleads her case against the injustice of Leontes’s tyranny (3.1).46 The trial comes to an abrupt end when the death of Mamillius, son of Leontes and Hermione, is announced, a death caused by his father’s persecution of his mother. At the news, Hermione faints and is carried offstage. Paulina, her confidant and strident defender, returns to announce her death to Leontes, now chastened and remorseful at his behavior. The second part of the play takes place sixteen years later in Bohemia, where Perdita, who has survived her abandonment and been raised by good country folk, is being wooed by Polixenes’s son, Florizel, disguised as the shepherd, Doricles. After being denounced for his choice of wife by his father, Florizel flees with Perdita to seek refuge with Leontes, whereupon Leontes discovers Perdita’s identity. Paulina arranges to take both Leontes and Perdita to attend the unveiling of what appears to be a statue of Hermione, but is actually the living Hermione, whom Paulina has concealed for the last sixteen years. A critical scene of the second half— one that balances the trial scene of the first part—is the sequence in which Paulina, moved by Leontes’s love, uncovers the statue of Hermione, and what was perceived as cold and unchanging is transformed into a living, breathing human form (5.3). “For over a century,” two generic classifications “have vied for preeminence in the matter of the play’s classification: romance and tragicomedy.” 47 The romance

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genre is traditionally connected to both benign and malign female influences because it supplants the real world’s insistence on verisimilitude and empirical reality with a world of magic and transformation in which questions of truth cannot be verified by appeals to the real. As I have already suggested in Chapter 2, however, romance does not so much reject the real world but rather establishes a particular kind of representational relationship between the idealistic and the real in terms of desire or longing for fulfillment. Desire is not to be understood here, of course, only in the narrow terms of sexual longing but as an expression of both the individual and communal desire for transformation, what I have elsewhere termed nostos— or what Kenneth Burke describes in his account of narrative ethics as “going somewhere.” 48 Romance offers what one might call the most just version of the real. The generic conventions of romance portray a world in which the laws of nature (and natural law) are suspended; thus, romance permits the realization, often occluded in realistic fiction and the practice of politics and jurisprudence, that questions of truth and justice can only be mediated through representation. What romance can offer us, then, is a representation of that “somewhere,” which is a reality brought into being by the transformative magic of language and the nature of desire itself. As such, one might say that romance is the essential “hybrid” genre—linking the desires shaped by and realized in a world of domestic and public politics to the “romantic” and transformative fantasies that those desires inspire. Or, as Fredric Jameson, paraphrasing Frye, puts it: Romance . . . does not involve the substitution of some more ideal realm for ordinary reality . . . but rather a process of transforming ordinary reality: “the quest-romance is the search of the libido or the desiring self for a fulfillment that will deliver it from the anxieties of reality but will still contain that reality.” 49

Moreover, as the “Wife of Bath’s Tale” demonstrates, fantasies are not illusory renditions of an imagined world but rather the real world imagined differently.50 In this sense Shakespeare’s late plays—The Tempest, Pericles, Cymbeline, and The Winter’s Tale—are romantic, each one representing “miraculous wonders and transformative journeys (whether actual or figurative)” that imply not the abandonment of the real world but the enrichment of that world by its most just (and therefore most desired) representation, at the same time as that real world maintains its presence in the fantasy.51 The conventional gendered identification of romance with the feminine is reinforced in The Winter’s Tale by the association of winters’ tales with women.



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Winters’ tales are oral narratives intended to entertain rather than educate and were therefore not deemed “serious” literature.52 To speak of the play as generically female, however, does not necessarily mean that the women represented within the play are without power or authority. In fact, it is precisely the tension between the play’s generic classification and a plot that foregrounds women’s authority and power that sustains our interest in Leontes’s reformation and the discovery of those who were lost. The crucial relationship between domestic and state politics is made apparent when the accusation of transgressive sexual behavior against Hermione, one who is at once a subject, as well as a wife, a mother, and a queen, undoes the harmonious intimate and public relations upon which Sicily depends, thereby reducing that expansive, generous state to an unrelentingly bleak world. Those same generic conventions that link The Winter’s Tale to women operate also to connect them to the world of politics—to insist that women generate and reproduce the political, both literally and figuratively. It is exactly this connection between the sexually active queen’s body and the business of the state that provokes Leontes’s suspicions. As Katherine Eggert points out, it provoked anxiety among the Elizabethans: “royal patrilineage is bound up in a feminine erotic nature.”53 Eggert insists that the play’s response to this dilemma “requires that queenship be reworked into a principle of geneaological continuity. If life and rule are to go on, the feminine must be reincorporated in at least some sense”— a reincorporation that Eggert argues demands the queen’s desexualization.54 I would suggest, however, that the generic conventions of the play shape a different set of expectations about the relationship of women to men, queens to kings, home to state, desire to politics, nostos to nomos. When Leontes, suddenly aware of his error, laments nostalgically for the loss of Hermione, he does so from a normative universe in which Hermione is remembered only as his queen, in which she represents only the loss of his heirs. When Leontes confronts Hermione’s statue at the end of the play, however, he has been forced to stand in her place and thereby to reimagine her. What I am suggesting is that The Winter’s Tale goes beyond the claim that women’s fidelity anchors patriarchal society by guaranteeing a legitimate heir; rather, the play insists that no claim made in the language of the political has validity without a concurrent acknowledgement of the representational role and function of women in that world. And this is true for both real and imagined politics. In other words, I am making a claim about the representational values of the romance

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genre as those are conceived and performed in the play. Jordan makes the generic nature of this argument clear in her summary of Shakespeare’s romance plot: A figure representing a rule that has the marks of a tyranny loses the means to govern. These means, both material and ideological, are provided by the body of the body politic. Without that body, the ruler remains only a severed head; his state is therefore a headless body. The work of restoration is not, however, entirely his although it depends on his good will, his conscience, and his willingness to acknowledge what he has refused to consider earlier: the special status of the figures who represent generativity, his wife and daughter who appear to be protected by providence. . . . Women characters are central to these developments as both vehicles of power and agents determining the reform and return of rulers to their offices.55

In other words, women are not simply the means whereby the ruler ensures the continuation of his line but rather they actively manage the work of reformation and the restoration of the ruler to his office. Generating the possibility of justice in matters both of the state and of the family, the women infuse the task of governing with the power of imagination, or representation.56 What matters, then, is not so much by which genre (or genres) we classify the play but rather what representational claims we assign to that specific genre, or mixture of genres. Such concerns are particularly pertinent when the dramatic representation reflects and critiques a political representation.57 To address this intersection between the work of the imagination and the work of politics, I turn to Paul Strohm’s elegant thesis in Politique: Languages of Statecraft between Chaucer and Shakespeare (2005), in which he insists that “words possess their own capacity to underwrite or undermine, inspire or disable, political initiatives.” What he means is that words do not merely “conform to preexisting political ideas” but rather “might contain within themselves . . . innovative possibilities.”58 Genres also do not merely conform to preexisting conventions but perform the work of constructing a particular vision of a state, and vice versa. In particular, The Winter’s Tale’s generic hybridity (both romance and tragicomedy) enables the imaginative vision of a gendered, political hybridity in which the roles and functions of women and men carry equal significance and the formerly tyrannical relationship between the king and his subjects is reconstituted as an equitable and regenerative bond.59 That new vision of statecraft and power emerges from a place traditionally perceived as antithetical to the corruption of the court and the political life—that is,



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the countryside, here represented as the rural retreat of Perdita and the shepherd “father,” who found her abandoned on the coast of Bohemia. This pastoral scene also, of course, reminds us of what Perdita has lost. Moreover, this pastoral idyll is already contaminated by the court—particularly by the son of the king of Bohemia, Prince Florizel, whose name suggests the deep intermixing of the politics of the countryside and city.60 Furthermore, the king of Bohemia, Polixenes, in pursuit of Florizel, also carries the politics and corruption of the court into the Edenic purity of the countryside. The political hybridity that comes into being through the representational art of the play is both literally and figuratively articulated in the debate between ­Polixenes and Perdita over the art of grafting to produce new forms. This playful dispute over the value of hybridized flowers, like the “streaked gillyvors, / Which some call nature’s bastards” recapitulates the painful scene in which the ruler ­Leontes “bastardizes” his child, Perdita, by claiming that his wife has been unfaithful to him with Polixenes (4.4.82–83). It is thus entirely appropriate that the two characters who question the wisdom and purpose of grafting or hybridity should be Polixenes, the sovereign, and an apparently politically innocent member of the polity, Perdita. That neither character is really what he or she seems to be—both are either knowingly or unknowingly in disguise—further conveys the complexity of the relationship between state and subject, between ruler and ruled. That this pastoral scene should recall the tyrannical exercise of a sovereign’s power over one who was both a wife and a subject reminds us that the domestic and the political cannot be separated and that the pastoral can only escape the political through the illusion of theatrical or poetic representation. Perdita has herself acknowledged these facts when she fears that Florizel’s love for her “cannot hold when ‘tis / Opposed, as it must be, by th’power of the King” (4.4.35–36). Perdita’s perception of the sovereign’s power as that which must oppose his subject’s wishes is, of course, based upon her realization that Polixenes would never permit his son to marry one who provides no political or dynastic advantages; Perdita’s romance with Florizel can only survive outside of politics. Perdita’s response is also, however, an appropriate account of her own father’s merciless exercise of sovereignty over her mother, one whose resistance to Leontes’s tyranny has already unsettled the simple equation of sovereignty with limitless power. Perdita, as yet innocent of any sovereign’s command, articulates this simple, dichotomous understanding of the political world in her debate with Polixenes. Her rejection of all that is not natural and unmixed (except through a natural

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“piedness”), applied to statecraft, distorts that art into a “baser kind” of politics (4.4.94). Polixenes’s claim, however, that the hybridity of the gillyflower exemplifies that natural art that improves nature, suggests a different, more complex, understanding of statecraft—that it requires a blending of the “gentler” with the “wildest stock” (4.4.93), the combination of diplomacy and the threat of force; it is the art of persuasion, as well as the power to oppose. That Polixenes’s practice of this statecraft is less subtle than his theory is quickly apparent when he responds to the news that his son intends to marry Perdita with precisely the same cruel and merciless exercise of sovereignty that Leontes has already demonstrated: Polixenes threatens his son with disinheritance, Perdita, now a “fresh piece of excellent witchcraft” with torture, and her shepherd father with death. Polixenes, like Leontes, must be taught that ruling justly—whether a kingdom or a family—requires mercy as well as authority; and like Leontes, his reformation will be managed by a woman (4.4.402–3). Confronted by the swift and exact nature of Polixenes’s tyranny, Perdita responds in a manner that directly recalls her mother’s response to Leontes’s irrational accusations: she defies Polixenes’s exercise of sovereign power by invoking, on the one hand, the universality of natural law (with its equitable distribution of justice to both sovereign and subject alike) and, on the other, by stressing her particular identity as a resisting (rather than a merely suffering) subject: I was not much afeared, for once or twice I was about to speak and tell him plainly The selfsame sun that shines upon his court Hides not his visage from our cottage, but Looks on alike. (4.4.422–26)

Returning to her natural state (“I’ll queen it no inch farther” [4.4.428]), Per­ dita’s call for equitable justice binds the domestic and the political.61 This timely reminder of their inseparability also binds the past and the future together as it recalls the sentence imposed upon her mother and her infant self (as punishment for their apparent betrayal of familial and political ties) and proleptically announces the reconciliation of husband and wife, sovereign and subject, at the end of the play. Perdita thus joins the line of powerful women characters in the play who “determin[e] the reform and return of rulers to their offices.”62 Like Katherine in Henry VIII, these women—Perdita, Paulina, and Hermione—together fashion a



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vision of the state that is specifically founded on the symbiotic relationship between the personal and the political, one that allows the sovereign to articulate his love (also called justice) for his subjects through his love for his family and vice versa. It is precisely this vision of the state that Leontes has shattered with his accusations against Hermione and which only the reconciliation of husband and wife can reinvigorate. The reconciliation between Leontes and Hermione in the final scene of the play, which also restores the daughter to her parents and thus completes the family, constitutes the structural equivalent of Hermione’s trial in act 3. In that scene, law is articulated merely as the tyrannical expression of a sovereign’s power despite Leontes’s insistence that “since we so openly / Proceed in justice, [we should] be cleared / Of being tyrannous” (3.2.5–6, 4–5). Jordan argues that [n]othing speaks more directly to Leontes’s madness and its expression in tyranny than his impious rejection of all forms of law—positive law which requires an examination of evidence; natural law which prohibits abuse of dependents, especially children . . . and divine law.63

We witness in act 3 tyranny masquerading as law. As Hermione insists, if she is to be condemned merely upon Leontes’s jealous suspicions, “‘Tis rigor, and not law” (3.2.111). Given his rejection of all forms of social or political authority by which he might assert his sovereignty, Leontes’s royal prerogative, emptied of its moral and divine sanction, is exposed as merely the “demonstration of the sovereign’s power . . . [the] occasion for the exercise of sovereign decision,” unrestrained by custom, law, or individual conscience.64 Leontes’s persecution of this particular subject is also, of course, the persecution of his wife and the mother of his children. It is here, at the point where tyrannical power meets (and crumbles in the face of) natural law, that the limitations of Leontes’s power are evident. Those limitations are revealed both by Hermione’s refusal to be intimidated by Leontes’s threats of death (“Sir, spare your threats. / The bug which you would fright me with, I seek” [3.3.89–90]) and by her apparent death at the news that Mamillius, heir to throne, has sickened and died over his mother’s distress. Thus the domestic tragedy presages and generates the political tragedy, one forecast in the oracle’s prediction that the “King shall live without an heir if that which is lost be not found” (3.2.132–33). As Strohm argues, however, Shakespeare’s representation of “symbolically destitute death scenes” reveals that the “significance of the victim’s death exceeds or escapes the designs of his

