Judgment in the Victorian Age 9781138302075, 9780203732021

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Judgment in the Victorian Age

This volume concerns judges, judgment and judgmentalism. It studies the Victorians as judges across a range of important fields, including the legal and aesthetic spheres, and within literature. It examines how various specialist forms of judgment were conceived and operated, and how the propensity to be judgmental was viewed. James Gregory is Associate Professor in Modern British History at the University of Plymouth. Among his publications is The Poetry and the Politics: Radical Reform in Victorian England (2014). Daniel J.R. Grey is Lecturer in World History since 1800 at the University of Plymouth. Among his recent publications are articles in Cultural and Social History, History Workshop Journal and Media History. Annika Bautz is Associate Professor in English and Head of the School of Humanities and Performing Arts at the University of Plymouth. Recent publications include, with James Gregory, Libraries, Books, and Collectors of Texts, 1600–1900 (Routledge, 2018).

Judgment in the Victorian Age

Edited by James Gregory, Daniel J.R. Grey and Annika Bautz

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, James Gregory, Daniel J.R. Grey and Annika Bautz; individual chapters, the contributors The right of James Gregory, Daniel J.R. Grey and Annika Bautz to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-138-30207-5 (hbk) ISBN: 978-0-203-73202-1 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Contents

List of figures Notes on contributors Acknowledgements Introduction

vii ix xi 1

J A M E S G R E G O RY, WI T H DANI E L J.R. GRE Y AND A N N IK A B A U TZ

PART I

The judgment of the law 1 Cartes de visite and the first mass media photographic images of the English judiciary: continuity and change

41

43

L E S L I E J . M O RAN

2 Sir Redmond Barry and the trial of Ned Kelly: representing the judge and judgment in nineteenth-century Australia

61

A L I C E R I C H A RDS ON

3 The emotional reactions of judges in cases of maternal child murder in England, 1840–1900

83

A L I S O N P E D L EY

4 ‘What will most tend towards morality’: Sir Cresswell Cresswell and the Divorce Court, 1858–1863

100

G A I L S AVA G E

5 ‘Infamous falsehoods’: judges, perjury and affiliation trials in England, 1855–1930 GINGER FROST

118

vi

Contents

6 Authoritative judgments in a provincial town: responses to everyday offending in Plymouth, 1860–1900

138

K I M S T E V E N S ON AND I AI N CHANNI NG

PART II

Judgments in culture 7 Judging the judges: the image of the judge in the popular illustrated press

159

161

C R A I G N E W BE RY- JONE S

8 The matter of judgment: comparing gendered perspectives on Victorian legal culture in popular literature

182

J U D I T H R O WBOT HAM

9 The operation and representation of art judgment

198

J A M E S G R E G ORY

10 Judging by the hand: handwriting and character in Victorian literary culture

220

KARIN KOEHLER

11 ‘They will not read it, but their sons & daughters may’: judging Percy Shelley’s Queen Mab (1813) in the nineteenth century

241

CIAN DUFFY

Index

261

Figures

0.1 0.2 0.3 0.4 1.1 1.2 2.1 2.2 2.3 2.4 2.5 6.1

7.1 7.2 7.3

William Blake, ‘The Day of Judgment’ in R. Blair, The Grave (London: Ackermann, 1813). ‘The Court of Chancery’, Illustrated London News, 14 January 1843, p. 25. A journal kept by Richard Doyle in the year 1840 (2nd edition, London: Smith Elder, 1886), p. 91. Richard Doyle, ‘The Judgment of John Bull. (A Political Version of the Judgment of Paris)’, Punch, 17 July 1847, p. 14. Carte de visite of Lord Chief Justice Cockburn in his robes of office, by the London Stereoscopic and Photographic Company. Carte de visite of Lord Chief Justice Cockburn in civilian dress, studio of F.R. Window. ‘Scene at the Trial of Ned Kelly, Supreme Court, Melbourne’, Frearson’s Monthly Illustrated Adelaide News, December 1880, p. 189. ‘The Trial of Edward Kelly, the Bushranger’, The Australasian Sketcher with Pen and Pencil (Melbourne), November 1880, p. 289. Thomas Carrington, ‘Sooner or Later’, Melbourne Punch, 18 November 1880, p. 5. Robert Dowling, portrait of Sir Redmond Barry, 1886. Statue of Sir Redmond Barry by James Gilbert, forecourt of the State Library of Victoria, unveiled 23 August 1887. R. Brown, ‘Plan of Plymouth, Stonehouse and Devonport’, in Route Book of Devon: A Guide for the Stranger & Tourist (1845; new edition: Exeter: Henry Besley, 1850), between pp. 282–283. ‘Law Intelligence’, Illustrated London News, 18 February 1843, p. 118. Sir Harry Hawkins, The Strand Magazine, vol. 4, July to December 1892, p. 262. Illustration from ‘Papers from Pump-Handle Court. A Recollection of the Long Vacation’, Punch, 26 November 1887, p. 241.

5 7 16 19 46 47 65 66 68 71 76

140 162 166 169

viii Figures 7.4 9.1

‘Lord Abinger’, Illustrated London News, 4 March 1843, p. 151. ‘The Great Room of the Royal Academy’, Illustrated London News, 20 May 1843, p. 8. 9.2 Linley Sambourne, ‘An Appeal to the Law’, Punch, 7 December 1878, p. 253. 9.3 H.G. Hine, ‘Punch’s Pencillings. – No. XLVII. Social Miseries. – No.10’, Punch, July–December 1842, p. 35. 10.1 Henry Frith, How to Read Character in Handwriting, Or, the Grammar of Graphology Described and Illustrated, 3rd ed. (London: Ward, Lock, 1896), p. 90. 10.2 Henry Frith, How to Read Character in Handwriting, p. 26. 10.3 Henry Frith, How to Read Character in Handwriting, p. 25. 10.4 Henry Frith, How to Read Character in Handwriting, p. 22. 10.5 and 10.6 Henry Frith, How to Read Character in Handwriting, pp. 117–118. 11.1 ‘Percy Bysshe Shelley’ (after E.W. Wyon), from A. Collas, The Authors of England: A series of medallion portraits of modern literary characters, engraved from the works of British artists (London: C. Tilt, 1838).

173 200 201 205 224 225 226 226 234

255

Contributors

Annika Bautz is Associate Professor in English and Head of the School of Humanities and Performing Arts at the University of Plymouth. Recent publications include, with James Gregory, Libraries, Books, and Collectors of Texts, 1600–1900 (Routledge, 2018). Iain Channing is Lecturer in Criminology at the University of Plymouth. His publications include The Police and the Expansion of Public Order Law in Britain, 1829–2012 (Routledge SOLON, 2015). Cian Duffy is Professor of English Literature at Lund University. Among his many publications are The Landscapes of the Sublime 1700–1830: Classic Ground (2013). Ginger Frost is University Research Professor of History at Samford University. Her most recent publication is Illegitimacy in English Law and Society, 1860–1930 (2016). James Gregory is Associate Professor in Modern British History at the University of Plymouth. Among his publications is The Poetry and the Politics: Radical Reform in Victorian England (2014). Daniel J.R. Grey is Lecturer in World History since 1800 at the University of Plymouth. Among his recent publications are articles in Cultural and Social History, History Workshop Journal and Media History. Karin Koehler is Lecturer in Nineteenth-Century Literature at Bangor University. Her published research includes Thomas Hardy and Victorian Communication: Letters, Telegrams, and Postal Systems (2016). Leslie J. Moran is Professor in the School of Law, Birkbeck College, University of London. His publications include ‘Judicial pictures as legal life-writing data and a research method’ in Journal of Law and Society (2015); Sexuality, Identity and Law (Ashgate, 2006); and with Skeggs, Tyrer and Corteen, Sexuality and the Politics of Violence and Safety (Routledge, 2003). Craig Newbery-Jones is Associate Head of Law at the University of Plymouth. His publications include, with Imogen Moore, The Successful Law Student: An

x

Contributors Insider’s Guide to Studying Law (2018) and articles in The Law Teacher and Law and Humanities.

Alison Pedley is a PhD student at the University of Roehampton. She studies a discrete group of ‘criminal lunatics’ – married women admitted to Broadmoor Criminal Lunatic Asylum and other institutions between c.1840 and 1890 for the murder of their children. Alice Richardson recently completed her PhD at Australian National University College of Law. Her focus of study was the portrayal of judges in Australian art. Judith Rowbotham is Visiting Research Fellow in Law at the University of Plymouth, and a co-director of SOLON: Promoting Interdisciplinary Studies in Law, Crime and History. Her many publications include, with Kim Stevenson, D.J. Cox and C. Harris, Public Indecency in England 1857–1960. ‘A Serious and Growing Evil’ (Routledge, 2015). Gail Savage is Professor of History at St. Mary’s College of Maryland. She has published widely on the history of social policy, including The Social Construction of Expertise: The English Civil Service and Its Influence, 1919–1939 (1996). Kim Stevenson is Professor of Socio-Legal History at the University of Plymouth, and co-director of SOLON: Interdisciplinary Studies in Law, Crime and History. Among her many publications are, with Rowbotham and S. Pegg, Crime News in Modern Britain: Press Reporting and Responsibility 1820– 2010 (2013).

Acknowledgements

The editors wish to thank all the contributors. In addition, we would like to thank Ian Rayment for assistance in obtaining images from the Rare Books collection at the University of Plymouth. We are grateful to Rob Langham and his colleagues at Taylor & Francis for all their support.

Introduction James Gregory, with Daniel J.R. Grey and Annika Bautz

We live in a ‘judgment-making world’ in which ‘every act of thought or deed contains an implicit judgment’.1 Modern interest in judgment studies its operation in social policy and politics, approaching it from the perspectives of philosophy, psychology, economics and decision-making.2 In this book, our contributors present the operation of judgment in the nineteenth century in various fraught judicial contexts, examine the affective dimension and visual representation of that figurehead in legal judgment, the judge, in Britain and in a colonial context; study as a micro-history the many judgments passed in communities by local reformers, philanthropic organizations and by local authorities; explore the judgments passed on ‘character’ through the index of handwriting; and study judgment in imaginative literature and the visual arts. The chapters are arranged in two parts to examine the idea of judgments in and about the law and judgments in Victorian culture. In Part I, which focuses on judgments in a legal context, we begin with Leslie Moran’s examination of the role played by cartes de visite in representing the English judiciary during the 1860s and 1870s. While the craze for collecting cartes de visite was primarily concentrated within a twenty-year period, as Moran demonstrates, these images were crucial in developing broader public engagement with photography, and had an enduring impact on how English judges are portrayed in visual culture. Following on from this is Alice Richardson’s exploration of the changing representation of the Irish-born judge Sir Redmond Barry, whose sentencing of the outlaw Ned Kelly to death in 1880 made him central to understanding the ongoing myths and memorialization of Kelly in Australian culture. Drawing on cultural critic Laura Basu’s analytical framework of memory dispositif, Richardson examines how Barry’s portrayal shifted from emphasizing his wisdom to becoming the archetypal ‘bad judge’ of nineteenth-century Australia. From representations of judges in images, we turn to judges’ own perceptions. In her chapter, Alison Pedley considers the emotional reactions of those men who sat in judgment over maternal child homicide cases. Using a range of sources, including newspapers, memoirs and unpublished archival material, Pedley interrogates how these judges responded in different ways to a crime that challenged the Victorian idealization of motherhood but was simultaneously viewed sympathetically within and outside the courtroom. Continuing this theme, Gail Savage’s chapter examines

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how an individual judge’s attitudes could greatly influence the interpretation of legislation by the courts. Focusing on Sir Cresswell Cresswell, at the newly formed Divorce Court from 1858 until his death, Savage demonstrates that while his vision of a ‘correct’ divorce did not challenge the double standard of sexual morality, he took a hard line regarding husbands’ moral duties towards their wives. How such judgments were reached by judges and magistrates, and their accuracy (or otherwise), was of course regularly debated in a range of nineteenthcentury sites. One area in which the question of trustworthiness and accuracy was particularly acute was in affiliation hearings, where the evidence of witnesses was often directly contradictory. Analysing a sample of 101 perjury trials resulting from affiliation hearings between 1860 and 1930, Ginger Frost’s chapter illustrates how fraught these proceedings were, and the difficulties faced by the authorities in trying to determine the truth. Although there was little appetite for reforming the law around illegitimacy and child support further during the late nineteenth century, the willingness of many to lie during proceedings undermined faith in the legal system and was profoundly disturbing to the civil service and judiciary. Judgments in law were also shaped by local priorities, as Kim Stevenson and Iain Channing’s chapter on everyday offending in late nineteenthcentury Plymouth shows. Official responses to concerns about alcohol-fuelled crime and incidents of anti-social behaviour in the ‘three towns’ of Plymouth, East Stonehouse and Devonport (later merged in 1914) could follow very different lines that emphasized either the justices’ strict adherence to moral values or a pragmatism that acknowledged local pressures and constraints, depending on where the case was dealt with. Linking the themes of judgment by judges and judgment in Victorian culture, the chapter by Craig Newbery-Jones which introduces Part II of our collection considers the depiction of the judge in the popular illustrated press. Legal matters were not confined to the professional periodicals but were a regular feature of local and national newspapers, and the extensive reportage meant that judges were intensely scrutinized. Literature, too, made copious references to legal judgment and the figure of the judge. As Judith Rowbotham observes in her chapter, how popular fiction represented legal culture was always influenced by nineteenthcentury attitudes towards ‘normal’ and deviant gender roles. Concentrating on stories written by women, Rowbotham highlights the nuanced way in which such fiction depicted crime, punishment and the law, yet was simultaneously underpinned by a belief in the inherent ‘rightness’ of the legal system and its workings. One crucial aspect of judgment for nineteenth-century audiences was the aesthetic: how critics and laypeople reached judgment on what constituted ‘good’ art, and even the question of who should (or could) make these decisions, which was perceived as contingent on lines of gender, class and ‘professional’ claims to expertise. James Gregory’s chapter explores this discourse on art judgment, including efforts by nineteenth-century critics to establish standards for assessing artistic achievement. Despite the popularity of graphology during the late nineteenth century, interpretations of the practice varied wildly – could it offer an insight into character or did it simply attract the credulous? As Karin Koehler demonstrates in her

Introduction 3 chapter, debates about the extent to which handwriting could offer a window into the soul of the writer open new avenues for understanding Victorian ideas about the relationship between self and society. Judgment of character also extended to judgment on an individual artist or author’s work. In the final chapter, by Cian Duffy, the interpretation of Shelley’s Queen Mab (1813) over the course of the century is studied. From the 1830s, the range of ways in which this poem was produced and disseminated by editors making judgments on differing political and commercial lines meant that it was possible for readers to encounter radically different versions of the text, and come to correspondingly varied conclusions about its author.

Thinking about judgment in the nineteenth century ‘The actions of one generation’, the Marquis of Lansdowne declared to his fellow peers after Sir Robert Peel’s untimely death, ‘must submit to the judgment of another, perhaps better qualified, by being further removed from the scenes of those actions, to contemplate and survey them in all their bearings and in all their results’.3 Not just an age, or a people, but individuals, the polymath Herbert Spencer observed, had their judgment distorted by passion. The ‘incompetency of a people to judge rightly of itself and its deeds or opinions’ was a palpable fact.4 In this section of the introduction, we offer a preliminary examination of the areas in which people discussed judgment in the nineteenth century: in such important areas of human experience as the law, religious belief, aesthetics, science and politics. In the judgment of posterity the Victorians are viewed as judgmental, though the word is a post-Victorian coinage. Sometimes this is approved of, as in the work of the right-wing American historian Gertrude Himmelfarb.5 For others, such as the Bloomsbury group, the tendency to pass moral judgment was to be deplored on the grounds of hypocrisy or the inadequacy of judgment due to lack of modern psychology.6 Josef Altholz suggests that ‘what separates us from the Victorians is, not so much the difference in our moral judgments, as their readiness to make moral judgments and our readiness to suspend them’.7 The Victorians were censorious – yet British self-description as a censorious age had been applied in The Spectator as far back as 1714. Then there is the passing of judgment in terms of questioning ideas and institutions, the ‘submission of everything and every method to the free judgment of reason’, which Walter Houghton saw as competing with the will to believe and to accept authority; with the 1860s identified as the emergence of a ‘settled state of baffled judgment and mind empty of beliefs’.8 Judgment being such a central human enterprise – and examining one’s judgment being an ‘essential aspect of thinking’ – plenty of British writers pondered judgment in our period, including the problem of human judgment.9 The eighteenth century, that ‘age of critique’, when sites of literary judgment proliferated, had continued an older debate about judgment’s relationship to imagination and wit (William Hazlitt later listing the distinction between wit and judgment among commonplace insights uttered by ‘common-place’ critics).10 Daniel Defoe commented in 1725, ‘we see all the Actions of Men exposed, every Day, to their own better Judgment, to be altered, corrected,

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rescinded, and sometimes condemned’.11 Samuel Johnson laid out the word’s various meanings in his dictionary: among the twelve usages provided were: ‘the power of discerning the relations between one term or proposition and another’; ‘doom; the right or power of passing judgment’; ‘the act of exercising judicature’; ‘determination; decision’; ‘the quality of distinguishing propriety and impropriety; criticism’; ‘opinion; notion’; ‘sentence against a criminal’; ‘condemnation’ [theological]; ‘punishment inflicted by Providence’, ‘the last doom’.12 Was Victorian judgment different to that exercised in an age of ‘politeness’ which, we have been recently told, experienced a ‘crisis of judgment’?13 Is there a peculiar Victorian response to judgment? How did people in the nineteenth century discuss the ‘faculty’ of judging in the individual or among experts, and how was judgment by authorities whether the State in its law-making role, or as critical judgment by bodies such as the Royal Academy, presented to contemporaries? One might find plenty of discussions of the ‘faculty’.14 Some discussed barriers to judgment, for instance asking if ‘the man of feeling, will not be hurried by the impulse of that sensibility into actions in which judgment has little share’.15 Others identified the lack of judgment in ‘men of genius and high talents’.16 There was a rich vocabulary of judgment: Gregory’s chapter in our collection indicates some of the epithets applied to judgment in art.17 Public discourse on judgment is presented to us through the newspapers, periodicals and books produced in the nineteenth century: texts which might relate to acts of judgment, or which might comment upon artistic depictions of judgment. Representations in the work and ‘table talk’ of the eminent, such as Samuel Taylor Coleridge, Thomas Arnold, Walter Bagehot, Harriet Martineau, George Eliot and Frances Power Cobbe are considered here alongside discourse on judgment from more obscure figures. The discussion here focuses on judgment in religion (the Judicium Dei); the judgment of law; social judgment; the gendering and engendering of judgment; judgment on literature (and through literature); judgment in the visual arts, music and architecture; the exercise of judgment in science; and politics and the judgment of public affairs. The judgment of religion The Victorian sense of judgment was shaped by two powerful forces: religion and human law (in Dickens’s Bleak House, Miss Flite conflates the two in exclaiming, ‘I expect a Judgment. On the day of Judgment’).18 There were the exercises of God’s divine judicial authority in history, and in futurity there was the last judgment, as exemplified in visual art by William Blake (see Figure 0.1) or John Martin’s vast canvas (one of a sequence of three works which Martin completed shortly before his death in 1854) and there was judgment in courts of law. In matters of religion, the key issues involved divine judgment, including the final judgment and private judgment in belief.19 Protestantism asserted ‘the majesty of truth’ and the sacredness of conscience, and private judgment became a touchstone for protestant Dissent.20 Yet in early nineteenth-century evangelicalism,