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persecutors”; excess activates the possibility of meaning whereby the “unrestricted right” of the sovereign is challenged—and a new version of law thereby comes into being.65 Despite, then, the apparent bleakness of Hermione’s radical vulnerability, it is precisely that confrontation between “rigor” and “law,” provoked by her physical resistance, that restores the sacredness of human life beyond “mere” presence. And with that comes the possibility of new meaning.66 Paulina, a character who does not appear in Shakespeare’s source text, Robert Greene’s Pandosto, and one whose voice has been consistently raised against Leontes’s tyrannical behavior, brings about this moment of excess in the trial of Hermione. (Paulina’s refusal to be cowed by Leontes’s power reminds us of the Wife of Bath’s sacrilegious reworkings of the antifeminist doctrine of the Apostle Paul. Paulina is surely intended to play upon the apostle’s name and his insistence that women be restrained and veiled from public sight.) Paulina also manufactures the form and occasion for the revelation of a new version of law (much as the apostle himself did) when she brings Leontes and Perdita to the unveiling of Hermione’s statue, a form that embodies new meaning, both literally and figuratively. As the advisor to both Leontes and Hermione, to both husband and wife, to both sovereign and subject, on matters personal and political, Paulina might be said to embody another version of the play’s generic hybridity. By assuming this double role in both domestic and state affairs, Paulina provokes both the tragic components of the play—the loss of family and the loss of state—but also its comic resolution when she substitutes the living Hermione for a cold, hard statue. Thus a woman is instrumental in balancing law’s disciplinary force with its redemptive power. Paulina’s active participation in resisting tyranny and advocating justice for Hermione and Perdita in act 3 is balanced by her active promotion of law’s liberatory potential in act 5. Together with Hermione and Perdita, Paulina reveals how law works its secular magic, how its representational fictions can produce both good and evil. In its most just form, law is another version of that art that makes nature more itself, as Leontes recognizes when he remarks on the art that has made Hermione so lifelike: “If this be magic, let it be an art / Lawful as eating” (5.3.110–11). In its best exercise, law’s fictions do not undermine justice but make possible the visibility of justice: “law ventures into art to be more true to itself.”67 When law is employed to advance injustice and cruelty, however, its representations and fictions corrupt both nature and justice. As Leontes says about the statue of Hermione when Paulina unveils it: “There’s magic in thy majesty, which has / My evils conjured to remembrance” (5.3.39–40). The beauty of his wife’s form—



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once condemned along with Paulina’s “mankind witch” as the embodiment of aggressive and transgressive female sexual desire—is now celebrated as the conjuror, the performer, of a certain kind of justice.68 In concluding the play with this magical performance—where the thing that is apparently unchanging becomes mutable—Shakespeare suggests that, like gender relationships, power relationships such as those invoked in courts of law, have everything to do with enchantment. Justice, like other forms of desire, is both a magical performance and performs magic, and thus like the play itself, it is transformative and yet necessarily transitory. To suggest that justice partakes of magic is not to argue that it is an illusion but rather that it produces a world fashioned out of the real and the fantastic. To speak of The Winter’s Tale in this way draws together both its literary aspect—its hybrid construction within the generic conventions of romance and tragicomedy—and its specific historical enactment of the tensions between different forms of law and authority. In the family of King Leontes, we see played out both the innumerable transformations of desire appropriate to the romance and, at the same time, the modeling of various forms of authority and subjection appropriate to Stuart England. What Leontes’ tyranny produces is a play of political options: Paulina’s overt resistance and insistence on due process and the proper forms of law; Perdita’s inherent understanding of the ancient constitution, that is, the common law; and Hermione who stands for (as in a statue, or statute) a seemingly fixed and abstract law enlivened by human desire. Hermione, apparently secured from time by her death, removed from a world of transience and error, is reinvigorated by the love and desire—as a statu(t)e must be to engage with a world of human fallibility. As Shakespeare had made clear in such plays as The Merchant of Venice and Measure for Measure, social order must be secured from its calcification in inflexible statutes or tyrannical sovereigns by being constantly infused with the warmth and uncertainty of human relationships. The performance that works its magic on the stage in The Winter’s Tale is intimately allied with the performance that works its magic in the court, both in its royal and legal versions. To read the play in its specific historical moment and thus to see it as a representation of the debate between various forms of political authority—royal absolutism, parliamentary legislation, and the common law—is not to ignore the literary conventions that shape its structure and plot.69 On the contrary, it is to see that it is precisely those gendered literary conventions that inform our reading of legal and political narratives, which are, like the play, also narratives of transformation and transience. We see in Hermione’s re-creation under

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the guidance of Paulina precisely that reimagining of what was once loved, as well as a looking forward to a new form of love—she is thus the embodiment of nostos. When Hermione is moved to abandon her statutory form and assume a human one, she is simultaneously declaring the inherent instability of all human law and celebrating precisely that which would guarantee its persistence—a celebration that Shakespeare cannot imagine in anything other than female form.

Postscript

This book has made two interventions in the ongoing conversation between law and literature. First, I have historicized the relationship between these two discourses to reveal the multiple ways they produce cultural authority. The production of that authority—realized in the myths we employ to name power and powerlessness—is inevitably accompanied by the gendering of the agents of authority. Traditionally, such agents have been male. The second intervention supplies a term and a methodology to describe the way in which women’s narratives have contested these dominant myths of patriarchal power. That term is nostos, understood as a gendered reimagining of what constitutes the normative, the nomos, and therefore a way of speaking about law and justice that acknowledges women’s agency. Nostos is articulated especially in the romance genre, which expresses women’s narratives of desire for an embodied and gendered jurisprudence. Evident, for example, in the Wife of Bath’s re-visioning of Arthurian romance, nostos produces a new kind of justice, even as it returns to what was once familiar—a trope played out in Paulina’s insistence on reproducing Hermione in her previous condition, unharmed by Leontes’s jealousy. As I noted in the preface, the apparently contradictory impulses implied by the term nostos—both a looking forward and a looking back—appear to be captured in the term unheimlich, or the uncanny. I turn to Freud’s analysis of what constitutes the uncanny not only because that essay articulates the relationship between nostos and nostalgia but also because it reproduces precisely the suppression of the gendered body that this book has shown occurs repeatedly in legal and literary

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representations of women.1 Freud begins his analysis of the feeling of the uncanny by examining the etymological roots of unheimlich, and its opposite term, heimlich (homely). He discovers, after sampling a number of dictionaries written in German and other languages, that heimlich and unheimlich are not the antonyms they first appear to be. Rather heimlich—taken to mean homely, agreeable, visible— exhibits such an ambivalence in meaning, that it even comes to coincide with the definition of its opposite: that which is hidden, secret, unfamiliar, and unheimlich (124–31). (One recalls how Fielding’s analysis of evidence against Blandy can transform the unreasonable, those apparitions and strange sounds, into the reasonable, and thereby provide empirical proof of Blandy’s guilt.) Etymologically, then, heimlich can accommodate both the familiar and the intimate, as well as the magical and the strange without contradiction, and is, in this respect, like the romance genre. Freud notes further that the uncanny is that which ought to have remained secret and hidden but which has come to light—some sensation or experience that cannot be acknowledged but which nevertheless occurs repeatedly (129). The vocabulary of the secret and the known, or the concealed and the visible, recalls Pope’s denigration of women writers, as well as the theological implications of what has been hidden and revealed in the language employed by the prosecutor in the trial of Mary Blandy. One sees how terms that speak to sexual difference stretch across apparently distinct discursive realms—from the aesthetic to the psychoanalytical, from the juridical to the theological. The etymological phenomenon that Freud’s identifies is echoed in the parsing of the word queinte as used in the “Wife of Bath’s Tale.” The primary definition of quaint, like Freud’s heimlich, is “that which is known,” “the canny, the cunning,” yet the word also takes on a different shade of meaning: “Of the woman’s body: . . . uncanny, genitalia.” Notably, this semantic ambiguity—the word coming to mean both the canny and the uncanny—expresses the most ambivalence when understood in the context of female sexuality. In the 1987 edition of the Norton Anthology of English Literature, the editors gloss queinte (cunt) as “pudendum,” which means “that which should be hidden, that of which one is ashamed.”2 In omitting the alternative meaning of the word quaint, the editors linguistically deprive the Wife of Bath—with whom readers primarily associate the word queinte—of the knowledge and cunning that are also part of the word’s etymology. In the Norton Anthology, the Wife’s queinte is reduced to a plain vulgarity. We should not only mark the specific term that has been chosen to translate queinte but also its language. Apparently, even as late as the year 1987, Latin, so long the mark of privileged masculine



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power, still veiled a certain kind of knowledge from the laity and suppressed the sexuality of women. This traditional exclusion of women not only from a body of knowledge but from participating in the construction of certain ways of knowing (ontological, legal, theological, psychoanalytical) finds resonance in Freud’s reduction of the uncanny to a specifically female sexual site. In arguing that the uncanny is not produced by something new but rather by something familiar that has become strange through a process of repression, Freud cites the narratives of some of his neurotic male patients who declare that they feel there is something uncanny about the female genital organs. This unheimlich place, however, is the entrance to the former Heim [home] of all human beings, to the place where everyone dwelt once upon a time and in the beginning . . . and whenever a man dreams of a place or a country and says to himself, while he is still dreaming: “this place is familiar to me, I’ve been here before,” we may interpret the place as being his mother’s genitals or her body. In this case too, then, the unheimlich is what was once heimisch, familiar; the prefix ‘un’ is the token of repression. (152–53)

Thus, Freud insists, the uncanny (not knowing) is produced by the repression of the canny (knowing). And what one knows, apparently, is sexual difference. This uncanniness seems to escape the specific representational boundaries of the psychoanalytical narrative, however, because everyone, says Freud, suffers from homesickness for that place where “everyone dwelt once upon a time and in the beginning.” Nostalgia is produced by and articulated in the sexualized female body and, despite Freud’s claim that all suffer from homesickness, he asserts that only men appear to experience the uncanny. The uncanny, then, seems to be that feeling represented to men by women’s genitalia as those organs are given meaning by men. What women might feel when confronting the heimlich in a form intimately familiar to them, Freud does not speculate. What I suggest is that women do not merely rehearse narratives of their bodily experiences as those experiences are invested with meaning by men (fantasy) but produce their own stories, their nostoi. The sexed female body is not only the place where for men the familiar becomes unfamiliar but is also invested with transformative power that can effect change in the opposite direction: by making the unfamiliar, familiar. The repeated return to the female body as the text upon which the culture articulates its struggles over authority and truth signifies both a psychoanalytical and an ontological anxiety. Like the Wife of Bath who can convert the familiar story of a woman raped into an indictment of men’s unrestrained sexuality, or Paulina who

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can preach a very different gospel than the one her biblical namesake advocates, or the women authors who can represent a political world in terms of private intimacies, women’s power to take the familiar and make it different, or to repossess the strange, threatens the normative universe. Every chapter of this book studies the way in which legal and literary narratives employ the (historically different) sexed body of the woman to write their claims and the way in which women resist that deployment through counternarratives. Those counternarratives reveal that ontological assumptions about what constitutes evidence for truth claims are not gender neutral but deeply implicated in the struggle for cultural authority and value. Moreover, those ostensibly discrete and stable discursive boundaries that appear to mark the difference between law and literature, between what constitutes the real and what passes for fiction, are also fraught with the ethical and ontological consequences of sexual difference. Thus, the anxiety provoked by the instability of discursive realms gets played out repeatedly in the anxiety that surrounds the unreliable and aberrant shape-­shifting female body, a body that confounds the stability and certainty of what would pass for the truth. Women’s bodies and their narrative representations contest the ontological imperialism that would categorize and control knowledge. Resisting the conversion of all that is different into the familiar, women’s narratives articulate the continued uncanniness of their experience, an uncanniness produced by sexual difference. As the Wife of Bath insists, her embodied sexual experience is sufficient to authorize her narrative of marriage, despite the legal and theological textual bodies that would silence her. Sometimes that narrative of difference produces isolation and exile for the female characters, as in the case of Hermione and Perdita, but even so it is their insistence on speaking from and about their sexed bodies that alters the world from which they are temporarily excluded and which is transformed by their reentry. That reentry, even if on the back of a black ram, prepares the way for a reconstruction of the past and a reimagining of the future. This transformative political gesture, which I have termed nostos, is to be distinguished from an unreconstructed nostalgia that closes down the possibilities for the future, that would wish only to return to a once-loved place that remains unchanged. Nostos brings about a generative return, imagines the world otherwise—which is why the romance genre with its open-ended narrative form is privileged by women as a narrative strategy. This book has suggested that an historicized understanding of the relationship between law and literature that recognizes the inevitable sexualization of discur-



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sive regimes and the deployment of the woman’s body as a proof text for assessing their truth claims can revise the gendered distribution of terms such as power and powerlessness. Such revisions, such nostoi, can replace a gender-blind ontology that debates the nature of truth and reality over and on the body of women with one that recognizes the significance of sexuality and gender in the way we narrate our world.

Notes

Preface 1.  For a discussion of this paradox in theological discourse, see Bloch, Medieval Mis­ ogy­ny, especially chapter 6. As Bloch contends: “As both psychoanalytical and feminist criticism have confirmed, the relation of the competing discourses on the feminine—the misogynistic and the courtly—is a good deal more complicated than one of simple opposition” (11). 2.  See Jameson, Political Unconscious, especially chapter 2. 3.  Cover, 4. 4.  Ashe, “Beyond Nomos and Narrative,” 7. 5.  Cover, 11 n. 31, quoted in Ashe, 8. 6.  Aristotle, Nicomachean Ethics, Book 5, 1137B30. 7.  Ashe, 16. 8.  One might argue that the truly unruly woman of classical myth is Clytemnestra, not Penelope. My argument distinguishes, however, between the unruliness of those women who desire merely to replace/usurp the male and his privilege and those women whose unruliness flows specifically from their own desire as women. That this desire might lead them to act in ways that promote the good of men does not necessarily lessen their right to a narrative of their own. 9.  See Cover, 11, where he distinguishes between the “jurisgenerative” and “jurispathic,” or “world-creating” and “world-maintaining,” aspects of nomos. My thanks to the faculty of the Department of English at John Jay College (CUNY) for their helpful comments on the distinction between nostos and nomos at the NEH Seminar on Law and Literature, February 2009, especially Bettina Carbonell, Jay Gates, Veronica Hendrick, Allison Pease, Andrew Majeske, Jon-Chris Suggs, John Staines, Jean Mills, and Toy-Fung Tung. In particular, thanks to Lisa Yukins for pointing out that generative narratives (as in the romance) are not necessarily liberatory for women.

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10.  Cover, 9. 11.  Compare the Althusserian concept of interpellation: “the process whereby a sociocultural representation becomes domesticated, so to speak, and absorbed to the point of appearing natural or real, rather than fictional and thus an arbitrary construct.” Brose, “­Petrarch’s Beloved Body,” 9. 12.  Bloch, 5. 13.  Dimock, “Criminal Law,” 210. 14.  I am grateful to Layne Craig for her clarification of this distinction and for her excellent summaries of the chapters upon which this Preface is based. 15.  The momentary transfer of judicial power to women—first Queen Guinevere and then the old woman—reinforces the association of men with universal, timeless law. Female jurisdiction is represented as an individual aberration rather than a real and meaningful legal alternative. 16.  For a counterargument to Watt’s history, see Ros Ballaster’s Seductive Forms, in which Ballaster explores the debts early prose fiction owes to French seventeenth-century models. For a revisionary argument of Watt that suggests that the romance narrative continued to flourish alongside the realistic English tradition, see McKeon, Origins of the English Novel. 17.  The third account appears in Gentleman of Oxford, Candid Appeal. See also Warner, Licensing Entertainment. 18.  George, “Steward’s Court,” 143. 19.  Freud, “The Uncanny,” 152–53.

Chapter One My thanks to Austin Sarat, who invited me to participate in the conference “Legal Scholarship in the Liberal Arts” (Amherst, May 2002) where this essay was first presented, and to those at the conference who helped me formulate my ideas for the printed version, especially Marianne Constable, Dirk Hartog, Bill MacNeil, Austin Sarat, Susan Silbey, Martha Umphrey, and James Boyd White. Parts of this chapter (derived from the conference paper) have been previously published: Susan Sage Heinzelman, “‘Termes Queinte of Lawe’ and Quaint Fantasies of Literature,” in Law in the Liberal Arts, edited by Austin Sarat. Copyright 2004 by Cornell University. Used by permission of the publisher, Cornell University Press. I owe a special debt to Elizabeth Scala, who took time from her own work to comment extensively on this essay. 1.  I have not engaged here with the critical debate over the relationship between the character of the pilgrim, the Man of Law, or the Wife of Bath, and the suitability of his or her tale, or the implications of Chaucer’s authorial relationship to his characters, or the order in which the tales should be read. For discussion of these issues, see Benson, Riverside Chaucer, 854–58, 864–65, 872–73 and Beidler, Wife of Bath. On the latter issue, modern editions differ in the order of the tales. I follow the order in Benson.



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2.  Thanks to Elizabeth Scala for this observation. See, for example, Richmond, Chaucer as Children’s Literature. 3.  For a detailed discussion of Chaucer’s personal and professional engagement with the law, see Hornsby, Chaucer and the Law ; Braswell, Chaucer’s “Legal Fiction.” In particular, note the charge in 1380 against Chaucer for “raptus” of a baker’s daughter, Cecilia Chaumpaigne. 4.  Hartog, “Romancing the Quotation,” in Sarat, Law in the Liberal Arts. Other contributors to Law in the Liberal Arts note the growing juridification of society that restricts our ability to undertake certain intimate relationships. Such observations would not have seemed inappropriate in the late fourteenth century. 5.  Benson, 811. 6.  Robinson, Canterbury Tales, 658. “The Year Books suggest that by the late thirteenth century their arguments concentrated on points of law, with rather anecdotal use of precedents, untrammeled by doubts about the facts that litigants alleged.” Reynolds, “Emergence of Professional Law,” 361–62. 7.  Chaucer, Canterbury Tales, in Riverside Chaucer (1,17). All further references to the Canterbury Tales refer to this edition and will be noted parenthetically. 8.  I am distinguishing here between common law, based upon custom “from time immemorial,” and the local practice of those customs, practices that might frequently contradict or undermine the written record of judicial decisions and precedents. Donald R. Kelley argues that “the essential ingredients of the Western idea of custom [are] . . . the origins in social behavior, the popular and parochial base, the parity with law, and the element of time” (“‘Second Nature,’” 134). English jurists like Henry de Bracton and Sir Edward Coke insisted that English common law was “wholly a product of consuetude [custom],” but custom was also “tied to geographical as well as historical conditions” and therefore subject to change, contradiction, and confusion (ibid., 134, 137). For detailed discussion of the practice of customary law (as opposed to that of the common law), see Bonfield, “Nature of Customary Law”; Beckerman, “Procedural Innovation”; Beckerman, “Medieval Manorial Adjudication”; Razi and Smith, Medieval Society; and Brand, English Legal Profession, especially chapters 2 and 3. See also Brooks, Law, Politics, and Society. 9.  Maclean, Renaissance Notion of Woman, 77. 10.  Kittel, “Women Under the Law,” 131. 11.  It is impossible to make categorical statements about the legal status of women in medieval England beyond the written record of the common law given the regional variation in customs, but evidence suggests that there was rough equality between men and women under customary law. Although women seemed to have fared better under customary law than common law, as Tim Stretton points out, there is no way of knowing whether the gradual erosion of their rights under common law would not have also occurred under customary law. “Women, Custom and Equity,” 170–89, especially 185. For a

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detailed discussion of the women of Sussex between 1350 and 1535, see Mate, Daughters, Wives and Widows. See also Smith, “Women’s Property Rights,” 165–94. 12.  Bennett, “Widows,” 77. 13.  Ibid., 131. 14.  Dinshaw, Chaucer’s Sexual Poetics, 91. 15.  Ibid., 89. 16.  Ibid., 90. 17.  “The Man of Law’s ‘Tale’ is based on a story in the Anglo-Norman Chronicle of ­Nicolas Trivet [c. 1334] and on [John] Gower’s version of Trivet’s tale in his Confessio amantis [begun c. 1386]. The most significant difference between Chaucer’s version and those of Trivet and Gower is the highly elaborate style in which the tale is told. Such a style is well suited to the Man of Law, who uses all the devices recommended by medieval rhetoricians to move our pity for the heroine, almost as if he were pleading her case in a court of law” (Benson, 9). 18.  “[I]n the company of other aspirants [the lawyer] studied the original writs and basic elements of the common law. Both teaching and learning methods in the fourteenth century were adapted to a lack of written texts. Before the invention of the printing press and the ensuing widespread dissemination of printed material, books were scarce. Therefore a Reader was employed. Chosen from among members of the Inn, a Reader either read to the class from a book or delivered a lecture. Students had no individual casebooks and we can only imagine the feverish pace at which they must have scribbled notes. One moment’s inattention meant one bit of irretrievably lost information since there existed no text for later consultation. Readings were generally followed by moots or debates designed to ferret out daydreamers, frustrate poor note takers, eradicate confusion, and ensure that everyone understood and memorized the same lesson. Since the academic bill of fare was monotonous repetition of material, the superior student was predictably possessed of the keener memory.” Seaman, “Lawyers in Chaucer’s Time,” 189. 19.  Heng, Empire of Magic, 200. 20.  Ibid., 3–4. 21.  Ibid., 183. 22.  For a discussion of “otherness” of the Islam of the Syrians and the paganism of the Northumbrians as a reflection of the binary quality of the Man of Law’s thinking, see Lynch, “Storytelling, Exchange, and Constancy,” 409–22. 23.  Unlike many subjects of hagiographies, Constance is never violated sexually (unless one counts the forced marriage to the Sultan as a kind of marital rape), and her body never becomes the physical site of her martyrdom, as is so frequently the case in saints’ lives. Her sexuality is erased despite the fact that it is precisely that sexuality that provokes both the Sultan and Alla to convert to Christianity. 24.  Manderson, “From Hunger to Love,” 87, 117. 25.  Patterson, “Feminine,” 344.



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26.  Bullón-Fernández, “Engendering Authority,” quoted in Heng, 395. 27.  Heng, 409. 28.  See Constable, “On Not Leaving Law.” Constable inquires into the rhetorical effect of something “standing for” something else. In particular, she quotes Pierre Schlag: “the metaphor of stance can quickly become a kind of closure device that works to exclude from view any intellectual activity that does not consist in stance-taking” (5). 29.  Kelly, “Useful Virgins,” 157. 30.  Dinshaw, 91. 31.  Kelly, “Useful Virgins,” 136. 32.  Heng, 395. Heng argues persuasively that the Alla/Allah confusion is one that the medieval world did not share, given that the God of the Muslims would be referred to as Mahomet (403 n. 40). But she speaks only of the written confusion of the two words. One can assume that Chaucer’s audience would recognize the homophonic analogy. If they were thinking of Muslims and Mahomet, they might very well have associated the name of the Northumbrian king, Alla, with Allah, when they heard it, even if they would not have written “Allah.” 33.  Goodrich, “Laws of Friendship,” 30. In his essay, Goodrich argues that “friendship . . . is at its root a theory of precedent, a theory of similars proceeding according to the logic of similarity. My friend—in law French, mon semblable—is my other self ” (27). 34.  Martin, “Chaucer and Feminism,” 241. 35.  See Mirrer, Upon My Husband’s Death, 3. For English widows, see Hanawalt, “The Widow’s Mite,” which points out that in about half the dower cases before the court, the widows argued their own cases (28–29); and Bennett, “Widows,” 69–114. See also Barron and Sutton, Medieval London Widows. 36.  For a discussion of the “intellectual intersection between the facts of knowledge gained through the body and the role of the body in Christian Salvation ideology,” see Bishop, “‘Of Goddes Pryvetee,’” 231–46. 37.  Goodrich, “Rhetoric,” 241. 38.  “Though Mary’s purity was said to provide a way for women to avoid the corruption brought about by Eve, the rhetoric of women’s responsibility for original sin worked too much in the ecclesiastical establishment’s favor for it to be put to rest. Not only did it help to maintain general systems of patriarchal authority, but it also proved invaluable in quelling heretical movements (like that of the Lollards in fourteenth-century England) in which women claimed equal access to the divine” (Hobbs, “Blood and Rosaries,” 183). Despite her exaggerated and self-serving argument, the Wife speaks to issues that were traditionally the provenance of the clergy (scriptural interpretation), and it is for this reason that she is suspected of being a Lollard: followers of John Wycliffe, a late fourteenth-century radical theologian who argued for the primacy of scripture as the source of Christian doctrine and denied the doctrine of transubstantiation. Lollards also believed that all Christians should have free access to the scriptures in their own language and were responsible for

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a translation of the Bible into English by Nicholas of Hereford, later revised by Wycliffe’s secretary, John Purvey. 39.  Patterson, “Experience,” 141. 40.  The Wife of Bath “offers a mode of reading that is at once literal and moral; and she insists that interpretation must be deferred, that meaning (whether literary or personal [or, we might add, legal]) is available only at the end (whether of a narrative or a life [or a trial])” (Patterson, “Feminine,” 346). See also Ingham, “Pastoral Histories”; Delany, “Strategies of Silence”; and Dinshaw. 41.  Goodrich, “Rhetoric,” 242. 42.  The early Church Fathers stressed the virtue of both the virgin and the widow as exemplars of a special piety acquired through abstinence. For a full discussion of the “social concepts” of virgin and widow in the medieval period, see Carlson and Weisl, Constructions of Widowhood. 43.  Patterson, “Feminine,” 328. 44.  Ibid. 45.  For the relationship between the “Man of Law’s Tale” and Arthurian romance narrative, consider the following assertion: “At the inaugural moments of Arthurian romance, we . . . find in operation violence of related kinds: the rape and sacrificial death of women; domination of racial and religious others; and aggressive empire formation” (Heng, 49). As Gravdal asserts, “Sexual violence is built into the very premise of Arthurian romance. It is a genre that by its definition must create the threat of rape” (Ravishing Maidens, 43). 46.  See Gravdal, Ravishing Maidens, in which she asks, “[H]ow does it happen that the representation of sexual violence is built into a variety of medieval genres and what purpose does it serve?” (1). She argues, further, that the “pastourelle genre displaces class conflict onto a sexual axis where its violence can be directed at the figure of the woman and made comic. . . . The genre transforms the political anxieties that fuel thirteenth-century social discourse into comic erotic conflicts” (17). See also Woods, “Rape.” Woods argues that in medieval pedagogical texts boys and young men “learned about sexual violence as a method of defining their manhood and controlling their own lives. . . . Rape scenes function . . . as the paradigmatic site for working out issues of power and powerlessness” (73). 47.  The odds for a successful rape prosecution were stacked against the victim—and despite the penalties prescribed by law, no rapists were punished with the loss of “life or member,” according to the statistics collected by Barbara Hanawalt for the period 1202–1385. “In an eight-country survey from 1300 to 1348, only 79 rape indictments were made out . . . and only 10 percent of those indictments ended in conviction” (Gender and Social Control, 132). See also Kelly, “Raptus in Chaucer’s Time.” 48.  “In twelfth-century canon law, as in literary texts, we see a blurring of distinctions between forced and voluntary sex, between love and violence. If, in the legal text, raptus can be the legal prelude to marriage, and if the victim could conceivably consent to marry her rapist, just how serious was this crime? If, in the literary text, the violence of the raptor can