Introduction 5

Figure 0.1 William Blake, ‘The Day of Judgment’ in R. Blair, The Grave (London: Ackermann, 1813). Source: Image courtesy of the University of Plymouth.

judgment was complicated. It combined the need to ‘guide your affairs with judgment’ (Psalm CXII.5), to distrust merely human judgment, condemn ‘uncharitable’ judgment, yet also rectify, correct and educate judgment.21 Religious writers sermonized against rash judgment and censured censoriousness, the uncharitable or hypocritical judgment of Scribes and Pharisees: Nation passes censorious judgments on nation, church on church, class on class, family on family, man on man, the world over. It is an evil rife and rampant in all circles; and the great spiritual Reformer of the world, as was highly meet, slays it with the sword of His mouth.22

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Christians believe in a life of trials, ‘days of judgment’ where they are tempted and their character tried.23 The daily experience of sin involved people passing, casting or sitting on judgment on themselves and others. Sermons advised on how to deal with this temptation.24 They also identified, in accident and catastrophe, divine or ‘special’ judgment upon nations and groups.25 Such interpretations appear in sermons on national ‘days of humiliation’, as during the rebellion in India in 1857 – and were discussed more soberly by critics such as the Christian Socialist Charles Kingsley, arguing during the cholera epidemic in 1849 that God’s judgment was on man’s poor sanitation.26 Works of popular theology discussed the meaning of judgment, whether it was Christ’s words on judgment, from the Sermon on the Mount, in Matthew VII.2, or other texts.27 The religious press examined divine and human judgment,28 while the general press criticized contemporary ‘judgment-mongers’ who used calamities to denounce sins or ‘prove special theological or ethical theories’.29 It is well-known that the theology of final judgment and eternal damnation became problematic for many Victorians.30 In the periodical Good Words, recognition of a decline in belief in the literalness of a final day of judgment was reflected in the Anglican clergyman William Page Roberts’s sermon in 1892, which nevertheless identified its ‘permanent residuum’ in creating an innate sense of responsibility: In the early days of the Church the judgment day was near. At a later day it became terrible. What is it now? It is not near: it is not terrible. Is it therefore, altogether ineffective? By no means. No longer was God to be seen as human judge with his notes of the case and all the grave paraphernalia of an earthly tribunal.31 One controversy of the period concerned the sphere of private judgment – a defining element in Protestant identity (‘the great principle of the reformation’).32 Yet the law intervened on religious matters, most obviously in cases of blasphemy or Anglican ritualism. The religious history of the nineteenth century is punctuated by events in the Church of England such as the Privy Council’s judgment, as in sentence of the law, in the Gorham Judgment in 1850, and over ritualism in the Mackonochie (1868), Purchas (1871) and Ridsdale (1877) Judgments.33 Writers interrogated the relationship between human and religious judgment. Between 1838 and 1839 came two well-known responses, from Gladstone in The State in its Relations with the Church on ‘the Reformation, as connected with the use and abuse of private judgment’34 and John Henry Newman’s reaction to St Augustine’s ‘securus judicat orbis terrarum’, interpreted as the deliberate judgment of the whole Church. Newman, after trying to chart a via media in Anglicanism, between the ‘palladium’ of Protestant private judgment and a ‘Romanism’ pronouncing and compelling assent on any subject, would accept the authority of the Roman Catholic Church, and see Anglicanism as a secession from the true church.35

Introduction 7

Figure 0.2 ‘The Court of Chancery’, Illustrated London News, 14 January 1843, p. 25. Source: Image courtesy of the University of Plymouth.

The judgment of law In turning to human judgment the obvious sphere is law (see Figure 0.2): judgment exercised by judge and jury. As our glance at Johnson’s definitions makes clear, the vocabulary of judgment has been enriched and complicated by legal usage. In law, judgment might include the exercise of judgment by judges: Edward Foss’s Biographica Juridica favoured ‘solid’ and ‘sound judgment’ by way of praise for his subjects.36 The eminent jurist James Fitzjames Stephen argued that ‘a judge who merely states to the jury certain propositions of law and then reads over his notes does not discharge his duty’.37 Nicole Wright has explored late eighteenth-century ‘judicial sensibilities’, discerning the elevation of emotional distance and ‘objective’ judgment in jurisprudence as a ‘mainstream value’ by the 1780s, finding evidence in the (limited) legal pedagogy of the era and novels by Henry Fielding, Mary Wollstonecraft and Walter Scott which portrayed British judges.38 Whereas mid-eighteenth-century judges might indulge in courtroom displays of emotion, including crying, by the late nineteenth century this sort of expression was considered as distasteful and disturbing.39 Questions of feeling and morality undoubtedly

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influenced judges, and were explicitly referenced in summing-up, but ostensibly their decision on a point of law was separate from such considerations, reached on the basis of logic, context and precedent. As Wright’s examination of the treatment of the judge in eighteenth-century novels indicates, there was a mass of published representation (and criticism) of legal judgments, civil and criminal, from outside the legal profession. Sometimes, as in the case of literary censorship, the worlds of law and literature collided. Percy Bysshe Shelley, writing a letter in 1812 against Lord Ellenborough’s judgment on the publisher Eaton, for publishing Paine’s Age of Reason, contrasted posterity’s verdict with the ‘pompous seat of judgment’.40 Later reformers offered a critique of legal judgment. Harriet Taylor and John Stuart Mill’s jointly authored letters against cruelty and injustice towards women in the early 1850s, highlighted the quality of judicial judgment: ‘Such are the judgments which are to protect all the women of this country against domestic ruffianism; and such is the caprice which presides over the apportionment of penalties in English criminal justice’.41 Nineteenth-century judges are not remembered for zeal in ameliorating the criminal law and legal reform in general; indeed recent work has identified their commitment to exemplary and discretionary modes of justice enduring into the mid-century in criminal law.42 The journalist and social investigator Henry Mayhew (son of a lawyer and sometime aspirant lawyer) praised the British judiciary in 1857: ‘there is no office which sheds so pure and brilliant a glory upon our nation, as that filled by the righteous and reproachless band of English gentlemen who occupy the judgment-seats of this country’. By contrast with the foreign judge, no better than a government hireling, the British arbiter ‘weighs, with an exquisitely even hand, the conflicting testimony in favour and against those who are arraigned at his tribunal’.43 Whereas Walter Bagehot’s criticism of modern judges, in ‘Bad Lawyers or Good’ (1870), included a comment that: ‘the strained analogies and the antagonistic judgments of modern judges fall upon an educated world. They do not harmonise with the floating rationality which is in the air of the age’.44 Judgment in matters of criminal behaviour extended beyond the judicial court: with communal judgments on wrongdoers, as explored in our collection by Stevenson and Channing, and Rowbotham. Herbert Spencer suggested in 1860 reform to the penal system involving not only decisions based on good conduct in prison (the ‘judgment of officials’) but on the judgment of neighbours and employers who knew the released prisoner and whose judgment if wrong would incur the greatest loss.45 Social judgment Other judgments operated on the Victorian mind, apart from those established by religion and the law. We can identify the discourse around social judgment (represented by that pre-Victorian figure of Mrs Grundy, introduced as a minor character in a play of 1798 and deified in Samuel Butler’s satirical Erewhon) as one influential judgment for the upper classes – in matters of etiquette and taste, for example.

Introduction 9 ‘There is more might in her nod’, wrote an essayist in 1868, ‘and more meaning in her half glance than in a whole batch of princes, popes and presidents’.46 Hers was the power of public opinion, wielded through gossip and knowledge of the affairs of others. Herbert Spencer, invoking Grundy by name in his essay, ‘Manners and Fashion’, in 1854, called for a ‘protestantism in social usages’, as the ‘right of private judgment, which our ancestors wrung from the church, remains to be claimed from this dictator of our habits’.47 Judging by appearances was a topic of satirical cartoons in periodicals such as Punch. Karin Koehler, in this book, studies judgment on character based on such material indices as handwriting. If ‘judging the mental character of a man from his calligraphy’, was possible, it was also understood to be problematic – appearances could deceive and individuality could be replaced by the uniformity of fashion, ‘seeing that the fashionable hand’ was adopted by women, one essayist in 1871 observed.48 ‘Propriety’ was another keyword of the period encapsulating the idea of the ‘collective judgment of society’.49 Unusual assertion of personal judgment against authority marked an eccentricity that made such people stand out in public.50 A more extended treatment might also turn to acts of ‘private’ judgment. Judgments uttered in private, for instance in correspondence, might be at risk, if passed by eminent Victorians such as John Stuart Mill and John Ruskin, of becoming public pronouncements.51 Modern commentators acknowledge the role of ‘subject-position’ and ‘group identity’ in shaping judgment.52 In the nineteenth century the discourse of judgment understood it to be classed: the abilities to distinguish the right from the bad in aesthetic matters or decide or choose correctly in politics (both are discussed below). John Stuart Mill did not see the qualities of judgment (‘undivided by selfishness or partiality’) in the masses, in the year of revolutions in 1848.53 Walter Bagehot considered that aristocrats had the ‘best means of forming a disinterested and cool judgment of any class in the country. They have, too, leisure to form it’.54 Contrasting ‘people in Wigan’ with Oxford dons, he took it as obvious that the former would be ‘inferior in gentleness, in grace, in judgment’.55 He appreciated the tendency to esteem judgment by the ‘higher orders’, the ‘popular association of superiority in judgment with superiority in station’. Deference related to others’ judgment, to those with the leisure and ‘long culture, a varied experience, an existence by which the judgment is incessantly exercised, and by which it may be incessantly improved’.56 Good judgment was also encouraged by property, since much might be lost by bad judgment. Bagehot also saw ‘eccentricity of judgment’ being linked to manual ingenuity in the artisan class.57 Bagehot’s comment on ‘that rude, rough, ruling judgment which we call public opinion’ appears in The English Constitution (1866).58 Reflections on public judgment might be optimistic or not about the growth of correct views: Mill identified as a natural consequence of ‘the progress of wealth and the spread of reading’, the public judgment’s greater discrimination in relation to people and actions, in an essay on civilization, in 1836.59 He pointed out in On Liberty (1859) – a work which famously discusses the right of private judgment, argues against claims to infallibility and advocates freedom of opinion – that

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everybody’s ‘standard of judgment is his own liking’.60 Jeremy Bentham had deplored ‘the magnitude of the part which derivative judgment has . . . the smallness of the parts which self-formed judgment has’.61 Philosophers and moralists had much to say about judgment. It might be asserted of moral judgment that ‘the race at large’, was remarkably uniform, as George Payne, master at Blackburn Academy, argued in 1828. This was a ‘general judgment’, a correct judgment residing with the many.62 Bagehot commented that ‘popular judgment on popular matters is crude and vague, but it is right’: the world was often wiser than the philosopher.63 Mill emphasized the fundamental basis of secure social judgment was in corrigibility: the ‘whole strength and value, then, of human judgment, depending on the one property, that it can be set right when it is wrong’.64 His final criterion for appeal, in the ‘discordance of moral judgments’, was utility.65 Gendering and engendering judgment Several of the chapters in our collection explore judgment’s gendering. Often it was enough for male authors simply to note it was ‘feminine judgment’ being criticized.66 It was supposed that women’s judgment was harsh towards other women: ‘the fact of partisanship, as a feminine characteristic, remains the same; and the injustice of feminine judgment admits of no possible contradiction’.67 Did female judgment lack correctness and factual base because of ‘want of opportunity for study and observation’, as suggested by the American abolitionist and writer Maria Weston Chapman? Harriet Martineau’s Autobiography shows one prominent woman, passing judgment on herself (including penning an anonymous biographical sketch published posthumously in the Daily News) and acquaintances; criticizing them for errors of judgment, in writing intended for publication. Her memorialist, Chapman, suggested that it was her innate judgment (with industry and insight) which explained why her anonymous works were all attributed to men.68 Martineau said of John Stuart Mill that he was ‘deplorably weak in judgment, with the weakness, so damaging to a man, of being as impressionable as a woman’.69 Judgments were given against women, of course, in male-dominated courts of law. This was, unsurprisingly, a theme returned to repeatedly by feminists during the nineteenth century: the iniquity of a system from which women were excluded as officiating participants.70 Outrage at the misogynistic Contagious Diseases Acts in the 1860s, for example, garnered wide support from both radicals and conservatives as an example of an unjust law against women, which affronted principles of English justice.71 British women involved in campaigns for legislative reform during the early twentieth century drew on a rich and well-established set of precedents for critique and coordinated action along lines established in the Victorian period.72 Yet where women exercised supreme power they might be accorded the ability of passing wise judgments: as in biographical accounts of historic queens regnant and consort, such as Mary of Guise, widow of James V of Scotland, described in one early nineteenth-century ‘elegant extract’ as extensive of judgment, ‘her mind vigorous’.73

Introduction 11 In the home, of course, woman’s moral judgment was seen as supreme, yet the prominent Evangelical Hannah More asked if women’s ideas were naturally so very judicious . . . are their views so perfectly correct, are their judgments so completely exact, that there is occasion for no additional weight, no superadded strength, no increased clearness, none of that enlargement of mind, none of that additional invigoration, which may be derived from the aids of the stronger sex?74 Goldsmith’s Vicar of Wakefield (1766) had presented the male and female exercise of judgment as designed for ‘mutual inspection’: ‘as men are most capable of distinguishing merit in women, so the ladies often form the truest judgements of us’. Unsurprisingly given the discourse of gender, we find comments on female judgment emanating ‘from the heart more than the head’, and about ‘impulsiveness and precipitancy and other faults’.75 John Stuart Mill in The Subjection of Women (1869) contrasted the clever woman’s ‘quickness of apprehension’ with the strenuous effort needed to form ‘rapidity of judgment and promptitude of judicious habit’ in men (or rather, men who were not ‘most like women’). He disputed the charge, too, that women’s ‘judgment in grave affairs is warped by their sympathies and antipathies’.76 Suffragists argued for the injurious effects of denying the ‘direct exercise of their judgment’ on women.77 But defence of female suffrage would see women’s judgment added to men’s: a communion of deliberation from different viewpoints.78 With suffrage agitation, humorous advertisements took this theme: ‘The Superior Judgment of Women!’ at least in the sartorial field.79 In the home, in matters of furnishing and supply, the anti-suffragist Eliza Lynn Linton could acknowledge feminine judgment’s supremacy.80 Elsewhere and in different contexts we find women presented as having a better judgment than men: Frances Power Cobbe claimed, ‘on a question of mercy [antivivisection] . . . a truer, sounder judgement, qua woman, than a man’.81 How should men deliver judgments? The young John Stuart Mill spoke of the ‘measured terms as a sober man likes to use in expressing a deliberate judgment’ in a letter of 1839.82 Then there was the mannerism of prefacing or indicating a view with the phrase ‘in my judgment’ or ‘in our judgment’ which we occasionally see in the table talk and reviews of Samuel Taylor Coleridge, Mill and Bagehot.83 We are told Bagehot’s ‘face reflected the habitual reserve of judgment’.84 The appearance of judgment as opposed to the reality is also something noted by William Hazlitt, who wrote of that ‘air of deliberation which passes for judgment’, while Mill spoke of dull people misjudging men to their benefit, ‘as if because men of talent and genius are sometimes deficient in judgment, it followed that it was only necessary to be without one spark of talent or genius in order to be a man of consummate judgment’.85 There were physiological and medical aspects: the sober judgment caused by moderation and abstinence, or the clouded judgment consequent on intoxication: Herbert Spencer refers in his autobiography to the ‘diversities of judgment

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consequent on permanent diversities of physical constitution, as well as those consequent on temporary diversities’, as ‘not sufficiently recognized’; in Study of Sociology he discusses the emotional unbalancing of judgment (alongside other forces tending to distort judgment whether patriotic prejudice, religious or antireligious sentiment).86 Judgment – individual or public – could be swayed by rhetoric and visual signs: William Hazlitt wrote of the ‘power of fascinating the public judgment’, instancing the printed advertisements for the lottery; and the ear being ‘quicker than the judgment’.87 Individual judgment might develop through personal observation, as in the natural sciences.88 Age could shape judgment, too: though George Eliot commented, ‘however just old people may be in their principles of judgment, they are often wrong in their application of them from an imperfect or unjust conception of the matter to be judged’.89 Judgment could be developed if not taught through education which would lead to independence and autonomy.90 Thomas Arnold, lecturing to the working-class men of Rugby in 1838, thought education ‘in the proper sense of the word’, could not develop judgment, which depended ‘greatly on a knowledge of men’, rather than mere book instruction.91 But an essayist in the Contemporary Review argued in 1867, ‘The higher praise which can be given to any kind of education is, that it makes the judgment just, by training it to form a correct estimate of things which pass before us’.92 Judgment was to be developed to ensure the transition from parental judgment to adult (‘matured’) judgment. Judgment ought to be developed, but was sadly lacking in the training given at the ancient universities – where mere exercises in memory were required in the young John Stuart Mill’s view, expressed at the London Debating Society in 1826; in Principles of Political Economy he glancingly commented on education for the masses in terms of qualifying them ‘for forming a sound practical judgment of the circumstances by which they are surrounded’.93 Judgment was to be developed by shedding light on popular fallacies; thus in the era of the Tichborne claimant agitation in the 1870s (alluded to in Moran’s and Newbery-Jones’s chapters in our collection) the writer John Morley (who had abandoned a legal career) suggested a ‘dozen or a score of cases might be selected from Smith’s Leading Cases, and published in a small volume, for the purpose of serving as a textbook on the principles of evidence in popular matters’.94 There might be the recognition that nations or races were gifted with judgment. The artist James Barry asserted that comparative judgment was not shaped by differing national environment (meaning to rebut the argument of the quality of art being linked to climate) but he had also felt the need to assert in 1776 ‘That English Imagination and Judgment are capable of the greatest exertions, exemplified in their Poets’.95 Yet one lecturer in the 1880s told his audience that ‘judgment marked the genius of Italy’.96 Nations might have poor judgment: Bagehot claimed in 1856 that American democracy lacked the ‘balanced sense, the exercised judgment, the many-sided equanimity’, necessary to form a judgment on complex controversies and foreign relations, since the ‘eager intuition, the narrow promptitude, which conduce to their rapid success in their personal pursuits, unfit them for forming a judgment on matters beyond them’.97