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be construed as an expression of conflicted desire, the rape plot can become the basis of a romantic narrative” (Gravdal, 11). 49.  Patterson, “Feminine,” 337. 50.  Heng, 53. 51.  For a reading that stresses the binary nature of the Man of Law’s thinking, see Lynch. 52.  See Brown, “Sorcery,” quoted by Peters, The Magician, 9. Brown argues that magic appears when there is a “clash within the one society” between “two sources of power”: “On the one hand, there is articulate power, power defined and agreed upon by everyone (and especially by its holders): authority vested in precise persons; admiration and success gained by recognized channels. Running counter to this may be other forms of influence less easy to pin down [, like] . . . inarticulate power: the disturbing intangibles of social life; the imponderable advantages of certain groups; personal skills that succeed in a way that is unacceptable or difficult to understand. Where these two systems overlap, we may expect to find the sorcerer.” 53.  Manderson, 123, paraphrasing Derrida. 54.  Ibid., 92. 55.  Ibid., 121. 56.  See Manderson’s argument about the Middle Ages and the chansons de geste: “­Notions of fealty and revenge were the pillars of feudal law. They created personal and emotional obligations—not generalized normative ones—through and between every level of government. Such a legal order requires a way of binding subjects to it through affect. It is to be sustained not by legal science but by legal romance. Peter Goodrich has perhaps been almost alone in taking this argument seriously. The chansons de geste, therefore, were the major jurisprudential texts of the period” (114). I would add that romance narratives function in the same way to bind subjects to the legal order through affective relations. 57.  Goodrich, “Laws of Friendship,” 27. 58.  Lee Patterson argues that in “the Man of Law and his Tale, Chaucer has dramatized the aspect of authorship that he seems to have found most problematic. This is the tyranny of orthodox authority, a force that, whether it be embodied in the patron, in the source, or in the poet himself, is at once inhibiting and enabling, oppressive and supportive. Moreover, in . . . the Man of Law’s Tale that authority is conceived in terms of gender, as male dominion over women, an ascendancy that is sanctimoniously assumed in the name of feminine virtue” (“Feminine,” 343). 59.  I am arguing for more than the use of fictive elements in legal documents, as explored by Davis, for example, in Fiction in the Archives. I am suggesting a deeper, more complicated interaction between the language, symbol, and structure of one discursive regime and the other. In this interaction, gendered representations lose their apparent fixity and stability and must be reproduced through reiteration. 60.  “The gnomic utterance is hardly more foreign to statute law than to literature; in

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the common law tradition, at least, a case is perhaps best understood as a parable; the Code Napoléon is full of its aphorisms and pensées” (Manderson, 131). 61.  Goodrich, “Rhetoric,” 243. 62.  Heng, 43. 63.  Cited in Heng, 116. 64.  Chaucer employs a “repeated, subtle, exploratory use of the figurative identification of the text with woman or the principle of the feminine. The representation of the allegorical text as a veiled or clothed woman and the concomitant representation of various literary acts—reading, translating, glossing creating a literary tradition—as masculine acts performed on this feminine body recur across narratives” (Dinshaw, 17).

Chapter Two 1.  Goodrich, Laws of Love, xii. 2.  Ibid., xiv 3.  Evidence for this historical resonance is the popularity of texts such as Martial d’Auvergne’s The Judgments of Love (c. 1400), which went through thirty-five editions between 1500 and 1735 (Goodrich, Laws of Love, 23); the sustained interest in this book suggests that the value of such investigations into the role of love was not merely confined to the antiquarian. 4.  Goodrich, Courts of Love, 4. For a discussion of the relationship between Capellanus and the Wife of Bath’s romance narrative, see Coffman, “Chaucer and Courtly Love,” 43–50. 5.  Goodrich, Courts of Love, 2. “Interruption is rude, wayward and in a sense monstrous. It is in one respect a method of confrontation but it is also at times a hedonistic practice. Interruption heightens pleasure” (Goodrich, Courts of Love, 5). 6.  Goodrich, Courts of Love, 37. 7.  Ibid. This “textual remnant” shows up again in late seventeenth-century and early eighteenth-century English amatory romances, which also drew a hostile and virulent reaction—condemned both for the impropriety of their content and as female incursions into the male public space. For more on the devaluation of English romances, see the section of this chapter entitled “French Romance and the English Novel” and Chapter 3. 8.  Goodrich, Courts of Love, 35; Žižek, 108–9. 9.  Kelly, Women, History, and Theory, 26, quoted in DeJean, Tender Geographies, 90. 10.  Goodrich, Courts of Love, 1, 3. 11.  Ibid., 3. 12.  Ibid., 24. For a detailed discussion of Selden’s Jani Anglorum Facies Altera, see Good­ rich, “Gynaetopia,” 276–308. 13.  Love days were days of reconciliation either declared by the courts to give all the disputants in cases before the court a chance to resolve the issue amicably or chosen by



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individual disputants as an alternative to going to law. In these cases, custom and local community values often prevailed over established legal rights. See also Goodrich, “Amatory Jurisprudence,” 10. 14.  Ibid., 5. 15.  Goodrich, Laws of Love, 25. 16.  Ibid., 26. 17.  DeJean, 4. 18.  Beasley, Revising Memory, 165. 19.  DeJean, 89. Although these seventeenth-century novels are formally different from the courtly love tales and medieval romance narratives, one can see the same questioning of the relationship between the public and the private in terms of gender and law we identified in the “Wife of Bath’s Tale.” I am aware that in speaking of gendered relations I do not distinguish between heterosexual and same-sex erotic bonds and that female friendship functioned both to articulate resistance to a dominant, heterosexual normativity and to advance that nomos by silencing the specifically sexual aspect of female friendship. See Lanser, “Befriending the Body.” 20.  Beasley, 190, 191. 21.  Ibid., 238. 22.  DeJean, 106. 23.  Genette, “Vraisemblance et motivation.” 24.  Ibid., 74–75. 25.  Miller, “Emphasis Added,” 36. Beasley insists that in La Princess de Clèves Lafayette “uses history to subvert the rules governing the historical novel . . . [and] intentionally creates an ‘extraordinary’ and ‘unnatural’ fiction to undermine, internally, the basic requirement of the genre—vraisemblance” (194). 26.  Guetti, 215. 27.  Such stories (histoires) as these radically delegitimize history—either by giving it a false beginning to which it is not entitled (“such as the imaginary accounts that are given of the origins of most nations, whether civilized or barbaric”), or by stealing the rightful property to which it is entitled, “assuming the name and the clothing of dead or absent people” to produce a rival reality, not merely an equivalent truth (Guetti, 213). 28.  de Man, “Autobiography as Defacement,” 67, quoted in Guetti, 217. 29.  “If the women in Mme de Lafayette’s novels must usurp the place of actual women who lived and died, this may be her way of saying that women cannot be ‘represented’ in the ‘universal’ codes which render the harsh facts of actual power decorous and plausible. Her heroines are not figures for some ‘general truth,’ and she makes every effort to distinguish the stories she wants to tell from the essentially interchangeable fictions ordinarily recounted by such as Nemours, and approved by [Lafayette’s] mentor, Huet” (Guetti, 23). 30.  Goodrich, Laws of Love, 27. 31.  Ibid., 199.

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32.  Ibid., 201. 33.  Ibid., 205, 208. 34.  Ibid., xiii. 35.  Goodman, “Public Sphere,” 14, quoted in Spencer, “Women Writers,” 216–17. 36.  Watt, The Rise of the Novel, 32, 34. 37.  Ibid., 13. 38.  Ibid., 30. 39.  Ibid., 31. 40.  Watt does, however, acknowledge that “[f]ormal realism is, of course, like the rules of evidence, only a convention; and there is no reason why the report on human life which is presented by it should be in fact any truer than those presented through the very different conventions of other literary genres” (32). 41.  For further discussion of how the English novel was “elevated” over narrative fiction allied with the French romance, see Warner, Licensing Entertainment; and Chapter 3, the section entitled “Mere Entertainment and Serious Matter.” 42.  Note how Diderot makes a similar critical move in his appraisal of Richardson (“­Eulogy of Richardson” [1762]). Diderot argues that there are two ways to create the illusion of reality: “there are moral phenomena as well as physical phenomena” (quoted by DeJean, 86). This distinction between the physical and the moral, for which Richardson is praised, is gendered: Only the male novelist can attest to moral certitudes. Compare this insistence on distinctions with Watt’s judgment that the English novel’s realism depends upon the privileging of the physical over the psychological and the consequent denigrating of the French romance with its “elegant” but “[in]authentic” psychological observations (DeJean, 87). 43.  Watt, 205–7. 44.  McKeon, 3. 45.  For a nineteenth-century version of this ideological move, see the argument that “[t]he ideological production of the aesthetic as a ‘discrete entity’ . . . was the ‘creation of white male fiction writers reacting against the commercial triumphs of the feminine novel.’” Hale, “Aesthetic,” 897. 46.  Ibid., 20. 47.  Gallagher, Nobody’s Story. See also Warner, Licensing Entertainment. 48.  The work of Janet Todd remains crucial to the understanding of women’s literary history, especially The Sign of Angellica and The Secret Life of Aphra Behn. For its understanding of the relationship of French romance to the English novel, see especially Ballaster, Seductive Forms and Ross, Falsehood. See also Catherine Gallagher, “Who Was that Masked Woman?”; Paula McDowell, The Women of Grub Street ; and Spencer, “Women Writers.” 49.  Commenting on the extensive use of the epistolary form, Goodrich argues the following: “The seventeenth century was the era of libertine and new codes and cartographies



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of amorous desire. There were codes of love for the gallant, the coquettish, the precious or précieuses, for men and women, for the married and the single, for the gay and the naysayers. . . . From the point of view of the laws and professions of love we have entered the era of the epistolary missive and of amorous fiction based around love letters. The loveletter becomes a key figure of the law of love and the resurgent courts of love” (Courts of Love, 25). See also Alliston, Virtue’s Faults. 50.  Pollak, 152. 51.  Ibid., 167. 52.  Ballaster, Seductive Forms, 13. 53.  Ibid., 11. Ballaster explicitly connects the romance narrative to the articulation of party politics. But see William B. Warner’s critique of what he terms Ballaster’s anachronistic feminist assumptions in arguing that Behn, Manley, and Haywood contested women’s subordination as contemporary feminism understands this. According to Warner, the central contribution of these women novelists to the history of the novel was that they offered a chance for men and women to “articulate their desire and ‘put the self first’ in the same way their characters do” (“Formulating Fiction,” 284). 54.  Ballaster, Seductive Forms, 193. 55.  Ibid., 194. 56.  Ibid., 192. 57.  Ibid., 193. Compare the remark by Vita Sackville-West, quoted by Ballaster: “We might have had the mother of Moll Flanders, and all we get is the bastard of Madamoiselle de Scudéry” (Ballaster, Seductive Forms, 99). 58.  Pender, “Competing Conceptions,” 457. 59.  Ibid., 458. 60.  Holmesland, “Aphra Behn’s Oronooko,” 57. But see Pender, “Competing Conceptions,” where she argues that the generic mixture of fact and fiction, of realism and romance is analogous to the racial mixture of the white woman narrator and the black romance hero and that the text is thus the product of a kind of miscegenation (460). 61.  Ibid. 62.  See Regis, Natural History; Scott, “Romance in the Stacks.” See also Goade, Empowerment versus Oppression, particularly Proctor, “The Romance Genre Blues”; Chen, “Forms of Pleasure.” 63.  Ibid. And see Pender, “Competing Conceptions,” where she argues that the text “might be read as . . . [an] anomaly in the taxonomies of genre, or, indeed as part of an anomalous genre” (460). 64.  Ballaster, “New Hystericism,” 289. 65.  Ballaster argues that readings of Oroonoko are “symptomatic of a general tendency . . . to suppress the problem of a conflictual relationship between the black and white woman in favour of exploring the relationship between the black man and the white woman as a mutual interchange of marginalities that willfully produces the myth of ­intersexual and

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interracial harmony” (Ibid., 288). For a nuanced reading of the relationship between Behn, the narrator, Oroonoko, and Imoinda in terms of colonialization and cultural literacy, see Ferguson, Dido’s Daughters, especially 333–75. 66.  Strohm, Politique, 209. 67.  Behn, Oroonoko, 93. All futher citations will be parenthetical. 68.  See Renato Rosaldo’s account of “imperialist nostalgia [which] uses a pose of ‘innocent yearning’ both to capture people’s imaginations and to conceal its complicity with often brutal domination . . . ‘We (who believe in progress) valorize innovation and then yearn for more stable worlds, whether these reside in our own past, in other cultures, or in the conflation of the two.” Culture and Truth, 69–70, quoted in Eggert, Showing Like a Queen, 161. See also Pender, “Competing Conceptions,” where she argues that Behn “pits her ‘female pen’ against the potential of Imionda’s pregnant body carrying Oroonoko’s child” (470).