Introduction 13 Judgment in literature and through literature Judgment has an aesthetic dimension: judging value in the arts. Bagehot wrote, ‘the cultivation of a fine taste tends to promote the function of a fine judgment, which is a main help in the complex world of civilised existence’.98 Ruskin assured Dr Thomas Chambers, appointed to accompany the Prince of Wales in 1859, ‘that right principles of judgment in art as in other matters are pre-eminently those of Common sense. A great picture is pre-eminently and always a Rational and Right picture’, emphasizing art’s moral dimension.99 Judgment as a theme of popular print discourse may be located in magazines and imaginative fiction. Essays on the human propensity to pass judgment include the future hydropath Edward Wicksteed Lane’s, in Chambers’ Edinburgh Journal in 1852: ‘It is thought foolish – looking not to be able to pronounce, as if one imperilled the right of private judgment itself by not being prepared in every case to act upon it’.100 A journal such as the Cosmopolitan Critic in the 1870s was explicitly committed to freedom of discussion in order to educate the judgment.101 Judgment and imagination, though Jeremy Bentham and others liked to divide them, ought not to be separated.102 Literary scholars have explored judgment through eighteenth-century novels (identifying it as an aspect of sentimentalism), and in the early nineteenth-century works of Jane Austen, discerned to ‘revolve around questions of judgment and of the inhibitions to adequate judgment’, with Sense and Sensibility (1811), for instance, demonstrating the Dashwood sisters’ prosperity through ‘discriminating judgment’.103 Scholars have considered judgment in the Victorian literary canon, characterizing Eliot’s Middlemarch, for example, as the ‘most fully realized’ account of personal judgment in English literature.104 The work also dramatizes the gendering of judgment: as in the Reverend Casaubon’s comment to his young wife Dorothea on assuming ‘a judgment on subjects beyond your scope’.105 The treatment of judgment as explicit moral theme in works of nineteenth-century prose fiction may be legion: examples include the Anglo-Irish Maria Edgeworth’s ‘The Prussian Vase’, in Moral Tales for Young People (1801), described by her father Richard Edgeworth as ‘a lesson against imprudence, and exercise of judgment, and an eulogium upon our inestimable trial by jury’.106 There was also judgment as a quality in the writer: Bagehot praised Sir Walter Scott for ‘instinct with judgment . . . that judgment is never a dull judgment’.107 Victorians were concerned about the durability of literary judgment. It was observed that criticism was ‘a chronicle of reversed judgments’; hence one approving discussion of Francis Turner Palgrave’s famous anthology The Golden Treasury of the Best Songs and Lyrical Poems in the English Language (1861) in terms of its status as definitive pronouncement, ‘just canons’ and the ‘judicial calm’ in which judgment was passed.108 Shelley ruled, ‘the jury which sits in judgment upon a poet, belonging as he does to all time, must be composed of his peers: it must be empanelled by time from the selectest of the wise of many generations’.109 Macaulay, reviewing a biography of Byron, suggested, ‘A generation must pass away before it will be possible to form a fair judgment of his books, considered merely as books’.110 Bagehot, assessing

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Thackeray’s achievements, cautioned a ‘certain distance is needful for a just criticism’.111 The late nineteenth century, as Suzy Anger and others have argued, saw focus shifting towards interpretation in literary criticism, from ‘evaluation and judgment’.112 Critical interventions were argued on the basis that people did not judge for themselves, whether in aesthetics or in religion and politics.113 George Eliot attacked the judgment formed by reading ‘cyclopaedias and histories of philosophy or literature. . . . The habit of expressing borrowed judgments stupefies the sensibilities, which are the only foundation of genuine judgments’.114 Matthew Arnold springs to mind as the leading writer on literary judgment: identifying the types and phases of judgment that were expressed by the critic, from enthusiasm and admiration; gratitude and sympathy; ignorance, through to envy, and worst of all, the ‘systematic judgment . . . he never fairly looks at it, he is looking at something else’.115 For Arnold, the qualities of ‘flexibility, perceptiveness, and judgment’ developed through letters would transform society.116 The Speaker in 1896 presented one fin de siècle ‘Vision of Judgment’ in which the critic George Saintsbury tried and condemned the literature of the nineteenth century, in the ‘Supreme Court of Appeal in Hades’, beginning with the poets.117 If in ‘little things the world’s judgment is right in the main’, it was necessary to have expert judgment in more complex matters, cultivated through criticism.118 This was the age of periodicals exerting critical functions: exercising ‘judgment’ through reviews, censuring the artist or public taste and offering judgments on older criticism.119 Samuel Taylor Coleridge, who himself sought to set out the ‘rules and principles of sound judgment’, spoke of the ‘judgment-seat’ of reviewers’.120 Tennyson decried the professional critic sitting in on judgment on books, seeing the only value in their labour, in advertisement.121 Charles Babbage in 1832 described the reviews as merely ‘advertising machines’ and put his readers on guard against their influence on judgment.122 Essayists and reviewers offered literary and social judgments (William Rathbone Greg’s collected essays were so entitled in 1868).123 ‘Judex damnatur’ (the judge is condemned, the Latin continuing ‘ubi nocens absolvitur’, where the guilty is acquitted) was the Edinburgh Review’s motto. Whether the critique was anonymous, impartial and disinterested, or unfair and prejudiced, was debated.124 Reviewers in the periodicals saw themselves as moral judges, guiding especially young female readers since their reading generated concerns about the dangers from such an absorbing pursuit.125 Elizabeth Gaskell writes of a manuscript ‘trembling in the balance of a publisher’s judgment’, publishers exerted their judgments in selecting manuscripts, with the morally unexceptionable nature of a text being an important factor.126 Libraries also exercised judgment: subscription libraries that prided themselves on their educational mission chose only those novels regarded as morally unexceptionable and serious in their nature, such as Walter Scott’s.127 The novel was a site of judgment (for author and reader), in relation to characters, current social problems or perennial vices.128 Judith Rowbotham’s chapter shows the judgment on characters, and judgment on the operation of the law by characters, in novels by ‘non canonical’ writers. We find one critic (William

Introduction 15 Makepeace Thackeray in 1845) describing some well-known literary figures as ‘Judge Jerrold’ and ‘Chief Baron Boz’, for their verdicts on current affairs from the ‘literary bench’.129 Sometimes the theme was explicit in the title, as in that novel of Church secession, Henry Chorley’s Pomfret: or, Public Opinion and Private Judgment (1845), where the eponymous hero, rector of Dimwood, has seceded from the church due to private judgment; or James Boaden’s The Doom of Gialto; or, the Vision of Judgment (1835), criticized as ‘rather profane . . . and rather ridiculous’.130 An obvious place of judgment on real-life ‘character’ was the biographical entry, essay or obituary.131 In the essay, it was thought fairness required that the ‘object should be sufficiently removed in time; for a fair estimate, with any great confidence in its impartiality, could not otherwise be formed’.132 It was understood too, that judgment in literary and other matters, ‘should be moral verdicts’. James Mill’s History of British India defended a ‘judging history’, with judgments glossed as those in which the ‘matter of statement’ was judged by the historian to have really taken place, and in the ascertaining of the ‘reality of the saying, the doing, or thinking’.133 History, moreover, was studied to draw out general lessons in morality or politics, through passing judgment ‘of events and men’ – Christopher Bayly notes the ‘whole historiographical tradition is suffused with moral judgment’, though by the time of Lord Acton in the late nineteenth century, such a stance was unacceptable to many professional historians.134 Despite Jeremy Bentham’s verdict that poetry had ‘no very direct tendency to produce . . . rectitude of judgment’, judgment was part of poetry as of all literature, as moral, political, social commentary, but also as an explicit theme.135 Judgment might also be suspended in poetry: Robert Langbaum has noted that Robert Browning’s dramatic monologues oppose sympathy and moral judgment.136 Religious poetry attempted to convey apocalyptic visions of judgment. The eighteenth-century poet Reverend Edward Young depicted the last judgment, the Scottish poet James Montgomery recollected attempting an ode on the theme, ‘for the subject is one on which young poets are often tempted to exercise their skill – or prove their want of it’.137 Montgomery believed the subject ‘hardly suitable for poetry: it affords one solid and awful thought, to which you seem incapable of adding anything’. Yet poets continued the attempt (Macaulay described Robert Montgomery’s ‘roaring cataract of nonsense . . . upon this tremendous subject’).138 Another Scot, Robert Pollok, offered lines, in The Course of Time (1827). William Blake cogitated on judgment in Four Zoas, the Torments of Love & Jealousy in the Death and Judgement of Albion, and declared in commentary on a painting on the theme of the Last Judgment, ‘when any individual rejects error and embraces truth, a last judgment passes upon that individual’.139 Notoriously, the poet laureate Robert Southey’s work on that theme, published in 1821 as a eulogy to the late King George III, earned a riposte in Byron’s Vision of Judgment in 1822.140 For the British Review in 1821, certain subjects ‘interdicted to the poet’, included that ‘inconceivably tremendous day, when we shall all stand before the seat of Christ, no longer our Mediator, but our Judge’. It concluded, ‘This great and terrible day of the LORD is not to be tampered with.

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It is ill calculated to amuse our vacant hours’.141 Such scruples did not deter later attempts to versify the awful event.142 Judgment in visual art and architecture JUDGMENT . . . In all the arts. The quality of distinguishing propriety and impropriety. When the artist has made choice of a subject, or outline of a plan (in which act, by the by, he must be guided by the self-same faculty) it is necessary that he should have recourse to his judgment to dictate the filling up of the details so as to produce the greatest effect or utility. The property of judgment or taste (for, as regards art, these words are almost synonymous), is to a certain extent the gift of nature. It is, however, in common with every other mental qualification, capable of cultivation and improvement by reflection and study of the best models.143

In art and music, taste and judgment were discussed in the specialist press.144 Victorians debated the roles of professionals as opposed to connoisseurs, and private judgment as opposed to that of the public (see Figure 0.3).145 What was the value of popular artistic judgment? Was it ‘absolutely correct’ or ‘utterly incapable of judging’? How was one to define the ‘popular’ or ‘populace’, after all?146 On what grounds were judgments passed: as Cian Duffy explores in his chapter, in the case of Shelley, the poet was not simply judged on the merits of his poetry. The lasting or cyclical nature of judgments in art was also noted, as Herbert Spencer commented,

Figure 0.3 A journal kept by Richard Doyle in the year 1840 (2nd edition, London: Smith Elder, 1886), p. 91. Source: Image courtesy of the University of Plymouth.

Introduction 17 ‘There is as certainly a fashion in Art-judgment as there is a fashion in women’s dresses’.147 Judgments in art required time: Thomas Arnold thought it a property of great works that first views were disappointing but contrasted hasty impressions with ‘the deliberate judgement of the world’; William Wordsworth prefaced the second edition of Lyrical Ballads with the request to avoid that ‘rashness of decision which would lead to erroneous judgment’; whilst Ruskin’s Academy note of 1858 suggested he spent ‘at least half an hour to form judgement’ in any picture at the Royal Academy exhibition, and two or three times that for a ‘great picture’.148 Just as with literary value, the critics’ role in ‘correctly judging the merits of artists, and their works’ was examined: the ideal (impartiality) and reality (censoriousness).149 Other ways of judging included competitions, which brought to the fore the question of lay judgment: as Edward W. Goodwin in The Architect acidly noted, the ‘judgment of utterly incompetent noodledom’. The architect might already have been chosen and the competition and judgment were a sham.150 Judgments sacred and historical were depicted in fine art from the rendering of the judgments of classical mythology and history (such as the judgment of Paris) to biblical judgments like Solomon’s.151 The Art-Journal determined that John Martin’s topics of the destruction of the earth, final judgment and heaven were ‘far beyond the stretch of finite intelligence, and of a character too awful to be made the theme of the painter’s art’ – seeing burlesque and profanity in his efforts.152 Others were troubled by Martin’s ‘The Last Judgment’ (1853): the ‘points of questionable taste . . . incongruities arising out of the nature of the subject’.153 In the Morning Chronicle, which identified the painting’s similarity to the group portraiture to be found in depictions of the ‘opening of the Crystal palace, or the Funeral of the Duke of Wellington’, it was described as ‘ill-judged and ill-imagined’, and – while on the theme of the law, it was noted there were ‘a multitude of barristers’ among the damned.154 The Gothic Revival and Oxford Movement’s spur to redecoration of places of worship enhanced the opportunities to depict the ‘last judgement’ in places of worship rather than in art galleries (as in Frederic Leighton’s vision of the day of judgment, ‘And the Sea Gave Up the Dead Which Were In It’).155 The exercise of judgment in science Judgment should also be studied from the perspective of science: though as a link to the previous and first sections of this overview there have been attempts to equate scientific with aesthetic judgment and one can also see the inheritance of religion in the exercise of private judgment in science.156 A famous moment of cultural contestation was around the anonymous Vestiges of the Natural History of Creation (1844), when the ‘orthodox’ scientific establishment condemned Robert Chambers’s non-expert synthesis and judgment on controversial theories. Just as in other human endeavours, the scientist needed to avoid behaviour that would cloud his judgment.157 On the other hand scientists could stress the role of suspension of judgment.158 The pioneer might be a lesson in the uncertainty of ‘first judgments

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on new discoveries’.159 Yet the phrase ‘scientific judgment’ is rare in newspaper discourse – employed to praise or assess medical experts in murder cases or assess the skill of surgeons.160 (Alarmingly from a medical perspective the statement, ‘sound judgement is hard, above all things’ was uttered in one report of the British Medical Association meeting in Oxford in 1868).161 The published reflections on judgment by scientists include Michael Faraday’s ‘Observations on Mental Education’ delivered to Prince Albert and members of the Royal Institution in 1854, republished in Lectures on Education in 1855, where he cautioned about the balancing of different data, and avoidance of hasty conclusion, in order to reach ‘a proportionate judgment. . . . Frequently the exercise of the judgment ought to end in absolute reservation’. For Faraday, the great deficiency was in judgment: ‘Mankind is willing to leave the faculties which relate to judgment almost entirely uneducated, and their decisions at the mercy of ignorance, prepossessions, the passions, even accident’.162 Faraday, critical of the craze for spiritualist table-turning being accepted as anything more than a conjuror’s trick, asserted that judgment could be taught (and gestured to the fine arts in this respect), that it depended on a ‘habit of continual self-correction’. Judgment could be improved and strengthened, and this could be achieved by all.163 Herbert Spencer would cite the lecture in an essay on education where he boldly claimed the ‘great superiority of science over language as a means of discipline . . . it cultivates the judgment’.164 There was a scientific attitude which Spencer presents in The Study of Sociology (1873), discussing the practice of the ‘man of science’: ‘Checking every statement of fact and every conclusion drawn, he keeps his judgment suspended until no anomaly remains unexplained’.165 Yet, ‘[e]very step in a scientific investigation is submitted to his judgment’.166 The Irish physicist John Tyndall in the 1860s argued for ‘periods when judgment ought to remain in suspense, the data on which a decision might be based being absent. This discipline of suspending the judgment is a common one in science, but not so common as it ought to be elsewhere’.167 Thomas Huxley, too, was said to act on the principle of ‘keeping judgment in suspense in the absence of adequate data’.168 One can find many other understandings of judgment uttered by other scientists. Charles Babbage discussed processes of assessing judgment in research through questions that approached a topic obliquely and also identified in estimating magnitude and frequency (such as counting the strokes per minute on a factory loom by the sound the loom made) a way of improving the observer’s judgment.169 William Thomson, later Lord Kelvin, separated out ‘our merely scientific judgment’, from explanations of the origins of life in the universe.170 Charles Darwin wrote of the ‘long experience’ required to develop judgment, in the context of artificial selection for the breeding of animals; in The Descent of Man (1871) he discussed the judgment of communities and others in relation to emotions such as shame and regret.171 He commented of that judgment incurred in the breaking of some rule of etiquette: ‘The judgment of the community will generally be guided by some rude experience of what is best in the long run for all the members; but this judgment will not rarely err from ignorance and weak powers of reasoning’.172

Introduction 19 How far, by contrast, could the wider claims of science be pushed, in forming judgment? Science was to be a guide rather than alternative to judgment, John Stuart Mill told the House of Commons in March 1868, in discussing the claims of political economy: ‘by means of which we are enabled to form a judgment as to what each particular case requires; but it does not supply us with a ready-made judgment upon any case’. Bagehot asserted political economy’s aim was not to pronounce moral judgments.173 A similar expression of doubts, over the validity of scientific judgment, would be aired by the critics of vivisection. Politics and the judgment of public affairs Judgment is about power, and hence we turn finally to politics. Like any other responsible representative, the MP was to act according to his honest and best judgment; and the electorate was supplied with information during electoral contests by hearing and seeing the candidates, and in electoral literature designed to help form a judgment about the political forces and influences represented in parliament.174 The electorate was not expected to require the MP ‘to act according to their judgment’ – or what Thomas Arnold called in 1832 ‘our half-formed judgments’.175 Government by constituency was ‘the judgment of persons judging in the last resort and without a penalty’, Bagehot wrote (see Figure 0.4).176 Elections

Figure 0.4 Richard Doyle, ‘The Judgment of John Bull. (A Political Version of the Judgment of Paris)’, Punch, 17 July 1847, p. 14. Source: Image courtesy of the University of Plymouth.

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could be cast as time of judgment, however. So reform of elections could end the ‘ceremonies’, in the words of the radical George Grote in 1821, ‘which hoodwink and extinguish the judgment’.177 Public enthusiasms in politics could be treated as errors in judgment or as more correct than the judgment of statesman (as in the defence of the vox populi during the Great Reform Act crisis).178 Jeremy Bentham, considering the objection that the public were incompetent to judge proceedings in a political assembly from their ignorance or passions, pithily commented, ‘A nation which could suspend its judgment, would not be composed of common men, but of philosophers’.179 Those seeking to reform the parliamentary franchise could be critiqued for wanting to overturn an aristocratic judgment which was better, unbiased, cool: spurning the ‘deliberate judgment of the best’.180 Parliament was, for Bagehot, writing on reform in 1859, largely coinciding with the ‘habitual judgment’ of the ‘fairly intelligent and reasonably educated part of the community’ but ‘the materials of a judgment must be given them’.181 The highest orders might be seen, as Bagehot treated them, as possessing the least dependent judgment: ‘The Lords are in several respects more independent than the Commons; their judgment may not be so good a judgment, but it is emphatically their own judgment’. On the other hand, he wrote of the upper chamber, ‘Having been used for years and years, on the greatest matters to act contrary to its own judgment, it hardly knows when to act on that judgment’.182 There was also the man of business: to return to continue with Bagehot we find his assessment of the Liberal politician George Cornewall Lewis, as the ‘soundest judge of probability we have ever known’: ‘It is this judgment of probability which makes the man of business. The data of life accessible; their inference uncertain: a sound judgment on these data is the secret of success to him who possesses it, and the reason why others trust him’.183 And yet men of business had ‘a solid judgment – a wonderful guessing power of what is going to happen – each in his own trade; but they have never practised themselves in reasoning out their judgments and in supporting their guesses by argument’.184 The statesman ‘must be thought men of judgment’, Bagehot wrote in another essay, on Sir Robert Peel – and he was critical of the need to attain a solid and ‘safe’ reputation.185 Later, in 1870 when contrasting American presidential government with the British, he argued, ‘The nation feels that its judgment is important, and it strives to judge’.186 Matthew Arnold, defending statesmen, saw the access to ‘almost boundless means of information, and the enlargement of the mind’, occasioned by dealing with great affairs, as rendering their judgment better than the rest of the world.187 Mill argued that the political role of the many was in exercising their judgment by selecting those best able to exercise an independent judgment as a ‘specially instructed few’. Educational qualifications for the suffrage would have the advantage of making the vote, as Burke had argued, a matter of judgment, not of inclination.188

Introduction 21 By contrast Herbert Spencer saw the ‘judgment of governments’ as failing to deal with the essentials of society’s needs, comparing this with the ‘aggregates of desires spontaneously working for their ends’.189 His fellow individualist, the aristocrat and philosopher Auberon Herbert, placed the judgment of the individual as the highest part of human nature and the right of free judgment at the heart of his creed of political liberty.190 So arguments about the role of the individual and the state involved questions of judgment. Could the consumer always exercise judgment to get the best commodity, for instance, or should the government intervene? Herbert Spencer debated the line taken by Mill in favour of state intervention in education, for instance.191 Obituarists, journalists and polemicists passed judgment on the soundness of prominent politicians, discussed their subjects’ exercise of judgment and debated the public judgments on their subjects: the recently deceased former prime minister Lord Melbourne being praised for the ‘lofty equanimity of judgment’, in the Edinburgh Review; for Sir Robert Peel, George Henry Francis claimed in 1852 a ‘consentaneous judgment . . . characterized by calmness and the superficial evidences of permanency’ in the public estimation of his achievements; for Walter Bagehot, Henry Brougham’s early role as ‘grievance-stater’ had of necessity meant possessing judgment that lacked refinement; and John Morley in the Pall Mall Gazette described William Gladstone’s judgment as not ‘of the plain, simple and sound type which we desire in a statesman . . . but sure when in the presence of the greater interests of mankind’.192 Gladstone invoked the popular judgment in support of franchise extension, arguing it was ‘more frequently right than that of the higher orders’ – though expressing concerns about access to power corrupting the people’s judgment. A symposium involving Gladstone, the jurist and Positivist Frederic Harrison, the journalist Richard Holt Hutton and others in the periodical Nineteenth Century debated the ‘relative merits of the judgments of those who belong to the higher orders and of those who belong to the lower’ in 1878.193 We have ended this survey of varieties of judgment in the nineteenth century with the politicians and savants debating the spectre of democratic judgment in a journal explicitly devoted to the circumstances of the modern age. Our contributors present, in the chapters that follow in Part I, important sites of Victorian judgment ranging from the new Divorce Court to a colonial court of law passing a verdict in a capital case; judicial personalities (emotional beings, and publicly celebrated figures); challenging occasions for the exercise of judgment in law; and the fine grain of local judgment within communities. In Part II, our contributors turn to the cultural expression of judgment (including in legal matters) through works of didactic literature and representation in the popular press; the judgment by appearance in society; and the operation of judgment in fine art, and in treatment of controversial literature by a ‘canonical’ poet.

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Notes 1 T. Peltason, ‘Seeing Things as They Are: Literary Judgment and Disinterestedness’, Literary Imagination 9:2 (2007), pp. 177–194 (p. 178); V. Soni, ‘Introduction: The Crisis of Judgment’, The Eighteenth Century 51:3 (2010), pp. 261–288 (p. 262). 2 K.R. Hammond, Human Judgment and Social Policy: Irreducible Uncertainty, Inevitable Error, Unavoidable Injustice (New York: Oxford University Press, 1996); W. Martin, Theories of Judgment: Psychology, Logic, Phenomenology (Cambridge: Cambridge University Press, 2006); K. Ferguson, The Politics of Judgement: Aesthetics, Identity, and Political Theory (Lanham: Lexington Books, 2007); J.I. Krueger, Social Judgment and Decision Making (New York: Psychology Press, 2012); T.E. Apter, Passing Judgment: Praise and Blame in Everyday Life (New York: W.W. Norton, 2018). 3 C. Mackay, Life and Times of Sir Robert Peel (London: Jackson, 1851), vol. 4, p. 621. 4 H. Spencer, Social Statics: Or, The Conditions Essential to Human Happiness Specified, and the First of them Developed (London: Chapman and Hall, 1851), p. 176. 5 A theme evident throughout her writing, and at length in G. Himmelfarb, The DeMoralization of Society: From Victorian Virtues to Modern Values (New York: A.A. Knopf, 1995). 6 See W.E. Houghton, The Victorian Frame of Mind (1957; New Haven: Yale University Press, 1985), pp. 171–173, on ‘Puritan judgment’, discussing Matthew Arnold’s view of ‘Hebraism’. 7 J.L. Altholz, ‘The Warfare of Conscience With Theology’, reprinted in G. Parsons, ed., Religion in Victorian Britain, Volume 5, Interpretations (Manchester: Manchester University Press, 1988), pp. 150–169 (p. 154). 8 Baldwin Brown’s ‘The Revolution of the Last Quarter of a Century’ quoted in Houghton, Victorian Frame of Mind, p. 93 and on the baffled judgment, p. 20. Houghton’s work has much to say about judgment, including the modern sense of superiority in its ‘measured judgement’ contrasted with Victorian rigidity, p. xv. 9 The observation on judgment and thinking appears in Boyers’ ‘Judgment’, The Fate of Ideas: Seductions, Betrayals, Appraisals (New York: Columbia University Press, 2015), p. 237. For work on judgment in earlier periods, see for instance D.J. Casson, Liberating Judgment. Fanatics, Skeptics, and John Locke’s Politics of Probability (Princeton: Princeton University Press, 2011). 10 On this age of critique and extensive judgment passing, see Soni, ‘Introduction: The Crisis of Judgment’, p. 271; W. Hazlitt, ‘On Common-Place Critics’, The Round Table: A Collection of Essays on Literature, Men, and Manners (Edinburgh: Constable, 1817), vol. 2, pp. 199–206 (p. 203). For debate on wit involving Hobbes, Locke, and associationist psychology of perception, see R.D. Lund, ‘Wit, Judgment and the Misprision of Similitude’, Journal of the History of Ideas 65:1 (January 2004), pp. 53–74. 11 D. Defoe, ‘On the Fallibility of Human Judgment’, Applebee’s Journal, 26 June 1725. 12 S. Johnson, A Dictionary of the English Language: In Which the Words Are Deduced From Their Originals, and Illustrated in Their Different Significations, by Examples From the Best Writers, to Which Are Prefixed a History of the Language, and an English Grammar, 4 vols (9th edition; London: Longmans, Hurst, Rees and Orme, 1805), vol. 2. 13 See Soni, ‘Introduction: The Crisis of Judgment’, and contributors’ essays in Eighteenth Century 51:3 (2010). 14 See, for example, J. Dodsworth, The Eden Family; Shewing the Loss of Our Paradise Home, and Our Obligations for Our Rescue (London: S.W. Partridge, 1858), p. 101: ‘that faculty of the mind by which it concludes what is proper to be done, and what ought to be left undone; and relates chiefly to the practical use which man makes of the knowledge received into the understanding, and retained or preserved by memory’. 15 ‘Y’, ‘On the Compatibility of Judgment and Feeling’, Belfast Monthly Magazine 4:22 (May 1810), pp. 350–351 (p. 350).

Introduction 23 16 E. Brydges, ‘On the Charge that Men of Genius and High Talents Want Judgment and Practical Sense’, Fraser’s Magazine 13:78 (July 1836), pp. 673–682. 17 For sound, calm, cool, acute, profound, comprehensive judgment, see I. Taylor, Elements of Thought; Or, First Lessons in the Knowledge of the Mind (London: Holdsworth, 1824), pp. 132–139. 18 C. Dickens, Bleak House (London: Bradbury and Evans, 1853), p. 140 (and variants, pp. 23–24). 19 The privileging of private judgment remained an aspect of Protestant–Catholic polemic, e.g., C. Otway, The Word of God Weighed Against the Commandments of Men, in Six Controversial Letters (Dublin: Curry, 1825), p. 45. 20 See the Anglican W. Hull, Ecclesiastical Establishments Not Inconsistent With Christianity: With a Particular View to Some Leading Objections of the Modern Dissenters (2nd edition; London: Rivington, 1834), p. 31. 21 As in H. More, Strictures on the Modern System of Female Education: With a View of the Principles and Conduct Prevalent Among Women of Rank and Fortune (1799; London: H.G. Bohn, 1853), pp.97–99. 22 See, e.g., W. Webster, The Genius of the Gospel: A Homiletical Commentary on the Gospel of St. Matthew (London: Dickinson and Higham, 1873), which discusses vii, verses 1–6, quotation at p. 71; W. Kay, ‘Censorious Judgments’, in Stinchcombe Parish Magazine (Dursley: Whitmore, 1873), December, p. 19; and sermons in J. Darling, Cyclopaedia Bibliographica: A Library Manual of Theological and General Literature, and Guide to Books for Authors, Preachers, Students, and Literary Men. Analytical, Bibliographical, and Biographical (London: Darling, 1859). 23 ‘Judgments’, Chambers’s Edinburgh Journal, 28 June 1834, pp. 173–174, for critique, p. 173, of profanity in identifying God’s vengeance (and judgment) in ‘accidental evils happening to individuals’. 24 E.g., F.C. Wills, ‘Sitting in Judgment’, Quiver 1:46 (August 1886), pp. 725–726. 25 G. Hill, ‘Of Judgments’, Sharpe’s London Magazine (February 1860), pp. 85–88; ‘Divine Judgments’, Saturday Analyst and Leader 11:543 (18 August 1860), p. 735; ‘Judgment-Mongers’, Saturday Review 20:520 (14 October 1865), pp. 477–478. 26 See J.B. Norton, Topics for Indian Statesmen (London: Richardson, 1858), pp. 364–367; C. Kingsley, ‘First Sermon on the Cholera’ (27 September 1849), in Sermons on National Subjects (1880; London: Palgrave Macmillan, 1890), p. 134, ‘what is the meaning of that word judgment? In common talk, people use it rightly enough, but when they begin to talk of God’s judgments, they speak as if it merely meant punishments’. 27 S. Henderson, Scripture Lessons, Or, the History of Our Lord, in Question and Answer (London: Hamilton, Adams, 1837), p. 123. 28 E.g., J. Hunt, ‘Man’s Judgment’, Good Words 21 (January 1880), pp. 412–413. 29 ‘Judgment-mongers’, Saturday Review, 14 October 1865, p. 477. 30 See M. Wheeler, Heaven, Hell and the Victorians (Cambridge: Cambridge University Press, 1994), ch.2, on ‘judgment’. See ‘On a General Judgment, and, on the Effects, Which a Belief Therein Produces on the Human Character’, London University Magazine, serialised October 1828–January 1829. 31 W.P. Roberts, ‘The Day of Judgment’, Good Words 33 (January 1892), pp. 65–73, quotations from p. 68 and p. 70. 32 Matthew Arnold describes it as ‘the necessary method, the eternally incumbent duty, imposed by Jesus himself’, in Literature and Dogma: An Essay Towards a Better Apprehension of the Bible (London: T. Nelson, 1873), p. 294. 33 See W.G. Brooke, Six Judgments of the Judicial Committee of the Privy Council in Ecclesiastical Cases, 1850–1872: With an Historical Introduction, Notes, and Index (London: H.S. King, 1872). 34 W.E. Gladstone, The State in Its Relations With the Church (London: Murray, 1838). See T.B. Macaulay, ‘Gladstone on Church and State’, Edinburgh Review 69 (April 1839), pp. 231–280 (p. 262) for a critique: ‘Mr. Gladstone, who would have private

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James Gregory, with Daniel J.R. Grey and Annika Bautz judgment without its inevitable inconveniences’. See also R.B Seeley, Essays on the Church: MDCCCXL (London: Seeley, 1840). See J.H. Newman, ‘Lecture V. On the Use of Private Judgment’, in Lectures on the Prophetical Office of the Church: Viewed Relatively to Romanism and Popular Protestantism (2nd edition; London: Rivington, 1838). For Newman’s poem ‘Private Judgment’ (1832), see Verses on Various Occasions (London: Burns, Oates, 1868), pp. 74–75. E. Foss, Biographia Juridica: A Biographical Dictionary of the Judges of England From the Conquest to the Present Time, 1066–1870 (London: J. Murray, 1870), e.g., J.B. Byles; Harbottle Grimstone; John Bishop of Oxford; John Bramstone; Thomas Egerton; William de Kilkenny. J.F. Stephen, A History of the Criminal Law of England (London: Palgrave Macmillan, 1883), vol. 1, p. 455. N.M. Wright, ‘Tendering Judgment?: Vying prototypes of “Judicial Sensibility” in Later 18th Century British narratives of Justice’, Eighteenth-Century Studies 48:3 (2015), pp. 329–352. T. Dixon, Weeping Britannia: Portrait of a Nation in Tears (Oxford: Oxford University Press, 2015), p. 174. P.B. Shelley, A Letter to Lord Ellenborough Occasioned By the Sentence Which He Passed on Mr D.J. Eaton as Publisher of the Third Part of Paine’s Age of Reason (1812; London: Forder, 1894), pp. 5, 13. ‘Wife Murder’, Morning Chronicle, 28 August 1851, p. 4, in A.P. Robson and J.M. Robson, eds., The Collected Works of John Stuart Mill, Volume 25, Newspaper Writings By John Stuart Mill. December 1847–July 1873 Part IV (Toronto: University of Toronto Press, 1986), p. 1175. See P. Handler, ‘Judges and the Criminal Law in England 1808–61’, in Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times, ed. by P. Brand and J. Getzler (Cambridge: Cambridge University Press, 2012). H. Mayhew, The Great World of London (London: Bogue, 1857), Part IX, p. 77. W. Bagehot, ‘Bad Lawyers or Good?’, Fortnightly Review, 1 May 1870, pp. 685–703 [p. 698]. ‘Prison Ethics’, British Quarterly Review, July 1860, in H. Spencer, Essays: Scientific, Political, and Speculative, vol. 3 (London: Williams and Norgate, 1891). T.R. Stevenson, ‘Mrs Grundy’, Baptist Magazine, June 1868, pp. 352–361. H. Spencer, ‘Manners and Fashion’ [Westminster Review, April 1854] in Essays: Scientific, Political, and Speculative, vol. 3, pp. 46, 49. ‘Hand writing’, All the Year Round, 8 July 1871, p. 128. See H. Nazar, ‘The Imagination Goes Visiting: Jane Austen, Judgment, and the Social’, Nineteenth-century Literature 59:2 (2004), p. 145. Adam Smith’s The Theory of Moral Sentiments (1759) discussed propriety. See, in relation to Thomas Spencer and his brothers, H. Spencer, An Autobiography, 2 vols (New York: Appleton, 1904), vol. 1, p. 45. See E.T. Cook and A. Wedderburn, eds., Letters of John Ruskin 1827–1889 Volume 1 1827–1869 (Library edition; London: Allen & Unwin, 1909), vol. 36, p. cx, on ‘deliberate judgment’ read into epistolary discourse; and C.E. Norton’s concern about displaying Ruskin’s ‘weakened faculty of judgment’, in Letters of John Ruskin 1827–1889, vol. 2 (Library edition; London: Allen & Unwin, 1909), vol. 37, bibliographical appendix, p. 683. Peltason, ‘Seeing Things as They Are’, p. 190. Daily News, 19 July 1848, in Newspaper Writings By John Stuart Mill, p. 1104. W. Bagehot, ‘The English Constitution. No.V. The House of Lords’, Fortnightly Review, 1 February 1866, pp. 657–678 (p. 669). W. Bagehot, ‘Oxford’, in The Works and Life of Walter Bagehot, ed. by E.I.W. Barrington (London: Longmans, Green, 1915), vol. 1, p. 185.

Introduction 25 56 W. Bagehot, ‘Parliamentary Reform’, National Review 15 (January 1859), pp. 228–273 (p. 244); Bagehot, ‘The English Constitution. No.II. The Prerequisites of Cabinet Government’, Fortnightly Review 1 (June 1865), pp. 313–331 (p. 327). 57 Bagehot, ‘Parliamentary Reform’, p. 236. 58 Bagehot, ‘The English Constitution. No.V. The House of Lords’, p. 667. 59 ‘A.’, ‘Art. I. Civilization’, London and Westminster Review, April 1836, pp. 1–28 (p. 8). 60 J.S. Mill, On Liberty (2nd edition; London: Parker, 1859), p. 15. 61 ‘Notes Made By Bentham in His Memorandum-Book, 1818–19’, in The Works of Jeremy Bentham, Now First Collected: Under the Superintendence of His Executor, John Bowring (Edinburgh: Tait, 1842), p. 510. 62 G. Payne, Elements of Mental and Moral Science: Designed to Exhibit the Original Susceptibilities of the Mind, and the Rule By Which the Rectitude of Any of Its States or Feelings Should Be Judged (London: Holdsworth, 1828), p. 460. 63 W. Bagehot, ‘Art. X. The Late Sir G. C. Lewis’, National Review 17:34 (October 1863), pp. 492–524 (p. 517). 64 Mill, On Liberty, p. 39 (ch.2, ‘Of the Liberty of Thoughts and Discussion’). 65 A phrase of J.R.E. Cairnes’s, which Mill approved of in a letter, 25 November 1861, see F.E. Mineka and D.N. Lindley, eds., The Collected Works of John Stuart Mill, Volume XV – The Later Letters of John Stuart Mill 1849–1873 Part II [1856–1864] (Toronto: University of Toronto Press, 1975), p. 751. 66 E.g., ‘Women’s Judgments’, Saturday Review, quoted in Manchester Courier, 18 November 1865: ‘She has a power of seeing little things at a glance. Little things are very important in her life’. On ‘feminine judgment’, see review of A. Strickland, Lives of the Queens of England, vol. 1, Birmingham Daily Gazette, 24 November 1864, p. 3. 67 ‘A Woman’, Broadway (June 1869), in Bath Chronicle and Weekly Gazette, 10 June 1869, p. 6. 68 She is praised for her ‘integrity of mind and impartiality of judgment’, M.W. Chapman, Memorials of Harriet Martineau (Boston: Osgood, 1877), p. 150. The Daily News sketch was prefaced with advice not to accept her ‘sometimes disparaging judgment of herself’. See E. Gaskell, Life of Charlotte Brontë, 2 vols (London: Smith, Elder, 1857), vol. 2, p. 200, on Brontë’s view of her fallibility ‘on certain points of judgment’. 69 Chapman, Memorials of Harriet Martineau, p. 505. 70 British women could not be jurors or magistrates until the Sex Disqualification (Removal) Act 1919, the first to qualify as barristers and solicitors were in 1922, the appointment of women to the judiciary occurred after the Second World War: see E. Rackley, Women, Judging and the Judiciary: From Difference to Diversity (Abingdon: Routledge, 2013). 71 See J. Butler, The Constitution Violated: An Essay (Edinburgh: Edmonston and Douglas, 1871). 72 On feminist interventions in British criminal justice c.1900–1970, see A. Logan, Feminism and Criminal Justice: A Historical Perspective (Basingstoke: Palgrave Macmillan, 2008). 73 R.A. Devonport, New Elegant Extracts, 6 vols (Chiswick: Whittingham, 1827), vol. 2, p. 146. 74 The Works of Hannah More, Volume 3, Strictures on the Modern System of Female Education: With a View of the Principles and Conduct Prevalent Among Women of Rank and Fortune (London: H.G. Bohn, 1853), pp. 199–200. 75 ‘Women’s Suffrage’, North Wales Times, 11 December 1897, p. 4; L. Courtney, M.P., Royal Cornwall Gazette, 15 November 1878, p. 7. 76 J.S. Mill, The Subjection of Women (London: Longmans, Green, Reader and Dyer, 1869), pp. 110–111, p. 143. 77 F.P. Cobbe, Why Women Desire the Franchise (London: National Society for Women’s Suffrage, 1877), p. 4.