Chapter Three 1.  This custom is also recorded in Thomas Blount’s Fragmenta Antiquitatis (1679) as occurring in the manors of East and West Enbourne, Berkshire, as well as in the manor of Torre, Devon. See also The Spectator (No. 614 [Nov. 1, 1714] and No. 623 [Nov. 22, 1714]), where the custom is cited as part of an ongoing satire upon widows and their voracious appetites for money, power, and sexual satisfaction; and The Platonic Wife (1765) by Elizabeth Griffith, where Lady Fanshaw rejoices that “since that Gothic statute of the Black-Ram, in the North-west Riding, has been abolished, we widows may chuse what hobby-horse we please; sometimes, for variety, perhaps an ass; but oh! defend me from a mule, ‘tis so vastly like a husband” (I, i.). My thanks to Lance Bertelsen for this citation. For an extensive account of similar customs, see Mellinkoff, “Riding Backwards.” See also Thompson, Customs in Common, 467. 2.  Feme Coverts, vii. For other legal texts focusing on women’s law, see Baron and Feme (the earlier version of Feme Coverts); T. E., The Lawes Resolution; Swinburne, A Treatise of Spousals; and Salmon, A Critical Essay. See also Prest, “Law and Women’s Rights,” 169, and his “Lay Legal Knowledge,” 303. And Simpson, “The Rise and Fall.” 3.  Feme Coverts, vi. 4.  Customary law is defined as “being of oral origin and nature. It is based on customs that are old (of at least forty years’ duration), reasonable, and acceptable, as evidenced by the fact that people have been willing to practice then for a long time. A custom may be written down and made into law, but this does not make it any less a custom.” Rogers, “Women and the Law,” 33. My thanks to Janis Bergman-Carton for drawing my attention to this article. 5.  Copyhold is also called “customary tenure.” As Theodore F. T. Plucknett argues, “There grew up in the manors of tolerant lords the custom of allowing villeins to succeed by hereditary right to their ancestors’ holdings.” Concise History, 311. The “machinery of custom” (Rogers, 33) conveyed legal rights that were retroactively, and reluctantly, recognized



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by the common law. James McInnes writes, “I have studied the records of one manor court in detail. It is the manor of Portchester in Hampshire in the south of England. There are extensive records from the 14th century until 1936 (and that is not a typing error) when the Manor Court was abolished. I have not seen a reference to the custom. I do know from the wills from the 16th to 18th century that it was usual for the widow to inherit land and she was to hold it as long as she remained chaste and unmarried (some husbands were clearly more trusting and did not put in that clause). There are instances of people being presented by the churchwardens for sexual offences of this nature and they had to appear in church, crawl down the aisle on their knees and apologise to the whole congregation (although this only appears to have happened to the men—the women seem to have got off with an apology).” (Email communication, November 30, 2006) 6.  My thanks to Judy Bennett for sharing her knowledge of medieval customary law and suggesting this retrospective account: “I suspect it is a post-medieval tale (like droit de seigneur) that was given false medieval origins.” (Email communication, November 25, 2006) There is a brief discussion of the custom, and its variation from manor to manor, in Poos and Bonfield, Select Cases, cxxv. 7.  See Chapter 1, Note 7. 8.  See texts cited in Notes 2 and 3. 9.  Ross, “Commoning of Common Law,” 325–26. 10.  Ibid., 338 n. 40. 11.  Piggott, Ancient Britons, 22–23. 12.  Ross, 358, 361. 13.  O’Brian, 72, 164. All subsequent citations from this text will be parenthetical. The Civil Code of 1804, known as the Napoleonic Code, replaced the law promulgated under the Revolution (1789) but drew its “inspiration [from this law] in separating Church and State, in stressing individualism and the rights of man, and in consolidating man’s political and economic rights.” See Rogers, 34. 14.  See also Wilson, The Danciad. Who’d not refuse a drop of you know what, If at free cost it can with ease be got: Who would not fear on Sunday’s, as in France, To leave the Church, and join a Country Dance. In pious matters they’re not very nice, But hate the whole “society of vice;” Not like some pious senators that cry, Because some thousands still in errors die, Nor listen to advice from Mrs. Fry. But many can (oh ! shocking !) curse and damn, And would not fear to ride the old black ram;.

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Who are not so nice as to refuse to eat, Because it is the gentlemen who treat; Or should the matter be disputed, they But seldom, for themselves insist to pay. For an interesting comment on the value of this customary law as dispositive, see ­Bluett, Advocate’s Note Book. In the case of Elizabeth Cain v. William Cain, and Christian, his wife (1835): “[T]his cannot be looked upon as a customary law; for the paper writing, lately discovered, is not of itself sufficient evidence of a custom. To prove a custom, immemorial usage must be shewn. Now, there is no case known to this Island, either before or since the date of this paper (1687), where a widow has been deprived of her dower for having had a bastard child; and it is the accepted law, and has been decided in several cases, that a widow is entitled to her dower, notwithstanding her having lived in adultery, and borne children to another man, during the lifetime, of her husband” (515). 15.  E. P. Thompson characterizes the relationship between folk law and the official legal system in early modern England as both a mockery of and an assertion of “the legitimacy of authority” (478). For further discussion, see Underdown, “Taming of the Scold”; Ingram, “Scolding Women” and his “Juridical Folklore.” For a discussion of communal judgments in the medieval period, see Beckerman, “Medieval Manorial Adjudication,” 1. For a detailed survey of the shift, in the later Middle Ages, from trothplight, as a communally pledged contract, to the legal, written contract, from “troth” to “truth,” see Green, A Crisis of Truth. 16.  I am aware that a distinction must be made within the common law between pleadings, writs, and statutes and the law as understood through precedent and commentaries. My concern, here, however, is to distinguish primarily between law as written and law as practiced in local communities. 17.  Feme Coverts, vii. 18.  Goodrich, “Poor Illiterate Reason,” 7, 8. 19.  See Stewart, Crimes of Writing, whose argument addresses how law “developed as a particularly idealized and transcendent form of writing” (3). 20.  “The appearance of defense counsel moved the struggle for control of narrative resources to the center of judicial consciousness by subjecting the prosecutions evidentiary constructs to articulated standards of reliability (realism) and by introducing expert voices competitive with the judge’s legal authority. In light of Bakhtin’s discussion of ‘polyglossia’ as the defining trait of novelistic discourse, which he considers as having increasingly penetrated the whole of culture during modern times, the ‘lawyerization’ of the eighteenth-century criminal trial could be called a form of ‘novelization.’” Bender, Imagining the Penitentiary, 176. 21.  Warner, Licensing Entertainment, iv. The story of “heroical authorial innovation” might also be an apt description of how canonical histories of the common law proceed, attaching changes in the understanding of critical legal concepts to particular jurists, like Coke or Blackstone. The common presence of the “male heroical ideal” should alert us to



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the historicity of this particular representation. See also Warner’s reference (23) to David Perkins’s argument in Is Literary History Possible?, where Perkins defines as characteristic of romantic literary history “[t]he importance attached to beginnings or origins, the assumption that development is the subject . . . , the understanding of development as continual rather than disjunctive, and the creation of suprapersonal entities as the subjects of this development” (86). Such characteristics might be said to define the historical narratives of the English common law, suggesting that they, too, are “romances” in their own way. 22.  Warner, Licensing Entertainment, xv. 23.  Ibid., 192. For a different historical account of the relationship between late seventeenth-century and early eighteenth-century women’s novels and the French tradition of scandalous romances, see Chapter 2, where I resituate the novel of “amorous intrigue” in the literary tradition of medieval narratives of the courts of love. I see these novels as part of an ongoing tradition in which women’s courts delivered women’s jurisprudence in amorous matters. For a similar reading of les précieuses erudite, mid-seventeenth-century French women who challenged patriarchal politics, see (in addition to the texts cited in Chapter 2) Goodrich, “Epistolary Justice.” For a satirical version of this inquiry into the forms of love, see “Love Casuist.” 24.  Pope, The Dunciad. See in the circle next, Eliza plac’d, Two babes of love close clinging to her waist; Fair as before her works she stands confess’d, In flow’rs and pearles by bounteous Kirkall dress’d The Goddess then: “Who best can send on high “The salient spout, far-streaming to the sky; “His be yon Juno of majestic size, “With cow-like udders, and with ox-like eyes. (Book II, lines 157–64) Not so from shameless Curl; impetuous spread The stream, and smoking flourish’d o’er his head. So (fam’d like thee for turbulence and horns) Eridanus his humble fountain scorns; Thro’ half the heav’ns he pours th’exalted urn; His rapid waters in their passage burn. Swift as it mounts, all follow with their eyes: Still happy Impudence obtains the prize. (Book II, lines 179–86) 25.  Warner, Licensing Entertainment, 147. 26.  For a detailed discussion of Manley’s narratives and an extensive analysis of the degree to which women from a wide range of socioeconomic backgrounds participated

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in the production and dissemination of the printed word, see McDowell, Women of Grub Street, especially 225–84. 27.  Todd, Imagining Monsters and John Locke’s association of women’s sexual promiscuity with monstrous births, cited in Walker, Locke, Literary Criticism, and Philosophy, 60. For the connection among midwife, witch, whore, and writer, see Erickson, Mother Midnight. 28.  McDowell, 31. 29.  For an account of the “burial” of the literary prehistory, see Warner, Licensing Entertainment, 1–44. Peter Goodrich makes a similar case in his essay on the suppressed feminine presence in the common law in his “Gynaetopia,” 276. And see also Stewart, “Crimes of Writing,” where she argues that “the field of 18th century literary production, newly characterized by rapid and mechanical means of dissemination, was drawn to folkloric or oral forms as a model for immediacy, organicism, and tradition” despite the “nostalgic distortions accompanying it” (5). 30.  Warner, Licensing Entertainment, 20–21. 31.  Fortescue, De Laudibus Legum Angliæ. 32.  “Eighteenth-century Britons . . . regularly defined themselves in opposition to what they saw as being French characteristics and manners. . . . [Moreover] [s]ince France had been an absolutist monarchy, lacking responsible representative institutions, women there had been able to use their prominence at the royal court to engage in political intrigues with kings and ministers alike” (Colley, Britons, 251). Thus the English novel is distinguished from the French novel on nationalistic and political grounds, as well as (by analogy) aesthetic ones. Despite the employment of France as the negative term in these comparisons, however, the “cultural practices of the patrician and fashionable classes [from 1775 to 1825] were in some respects ostentatiously unBritish.” Both male and female costumes were modeled on the “court dress of Louis XIV’s Versailles” (Colley, 165). As Colley points out, though, the two decades of war with France changed the relationship into one that more closely reflected the sentiments expressed in anti-French, pro-British patriotic jingoism. (Colley, 167) 33.  Goodrich, “Gynaetopia,” 286. 34.  This mutuality of interests is also reflected in the way in which the reporting of trials moved from sensational penny sheets, often in traditional oral form like ballads, to longer, more formal accounts that reported in more detail on the actual workings of the law and thus reinforced the centrality of legal ideology and its application to controlling social instability. For an account of the production and distribution of trial reports, see Harris, “Trials and Criminal Biographies.” 35.  Kroll, Review, 105. 36.  Manley, The Adventures of Rivella, 17. Future references to this novel will be parenthetical. 37.  For further discussion of the personal and the juridical, the private and the public, see Goodrich, Courts of Love, 58 and passim.



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38.  For the concept of “imaginary space,” see Goodrich (citing Cornell), Courts of Love, 61. 39.  McKeon, Origins of the English Novel, 20. 40.  Warner, Licensing Entertainment, 151. 41.  “By reality Fielding means moral or factual truth apprehended by the reader, whereas he sees in Richardson a reality that means the true workings of a character’s mind, without any concern for the truth or falseness of apprehension in relation to the external world.” Paulson, Satire and the Novel, 106, quoted in Bender, 145. 42.  For an account of the intimate relationship between Fielding the magistrate and man of business and Fielding the novelist, see Bertelsen, Henry Fielding at Work and Wilner, “Mythology of History.” 43.  Prest, Rise of the Barristers. See also Brooks, Lawyers, Litigation, and English Society, especially 231–58, and Lemmings, Gentlemen and Barristers, especially 58–110. 44.  For an account of the relationship between popular, novelistic, and legal representations of infamous trials, see Chapter 4. See also Straub, “Heteroanxiety” and Moore, ­Appearance of Truth. 45.  Goodrich, “Gynaetopia,” 277.

Chapter Four Portions of this chapter first appeared in an article, “Guilty in Law, Implausible in Fiction: Jurisprudential and Literary Narratives in the Case of Mary Blandy, Parricide, 1752,” in Texas Journal of Women and the Law 1 (1992): 337–368, and were reprinted in Representing Women: Law, Literature, and Feminism, ed. Susan Sage Heinzelman and Zipporah Batshaw Wiseman (Durham, NC: Duke University Press, 1994), 309–336. 1.  Roughead, Trial of Mary Blandy, 65. All further references to Roughead’s text will be parenthetical. Roughead’s account is based on the trial account reported in Notable British Trials (Volume 18), documents deposited in the British Library and the Public Records Office, and letters held by private individuals. Henry Bathurst (1714–94) became solicitor general in 1746 and attorney general in 1747. On the recommendation of Lord Hardwicke, the lord chancellor, Bathurst was appointed a judge of the common pleas in 1754. After the sudden death of Lord Hardwicke in 1770, Bathurst was created lord chancellor (1771), a post he held unti1 1778. “The ‘Case of the unfortunate Martha Sophia Swordfeager’ (1771), an unhappy woman entrapped into a pretended marriage, is attributed to the pen of Lord Bathurst, and the work on the ‘Law relative to Trials at Nisi Prius,’ which bears the name of Justice Bullar, is sometimes said to have been founded on the collections of the older lawyer.” Oxford Dictionary of National Biography, 2004, s.v. “Henry Bathurst.” 2.  McKeon, 22. 3.  The public outrage that surrounded Mary Blandy’s arrest and trial is attributable not only to the sensitive domestic and foreign political climate of the 1750s, but also to the