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78 Mrs Robert Hammond, Hallam Women’s Liberal Association, Sheffield Independent, 4 February 1891, p. 3; ‘Women and the Parliamentary Vote. 2’ Ardrossan and Salcoats Herald, 26 June 1891, p. 3. 79 Advertisement for Stanworth’s Umbrellas, Burnley Express, 8 March 1899, p. 1. 80 ‘Mrs. Lynn Linton on Feminine Patriotism’, Cornish and Devon Post, 24 March 1894, p. 2. 81 A. DeWitt, Moral Authority, Men of Science, and the Victorian Novel (Cambridge: Cambridge University Press, 2013), p. 136. 82 Letter to Gustave de Beaumont, 18 October 1839, in Mineka and Lindley, eds, The Later Letters of John Stuart Mill, p. 1991. 83 On Coleridge’s use of the phrase, see Specimens of the Table Talk of Samuel Taylor Coleridge (London: J. Murray, 1851), e.g., pp. 19, 48, 70, 82, 126, 151, 163, 191, 220, 229, 292. 84 Barrington, ed., Works and Life of Walter Bagehot, vol. 1, p. 50 (from R.H. Hutton’s Dictionary of National Biography entry). 85 ‘On the Aristocracy of Letters’, in Table Talk. Essays on Men and Manners, ed. by W.C. Hazlitt (2nd series; London: Bell and Daldy, 1869), p. 296; ‘Perfectibility’, 2 May 1828, in J.M. Robson, ed., The Collected Works of John Stuart Mill, Volume 26, Journals and Debating Speeches. Part I (Toronto: University of Toronto Press, 1988), p. 429. 86 Spencer, An Autobiography, vol. 1, p. 409. For further on nervous energy and judgment, pp. 571–572; and H. Spencer, Study of Sociology (London: King, 1873), ch.7, ‘Subjective – Difficulties – Emotional’. 87 W. Hazlitt, Table-talk; Or, Original Essays, vol. 2 (London: Colburn, 1822), pp. 303–334 (p. 309); ‘On Living to One’s-self’, Table-talk; Or, Original Essays, vol. 1 (London: Warren, 1821), pp. 211–234 (p. 228). 88 See ‘Annette’, ‘A Habit of Observation’, Youth’s Magazine, 1830, pp. 187–191. 89 Letter to Mary Sibree, 10 May 1847, in J.W. Cross, ed., George Eliot’s Life, as Related in Her Letters and Journals, 3 vols (Edinburgh: Blackwood, 1885), vol. 1, p. 162. 90 Here education is taken in a broader sense, see H. Nazar, Enlightened Sentiments: Judgment and Autonomy in the Age of Sensibility (New York: Fordham University Press, 2012), p. 9, for this point, shared by enlightenment feminists and Jane Austen; and Soni, ‘Committing Freedom’, contrasting Rousseau on education with Austen’s ‘phenomenology of judgment’. 91 ‘On the Divisions and Mutual Relations of Knowledge’, in The Miscellaneous Works of Thomas Arnold: Collected and Republished (London: T. Fellows, 1858), p. 421. 92 J. Hannah, ‘The Attitude of the Clergy Towards Science’, Contemporary Review 6 (1867), pp. 1–17. 93 See ‘The Universities, 7 April 1826’, in The Collected Works of John Stuart Mill, vol. 26, ed. by J.M. Robson, p. 351. 94 As reported in a review by Bagehot, ‘Mr John Morley on Education’, The Economist, 14 October 1876, p. 1197. Bagehot saw ‘another proof that the judgment of the masses is unworthy of reliance’, in the Tichborne movement. The allusion is to John William Smith’s A Selection of Leading Cases on Various Branches of the Law, first published in London by Maxwell in 1837. 95 An Inquiry Into the Real and Imaginary Obstructions to the Acquisition of the Arts in England (1776) in The Works of James Barry, Esq, 2 vols (London: Cadell and Davies, 1809), vol. 2, p. 233. 96 ‘Torquay Natural History Society’, Torquay Times, 12 November 1886, p. 5 (Professor E. Bengough). 97 W. Bagehot, ‘Inconvincible Governments’, Saturday Review, 21 June 1856, pp. 167–168 (p. 167). 98 W. Bagehot, Physics and Politics (1872; New York: Appleton, 1875), p. 220. 99 Letter to Dr Chambers, 3 January 1859, in Letters, vol. 1 1827–1869 (Library Edition of the Works of John Ruskin, vol. 36), pp. 300–301.

Introduction 27 100 ‘Pronouncers’, Chambers’ Edinburgh Journal, 27 March 1852, pp. 193–194. 101 ‘The Best Policy of Dealing With the Ignorant’, The Cosmopolitan Critic and Controversialist (January–March 1877), pp. 7–17 [pp. 15–16]. 102 In The Works of Jeremy Bentham: Now First Collected, vol. 10 (Edinburgh: Tait, 1843), he separates infant fear of ghosts from his ‘wholly free’ adult judgment, p. 18; see also p. 563, ‘The judgment is sometimes enslaved by the imagination’. See R.H. Hutton, in Barrington, ed., Works and Life of Walter Bagehot, vol. 1, p. x: ‘so far as his judgment was sounder than other men’s . . . it was so not in spite of, but in consequence of, the excursive imagination and vivid humour which are so often accused of betraying otherwise sober minds into dangerous aberrations’. On judgment related to ‘fancy’, T.B. Macaulay, ‘Lord Bacon’ (July 1837), Critical and Historical Essays, 3 vols (5th edition; London: Longmans, Brown, Green and Longmans, 1848), vol. 2, p. 424. On judgment’s loosening control on imagination, see Sir John Simon to C.E. Norton, cited in ‘Introduction’, J. Ruskin, Fors Clavigera: Letters to the Workmen and Labourers of Great Britain, reprinted as 2 vols. in Library Edition of the Works of John Ruskin (London: Allen & Unwin, 1907), vol. 1, p. xviii. For recognition of judgment’s reliance on empathy and imagination, see Samuel Richardson, cited in Wright, ‘Tendering Judgment?’ p. 332. 103 Peltason, ‘Seeing Things as They Are’, p. 186; Nazar, Enlightened Sentiments, p. 8. See also R. Hopkins, ‘Moral Luck and Judgment in Jane Austen’s Persuasion’, Nineteenth-Century Literature 42:2 (September 1987), pp. 143–158 on fortunate rewards for prudential moral judgments in Austen’s novels before Persuasion; Nazar, ‘The Imagination Goes Visiting, pp. 145–178; V. Soni, ‘Committing Freedom: The Cultivation of Judgment in Rousseau’s Emile and Austen’s Pride and Prejudice’, The Eighteenth Century 51:3 (2010), pp. 363–387. 104 Peltason, ‘Seeing Things as They Are’, p. 187. 105 G. Eliot, Middlemarch: A Study of Provincial Life, 3 vols (London: Blackwood, 1872), vol. 2, p. 277. 106 M. Edgeworth, Moral Tales for Young People, 3 vols (2nd edition; London: Johnson, 1806), vol. 1, p. ix. 107 Bagehot, Physics and Politics, p. 200. 108 W. Macneile Dixon, ‘Finality In Literary Judgment’, Westminster Review 143 (January 1895), pp. 401–412 (p. 402). See W. Bagehot, ‘The First Edinburgh Reviewers’, National Review 1 (October 1855), pp. 253–284 (p. 274), ‘The world has given judgment’, on Jeffreys’ verdict on William Wordsworth. 109 P.B. Shelley, ‘A Defence of Poetry’, in Essays, Letters From Abroad, Translations and Fragments, ed. by M.W. Shelley, 2 vols (London: Moxon, 1840), vol. 1, p. 14. 110 ‘Moore’s Life of Lord Byron’, June 1830, in Critical and Historical Essays (5th edition; 1848), vol. 1, p. 321. 111 W. Bagehot, ‘Sterne and Thackeray’, National Review (1864), pp. 523–553 (p. 553). 112 ‘Victorian Literary Criticism’, in Victorian Interpretation, ed. by S. Anger (Ithaca: Cornell University Press, 2005), p. 131. 113 For comments about people rarely exercising personal or private judgment, see ‘Education, Equality, &c’, Barker’s Review, 29 March 1862, p. 472. 114 G. Eliot, Essays and Leaves From a Notebook (London: Blackwood, 1883), p. 296. 115 M. Arnold, Mixed Essays (New York: Palgrave Macmillan, 1880), p. 278. 116 M. Arnold, Last Essays on Church and Religion (1877; London: J. Murray, 1903), p. vi. 117 ‘B’, ‘A Vision of Judgment. I’, The Speaker, 22 February 1896, pp. 211–212; Part II appeared 29 February 1896, pp. 237–238. 118 [A.K.H. Boyd], ‘Concerning the World’s Opinion. With Some Thoughts on Cowed People’, Fraser’s Magazine 65 (January 1862), pp. 35–50 (p. 37). 119 On judgment on past critics, see T.B. Macaulay, ‘Samuel Johnson’ (September 1831), in Macaulay, Critical and Historical Essays (5th edition; 1848), vol. 1, p. 396, on Samuel Johnson, ‘the judgments of a strong but enslaved understanding’; and vol. 2, on Horace Walpole’s judgment of literature, ‘perverted by aristocratical feelings’,

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James Gregory, with Daniel J.R. Grey and Annika Bautz p. 106. See D. Walsh, ‘Literature and the Literary Judgment’, University of Toronto Quarterly 24:4 (1955), pp. 341–350; for reflection on judgment in modern literary reviews from the perspective of an editor, see the chapter entitled ‘Judgment’, Boyers, The Fate of Ideas, acknowledging the role of partisan judgment. ‘Prospectus of a Course of Lectures By S.T. Coleridge’ (1818), in Letters, Conversations of S.T. Coleridge, 2 vols (London: Moxon, 1836), vol. 2, p. 81; S.T. Coleridge, Biographia Literaria; Or, Biographical Sketches of My Literary Life and Opinions (London: R. Fenner, 1817), vol. 1, p. 51. H. Tennyson, Alfred Lord Tennyson: A Memoir, vol. 1 (London: Palgrave Macmillan, 1897) (letter, 1862), p. 482. C. Babbage, On the Economy of Machinery and Manufactures (London: Knight, 1832), p. 268. W.R. Greg, Literary and Social Judgments (London: Trübner, 1868). On reviews being dismissed if linked to friend or foe, ‘Friends’ Judgments’, Saturday Review 24:626 (26 October 1867), pp. 532–533. On anonymity and the detection of ‘any fixed principles of judgment’, see [J.S. Mill], ‘Writings of Junius Redivivus’, Monthly Repository, n.s. VII (April 1833), pp. 262–270. For a brilliant affirmation of disinterested judgment, see Peltason, ‘Seeing Things as They Are’. K. Flint, The Woman Reader 1837–1914 (1993; Oxford: Oxford University Press, 2002), p. 4. Gaskell, Life of Charlotte Brontë, 2 vols (London: Smith, Elder, 1857), vol. 2, p. 26. A. Bautz, The Reception of Jane Austen and Walter Scott: A Comparative Longitudinal Study (London: Continuum, 2007), pp. 89–91. See, for example, M.R. Rippon, Judgment and Justification in the Nineteenth-century Novel of Adultery (Westport: Greenwood Press, 2000). On moralistic novels, M. Wheeler, English Fiction of the Victorian Period (1985; Abingdon: Routledge, 1999), p. 10; on the realist novel and pronouncements by narrator; ‘consensus’ between reader, narrator and author; and the ‘privileged knowing and moral judgment’, of reader, L.M. Shires, ‘The Aesthetics of the Victorian Novel’, in The Cambridge Companion to the Victorian Novel, ed by D. David (Cambridge: Cambridge University Press, 2001), pp. 63, 65. [W.M. Thackeray], ‘Lever’s St Patrick’s Eve – Comic Politics’, Morning Chronicle, 3 April 1845 in Thackeray’s Contributions to the Morning Chronicle, ed. by G.N. Ray (Urbana: University of Illinois Press, 1955), pp. 71–73, the figures alluded to were Douglas Jerrold and Charles Dickens. He uses the phrase ‘literary bench’, against The Times, after its review of The Kickleburys on the Rhine, in his preface to second edition. H.F. Chorley, Pomfret; Or, Public Opinion and Private Judgment, 3 vols (London: Colburn, 1845). On The Doom of Gialto see Metropolitan Magazine 13:52 (August 1835), p. 99. See for example, references in J. Gorton, A General Biographical Dictionary: Containing a Summary Account of the Lives of Eminent Persons of All Nations, Previous to the Present Generation (London: Hunt and Clarke, 1828). ‘The Note-Book of an Irish Barrister. No.IX. The Late Chief Baron Joy’, Metropolitan Magazine 22:88 (1838), pp. 337–349 (p. 337). On ‘moral verdicts’, see ‘Reviews. The Judgments of the Spectator’, The Speaker 9 (26 May 1894), pp. 586–588; on Mill, with Emphasis in original, ‘Preface’, J. Mill, The History of British India (London: Madden, 1848), vol. 1, p. xv. C.A. Bayly, ‘Moral Judgment: Empire, Nation and History’, European Review 14:3 (2006), pp. 385–391 [p. 385]. On Acton, see P. Zagorin, ‘Lord Acton’s Ordeal: The Historian and Moral Judgment’, Virginia Quarterly Review 74 (Winter 1998), pp. 1–17. J. Bentham, The Rationale of Reward (London: John and H.L. Hunt, 1825), p. 69. R. Langbaum, ‘The Dramatic Monologue: Sympathy Versus Judgment’, in Robert Browning, ed. by H. Bloom (New York: Chelsea House, 1985). On framing his

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149 150

151 152 153 154

‘argumentative poems’ as preconceived judgment or attempts to form judgment, A. Orr, A Handbook to the Work of Robert Browning (London: G. Bell, 1892), p. 121; Browning’s judgment of character, see F. Walters, Studies of Some of Robert Browning’s Poems (London: Sunday School Association, 1893), p. 34; withholding of poetic judgment, and the ancient office of the poet in that regard, G.K. Chesterton, Robert Browning (London: Palgrave Macmillan, 1903), p. 171. J. Holland and J. Everett, Memoirs of the Life and Writings of James Montgomery (London: Longmans, Brown, Green and Longmans, 1854), vol. 1, p. 66. T.B. Macaulay, ‘Art. IX. Mr Robert Montgomery’, Edinburgh Review, April 1830, pp. 193–210 (p. 208). R. Pollok, The Course of Time: A Poem, in Ten Books (1827; 10th edition; Edinburgh: Blackwood, 1831), Book X. The final version of Blake’s Four Zoas is reproduced in G.E. Bentley, Vala; Or, the Four Zoas (Oxford: Oxford University Press, 1963); A. Gilchrist, Life of William Blake, ‘Pictor Ignotus’: With Selections From His Poems and Other Writings, 2 vols (London: Palgrave Macmillan, 1863), vol. 2, p. 172. R. Southey, Vision of Judgment (London: Longmans, Hurst, Rees, Orme and Brown, 1821). See ‘The Vision of Judgment. By Quevedo Redivius’, The Republican, 5 March 1824, pp. 289–291. ‘Art. IX. A Vision of Judgment’, The British Review 17:34 (June 1821), pp. 321–337. ‘Literary Register’, Tait’s Edinburgh Magazine, June 1857, pp. 378–380; and The Critic, 15 July 1857, p. 319, reviewing an anonymous work published by Longman, Brown, Green and Longmans; for a satirical work against the sins of society, see Pan the Pilgrim: A Vision of Judgment (London: Weldon, 1877). ‘Judgment’, in J. Elmes, A General and Bibliographical Dictionary of the Fine Arts (London: Tegg, 1826) (unpaginated). E.g., ‘On the Formation of a Pure Taste and Correct Judgment in Music’, Musical Standard 2:30 (October 1863), pp. 84–85. B.R. Haydon, ‘On the Judgment of Connoisseurs Being Preferred to that of Professional Men, – Elgin Marbles, &c’, The Examiner, 17 March 1816, pp. 162–164 (p. 162). On judgment in music, see C. Dahlhaus, transl. J.B. Robinson, Nineteenth-century Music (Berkeley: University of California Press, 1989), p. 246. ‘The Popular Judgment in Poetry’, Saturday Review, 8 February 1879, p. 168. See also, F. Bland, ‘Popular Judgment in Literature’, Our Corner (December 1887), pp. 321–332 (critical of popular taste). See also [W.M. Dixon], ‘Finality in Literary Judgment’, Westminster Review 143 (January 1895), pp. 401–412. Spencer, An Autobiography, vol. 1, p. 270. On his loss of faith in Ruskin’s judgment in art, see p. 403. T. Arnold, ‘Preface to Poetry of Common Life’, in The Miscellaneous Works of Thomas Arnold (London: Fellowes, 1845), p. 256; W. Wordsworth, preface to second edition of Lyrical Ballads (London: Longmans, Rees, 1800), vol. 1, p. xliii; J. Ruskin, Notes on Some of the Principal Pictures Exhibited in the Rooms of the Royal Academy, the Old and New Societies of Painters in Water-Colours, the Society of British Artists and the French Exhibition (London: Smith, Elder, 1858), p. 5. See ‘Critic’, in Elmes, A General and Bibliographical Dictionary of the Fine Arts. E.W. Goodwin, ‘Competitions of Professional Referees’, The Architect, 9 January 1875, pp. 15–16 [p. 16]. See also ‘Lay Judgment in Architectural Competitions’, British Architect 30:5 (3 August 1888), p. 74; on modern architectural judgment, P. Collins, Architectural Judgement (London: Faber and Faber, 1971); S. Younés, The Imperfect City: On Architectural Judgment (Burlington: Ashgate, 2012). See ‘The Judgment of Solomon’, completed by Benjamin Haydon in 1814. Art-Journal, 1 July 1855, p. 195. Literary Gazette, 7 March 1857, p. 235. ‘Fine Arts. Mr Martin’s Picture of the Last Judgment’, Morning Chronicle, 9 June 1853.

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155 Thus the Catholic chapel in Lanark, fresco by Henry Doyle, The Scotsman, 15 November 1859, p. 2. Leighton’s painting was intended for the dome of St Paul’s, see ‘Private Views in Artists’ Studios. I. At Sir Frederic Leighton’s’, Pall Mall Gazette, 21 March 1892. 156 See Karl Pearson, quoted in Anger, Victorian Interpretation, p. 92; M. Johnson, ‘The Physicist’s Mind and the Judgment of Art’, Journal of Scientific Instruments 22:7 (July 1945), pp. 121–125. 157 James Joule, quoted in R.H. Kargon, Science in Victorian Manchester: Enterprise and Expertise (Manchester: Manchester University Press, 1977), p. 57. 158 C. Levine, The Serious Pleasures of Suspense: Victorian Realism and Narrative Doubt (Charlottesville: University of Virginia Press, 2003), p. 6. 159 The title of a paragraph, Chambers’s Edinburgh Journal 55 (18 January 1845), p. 48. 160 Merthyr Telegraph, 9 January 1864, advertisement for aural surgeon Mr Smith. 161 ‘Meeting of the British Medical Association at Oxford’, Oxford Times, 8 August 1868, p. 6. 162 M. Faraday, Lectures on Education Delivered at the Royal Institution of Great Britain (London: Parker, 1855), pp. 42, 73. 163 Faraday, Lectures, p. 59. On the Sandemanian sect’s emphasis on accurate judgment, see G. Cantor, Michael Faraday: Sandemanian and Scientist: A Study of Science and Religion (Basingstoke: Palgrave Macmillan, 1991), p. 150. On opposing theories, truth and judgment, see letter, 9 and 11 September 1812 to Benjamin Abbott, in F.A.J.L. James, ed., The Correspondence of Michael Faraday, Volume 1, 1811–1831 (London: Institution of Engineering and Technology, 1991), p. 26. 164 H. Spencer, ‘What Knowledge Is of Most Worth’, Westminster Review, July 1859, pp. 1–28 (p. 21). 165 H. Spencer, The Study of Sociology (London: King, 1873), p. 10. 166 H. Spencer, Essays on Education and Kindred Subjects (London: Dent, 1911), p. 40. 167 J. Tyndall, Fragments of Science: A Series of Detached Essays, Lectures, and Reviews (New York: Appleton, 1871), p. 104. 168 Spencer, An Autobiography, vol. 1, p. 591. 169 Babbage, On the Economy of Machinery, pp. 96–97. 170 In a letter, March 1887, reprinted in S.P. Thompson, The Life of William Thomson, Baron Kelvin of Largs (London: Palgrave Macmillan, 1910), p. 1103. 171 C. Darwin, The Variation of Animals and Plants Under Domestication, 2 vols (London: J. Murray, 1868), vol. 2, p. 193. 172 C. Darwin, The Descent of Man and Selection in Relation to Sex, 2 vols (London: J. Murray, 1871), vol. 1, p. 99. 173 J.M. Robson and B.L. Kinzer, eds., The Collected Works of John Stuart Mill, Volume 28, Public and Parliamentary Speeches. Part I: November 1850 – November 1868 (Toronto: University of Toronto Press, 1988), p. 256; Barrington, ed., Works and Life of Walter Bagehot, vol. 7, p. 109. 174 See comments by Canning at his nomination in Liverpool, The Late Elections: An Impartial Statement of All Proceedings Connected With the Progress and Result of the Late Elections . . . Such Biographical Notices Are Added as May Enable the Country to Form a Judgement of the Influence Likely to Predominate in the New House of Commons (London: Bensley, 1818), p. 179, and the reference in the book’s title, on the biographical notices. 175 [J.S. Mill] London Review, July 1835, pp. 341–371. T. Arnold, ‘The Elections. Letter II’, Sheffield Courant, August 1832, in The Miscellaneous Works of Thomas Arnold: Collected and Republished (London: Fellowes, 1845), p. 245. 176 Barrington, ed., Works and Life of Walter Bagehot, vol. 5, p. 262 (The English Constitution). 177 G. Grote, Statement of the Question of Parliamentary Reform (London: Baldwin, Cradock and Joy, 1821), p. 80.

Introduction 31 178 See W.N. Molesworth, The History of the Reform Bill of 1832 (London: Chapman and Hall, 1865), p. 160. 179 J. Bentham, An Essay on Political Tactics, ch.2 [reprinted in Works of Jeremy Bentham (Edinburgh: Tait, 1843), vol. 2] discusses types of public judgment: those who form their own, those who borrow their judgment, and those occupying themselves little with public affairs, ‘the most numerous party’ (p. 313). 180 See various invocations of judgment in The 5 p’s. The Public, The Press, The Parties, The Parliament, The Premier (London: Bosworth and Harrison, 1858). 181 Bagehot, ‘Parliamentary Reform’, p. 234, p. 236. 182 Bagehot, ‘The English Constitution. No.V. The House of Lords’, Fortnightly Review, p. 669. 183 Bagehot, ‘The Late Sir G. C. Lewis’, p. 498. 184 From The Postulates of English Political Economy (essays of 1876 republished in 1885), in Barrington, ed., Works and Life of Walter Bagehot, vol. 7, p. 11. 185 W. Bagehot, ‘Art.VI. The Character of Sir Robert Peel’, National Review 3 (July 1856), pp. 146–174 (p. 149). 186 W. Bagehot, The English Constitution (1867; London: H.S. King, 1872), p. 21, cf. ‘The English Constitution. No. I. The Cabinet’, Fortnightly Review 1 (June 1865), pp. 1–23 (p. 15), the word is ‘opinion’. Bagehot commented on the monarch: ‘to expect a man whose place has always been fixed to have a better judgment than one who has lived by his judgment’, ‘The English Constitution. No. IV. The Monarchy (Continued)’, Fortnightly Review 2 (October 1865), pp. 595–612 (p. 610). 187 M. Arnold, The Popular Education of France With Notices of that of Holland and Switzerland (London: Longmans, Green, Longmans and Roberts, 1861), p. xivi. 188 E. Burke, ‘Speech to the Electors of Bristol, 3 November 1774’, in The Speeches of the Right Hon. Edmund Burke, ed. by J. Burke (Dublin: Duffy, 1867), p. 130. Mill deplored the growth of ‘government agency’ on grounds including the limits placed on ‘labour, contrivance, judgment, self-control’: Mill, Principles of Political Economy With Some of Their Applications to Social Philosophy, 2 vols (1848; London: Parker, 1857), vol. 2, p. 539. 189 Spencer, An Autobiography, vol. 1, p. 489. 190 A. Herbert, The Right and Wrong of Compulsion By the State and Other Essays, Essay One (London: Williams and Norgate, 1885). 191 Spencer, Social Statics, pp. 336–337. 192 ‘Art. IX. Biographical Notices of Lord Melbourne’, Edinburgh Review, January 1849, pp. 268–284 (p. 278 and p. 280); G.H. Francis, The Late Sir Robert Peel, Bart., A Critical Biography (London: Parker: 1852), p. 5; W. Bagehot, ‘Lord Brougham’, National Review 5:9 (July 1857), pp. 164–196; Morley’s words, quoted in P. Jackson, Morley of Blackburn: A Literary and Political Biography of John Morley (Madison: Fairleigh Dickinson University Press, 2012), p. 93. See the anonymous The Judgment of T. B. Macaulay on W. E. Gladstone, and W. E. Gladstone’s Judgment on Himself (London: T. Wade, 1868). 193 ‘A Modern “Symposium”. Is the Popular Judgment in Politics More Just than that of the Higher Orders?’, Nineteenth Century, vol. 3, May 1878, pp. 797–822 (A. Russell, R.H. Hutton, M.E. Grant Duff, F. Harrison); vol. 4, July 1878, pp. 174–192 (W.R. Greg, R. Lowe, W.E. Gladstone, A. Russell).

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‘A Modern “Symposium”. Is the Popular Judgment in Politics More Just than that of the Higher Orders?’, Nineteenth Century, vol. 3, May 1878, pp. 797–822 (A. Russell, R.H. Hutton, M.E. Grant Duff, F. Harrison); vol. 4, July 1878, pp. 174–192 (W.R. Greg, R. Lowe, W.E. Gladstone, A. Russell). Anger, S. Victorian Interpretation (Ithaca: Cornell University Press, 2005). ‘Annette’, ‘A Habit of Observation’, Youth’s Magazine, 1830, pp. 187–191. Anonymous. ‘Art. IX. Biographical Notices of Lord Melbourne’, Edinburgh Review, January 1849, pp. 268–284. Anonymous. The 5 p’s. The Public, The Press, The Parties, The Parliament, The Premier (London: Bosworth and Harrison, 1858). Anonymous. The Judgment of T. B. Macaulay on W. E. Gladstone, and W. E. Gladstone’s Judgment on Himself (London: T. Wade, 1868). Anonymous. Pan the Pilgrim: A Vision of Judgment (London: Weldon, 1877). Apter, T.E. Passing Judgment: Praise and Blame in Everyday Life (New York: W.W. Norton, 2018). Ardrossan and Salcoats Herald, 26 June 1891. Arnold, M. Last Essays on Church and Religion (1877; London: J. Murray, 1903). Arnold, M. Literature and Dogma: An Essay Towards a Better Apprehension of the Bible (London: T. Nelson, 1873). Arnold, M. The Popular Education of France With Notices of that of Holland and Switzerland (London: Longmans, Green, Longmans and Roberts, 1861). Arnold, T. ‘The Elections. Letter II’, Sheffield Courant, August 1832, reprinted in The Miscellaneous Works of Thomas Arnold: Collected and Republished (London: Fellowes, 1845), pp. 244–248. ‘Art. IX. A Vision of Judgment’, The British Review 17:34 (June 1821), pp. 321–337. Art-Journal, 1 July 1855, p. 195. ‘B’, ‘A Vision of Judgment. I’, The Speaker, 22 February 1896, pp. 211–212; Part II 29 February 1896, pp. 237–238. Babbage, C. On the Economy of Machinery and Manufactures (London: Knight, 1832). Bagehot, W. ‘Art.VI. The Character of Sir Robert Peel’, National Review 3 (July 1856), pp. 146–174. Bagehot, W. ‘Art. X. The Late Sir G. C. Lewis’, National Review 17:34 (October 1863), pp. 492–524. Bagehot, W. ‘Bad Lawyers or Good?’, Fortnightly Review, 1 May 1870, pp. 685–703. Bagehot, W. ‘The English Constitution. No. I. The Cabinet’, Fortnightly Review 1 (June 1865), pp. 1–23. Bagehot, W. ‘The English Constitution. No. II. The Prerequisites of Cabinet Government’, Fortnightly Review 1 (June 1865), pp. 313–331. Bagehot, W. ‘The English Constitution. No. IV. The Monarchy (continued)’, Fortnightly Review 2 (October 1865), pp. 595–612. Bagehot, W. ‘The English Constitution. No.V. The House of Lords’, Fortnightly Review 1 (February 1866), pp. 657–678. Bagehot, W. ‘The First Edinburgh Reviewers’, National Review 1 (October 1855), pp. 253–284. Bagehot, W. ‘Inconvincible Governments’, Saturday Review, 21 June 1856, pp. 167–168. Bagehot, W. ‘Lord Brougham’, National Review 5:9 (July 1857), pp. 164–196. Bagehot, W. ‘Mr John Morley on Education’, The Economist, 14 October 1876, p. 1197. Bagehot, W. ‘Parliamentary Reform’, National Review 15 (January 1859), pp. 228–273. Bagehot, W. ‘Sterne and Thackeray’, National Review (1864), pp. 523–553 (p. 553). Bagehot, W. Physics and Politics (1872; New York: Appleton, 1875).

Introduction 33 Bagehot, W. The English Constitution (1867; London: H.S. King, 1872). Barrington, E.I.W., ed. The Works and Life of Walter Bagehot (London: Longmans, Green, 1915), vols. 1, 5, 7. Barry, J. The Works of James Barry, Esq, 2 vols (London: Cadell and Davies, 1809), vol. 2. Bath Chronicle and Weekly Gazette, 10 June 1869. Bautz, A. The Reception of Jane Austen and Walter Scott: A Comparative Longitudinal Study (London: Continuum, 2007). Bayly, C.A. ‘Moral Judgment: Empire, Nation and History’, European Review 14:3 (2006), pp. 385–391. Bentham, J. An Essay on Political Tactics, reprinted in Works of Jeremy Bentham (Edinburgh: Tait, 1843), vol. 2. Bentham, J. The Rationale of Reward (London: John and H.L. Hunt, 1825). Bentley, G.E. Vala; or, the Four Zoas (Oxford: Oxford University Press, 1963). ‘The Best Policy of Dealing With the Ignorant’, The Cosmopolitan Critic and Controversialist (January–March 1877), pp. 7–17. Birmingham Daily Gazette, 24 November 1864. Bland, F. ‘Popular Judgment in Literature’, Our Corner (December 1887), pp. 321–332. Bowring, J., ed. The Works of Jeremy Bentham, Now First Collected: Under the Superintendence of His Executor, John Bowring (Edinburgh: Tait, 1842). Boyd, A.K.H. ‘Concerning the World’s Opinion. With Some Thoughts on Cowed People’, Fraser’s Magazine 65 (January 1862), pp. 35–50. Boyers, R. The Fate of Ideas: Seductions, Betrayals, Appraisals (New York: Columbia University Press, 2015). Brooke, W.G. Six Judgments of the Judicial Committee of the Privy Council in Ecclesiastical Cases, 1850–1872: With an Historical Introduction, Notes, and Index (London: H.S. King, 1872). Brydges, E. ‘On the Charge that Men of Genius and High Talents Want Judgment and Practical Sense’, Fraser’s Magazine 13:78 (July 1836), pp. 673–682. Burke, J., ed. The Speeches of the Right Hon. Edmund Burke (Dublin: Duffy, 1867). Burnley Express, 8 March 1899. Butler, J. The Constitution Violated: An Essay (Edinburgh: Edmonston and Douglas, 1871). Cantor, G. Michael Faraday: Sandemanian and Scientist: A Study of Science and Religion (Basingstoke: Palgrave Macmillan, 1991). Casson, D.J. Liberating Judgment: Fanatics, Skeptics, and John Locke’s Politics of Probability (Princeton: Princeton University Press, 2011). Chambers’s Edinburgh Journal 55 (18 January 1845), p. 48. Chapman, M.W. Memorials of Harriet Martineau (Boston: Osgood, 1877). Chesterton, G.K. Robert Browning (London: Palgrave Macmillan, 1903). Chorley, H.F. Pomfret; or, Public Opinion and Private Judgment, 3 vols (London: Colburn, 1845). Cobbe, F.P. Why Women Desire the Franchise (London: National Society for Women’s Suffrage, 1877). Coleridge, S.T. Biographia Literaria; or, Biographical Sketches of My Literary Life and Opinions (London: R. Fenner, 1817), vol. 1. Coleridge, S.T. Letters, Conversations of S.T. Coleridge, 2 vols (London: Moxon, 1836). Collins, P. Architectural Judgement (London: Faber and Faber, 1971), vol. 2. Cook, E.T. and A. Wedderburn, eds. Letters of John Ruskin 1827–1889, Volume 1: 1827– 1869 (Library edition; London: Allen & Unwin, 1909), vol. 36. Cornish and Devon Post, 24 March 1894.

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The Critic, 15 July 1857, p. 319. Cross, J.W., ed. George Eliot’s Life, as Related in Her Letters and Journals, 3 vols (Edinburgh: Blackwood, 1885), vol. 1. Dahlhaus, C. transl. J.B. Robinson. Nineteenth-century Music (Berkeley: University of California Press, 1989), p. 246. Darling, J. Cyclopaedia Bibliographica: A Library Manual of Theological and General Literature, and Guide to Books for Authors, Preachers, Students, and Literary Men. Analytical, Bibliographical, and Biographical (London: Darling, 1859). Darwin, C. The Descent of Man and Selection in Relation to Sex, 2 vols (London: J. Murray, 1871), vol. 1. Darwin, C. The Variation of Animals and Plants Under Domestication, 2 vols (London: J. Murray, 1868), vol. 2. Defoe, D. ‘On the Fallibility of Human Judgment’, Applebee’s Journal, 26 June 1725. Devonport, R.A. New Elegant Extracts, 6 vols (Chiswick: Whittingham, 1827), vol. 2. DeWitt, A. Moral Authority, Men of Science, and the Victorian Novel (Cambridge: Cambridge University Press, 2013). Dickens, C. Bleak House (London: Bradbury and Evans, 1853). ‘Divine Judgments’, Saturday Analyst and Leader 11:543 (18 August 1860), p. 735. Dixon, T. Weeping Britannia: Portrait of a Nation in Tears (Oxford: Oxford University Press, 2015). Dixon, W.M. ‘Finality in Literary Judgment’, Westminster Review 143 (January 1895), pp. 401–412. Dodsworth, J. The Eden Family: Shewing the Loss of Our Paradise Home, and Our Obligations for Our Rescue (London: S.W. Partridge, 1858). Edgeworth, M. Moral Tales for Young People, 3 vols (2nd edition; London: Johnson, 1806), vol. 1. ‘Education, Equality, &c’, Barker’s Review, 29 March 1862, p. 472. Eliot, G. Essays and Leaves From a Notebook (London: Blackwood, 1883). Eliot, G. Middlemarch: A Study of Provincial Life, 3 vols (London: Blackwood, 1872), vol. 2. Elmes, J. A General and Bibliographical Dictionary of the Fine Arts (London: Tegg, 1826). Faraday, M. Lectures on Education Delivered at the Royal Institution of Great Britain (London: Parker, 1855). Ferguson, K. The Politics of Judgement: Aesthetics, Identity, and Political Theory (Lanham: Lexington Books, 2007). ‘Fine Arts. Mr Martin’s Picture of the Last Judgment’, Morning Chronicle, 9 June 1853. Flint, K. The Woman Reader 1837–1914 (1993; Oxford: Oxford University Press, 2002). Foss, E. Biographia Juridica: A Biographical Dictionary of the Judges of England From the Conquest to the Present Time, 1066–1870 (London: J. Murray, 1870). Francis, G.H. The Late Sir Robert Peel, Bart: A Critical Biography (London: Parker, 1852). ‘Friends’ Judgments’, Saturday Review 24:626 (26 October 1867), pp. 532–533. Gaskell, E. Life of Charlotte Brontë, 2 vols (London: Smith, Elder, 1857), vol. 2. Gilchrist, A. Life of William Blake, ‘Pictor Ignotus’: With Selections From His Poems and Other Writings, 2 vols (London: Palgrave Macmillan, 1863). Gladstone, W.E. The State in its Relations with the Church (London: Murray, 1838). Goodwin, E.W. ‘Competitions of Professional Referees’, The Architect, 9 January 1875, pp. 15–16. Gorton, J. A General Biographical Dictionary: Containing a Summary Account of the Lives of Eminent Persons of All Nations, Previous to the Present Generation (London: Hunt and Clarke, 1828).

Introduction 35 Greg, W.R. Literary and Social Judgments (London: Trübner, 1868). Grote, G. Statement of the Question of Parliamentary Reform (London: Baldwin, Cradock and Joy, 1821). Hammond, K.R. Human Judgment and Social Policy: Irreducible Uncertainty, Inevitable Error, Unavoidable Injustice (New York: Oxford University Press, 1996). Handler, P. ‘Judges and the Criminal Law in England 1808–61’, in Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times, ed. by P. Brand and J. Getzler (Cambridge: Cambridge University Press, 2012). ‘Hand Writing’, All the Year Round, 8 July 1871, p. 128. Hannah, J. ‘The Attitude of the Clergy Towards Science’, Contemporary Review 6 (1867), pp. 1–17. Haydon, B.R. ‘On the Judgment of Connoisseurs Being Preferred to that of Professional Men, – Elgin Marbles, &c’, The Examiner, 17 March 1816, pp. 162–164. Hazlitt, W. ‘On Common-Place Critics’, in The Round Table: A Collection of Essays on Literature, Men, and Manners, 2 vols (Edinburgh: Constable, 1817), vol. 2. Hazlitt, W. ‘On Living to One’s-self’, in Table-talk; Or, Original Essays, vol. I (London: Warren, 1821), pp. 211–234. Hazlitt, W. ‘On Patronage and Puffing’, Table-talk; Or, Original Essays (London: Colburn, 1822), vol. II, pp. 303–334. Hazlitt, W.C., ed. Table Talk: Essays on Men and Manners (2nd series; London: Bell and Daldy, 1869). Henderson, S. Scripture Lessons, or, The History of Our Lord, in Question and Answer (London: Hamilton, Adams, 1837). Herbert, A. The Right and Wrong of Compulsion By the State and Other Essays, Essay One (London: Williams and Norgate, 1885). Hill, G. ‘Of Judgments’, Sharpe’s London Magazine (February 1860), pp. 85–88. Himmelfarb, G. The De-Moralization of Society: From Victorian Virtues to Modern Values (New York: A.A. Knopf, 1995). Holland, J. and J. Everett. Memoirs of the Life and Writings of James Montgomery (London: Longmans, Brown, Green and Longmans, 1854). Hopkins, R. ‘Moral Luck and Judgment in Jane Austen’s Persuasion’, Nineteenth-Century Literature 42:2 (September 1987), pp. 143–158. Houghton, W.E. The Victorian Frame of Mind (1957; New Haven: Yale University Press, 1985). Hull, W. Ecclesiastical Establishments Not Inconsistent With Christianity: With a Particular View to Some Leading Objections of the Modern Dissenters (2nd edition; London: Rivington, 1834). Hunt, J. ‘Man’s Judgment’, Good Words 21 (January 1880), pp. 412–413. Jackson, P. Morley of Blackburn: A Literary and Political Biography of John Morley (Madison: Fairleigh Dickinson University Press, 2012). James, F.A.J.L., ed. The Correspondence of Michael Faraday, Volume 1: 1811–1831 (London: Institution of Engineering and Technology, 1991). Johnson, M. ‘The Physicist’s Mind and the Judgment of Art’, Journal of Scientific Instruments 22:7 (July 1945), pp. 121–125. Johnson, S. A Dictionary of the English Language: In Which the Words Are Deduced From Their Originals, and Illustrated in Their Different Significations, By Examples From the Best Writers, to Which Are Prefixed a History of the Language, and an English Grammar, 4 vols (9th edition; London: Longmans, Hurst, Rees and Orme, 1805), vol. 2. ‘Judgment-Mongers’, Saturday Review 20:520 (14 October 1865), pp. 477–478.