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ancient fear that accompanies the murder of a parent by a child. Particularly when, as rarely happens, a daughter kills a father, “the event is certain to receive an almost mythic notoriety that carries with it the overtones of cultural anxiety.” Boose, “The Father’s House,” 19, 38–39. Further, such patricides “almost inevitably [occur] inside [a] triangular structure in which the daughter is positioned between father and lover” (39). Blandy’s defense of her actions provoked at least one response from a “Gentleman of Oxford”: A candid appeal to the publick, concerning the case of the late Miss Mary Blandy: wherein, all the ridiculous and false assertions contained in a pamphlet, entitled, Miss Mary Blandy’s own account of the affair between her and Mr. Cranstoun, &c. are exploded, . . . By a gentleman of Oxford. London, 1752. One should note that Mary Blandy’s notoriety persists even into the twentieth century: in 1980, the BBC produced a series on women murderesses entitled A Question of Guilt, which featured Blandy’s case. 4.  Urban, “Trial of Miss Blandy,” 108, 117. 5.  See Stone, Road to Divorce: “A reasonable guess would . . . be that between 15 and 20 percent of all marriages in England in the middle of the eighteenth century were conducted in . . . clandestine ways” (115). Part of the impetus for reform in the clandestine marriage system came from courts “exasperated by the unreliability of the evidence for clandestine marriages, and in the 1730s the lord chief justice and other criminal court judges at the Old Bailey began to reject Fleet registers as evidence for or against the frequent charges of bigamy in which they figured” (115–16). Furthermore, the “clandestine marriage” plot “figures in . . . plays from Wycherley and Vanbrugh in the late seventeenth century to Steele in the early eighteenth century. A survey of the plots of 241 comedies dating from 1660 to 1714 has shown that 91 of them involve a clandestine marriage, 70 of them false marriages or marriages performed by trickery and deception, and 26 mock joke marriages” (118). “The Blandys might have been wiser if they had heeded the case of Creswell v. Creswell . . . in which an heiress, Miss Warneford, discovered, after having born Mr. Creswell children, that her marriage was void because of his previous marriage to a Miss Scrope, who herself discovered an even earlier marriage to a third woman, still living” (119). Henry Fielding also characterizes Mary Blandy as the victim of the villainous Cranstoun who leads the otherwise virtuous and obedient daughter into evil (see Covent-Garden Journal, March 10, 1752). 6.  On March 1, 1748, the Commissary Court decreed that Cranstoun and Anne Murray were husband and wife and ordered the captain to pay his wife an annuity of £40 for her support and £10 for their daughter’s. The court also ordered him to pay expenses of £100. For Cranstoun, now on half-pay, the verdict was financially disastrous. 7.  Cranstoun, Capt. Cranstoun’s account, 8. 8.  Roughead includes a contemporary advertisement for a love philtre in his account of the case. Such love drops were apparently enormously popular, despite their illegality. Apart from the obvious uses to which such love drops could be put—woman to unloving man, man to uncompliant woman, spouse to adulterous spouse—the seller also promised success to the servant debauched by any young master “[who] after he won’t have her, let her give



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him a little of this liquor and if he don’t marry her, I’ll have nothing for it” (187). Apparently, local magistrates were not as zealous in prosecuting the sellers of such potions and powder, perhaps because they, like so many others less educated, more than half believed in the efficacy of such potions. In addition to their illegality in the eyes of the law, such potions were also associated with spiritual depravity: the advertisement plays upon the cultural prejudice against Roman Catholics, especially the secretive and duplicitous Jesuits: “this liquor is the study of a Jesuit, one Mr. Delore” (187). 9.  See Forbes, Surgeons at the Bailey, 133: “The trial of Mary Blandy . . . is said to be the first, or one of the first, in which chemical tests for arsenic were accepted as evidence.” 10.  Radzinowicz, English Criminal Law, 628. 11.  Ibid., 628, n. 83. 12.  Ibid., 628, n. 84. 13.  The “‘Noblemen and Gentlemen in the Neighborhood of Henley-upon-Thames, and the Mayor and principal Magistrates of that Town’ thanked his grace, the Duke of Newcastle, for King George’s ‘Paternal Goodness’ in directing that the prisoner should be prosecuted at ‘His Majesty’s Expense,’ stating that no endeavor would be wanting on their part to render that prosecution successful.” Roughead, 32. 14.  The Assizes court where the case would normally be heard were under construction and so the case had been moved to the Divinity Hall at Oxford University. 15.  Roughead, 75-76. Alexander Welsh also points out the “didactic spirit” of Serjeant Hayward’s comments in his analysis of the Mary Blandy trial in Strong Representations, 46. 16.  Seventeenth-century and early eighteenth-century Europe was ravaged by a series of wars and rebellions over succession and the extent and function of kingly authority. For example, the Civil War in England was followed by constant domestic and foreign unrest, leading to the Bloodless Revolution that put William of Orange on the English throne in 1688. Threats from home and abroad were only temporarily held at bay by the 1701 Act of Settlement. The threats from the exiled Stuarts continued through the 1745 Jacobite Rebellion, which promoted the claim of James II’s grandson, Bonnie Prince Charlie, to the throne of England and Scotland, and ended with the Battle of Culloden in 1746. In the meantime, war had broken out on multiple fronts in Europe: the War of the Spanish Succession (1702–13); war against Spain again in 1720, lasting until 1729; and the War of the Austrian Succession from 1740 until 1748. See Willcox, Age of Aristocracy. 17.  Urban, 108. 18.  See Shapiro, Probability and Certainty ; and Welsh, Strong Representations. 19.  Indeed, as Barbara Shapiro points out, “the first English treatise devoted entirely to the problems of legal evidence,” Sir Geoffrey Gilbert’s Law of Evidence (c. 1726; published 1754), was published with an abstract of Locke’s Essay written by Gilbert himself and based primarily on Locke’s two “Grounds of Probability” for discovering truth (Book IV, xv, 4): “Conformity with our own Experience, or the Testimony of others’ experience” (Shapiro, 181).

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20.  Nidditch, Draft B, 508. Note how Locke’s rhetoric reproduces the simultaneous absence and presence of women that occurs in the critical history of the novel: women are both necessary to and yet excluded from truth-claiming discourse. This paradox is embodied in the comparison Locke draws between the “fair Sex” and figures of speech: women’s beauties, which must surely be material and of the body, the evidence of one’s senses, are nevertheless “like a mist” and therefore precisely not of the body. In Locke’s philosophical narrative, women are both material and nonmaterial, both present and absent, both true and yet fallacious, both real and yet fictitious. 21.  When Mary addressed the jury in her own defense, she complained of misrepresentations and of unfair and damning publicity before the trial had begun, prejudicial events that Fielding had condemned in the Covent-Garden Journal; moreover, she insisted that she had not known of the effect of the powder on her father. Character witnesses asserted that they had never seen anything but filial duty from Mary to her father. The defense also brought witnesses who disputed the reports of Mary’s disobedience; thus the defense, in effect, confirms that there is no more powerful or more persuasive site than filial disobedience to begin the story of Mary’s supposed criminality. 22.  McGowen, “‘He Beareth Not,’” 192–93. 23.  Welsh, Strong Representations, 616. For his definition of circumstantial evidence, as distinct from direct evidence, Welsh relies, in part, on Johnson’s 1755 dictionary: “The adjuncts of a fact, which make it more or less criminal; or make an accusation more or less probable” (615). 24.  See Langbein, Torture, for his discussion of the medieval theory of proof. 25.  Welsh, “Evidence of Things Not Seen,” 60, 69–70. 26.  Roughead, 74. Welsh also quotes this particular definition in his essay on Burke and Bentham, noting how the metaphors used by Hayward “imply linear connectedness and the idea of completion.” “Burke and Bentham,” 616 (emphasis added). 27.  White, “Value of Narrativity,” 7, quoting Benveniste, Problems in General Linguistics, 208. 28.  See Wilner, who argues that “the narrative voices of the social and legal pamphlets . . . are abstracted, simplified, and thus partial versions” of his fictional narrators (“Myth­ ology of History,” 187). 29.  Fielding, title page. Hereafter citations will be parenthetical. 30.  Compare Fielding’s insistence in the pamphlet on the evidential power of the trial to convince to broadsheets that presumed her guilt. Ironically, in the latter case Fielding appears to be more dispassionate and judgelike than he appears in the pamphlet where he assumes the judge’s persona. See Covent-Garden Journal, February 7, 1752. 31.  Recall Genette’s definition of plausibility quoted in Chapter 2 that speaks to “respect for the norm” and an “approved maxim,” both of which are necessary to establish cause and effect. See Chapter 2, “Lafayette’s La Princess de Clèves (1678).” 32.  Pocock, Virtue, Commerce, and History, 91–93; Roughead 178–79.



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33.  Doody, “‘Those Eyes,’” 53. 34.  Roughead notes that Mary Blandy, although raised by her mother in “the principles of religion and piety,” showed an unusual fondness for reading, “a taste sufficiently remarkable in a girl of her day” (2). 35.  Todd, Sign of Angellica, 9. 36.  Smith, Poetics of Women’s Autobiography, 119; Doody, 53. 37.  Fielding, 4. 38.  McKeon, 2. 39.  Smith, Poetics of Women’s Autobiography, 119. 40.  Faller, Turned to Account, 195.

Chapter Five A very early and much abbreviated version of this essay was delivered at a symposium honoring Richard Weisberg at the Cardozo Law School (2004) and was thereafter published in the symposium issue of the Cardozo Law Review (2005). My thanks to the editors for permission to reprint portions of the essay here. 1.  Of course, Henry VIII had also employed ecclesiastical courts to rid himself of his first wife, Katherine of Aragon, whom he claimed was not legally his wife, she being the widow of his brother when he married her. Henry claimed that both divine and ecclesiastical law prohibited such an affiliation, and therefore his marriage was null and void. See the Henry VIII section of this chapter for a discussion of Shakespeare’s rendition of Katherine’s resistance to absolute law. The persistent historical connection among Katherine, Anne Boleyn, and Caroline is evident in the cases cited by Victorian lawyer, R. Storry Deans in his 1909, The Trials of Five Queens. The other two queens are Mary, Queen of Scots, and Marie Antoinette. 2.  There is a matching cartoon—another plate from Theodore Lane’s series, The ­AttorneyGeneral’s Charges against the Queen—depicting Bergami riding a she-goat that has the head of Queen Caroline. “Steward’s Court.” 3.  See Fraser, The Unruly Queen. 4.  Shelley, Shelley’s Poetry and Prose, 311. 5.  Plucknett, Concise History, 443. 6.  Colley, Britons, 239. The Times of August 2, 1820 argued that since the queen was past childbearing age she could not be guilty of treasonous adultery because adultery could only be treasonous if it produced a child that “might lead to a corruption of the Royal blood, and place upon the throne her bastard issue” (quoted in Smith, A Queen on Trial, 59). 7.  Laqueur, “The Queen Caroline Affair,” 417, 418. 8.  Clark, “Queen Caroline.” 9.  See Hone, Cause of Truth; Calhoun, Question of Class Struggle, 105ff. 10.  McCord, “Taming the Female Politician.”

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11.  “So priketh hem in hir corages” (I, 11). Benson, Riverside Chaucer. Like the extravagantly dressed and egregiously outspoken Wife of Bath, Caroline represented the “earthy hedonism” and love of theatrical display associated both with the working classes and with women, a particularly dangerous mix of potentially transgressive forces (Clark, “Queen Caroline,” 51). 12.  Fulcher, “Loyalist Response,” 481. 13.  Ibid., 484. 14.  Laqueur, 423. “Queen Caroline was at once outside the authority structure and a potent symbol of it” (Fulcher, 484). 15.  Smith, A Queen on Trial, 108. 16.  Colley, 253. Colley also points out that Caroline’s trial called up images of the trial of Marie Antoinette, who was also accused of sexually and morally explicit transgressions— lesbianism and witchcraft—as part of the charge of treason against the state. 17.  Clark, “Queen Caroline,” 54. 18.  Colley, 268. 19.  Ibid., 250, emphasis in original. 20.  Clark, “Queen Caroline,” 53–54. For a detailed discussion of this image and its implications, see Gleadle and Richardson, Women in British Politics. 21.  Quoted in Gleadle and Richardson, 10. 22.  McCord, 31. 23.  Colley, 242. 24.  Adolphus, correct, full, and impartial report, 190. 25.  Laqueur, 455. 26.  Ibid., 456. 27.  The Farington Dairy, quoted in Smith, A Queen on Trial, 48. 28.  February 25, 1820, quoted in Smith, A Queen on Trial, 23–24. 29.  Cruikshank, “A Scene.” 30.  Jordan, Shakespeare’s Monarchies, 11. The Times (October 19, 1820) reports that Covent Garden Theatre’s production of Cymbeline “drew a very full house” on account of the “not very remote analogy to the present circumstances, both in the progress and conclusion of the drama” (Smith, A Queen on Trial, 124). See also Cobb, “Storm Versus Story,” where he remarks on the theatricality of politics and the use of theatrical performances to bring about political change (96). 31.  For critical debate over the play’s authorship, see Nicolson, “Authorship of Henry VIII ”; Law, “Double Authorship”; Mincoff, “Henry VIII and Fletcher”; Vickers, “Incomplete Shakespeare.” 32.  Felperin, “Shakespeare’s Henry VIII,” 227. 33.  See Felperin, who distinguishes between Shakespeare’s earlier history plays as being interested in “the records of time, which implies cause and effect” and Henry VIII and his interest in “the restitutions of process, which implies sequence” (228).



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34.  See Cobb, who addresses the ironizing of the romance account: “The art of this pageant is reduced to transitory, and costly, illusion” (102). 35.  Jordan, 121–22. For an analysis of the “duty to love” and political theory, see Kahn, “‘The Duty to Love.’” 36.  All references to the play are to Henry VIII, in The Complete Works of Shakespeare, ed. David Bevington, 4th ed. (New York: Longman, 1997). Parenthetical text references are to act, scene, and line of this edition. 37.  Noling, “Grubbing Up the Stock.” See also Micheli, “‘Sit By Us.’” 38.  For the dramatic details of Queen Katherine’s trial, see Patterson, “‘All Is True.’” 39.  For a full discussion of the relationship between duty, conscience, law, and the Reformation, see Kezar, “Law/Form/History.” 40.  Kezar, 22. Quoting Dean and Jones, Parliaments of Elizabethan England, 11. 41.  Patterson speaks of Shakespeare’s “urbane skepticism . . . as to where historical truth resides. The word ‘truth’ or ‘true’ is foregrounded not only in the Prologue . . . but several times thereafter in contexts that emphasize truth’s elusiveness in the arena of political representation” (“‘All Is True,’”160). One might also note that gendered political representation further complicates truth’s indeterminancy. 42.  Jordan, 14–25, passim [quoting King James VI, The Trew Law of Free Monarchies (1598)]. An opposing view of royal absolutism can be summarized in Coke’s argument, relying on Bracton, that “[t]he king is under no man, but only God and the law; for the law makes the King: therefore let the King attribute that to the law which from the law he hath received, to wit, power and dominion: for where will and not law doth sway, there is no King” (quoted in Jordan, 29). That law was, in part, expressed in the statutes passed by parliament. Coke became especially insistent on the tempering power of positive law after he became chief justice of the Court of Common Pleas in 1606. Coke’s argument derives, in part, from the medieval notion of the king’s two bodies: the body natural was subject to death and therefore also subject to man’s laws (setting aside the king’s prerogative) while the body politic was not subject to death and therefore might be considered divine: “It was the transtemporal office not the person of the monarch that was imbued with a numinous authority and power” (Jordan, 21). 43.  Quoted in Jordan and Cunningham, The Law in Shakespeare, 211. 44.  Jordan, 31. 45.  Ibid., 12. 46.  All references to the play are to The Winter’s Tale, eds., Susan Snyder and Deborah T. Curren-Aquino (New York: Cambridge University Press, 2007). Parenthetical text references are to act, scene, and line of this edition. 47.  Snyder, Introduction, 3. Once again, we note how aesthetic judgments seem to rely on generic classifications. 48.  Burke, “On Catharsis,” 366.

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49.  Jameson, The Political Unconscious. Quoting Frye, Anatomy of Criticism, 193. Emphasis added. See also Quint, Epic and Empire, especially 1–18. 50.  See also Strohm, Politique, 4, where he cites “Burckhardt’s characterization of the quattrocentro Italian state as Kunstwerk, as a work of art.” 51.  Snyder, 5. See also Fradenburg, “‘Fulfild of fairye,’” where in speaking of the Wife of Bath’s fantasy, she asserts that the romance genre presents us with a “trace of a lost world, strange now but once very familiar, indeed once reality itself ” (217). 52.  Lamb, “Engendering the Narrative Act,” 529. 53.  Eggert, Showing Like a Queen, 162. 54.  Ibid., 163 55.  Jordan, 213–14. 56.  Or, as Jordan argues, “art enter[ed] into the practice of government once law was understood as rendering justice by works of the imagination as well as by [to quote Francis Bacon] ‘reason, sense, induction, and argument’” (139). 57.  For a discussion of the political power of generic categories, see Quint, Epic and Empire. Quint argues that Virgil’s Aeneid “ascribes to political power the capacity to fashion human history into narrative. . . . To the victors belongs epic, with its linear teology; to the losers belongs romance, with its random or circular wandering” (9). 58.  Strohm, Politique, 8. 59.  See Strohm, Politique, where he argues “for a conception of the state as a conscious creation and product of human exertion” (4). 60.  We should note, too, how Florizel reminds Perdita of the sexual nature of the pastoral in his account of the gods who have taken on the shape of beast, especially Jupiter who became a bull. 61.  Jordan, 66. 62.  Ibid., 215. 63.  Ibid., 117. 64.  Strohm, “York’s Paper Crown,” 92–93. “If the monarch was in James’s words lex ­loquens or the law speaking, he should be ruled by the principles of divine law—such as natural equity—which were also those legitimating the moral dimension of positive law” (Jordan, 139). 65.  Strohm, “York’s Paper Crown,” 93. “As Michael O’Connell has perceptively observed, “in Shakespeare . . . bodies in pain, bodies that suffered violence and death, achieve a kind of authority and power over those who have inflicted their suffering” (quoted in Strohm, “York’s Paper Crown,” 91). O’Connell, The Idolatrous Eye, 88. 66.  “The fact that some women characters suffer terrible privation does not indicate Shakespeare’s uncritical endorsement of a cultural consensus on the status of women, although it does allude to such opinion. It points to the errors responsible for such privation. The action of these plays does not show that woman is silenced, neglected, or forced into a social eclipse tantamount to a living death as a matter of social order. It reveals that the



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authority and power of a tyrant, having had such effects, are reformed to achieve just rule when tyranny is recognized and renounced, when characters structurally gendered as feminine speak, give counsel, and have a presence in political economy” (Jordan, 215). 67.  Ibid., 140. 68.  For an extended discussion of the historical stage representations of the statue and the sexual implications associated with its sculptor, Giulio Romano, also known for his pornographic drawings, see Orgel, Imagining Shakespeare. The association of Hermione’s statue with Romano seems to imply that she is restored fully erotic and feminine, rather than, as Katherine Eggert argues, desexualized (see Note 53). 69.  “Shakespeare’s legal imagination has worked to produce political fictions” (Jordan and Cunningham, 7). And see Ward, Shakespeare.

Postscript 1.  Freud, “The Uncanny.” Hereafter citations will be parenthetical. 2.  Freud also cites this term in his quotation from Grimm’s dictionary: “Heimlich places in the human body, pudenda” (130).

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Index

Addington, Anthony, 77–78 Addison, Joseph, 60 Agnew, Andrew, 74 Albemarle, Duke of, 62–63, 66 Albemarle lawsuit, 62–66 Ann of Cleves, 99 Anxiety: about monarchy, 92–93, 104, 107; about printed word, 50–51; about truth, 93; about widows, 11; about woman’s body, 117; about women, 72, 90 Aristotle, xii Arnauld-Duc, Nicole, 47 Arthurian romance, 14 Ashe, Marie, xii Austen, Jane, 40 Authority: Blandy and, xix; cultural, 115, 118; law and, 50–51, 69–70; in “Man of Law’s Tale,” 4–6, 9; monarchy and, 100–104, 111; of the past, 6, 14, 50; widows and, 3–4; Wife of Bath’s questioning of, xvi, 11–13. See also Law; Nomos; Power Ballaster, Ros, 40–41, 43, 131n53, 131n65 Bath, 1st Earl of (John Granville), 62–64 Bathurst, Henry, 79–80, 82–84, 137n1

Beasley, Faith, 30, 34 Becket, Thomas à, 2, 3 Behn, Aphra, 35, 56–57, 67; Love-Letters between a Nobleman and His Sister, 39; Oroonoko, xvii, xx, 39–46 Bender, John, 56 Benjamin, Walter, 44 Bennett, Judith, 4 Bergami (Caroline’s lover), 93, 141n2 Binfield, Betty, 77 Black letter law, 54–55 Blackstone, William, 79; Commentaries on the Laws of England, 49–50 Blandy, Francis, 72–78 Blandy, Mary, xviii–xix, 72–91, 116; autobiographical account of, 88–91; Fielding on trial of, 85–88; Miss Blandy’s Own Account of the Affair Between Her and Mr. Cranstoun, xix, 88–91; summary of events involving, 73–78; trial of, 78–85 Blandy, Mrs. Francis, 75–76 Bloch, R. Howard, xiv Blount, Thomas, Fragmenta Antiquitatis, 132n1 Bodin, Jean, Methodus ad facilem historiarum cognitionem, 50

162

index

Body: black, 43–45; body politic, 108, 143n42; of the king, 143n42; law and, 13. See also Woman’s body Boleyn, Anne, xx, 31–32, 92, 93 Bonaparte, Napoleon, 52 Brilhac, Jean-Baptiste de, Agnes de Castro, 39 Brougham, Henry, 98–99 Burke, Edmund, 97 Burke, Kenneth, 106 Burney, Frances, 40 Capellanus, Andreas, Tractatus de amore et de amoris remedio, 25–26 Caroline, Queen, xiv, xx, 31, 53, 92–100, 142n11; cartoon of, xiv, xx, 53, 92–93, 95, 97–99, 141n2 Cartoon, of Queen Caroline, xiv, xx, 53, 92–93, 95, 97–99, 141n2 Cavendish, Elizabeth, 62–63, 65 Chalus, Elaine, 98 Charles I, 45, 93 Chaucer, Geoffrey: The Canterbury Tales, 1; “Man of Law’s Tale,” xv–xvi, 1–10, 20–23, 124n17; “Wife of Bath’s Tale,” xiv–xvi, 1–3, 10–25, 106, 112 Christianity: in “Man of Law’s Tale,” 5–10; in “Wife of Bath’s Tale,” 12–13. See also God Circumstantial evidence, 83–86 Clark, Anna, 95, 97 Class, 70 Coke, Edward, 143n42; Reports, 49 Colley, Linda, 98, 142n16 Colonialism, 41–44 Common law: advantages of, 53, 60; alternatives to, 27–28; Blackstone and, 49–50; centralization of, 3, 48; Chaucer and, 2; customary vs., 49, 53–54, 70, 98–99, 123n8; history of, 48, 68–69, 71, 134n21; women and, 123n8. See also Law

Courts of love, 25–28 Cover, Robert M., xi–xiii, 27 Cranstoun, Anne (née Murray), 74–75 Cranstoun, James, 6th Lord, 74 Cranstoun, William, 5th Lord, 74 Cranstoun, William Henry, xix, 72–77, 83, 85 Curll, Edmund, 61 Customary law: common vs., 49, 53–54, 70, 98–99, 123n8; defined, 132n4; flexibility of, 3, 22, 48; marginalization of, 54; significance of, 3; women and, 48. See also Law D’Aumont, Chevalier, 62 Defoe, Daniel, xvii, 35, 57, 67, 69 DeJean, Joan, 32 Delarivier Manley, Mary, 35, 56–57, 61, 67; Lucius, the First Christian King of Britain, 63; New Atalantis, 61, 62; Rivella, xviii, xx, 61–66 De Man, Paul, 34 Derrida, Jacques, 18 Descartes, René, 36 Desire: “Man of Law’s Tale” and, 6–8; public aspect of, 31–32; romance and, 106; “Wife of Bath’s Tale” and, 11 Diderot, Denis, 130n42 Difference: community and, 9; sexual/ gender, 10, 12, 18–19, 116–18; in “Wife of Bath’s Tale,” 18 Dimock, Wai Chee, xiv Dinshaw, Carolyn, 4 Edinburgh Review (journal), 99 Edward III, 93 Eggert, Katherine, 107 Elizabeth I, 31, 104 Emmet, Ann, 77 Entertainment, instruction vs., 55–56

index

Epistemology, literature and, 36–38. See also Truth Eros. See Love; Sexuality Evidence, 83–87, 90, 139n19 Experience, as authority, in “Wife of Bath’s Tale,” xvi, 2, 11–12 Faller, Lincoln, 91 Farington, Joseph, 99 Felperin, Howard, 100 Feme Coverts. See A Treatise of Feme Coverts Fiction. See Literature; Narrative; Novels Fielding, Henry, ix, xvii, 35, 57, 67, 69, 116; Examples of the Interposition of Providence in the Detection and Punishment of Murder, xix, 73, 85–88, 90; Shamela, 67 Fisher, Alderman, 78 Folk law. See Customary law Ford, Lord Grey of Werke, 39 Fortescue, John, De Laudibus Legum Angliae, 49, 60 France: England in relation to, 53, 60, 136n32; law in, 52–53, 60, 133n13; literature in, 35–42, 59–60 Francis I, 31 French Revolution, 97 Freud, Sigmund, xxi, 115–17 Frye, Northrop, 106 Fulcher, Jonathan, 96, 97 Gallagher, Catherine, 38 Geertz, Clifford, 2, 9 Gender: and history of the novel, 37; law and, ix–xxi, 53, 60, 69–71; literature and, ix–xxi, 57, 69–71; nostos and, xii–xiii; Rivella and, 61–66; stereotypes of, xiv; truth and, 81–82. See also Women Genette, Gérard, 32–33

163

Genre: Fielding’s account of Blandy’s trial and, 86; Henry VIII and, 100; hybridity in, 46, 100, 106, 108, 112, 113; instability of, 37–38, 42, 62, 64; Oroonoko and, xvii, 42, 62; politics and, 108; Rivella and, 61–62, 64–66; The Winter’s Tale and, 105–8, 112, 113; women writers and, x–xi. See also Historical fiction; Novels; Romance Gentleman’s agreement, ix, xviii, 69 Gentleman’s Magazine, 81 George IV, 93–97, 99 Gilbert, Geoffrey, Law of Evidence, 139n19 Glanvill, Ranulf de, 49 God: authority of, 21, 81–82; Blandy’s trial and, 82–88, 90; and truth, 82–83, 85; women and, 12, 90 Goodman, Dena, 35 Goodrich, Peter, xvi, 25–27, 34–35, 60; Law in the Courts of Love, 25, 27; The Laws of Love, 25; “Poor Illiterate Reason,” 54–55 Granville, John. See Bath, 1st Earl of Greene, Robert, Pandosto, 112 Griffith, Elizabeth, The Platonic Wife, 132n1 Guetti, Barbara, “‘Travesty’ and ‘Usurpation’ in Mme de Lafayette’s Historical Fiction,” 33–34 Gunnell, Susan, 77 Hagiography, 6, 9 Hardwicke, Lord Chancellor, 79, 137n1 Harman (footman), 78 Hayward, Serjeant, 80, 84 Haywood, Eliza, 35, 57, 67 Heng, Geraldine, 7 Henri II, 29, 34 Henry II, 3 Henry VIII, 31, 99–104, 141n1 Herne, Edward, 78 Historical fiction, 28–30, 32–34