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‘Judgments’, Chambers’s Edinburgh Journal, 28 June 1834, pp. 173–174. Kargon, R.H. Science in Victorian Manchester: Enterprise and Expertise (Manchester: Manchester University Press, 1977). Kay, W. ‘Censorious Judgments’, in Stinchcombe Parish Magazine (Dursley: Whitmore, December 1873), p. 19. Kingsley, C. ‘First Sermon on the Cholera’ (27 September 1849), reprinted in Sermons on National Subjects (1880; London: Palgrave Macmillan, 1890). Krueger, J.I. Social Judgment and Decision Making (New York: Psychology Press, 2012). Langbaum, R. ‘The Dramatic Monologue: Sympathy Versus Judgment’, in Robert Browning, ed. by H. Bloom (New York: Chelsea House, 1985). The Late Elections: An Impartial Statement of All Proceedings Connected With the Progress and Result of the Late Elections . . . Such Biographical Notices are Added as May Enable the Country to Form a Judgement of the Influence Likely to Predominate in the New House of Commons (London: Bensley, 1818). ‘Lay Judgment in Architectural Competitions’, British Architect 30:5 (3 August 1888), p. 74. Levine, C. The Serious Pleasures of Suspense: Victorian Realism and Narrative Doubt (Charlottesville: University of Virginia Press, 2003). Literary Gazette, 7 March 1857. ‘Literary Register’, Tait’s Edinburgh Magazine, June 1857, pp. 378–380. Logan, A. Feminism and Criminal Justice: A Historical Perspective (Basingstoke: Palgrave Macmillan, 2008). Lund, R.D. ‘Wit, Judgment and the Misprision of Similitude’, Journal of the History of Ideas 65:1 (January 2004), pp. 53–74. Macaulay, T.B. ‘Art. IX. Mr Robert Montgomery’, Edinburgh Review 51 (April 1830), pp. 193–210. Macaulay, T.B. Critical and Historical Essays, 3 vols (5th edition; London: Longmans, Brown, Green and Longmans, 1848), vols. 1–2. Macaulay, T.B. ‘Gladstone on Church and State’, Edinburgh Review 69 (April 1839), pp. 231–280. Mackay, C. Life and Times of Sir Robert Peel (London: Jackson, 185), vol. 4. Manchester Courier, 18 November 1865. Martin, W. Theories of Judgment: Psychology, Logic, Phenomenology (Cambridge: Cambridge University Press, 2006). Mayhew, H. The Great World of London (London: Bogue, 1857), Part IX. ‘Meeting of the British Medical Association at Oxford’, Oxford Times, 8 August 1868. Merthyr Telegraph, 9 January 1864. Metropolitan Magazine 13:52 (August 1835), p. 99. Mill, J.S. The History of British India (London: Madden, 1848), vol. 1. Mill, J.S. London Review, July 1835, pp. 341–371. Mill, J.S. On Liberty (2nd edition; London: Parker, 1859). Mill, J.S. Principles of Political Economy With Some of Their Applications to Social Philosophy 2 vols (1848; London: Parker, 1857), vol. 2. Mill, J.S. The Subjection of Women (London: Longmans, Green, Reader and Dyer, 1869). Mill, J.S. ‘Writings of Junius Redivivus’, Monthly Repository, n.s. VII (April 1833), pp. 262–270. Mineka, F.E. and D.N. Lindley, eds. The Collected Works of John Stuart Mill, Volume 15: The Later Letters of John Stuart Mill 1849–1873 Part II [1856–1864] (Toronto: University of Toronto Press, 1975).

Introduction 37 The Miscellaneous Works of Thomas Arnold (London: Fellowes, 1845). The Miscellaneous Works of Thomas Arnold: Collected and Republished (London: T. Fellows, 1858). Molesworth, W.N. The History of the Reform Bill of 1832 (London: Chapman and Hall, 1865). More, H. The Works of Hannah More, Volume 3 Strictures on the Modern System of Female Education: With a View of the Principles and Conduct Prevalent Among Women of Rank and Fortune (London: H.G. Bohn, 1853). Nazar, H. Enlightened Sentiments: Judgment and Autonomy in the Age of Sensibility (New York: Fordham University Press, 2012). Nazar, H. ‘The Imagination Goes Visiting: Jane Austen, Judgment, and the Social’, Nineteenthcentury Literature 59:2 (2004), pp. 145–178. Newman, J.H. ‘Lecture V. On the Use of Private Judgment’, in Lectures on the Prophetical Office of the Church: Viewed Relatively to Romanism and Popular Protestantism (2nd edition; London: Rivington, 1838). Newman, J.H. Verses on Various Occasions (London: Burns, Oates, 1868). North Wales Times, 11 December 1897. Norton, J.B. Topics for Indian Statesmen (London: Richardson, 1858), pp. 364–367. ‘The Note-Book of an Irish Barrister. No. IX. The Late Chief Baron Joy’, Metropolitan Magazine 22:88 (1838), pp. 337–349. ‘On the Formation of a Pure Taste and Correct Judgment in Music’, Musical Standard 2:30 (October 1863), pp. 84–85. ‘On a General Judgment and on the Effects, Which a Belief Therein Produces on the Human Character’, London University Magazine, October 1828–January 1829. Orr, A. A Handbook to the Work of Robert Browning (London: G. Bell, 1892). Otway, C. The Word of God Weighed Against the Commandments of Men, in Six Controversial Letters (Dublin: Curry, 1825). Payne, G. Elements of Mental and Moral Science: Designed to Exhibit the Original Susceptibilities of the Mind, and the Rule By Which the Rectitude of Any of Its States or Feelings Should Be Judged (London: Holdsworth, 1828). Peltason, T. ‘Seeing Things as They Are: Literary Judgment and Disinterestedness’, Literary Imagination 9:2 (2007), pp. 177–194. Pollok, R. The Course of Time: A Poem, in Ten Books (1827; 10th edition, Edinburgh: Blackwood, 1831). ‘The Popular Judgment in Poetry’, Saturday Review, 8 February 1879, p. 168. ‘Private Views in Artists’ Studios. I. At Sir Frederic Leighton’s’, Pall Mall Gazette, 21 March 1892. ‘Pronouncers’, Chambers’ Edinburgh Journal, 27 March 1852, pp. 193–194. Rackley, E. Women, Judging and the Judiciary: From Difference to Diversity (Abingdon: Routledge, 2013). ‘Reviews. The Judgments of the Spectator’, The Speaker 9 (26 May 1894), pp. 586–588. Rippon, M.R. Judgment and Justification in the Nineteenth-century Novel of Adultery (Westport: Greenwood Press, 2000). Roberts, W.P. ‘The Day of Judgment’, Good Words 33 (January 1892), pp. 65–73. Robson, A.P. and J.M. Robson, eds. The Collected Works of John Stuart Mill, Volume 25: Newspaper Writings By John Stuart Mill. December 1847–July 1873 Part IV (Toronto: University of Toronto Press, 1986). Robson, J.M., ed. The Collected Works of John Stuart Mill, Volume 26: Journals and Debating Speeches. Part I (Toronto: University of Toronto Press, 1988).

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Robson, J.M. and B.L. Kinzer, eds. The Collected Works of John Stuart Mill, Volume 28: Public and Parliamentary Speeches. Part I: November 1850 – November 1868 (Toronto: University of Toronto Press, 1988). Royal Cornwall Gazette, 15 November 1878. Ruskin, J. Fors Clavigera: Letters to the Workmen and Labourers of Great Britain, reprinted as 2 vols. in Library Edition of the Works of John Ruskin (London: Allen & Unwin, 1907), vol. 1. Ruskin, J. Letters of John Ruskin 1827–1889, vols. 1–2 (Library edition; London: Allen & Unwin, 1909), vols. 36, 37. Ruskin, J. Notes on Some of the Principal Pictures Exhibited in the Rooms of the Royal Academy, the Old and New Societies of Painters in Water-Colours, the Society of British Artists and the French Exhibition (London: Smith, Elder, 1858). The Scotsman, 15 November 1859. Seeley, R.B. Essays on the Church: MDCCCXL (London: Seeley, 1840). Sheffield Independent, 4 February 1891. Shelley, M.W., ed. Essays, Letters From Abroad, Translations and Fragments, 2 vols (London: Moxon, 1840), vol. 1. Shelley, P.B. A Letter to Lord Ellenborough Occasioned By the Sentence Which He Passed on Mr D.J. Eaton as Publisher of the Third Part of Paine’s Age of Reason (1812; London: Forder, 1894). Shires, L.M. ‘The Aesthetics of the Victorian Novel’, in The Cambridge Companion to the Victorian Novel, ed. by D. David (Cambridge: Cambridge University Press, 2001). Soni, V. ‘Committing Freedom: The Cultivation of Judgment in Rousseau’s Emile and Austen’s Pride and Prejudice’, The Eighteenth Century 51:3 (2010), pp. 363–387. Soni, V. ‘Introduction: The Crisis of Judgment’, The Eighteenth Century 51:3 (2010), pp. 261–288. Specimens of the Table Talk of Samuel Taylor Coleridge (London: J. Murray, 1851). Spencer, H. An Autobiography 2 vols (New York: Appleton, 1904), vol. 1. Spencer, H. Essays on Education and Kindred Subjects (London: Dent, 1911). Spencer, H. Essays: Scientific, Political, and Speculative, 3 vols (London: Williams and Norgate, 1891), vol. 3. Spencer, H. Social Statics: Or, the Conditions Essential to Human Happiness Specified, and the First of them Developed (London: Chapman and Hall, 1851). Spencer, H. Study of Sociology (London: King, 1873). Spencer, H. ‘What Knowledge Is of Most Worth’, Westminster Review, July 1859, pp. 1–28. Stephen, J.F. A History of the Criminal Law of England (London: Palgrave Macmillan, 1883), vol. I. Stevenson, T.R. ‘Mrs Grundy’, Baptist Magazine, June 1868, pp. 352–361. Taylor, I. Elements of Thought; or, First Lessons in the Knowledge of the Mind (London: Holdsworth, 1824). Tennyson, H. Alfred Lord Tennyson: A Memoir (London: Palgrave Macmillan, 1897), vol. 1 (letter, 1862). Thackeray, W.M. ‘Lever’s St Patrick’s Eve – Comic Politics’, Morning Chronicle, 3 April 1845 in Thackeray’s Contributions to the Morning Chronicle, ed. by G.N. Ray (Urbana: University of Illinois Press, 1955). Thompson, S.P. The Life of William Thomson, Baron Kelvin of Largs (London: Palgrave Macmillan, 1910). Torquay Times, 12 November 1886.

Introduction 39 Tyndall, J. Fragments of Science: A Series of Detached Essays, Lectures, and Reviews (New York: Appleton, 1871). ‘The Vision of Judgment. By Quevedo Redivius’, The Republican, 5 March 1824, pp. 289–291. Walsh, D. ‘Literature and the Literary Judgment’, University of Toronto Quarterly 24:4 (1955), pp. 341–350. Walters, F. Studies of Some of Robert Browning’s Poems (London: Sunday School Association, 1893). Webster, W. The Genius of the Gospel: A Homiletical Commentary on the Gospel of St. Matthew (London: Dickinson and Higham, 1873). Wheeler, M. English Fiction of the Victorian Period (1985; Abingdon: Routledge, 1999). Wheeler, M. Heaven, Hell and the Victorians (Cambridge: Cambridge University Press, 1994). Wills, F.C. ‘Sitting in Judgment’, Quiver 1:46 (August 1886), pp. 725–726. Wordsworth, W. Lyrical Ballads (2nd edition; London: Longmans, Rees, 1800), vol. 1. The Works of Jeremy Bentham: Now First Collected (Edinburgh: Tait, 1843), vol. 10. Wright, N.M. ‘Tendering Judgment?: Vying Prototypes of “Judicial Sensibility” in Later 18th Century British Narratives of Justice’, Eighteenth-Century Studies 48:3 (2015), pp. 329–352. ‘Y’, ‘On the Compatibility of Judgment and Feeling’, Belfast Monthly Magazine 4:22 (May 1810), pp. 350–351. Younés, S. The Imperfect City: On Architectural Judgment (Burlington: Ashgate, 2012). Zagorin, P. ‘Lord Acton’s Ordeal: The Historian and Moral Judgment’, Virginia Quarterly Review 74 (Winter 1998), pp. 1–17.

Part I

The judgment of the law

1

Cartes de visite and the first mass media photographic images of the English judiciary Continuity and change Leslie J. Moran

Introduction The goal of this chapter is to explore the impact that the invention of a particular type of photographic image, the carte de visite, had on visual images of the judiciary in England from the 1860s. The carte de visite is widely regarded as an innovation that helped widen access to photography. It is also associated with the birth of photography as a form of mass media. Evidence that the English judiciary were caught up in the frenzy of production and consumption that accompanied these developments, what contemporary commentators called ‘carteomania’ and ‘cardomania’,1 is to be found in a number of sources. A catalogue dating from 1866, the height of the ‘carteomania’ craze, entitled ‘Carte de Visite Portraits of the Royal Family Eminent and Celebrated Persons’ lists over 1,000 different cartes, the vast majority of which are portraits.2 Included in the list are portraits of judges; Lord Chancellors, Chief Justices and Justices of the High Courts. They sit alongside members of the royal families of various nations beginning with Queen Victoria and her large extended family, Lords, Ladies, Dukes, Duchesses, from the United Kingdom and beyond, members of the clergy (particularly bishops), military figures (domestic and overseas) and politicians. Artists (past and present), theatre and music hall performers, sporting personalities and beauties are also prominent. Another source of evidence is London’s National Portrait Gallery. A search of the Gallery’s collection of portraits of senior English judges in post between 1860, the start of the ‘carteomania’ craze, and the early 1880s, when the carte format was superseded, reveals many carte portraits. In numerous cases cartes de visite are the only photographic portraits of the judicial sitters in the Gallery’s collection. In several cases there are multiple carte de visite portraits of the same sitter in different poses, all of which date from the same time.3 Another archive, the library of one of the Inns of Court, Lincoln’s Inn, also has a collection of over 400 such portraits in several albums that date from the 1860s to 1870s. Many sitters are judges, and some appear several times in different (but nonetheless very similar) carte portraits.4 While this is far from being a systematic survey of the appearance of the judiciary within the format, it does point to a degree of judicial engagement with this new type of portraiture.

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The goal of this chapter is to examine some of the effects that the encounter between the English judiciary and the technological and media innovations that come together in this format had upon the visual representation of the judiciary in the nineteenth century. How, if at all, did this encounter affect what appears within the frame of judicial portraiture? What impact, if any, did it have on other pictures of judges? These questions will be answered by way of a case study, focusing on Sir Alexander James Edmund Cockburn. He became Chief Justice of Common Pleas in 1856, Chief Justice of Queens Bench in 1859 and in 1875 he took up the post of Lord Chief Justice in the newly reformed courts. He died in post in 1880. Many portraits of Cockburn were produced during his lifetime. London’s National Portrait Gallery (NPG) has eleven portraits of him in its collection.5 All are dated as being produced during the period 1860–1880. The majority of these, six portraits, are photographs. Five are carte photographic portraits. Four, all showing him in his ceremonial robes, were produced by one studio, the London Stereoscopic Company. All are dated ‘circa 1873’.6 It is difficult to differentiate one from another: there is little variation between them. The many similarities, the pose, costume, props, lighting, backdrop, physical characteristics of the sitter, suggest they could well have been produced in a single sitting. The remaining carte portrait shows him in civilian clothing. He is also shown in civilian dress in the final photographic portrait which is in the slightly larger format known as a ‘cabinet card’ popularized in the late 1870s. The remaining portraits, all of which show Cockburn in his robes of office, are made using a variety of other methods. One is an undated painted portrait by Alexander Davis Cooper. A second portrait, a black-and-white mezzotint is the work of the engraver Thomas Lewis Atkinson and is dated 1871. A caricature by Carlo Pellegrini that was published by the society magazine Vanity Fair is from 1869.7 All incorporate captions: ‘The Lord Chief Justice’. The remaining two portraits take the form of sketches of Cockburn on the bench made by Sir Leslie Ward, another well-known caricaturist who worked for Vanity Fair. They date from 1873 through 1874. The carte portraits of Cockburn in the NPG collection are not unique to that archive. Examples are also to be found in other collections in a variety of locations. I have found them for example in the library of Lincoln’s Inn in London, the State Library of New South Wales in Australia,8 and in the John Rathbone Oliver Criminological Collection of the Harvard Medical Library.9 A search of eBay or a Google Image search generates other copies of these, plus other carte portraits of Cockburn not replicated in any of these collections. In some he wears the robes of office, in others he is dressed in civilian clothing. At times it is difficult to differentiate one regalia or civil dress portrait from another. But they can be separated by way of minor variations of composition, for example offering a three-quarter body pose in judicial robes rather than a half body, or in those in which he is in civilian dress. In addition to different variations of pose they can be separated by reference to minor changes in his clothing; in some his cravat tie has a polka dot pattern in others it is striped. Props also show slight variation; some desks and chairs are more elaborate than others.

Cartes de visite of the English judiciary 45 The carte shown in Figures 1.1 and 1.2 will be used to examine the impact that the technological innovations that come together in this form of photography had on what appears within the frame of these two portraits of Sir Alexander James Edmund Cockburn about the time he was ‘The Lord Chief Justice’. Both are from my own collection. Figure 1.1 is an example of one of the many variations in which Cockburn poses in his robes of office. It also appears in all of the archives referred to above. Figure 1.2 is an example of a carte portrait in which Cockburn is portrayed in civilian dress.10 Both cartes follow the standard format. They are approximately 89 mm × 58 mm (3 1/2 in. × 2 1/4 in.) which is about the size of a visiting card. Each one is made up of a thin photographic paper print mounted on card. In common with many such portraits the robed portrait includes the name of the studio that produced the portrait on the front: ‘Stereoscopic Coy’, an abbreviated reference to the ‘The London Stereoscopic and Photographic Company’. Both cartes carry the branding of the studio on the back of the card mount. The civilian dress portrait was produced by the F. R. Window studio.11 Before embarking on the analysis of what appears within the frame of these portraits, drawing on some of the scholarship on cartes de visite, I want to add some background detail about the nature, production and impact of this type of picture.