164

index

Historiography: feminist, 28; legal, 6 History: of common law, 48, 68–69, 71, 134n21; Henry VIII and, 100–101; romance literature and, xvii. See also Historical fiction; Historiography Hodgskin, Thomas, 96 Holmesland, Oddvar, 41–42 Imagination: law and, xiii, 21, 26, 66; nostos and, xiii, xv, xxi, 9, 115, 118; political, 101, 107–8; reality and, 21, 66, 90, 106; women writers and, 35. See also Romance Imperialism, 8 Instruction, entertainment vs., 55–56 Intimate public space. See Private-public realms James I, Trew Law of Free Monarchies, 104 Jameson, Fredric, xi, 106 Jordan, Constance, 101–2, 108, 111; Shakespeare’s Monarchies, 105 Jury trials, 83 Justice: difference and, 18; and magic, 111; narrative and, 19, 22 Katherine of Aragon, 99, 101–4, 141n1 Kay, Carol, 61 Kelly, Joan, 27 Kelly, Kathleen, 9 Kerr, Jane, 74 Kerr, Mark, 74 Kezar, Dennis, 104 Kings. See Monarchy Knowledge: legal vs. literary, 2; and the uncanny, 115–17; in “Wife of Bath’s Tale,” 2; woman’s body and, 22–23 Kroll, Richard, 61 Lacan, Jacques, 6

Lafayette, Marie-Madeleine de, xvii, 28, 36; La Princesse de Clèves, xvii, 29–35 Language: instability of, 10, 81–82; politics and, 108 Laqueur, Thomas, 94–96, 99; “The Queen Caroline Affair,” 94 La Rochefoucauld, François de, Duc, 39 Law: authority of, 50–51, 69–70; black letter, 54–55; class and, 70; codification of, x, 49, 53–55; common vs. customary, 22, 53–54, 98–99; defense in, 134n20; disruptions of, 6, 8, 10, 55 (see also instability of; mixed character of); and enchantment, 113; English vs. French, 52–53, 60; gender and, ix–xxi, 53, 60, 69–71; and imagination, xiii, 21, 26, 66; instability of, xxi, 20–21, 25–27, 55–56, 112–14, 114 (see also disruptions of; mixed character of); laypersons and, 50–51; literature in relation to, ix–x, xvii–xx, 22–23, 25–26, 36–37, 51, 55, 59– 61, 64–66, 68–71, 83–84, 92, 118–19; love and, 25–28, 63–66; in “Man of Law’s Tale,” 9–10; and minor jurisprudences, 27; mixed character of, 52–56, 60, 69 (see also disruptions of; instability of); modern English, 2–3; monarchy and, 111, 143n42, 144n64; and narrative, 55, 69, 83–88; “naturalness” of, 92; printing and, 49–51; professionalization of, 68; purity/corruption of, 69 (see also mixed character of); Rivella and, 61–66; Roman, 2, 5; and romance, 65, 127n56; self-regulation of, 55, 68; seriousness of, 48, 55–56, 59; and truth, ix, 17, 72–73, 90–91; and woman’s body, 13, 17, 96, 98; women’s role in, 3–4, 48–55, 98, 123n8. See also Authority; Common law; Customary law; Nomos Lawyers: role of, 2; training of, 6, 124n18;

index

Wife of Bath’s presentation, 12–13; women as, 4 Leavis, F. R., 36 Legal historiography, 6 Legge, Judge Baron, 84 Literature: class and, 70; epistemology and, 36–38; gender and, ix–xxi, 57, 69–71; history in relation to, 32; law in relation to, ix–x, xvii–xx, 22–23, 25–26, 36–37, 51, 55, 59–61, 64–66, 68–71, 83–84, 92, 118–19; morality and, ix–x, 36–37, 51, 56–59, 67–70; “naturalness” of, 92; selfregulation of, 55–59, 66–68; seriousness of, 56, 59, 66–67; and truth, ix, 67, 72–73, 90–91. See also Narrative; Novels Littleton, Thomas, Tenures, 49 Littleton (clerk), 78 Locke, John, Essay Concerning Human Understanding, 81, 139n19 Lollards, 12, 125n38 Louis XIV, 28, 29 Love: law and, 25–28, 63–66; in La Princess de Clèves, 29–30. See also Sexuality Love days, 27, 128n13 Lovemore, Charles, 62–63, 65 Manderson, Desmond, 18, 127n56 Manley, John, 65–66 Manley, Mary Delarivier. See Delarivier Manley, Mary Marie Antoinette, 142n16 Marriage: clandestine, 138n5; sovereignsubject relationship likened to, 103–4, 110–11 McCord, James N., 98 McDowell, Paula, The Women of Grub Street, 58 McKeon, Michael, 67, 72, 90; The Origins of the English Novel, 1600–1740, 37–38, 42 Miller, Nancy K., 32–33

165

Milton, John, 57 Miracles, 85 Monarchy: anxiety about, 92–93, 104, 107; Henry VIII and, 100–104; and law, 111, 143n42, 144n64; power/authority of, 100–104, 111; subjects in relation to, 101–4, 108–9, 110–11; “Wife of Bath’s Tale” and, 17–18, 25; The Winter’s Tale and, 104–14 Monck, Christopher, 62–63 Montagu, Duke of, 62–66 Montpensier, Anne de, xvii, 28 Morality, literature and, ix–x, 36–37, 51, 56–59, 67–70, 73 Morrison, Toni, 21 Murray, Anne. See Cranstoun, Anne (née Murray) Murray, David, 74 Narrative: justice and, 19, 22; law and, 55, 69, 83–88; in “Wife of Bath’s Tale,” 18–19 Nation, law/literature and identity of, 2, 35, 39, 53, 59–60, 68 Neoclassicism, 59 Nomos: defined, xi–xii; hagiography and, 9; and law, 53; love and, xvi; “Man of Law’s Tale” and, 1, 6–10; private-public realms and, 35; “Wife of Bath’s Tale” and, xvi; women writers and, 29. See also Authority; Law Norton (apothecary), 77–78 Nostalgia, xii–xiii, 115, 117–18 Nostos: contradictory impulses of, xxi, 115; critical, xv; defined, xii–xiii, 115; hagiography and, 9; and imagination, xiii, xv, xxi, 9, 115, 118; and law, 48, 53; and love, 25; “Man of Law’s Tale” and, 6; privatepublic realms and, 35; romance and, 115; and the uncanny, 115, 117; “Wife of Bath’s Tale” and, xvi, 1, 11, 15; The Winter’s Tale and, 114; women writers and, 29

166

index

Novel: criticism of, 32; development of, 66– 67; English vs. French, 35–42, 59–60; gender and, 37; morality and, 51, 67–68, 73; particular vs. general in, 90–91; romance vs., 35, 38, 42, 67; women and, 51; women and the history of, xvi–xvii, 32–33, 35–39, 56–57, 70–71. See also Literature Nutt, Elizabeth, 48 O’Brian, Patrick, The Mauritius Command, 52–53, 60 The Odyssey, xii–xiii Oral tradition, 6, 124n18 Ovid, Ars amatoria, 27 Parricide, 79–80, 137n3 Patriarchy: Man of Law and, 5; “Wife of Bath’s Tale” and, 11, 20 Patterson, Lee, 13, 17, 143n41 Paul, Apostle, 112 Pender, Patricia, 41 Penelope, xii–xiii, 121n8 Petty treason, 79 Philosophy, rhetoric vs., 81–82 Plausibility, 30, 32–33 Pocock, John, 88 Politics: Caroline’s trial and, 94–98; genre and, 108; hybridity in, xx–xxi, 109–10; and imagination, 101, 107–8; language and, 108; sexuality and, 40–41, 44–46; The Winter’s Tale and, 107–9; women and, 97–98, 107–8 Pollak, Ellen, “Beyond Incest,” 39–40 Pope, Alexander, The Dunciad, 57–58, 116, 135n24 Power: critique of, 22; and enchantment, 113; monarchy and, 100–104, 111; in “Wife of Bath’s Tale,” 17–18. See also Authority Les précieuses, xvii, 28 Prest, Wilfred, 68

Printing, 49–51 Private-public realms: Caroline’s trial and, xx, 95–96; love and, 25–28; Rivella and, 63, 65; women writers and, xvi–xvii, 28–29, 34–35, 57 Propriety, 30, 33 Public and public opinion: Caroline’s trial and, 96–99; law and, 50–51, 59; queen as representative of, xx, 102–3 Public realm. See Private-public realms Queinte, xvi, 1, 11, 13, 116 Rape, 14–17, 126nn46–48 Realism, ix–x, xvii, 35–36, 130n40, 130n42 Reality, romance and, xi, 21–22, 24–25, 37, 41–42, 62, 106. See also Historical fiction; Truth Reformation, 104 The Republican (newspaper), 99 Rhetoric, philosophy vs., 81–82 Richardson, Samuel, ix, xvii, 35, 57, 59, 67, 69; Clarissa, 40; Pamela, 67 Riding the black ram, xiv, 47–49, 52–53, 92–93, 96, 132n1 Romance: Arthurian, 14; Behn and, 40–42; Blandy’s autobiographical account and, 88–90; characteristics of, 105–6; criticisms of, 37; and desire, 106; Fielding’s account of Blandy’s trial and, 87; and history, xvii; and justice, 19; law and, 65, 127n56; and nostos, 115; novel vs., 35, 38, 42, 67; and reality, xi, 21–22, 24–25, 37, 41–42, 62, 106; social/political significance of, xi, 21, 24–25; structure of, 6–7; in “Wife of Bath’s Tale,” 14–15, 17, 24; women associated with, 40, 106–7. See also Imagination Roman law, 2, 5 Ross, Deborah, 40

index

Ross, Richard J., 49, 50 Roughead, William, 73–75, 78–85, 89; The Trial of Mary Blandy, xix, 137n1 Ryder, Dudley, 79

167

concerning, 81; woman’s body and, 117–19. See also Epistemology; Realism; Reality, romance and Uncanny (unheimlich), xxi, 115–17

Salons, 28 Science, religion and, 81 Scudéry, Madeleine de, Carte de Tendre, 29 Seaman, Betsy, 124n18 Selden, John, Jani Anglorum Facies Altera, 27, 60 Sexuality: Blandy and, 89–90; Caroline’s trial and, 95, 98; double standard for, 20; politics and, 40–41, 44–46; of queen, xx, 102; regulation of, 71; and the uncanny, 115–17; in “Wife of Bath’s Tale,” 13–14. See also Love; Woman’s body Shakespeare, William, 144n66; Henry VIII, xx, 100–104; Measure for Measure, 113; The Merchant of Venice, 113; Othello, 93; The Tempest, 101; The Winter’s Tale, xiv, xx–xxi, 92, 103–14 Shapiro, Barbara, 139n19 Shelley, Percy Bysshe, “England in 1819,” 93 Statutory law. See Common law Steele, Richard, 63 Steiner, George, xiii Stevens, Henry, 75 Stevens, the Reverend, 77 Strohm, Paul, 44, 111, 144n64; Politique, 108 Todd, Janet, The Sign of Angellica, 89 Toft, Mary, 57 Treason, 93. See also Petty treason A Treatise of Feme Coverts; or, The Lady’s Law, xviii, 47–49, 51, 54–55, 71 Truth: gender and, 81–82; God and, 82–83, 85; Henry VIII and, 104, 143n41; law and, ix, 17, 72–73, 90–91; literature and, ix, 67, 72–73, 90–91; science vs. religion

Villedieu, Marie-Catherine de, xvii, 28 Violence, male, 14, 16–17 Warner, William B., 38, 60, 67, 131n53; Licensing Entertainment, 56 Watt, Ian, The Rise of the Novel, xvii, 35–37, 42, 56, 66, 90, 130n40 Welsh, Alexander, 84 White, Harden, 84 Widows, 3–4, 48–49 Wilson, Thomas, The Danciad, 133n14 Woman’s body: Caroline’s trial and, 95–96; desire and, 7–8; and knowledge, 22–23; law and, 13, 17, 96, 98, 118–19; literature and, 118–19; in “Man of Law’s Tale,” 7–8, 22–23; power of, 57–58; and sovereignsubject relationship, 103–4; and truth, 117–19; the uncanny and, 115–17; in “Wife of Bath’s Tale,” 11–20. See also Sexuality Women: conflicting views of, x, 60, 71; deceptiveness of, 81–82; and God, 12, 90; as goods of trade, 8, 11; historical inscription of, 1–2; and history of the novel, 32–33, 56–57; legal role of, 3–4, 48–55, 98, 123n8; murderous, 72, 80–81, 137n3; and novels, 51; and politics, 97–98, 107–8; les précieuses, xvii, 28; romance associated with, 40, 106–7; in Shakespeare’s plays, 144n66; social/political threat of, 96–97; and the uncanny, 115–18; unruly, management of, xiv, 19, 51–52, 57–58, 70, 95–98, 121n8; in “Wife of Bath’s Tale,” 11–20. See also Gender; Woman’s body; Women writers

168

index

Women writers, 24–46; danger of, 34, 57– 58, 91; history in works of, 28–30, 33–34; and history of the novel, xvi–xvii, 32–33, 35–39, 70–71; marginalization of, ix–xi, 56–58, 67; moral character of, ix, 57–58,

61, 89; social/political impact of, 28–29 Wycliffe, John, 125n38 Žižek, Slavoj, “Courtly Love, or, Woman as Thing,” 26 Zelinsky, Katherine, 64–65

T H E C U LT U R A L L I V E S O F L AW Austin Sarat, Editor The Cultural Lives of Law series brings insights and approaches from cultural studies to law and tries to secure for law a place in cultural analysis. Books in the series focus on the production, interpretation, consumption, and circulation of legal meanings. They take up the challenges posed as boundaries collapse between as well as within cultures, and as the circulation of legal meanings becomes more fluid. They also attend to the ways law’s power in cultural production is renewed and resisted. Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand David M. Engel and Jaruwan S. Engel 2010 Law in Crisis: The Ecstatic Subject of Natural Disaster Ruth A. Miller 2009 The Affective Life of Law: Legal Modernism and the Literary Imagination Ravit Reichman 2009 Fault Lines: Tort Law as Cultural Practice Edited by David M. Engel and Michael McCann 2008 Lex Populi: The Jurisprudence of Popular Culture William P. MacNeil 2007

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