Introducing cartes de visite The carte de visite is a photographic picture that came into being during the 1850s as a result of new developments in chemistry and camera optics. The chemical innovation known as the albumen print process enabled the production of the first cheap and relatively easy to use, commercially viable method of producing a photographic print from a negative plate on to paper.12 The other key invention occurred in 1854 when a multiple-lens camera was patented by an enterprising French photographer, Andre Adolphe Eugene Disdéri. Different lenses could be opened to the light at different times to capture the sitter in a variety of poses on a single negative in a single sitting. Together these developments enabled the production of a photograph (and more specifically a photographic portrait) at a fraction of the cost of any other method of portraiture.13 The repeated use of the negative also allowed for the manufacture of an almost endless supply of copies of the portraits. The carte de visite was introduced into England in 1857. The lower costs of production of carte portraits potentially widened access to portraiture for purposes of self-fashioning by those in society who had sufficient disposable income to expend on this new picture format. As such, cartes enabled and enhanced the capacity of individuals to make and shape their visibility in wider society.14 Scholars have described this as the democratizing effect of this photographic format.15 The format also introduced a much cheaper means of producing multiple copies of individual portraits for circulation.

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Figure 1.1 Carte de visite of Lord Chief Justice Cockburn in his robes of office, by the London Stereoscopic and Photographic Company. Source: Author’s collection.

Figure 1.2 Carte de visite of Lord Chief Justice Cockburn in civilian dress, studio of F.R. Window. Source: Author’s collection.

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By the mid-1860s, the height of the ‘carteomania’ craze, there were 300 studios producing carte de visite portraits in London; 35 were on one street in the West End, Regent Street.16 One estimate is that between 300 million and 400 million cartes were sold in England between 1862 and 1866.17 Individuals with enough disposable income commissioned studios to make their portraits for distribution to family and friends. This is described as the primary market. Some portraits, such as those in the carte de visite catalogue referred to above, were commissioned by the studios for sale to members of the public with an interest in the sitter and sufficient surplus income to indulge their curiosity. Studios were proactive in offering their services for free to sitters with an established or emerging public profile. Scholars describe this as the secondary market.18 Hacking explains that this market was driven by the zealous pursuit of established members of the elite and other contemporary eminent and famous people by studios for purposes of their commercial exploitation.19 Carte portraits that were for sale to the public appeared in window displays surrounding the entrance to the studios. These were also spaces used to advertise the services of the studio to potential clients.20 Other outlets for cartes included fine art dealers, booksellers and stationary stores. Prices for cartes in the secondary market varied from a shilling to one and sixpence depending on the fame of the sitter. Also known as ‘album portraits’, carte portraits were designed not as standalone portraits but to be used as part of a display of many such images collected and organized in a bound volume that was available for viewing in the home.21 The practice of making albums of the portraits of eminent and popular figures was not a pastime invented for these portraits. Collecting graphic reproductions of portraits of eminent and celebrated historical and contemporary figures had emerged as a popular pastime in the middle of the eighteenth century. A book by James Granger, Rector of Shiplake in Oxfordshire, produced a set of principles and rules to guide the men (and it was largely a male activity) who collected and displayed these prints of portraits in albums.22 Carte collecting followed in the footsteps of this eighteenth-century pastime but used a different picture format that reduced the cost and thereby widened access to it. Acquisition of new cartes was connected to a variety of activities; shopping, social events such as birthdays and New Year’s Day celebrations, when it became fashionable to give cartes as gifts. Other formal and informal social events and activities provided opportunities for obtaining new cartes and negotiating swaps.23 While many albums have been broken up and their contents destroyed or dispersed, some of the albums that do survive offer evidence of the appearance of carte portraits of judges, sometimes in their ceremonial robes and sometimes dressed less formally in a business suit. They appear in a variety of types of albums. Some appear in albums commissioned by family members, possibly by the sitter, as an album that documents the membership and the rising fortunes of the family. In other albums, the provenance of the portraits is less clear; some may have been commissioned by the sitter to record and cement friendships and professional relationships. At the same time others in the same album might have been purchased from one of the outlets that offered cartes of eminent people for

Cartes de visite of the English judiciary 49 sale. As Sarah Perry notes, one problem facing researchers is that it is now difficult, if not impossible, to differentiate between those pictures in these albums that were commissioned by an individual for personal use and those made by a studio to be sold to the public and incorporated in an album as a significant figure in the album curator’s circle of significant others.24 Most of the albums in the Lincoln’s Inn collection are made up of carte portraits of barristers, judges and law officers and are shaped by professional and friendship networks as well as by the wider legal institutional landscape. In other collections there are albums made up entirely of pictures of high-profile public figures and celebrities of the day. It seems likely that these were populated mainly, if not exclusively, by cartes produced for sale to the public.25 With all these points in mind, I now want to return to the carte portraits of Cockburn to consider what is to be found within the frame of these two portraits (Figures 1.1 and 1.2).

What appears within the frame? Judicial portraits in London’s National Portrait Gallery and the various Inns of Court in London show that painted portraits of judges in their robes of office were being produced from the sixteenth century.26 A variety of graphic techniques were used to make copies of these portraits for wider circulation. Across the centuries judicial portraits show remarkable consistency in their composition with the effect that many of the sitters look remarkably similar. The explanation for this is that they follow a form of portraiture that is known as ‘state portraits’.27 Much of the surface of this type of portrait is taken up with the symbols of judicial office; the cap and coif or wig, the multiple fur-lined garments that make up the judicial robes and, when worn, the chain of office draped around the sitter’s shoulders and chest. The detail of the sitter’s body is largely obscured by the robes. The face makes up a small part of the portrait. When wigs are worn the full bottom wig in particular obscures much of the detail of the sitter’s head and some of the face. The plain backdrop and the lack of furnishings or props are compositional techniques that direct the eye to focus on the ceremonial regalia. This is a type of portrait that depicts the judge’s two bodies; natural and institutional. This is realized through the preoccupation with the symbols of office. This subordinates the natural body of the judicial office to the institutional body. The individual sitter is fashioned as the very embodiment of the values and virtues represented by the symbols of the institution. The carte portrait of Cockburn in his robes of office, Figure 1.1, has much in common with this tradition of portraiture. It is a half-body portrait showing the sitter in his robes of office. The caption, ‘The Lord Chief Justice of England’, adds a textual prompt that resonates with this compositional format. One conclusion that might be drawn from the Figure 1.1 portrait is that the technological innovations that have produced this example of a new type of mass media portrait of a senior judge have been put to service a well-established aesthetics of institutional portraiture. This ‘new’ portrait might best be described as a new bottle containing old wine.

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The appearance of informal carte portraits, such as that shown in Figure 1.2, potentially offer a different style of institutional ‘state’ portrait.28 All traces of the archaic ceremonial judicial regalia have disappeared. He is now dressed in a respectable business suit. The stiff formality of the state portrait tradition has been replaced by a new informality. The composition suggests a private setting and an intimate moment. Rather than the stiff upright pose Cockburn performs a more relaxed pose. He sits adjacent a small domestic writing desk resting his right arm on it. The pose shows him looking up from an open book on the desk on which he rests his hand. Caught in a moment of contemplation his body and face turn slightly away from the desk and the book, to the viewer’s right. The backdrop adds little to the composition; a heavy, dark curtain dissects the background. Overall it is a composition that appears to eschew the formality of the state portrait tradition replacing it with one that gives emphasis to the ‘private’ rather than the institutional subject. John Plunkett’s work on the media image of Queen Victoria and her family suggests that the informality should not necessarily be read as antithetical to the portrayal of an institutional authority figure. He notes that a key feature of Queen Victoria’s multimedia engagement, including the use of cartes, was portraits of herself and other senior members of the royal family that had no trace of the usual royal regalia.29 It was replaced with costumes and props associated with everyday bourgeoisie respectability; what Perry suggests connoted a Victorian bourgeois domestic afternoon.30 While the origins of this transformation in how social and political elites self-fashioned and presented themselves through portraiture predated the invention of cartes de visite and the reign of Victoria,31 its adoption by the royal family and its dissemination via cartes popularized this more informal image of established authority figures. So while the second portrait of Cockburn is visibly very different from the style and composition of the long tradition of state portraiture seen in Figure 1.1, the second portrait also portrays an institutional figure of authority but in a style and a form of composition that became popular in the nineteenth century. Now the regalia of authority are the robes and manner of bourgeois respectability. One thing that both of these Cockburn portraits share is that they exhibit what contemporary commentators called the ‘failings’ of this type of portraiture.32 One of the ‘failures’ attributed to this format is the capacity of the technological innovations to capture the physicality of the sitter in sometimes unflattering and idiosyncratic detail. This is perhaps more apparent in the first carte portrait of Cockburn (Figure 1.1). His appearance is rather unkempt. His ceremonial robes are creased. The inner lining of his wig sticks out beneath the curls. Beneath his horsehair wig the camera has captured details of the fleshy undulating surface of his face; the wrinkles under his eyes; on the bridge of his nose; between his eyebrows; his fleshy jowls. The stiff collar appears to cut into his face. These features of the portrait of Cockburn in his ceremonial regalia go against the tendency of state portraiture to idealize the sitter. More specifically, bringing the untidy and

Cartes de visite of the English judiciary 51 fleshy humanity of the office holder within the frame of visibility and legibility of a state portrait is contrary to an aesthetics that emphasizes the transcendent aspects of the sitter’s institutional personae.33 Perhaps contrary to expectations, some of these ‘failings’ were also acknowledged as innovations and qualities to be exploited for their potential to make visible a break with tradition. Plunkett’s study of the English copyright records during the first ten years of production suggests that the Queen and other members of the royal household didn’t so much avoid these flawed portraits as embrace them with some enthusiasm.34 In one year alone, 1866, forty-four different cartes de visite of Queen Victoria, seventy-seven of the Prince of Wales, the heir to the throne, and seventy of Princess Alexandra of Denmark, the Prince’s young wife, were produced for sale by studios. They were all produced for mass circulation. Roger Hargreaves has estimated that between 1860 and 1862 up to four million cartes of Queen Victoria were sold to the public.35 This royal interest was closely linked with the ability of the optics of the camera to represent the idiosyncrasies of the sitter, and thereby in its capacity to humanize the subject.36 These characteristics of the format were again used as part of an initiative to modernize the representation of established institutional authority. The signs of the sitter’s humanity were an antidote to the archaic regalia of monarchy, symbols associated with aristocratic authority that were being superseded as the power of the urban bourgeoisie increased. The carte state portrait of Cockburn (Figure 1.1) brings together the highly formal style of portraiture that involves the display of antiquated symbols of legitimate authority together with a new aesthetics of realism that draws attention to the fleshy humanity of the sitter. The interweaving of regalia and veracity in the portrait provides the viewer with a new experience of the judicial sitter’s presence as an ordinary human that was difficult if not impossible to achieve via the other media available at the time. Plunkett’s study of Queen Victoria suggests that it is important to recognise that the undulating surface of the face with all its idiosyncrasies functions is a part of the symbolic assemblage that is within the frame. The veracity of the representation produces symbols that link the authenticity of the representation to the sitter’s embodiment of virtues such as openness and transparency. In the judicial carte portrait these new symbols come together with the more traditional symbols of authority and legitimacy represented by the judicial regalia. The end result is a state portrait that has significant differences. If the costume and composition of the second carte portrait of Cockburn draw the eye more readily to a break with the conventions of portraying an established authority figure by abandoning the trappings of archaic pomp and alienating rituals associated with aristocratic modes of representation, it shares in common with the first carte portrait the incorporation of the fleshy fleeting humanity of the sitter as symbols of the sitter’s status as the embodiment of legitimate authority for the bourgeois epoch. The portrait in Figure 1.2 makes visible and renders legible an assemblage of signs that can be linked to the democratizing dynamic of cartes de visite; making authority figures look more commonplace, more like the bourgeois viewer in an emerging bourgeois democracy.37

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Before leaving what lies within the frame it is also important to acknowledge the impact of the size and scale of both portraits. In general the small-scale portrait is one that had long been associated with what Lloyd describes as the commemoration of, ‘friendship, love . . . and feelings of intimacy with the absent [sitter]’.38 The size and scale of the carte portraits of Cockburn offer the viewer an intimate encounter with the sitter. The viewer potentially has a close physical relationship with the sitter; holding Cockburn close to the body, in the palm of the hand. In conjunction with the fidelity of the picture this provides an opportunity for viewers to have a novel and a more vivid experience than was possible through graphic portraits, of intimacy with and proximity to one of the highest judicial office holders in the land. Thompson describes the form of viewer interaction that is enabled by technologies such as those found in the carte as mediated quasi-interaction.39 This mediated intimacy has a potential to generate experiences and perceptions in the viewer of the transparency, openness and the truth of the authority figures that other forms of image making would struggle to achieve to the same degree. Plunkett describes the ‘insinuating and sensuous realism’40 of the carte photographic portrait that the mediated quasi-interaction generates as part of the magic, the allure, of this type of portraiture that attracted not only viewers but also sitters.41

Changing the bigger picture From this examination of what appears within the frame of these two carte portraits I want to turn to consider the impact they might have had on other forms of portraiture, particularly those that were produced and circulated via other technologies of mechanical reproduction available at the time. Is there any evidence that the distinctive features of the carte portraits examined above had an impact on the way Cockburn was portrayed in other media at the time? The short answer is ‘yes’. Evidence is to be found in the portraits of him that appear in a variety of contexts: illustrated newspapers, book illustrations and prints. The impact of the carte portraits on other portraits of Cockburn in other media appears to have been immediate. But this was not through the reproduction of the photographic portraits in other print media. The technology that enabled photographs to be included in newspapers, books, etc., did not exist at the time. The carte portraits were copied using a variety of graphic techniques. One example of this is a portrait that appeared in the Illustrated London News on 27 March 1875. A supplement to that edition includes an engraving of portrait of Cockburn that is copied from Figure 1.1. The facial expression, pose and costume are all remarkably similar. The details of his hooded upper eyelids, the wrinkles around his eyes and on the bridge of his nose are all faithfully copied. The fleshy folds of his face are plain to see. There are also some changes. The graphic portrait produced for and reproduced in the Illustrated London News has been slightly cropped. The bottom of the frame now sits just below Cockburn’s chain of office. The frame cuts closer to the top of his shoulders and head. Overall the composition is now an upper-body portrait. One effect of this is that the face now

Cartes de visite of the English judiciary 53 makes up a larger proportion of the plane of the picture; about a third of it. The compositional changes and the larger scale are important aspects shaping and enhancing the viewer’s experience of intimacy with the sitter. Other changes moderate the veracity of the photographic original. The stiff collar no longer cuts into his face. The white tabs below his chin are no longer off centre, facing to the viewer’s left, but have been centred, creating a more balanced and harmonious display of the judicial regalia. Some of the ‘failings’ of the carte portrait have been excised, enabling this portrait of Cockburn to return him to a more perfect embodiment of order. The edges of his wig have also been tided, leaving a wig that sits more neatly on his head: it more gracefully surrounds his face. The portrait’s appearance in the newspaper doesn’t seem to be connected to any surrounding story; it stands alone. However, this is not the case when the same portrait appears in a later edition of the same newspaper, published 27 November 1880. On that occasion it accompanies Cockburn’s obituary. The death of Cockburn is also the context in which I have found the same graphic portrait being used in other illustrated newspapers. One example is the edition of the Penny Illustrated, also published on the 27 November 1880. This is a poorer quality reproduction. The frame of the portrait has also been changed. In this case it has an oval frame. The effect is that this further crops the portrait. While the wig and other parts of the judicial regalia still dominate the face, again with all its flaws, the face with all its humanity on display, now makes up half the plane of the portrait. The evidence of the impact of carte portraits on other portraits of judges is not limited to the illustrated news. For example, a copy of Figure 1.1 portrait appears in a graphic representation of a triptych of judges. Cockburn occupies the centre position, flanked by portraits of two other judges, Mr Justice Mellor and Mr Justice Lush. The triptych appeared as the frontispiece to a volume, Famous Trials by John T. Morse Jr.42 Published in 1874 and made up of reports of six trials, twothirds of the book is dedicated to one case: the Tichborne claimant case.43 The frontispiece is a reference to that case; all three judges took part in the second case relating to the ‘Tichborne claimant’, a sensational criminal case. The graphic is a copy of a mount with carte portrait inserts produced by the London Stereoscopic Company. The mount includes the caption, ‘The great Tichborne case. Trial at bar Court of Queen’s Bench’. The original appears to be a standalone memento of the three judges who were involved in the second criminal case in the Tichborne claimant dispute that has been described as ‘the greatest trial in English legal history’.44 Dozens of different portraits of all the key players in these legal proceedings were made by studios for sale to the public. The London Stereoscopic and Photographic Company seem to have been particularly keen and successful in exploiting popular interest in the case.45 Last, but by no means least, there are examples of standalone graphic portraits of Cockburn that are copies of this same carte portrait. One takes the form of a chromolithograph. It is similar in its composition to the oval portrait that is found in the Penny Illustrated newspaper. But it adds a pinky grey tone to the face, using colour to enhance the reality effect of the graphic portrait.

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All of these examples illustrate the way the portrait of Cockburn in Figure 1.1 shaped other portraits of him. Is there any evidence that the informal portraits had a similar impact? The results of a Google Image search using ‘Alexander Cockburn’ again suggests that the answer to this is ‘yes’. One example taken from this search shows some similarity with the portrait in Figure 1.2. But there are also some differences. For example the use of an oval frame turns the graphic portrait into a head-and-shoulder composition. In it Cockburn has been repositioned; he sits more upright in the centre of the frame. The focus now is his head and shoulders. It shows Cockburn’s broad brow and high hairline. He is dressed in the same or similar buttoned business suit with waistcoat. Round his neck he wears a polka dot cravat tie. A monocle has been added. It emerges from inside his coat and hangs down, coming to rest on the edge of the oval frame. All the other props and furnishings have disappeared. Despite all the compositional and substantive changes there remains a remarkable similarity between the civilian carte portrait and the graphic portrait. The speed with which the new photographic image of Cockburn was translated into a form of picture that could be incorporated by other technologies into the print media, particularly the illustrated news outlets, is not surprising. One explanation for this is to be found in the address made at the opening of the Illustrated London News. One of the claims made in order to separate the Illustrated London News from graphic newspapers that preceded it is that the purpose of the newspaper was to provide a new transparency. Illustrations played a key role in achieving this, purporting to be accurate depictions of people, events and places. The illustrations were offered to the reader/viewer as the visible truth of the reality presented in the news report.46 In the absence of Cockburn sitting for a portrait that was to be produced for the newspaper, and the NPG catalogue suggests that he rarely agreed to do this, the best ready available alternative document that offered visual evidence of Cockburn was his carte portraits.47 The turn to the carte portraits of Cockburn by the illustrated press is thus perhaps not a surprise. The graphic translation harnessed the ‘visual evidence’ of the photographic carte portrait for the purposes of the news under the conditions of mechanical reproduction that were then available for the production of news.

Conclusion The case study of carte portraits of Cockburn provides an opportunity to consider the impact that the encounter between the English judiciary and the technological innovations that come together in the carte de visite had upon judicial portraits from the 1860s. Judicial portraits were not the only pictures of judges being produced during this time, the NPG collection of Cockburn pictures includes two courtroom sketches. In most courtroom sketches the judge is a marginal character; much of the attention in the tradition of courtroom sketches focuses on the accused and the people assembled in the body of the court. The two courtroom sketches of Cockburn in the NPG collection are an exception to this convention. In contrast to this judicial portraits invariably put the judge at the centre of the

Cartes de visite of the English judiciary 55 picture. This study suggests that the impact of carte de visite upon pictures that put the judge at the centre of the picture covers a spectrum ranging from little obvious impact to something much more dramatic. As a new bottle for old wine the technological innovations appear to be put to use to service a long and wellestablished aesthetic that portrays the individual sitter as the embodiment of the institution of legitimate authority. The more informal portrait of Cockburn considered (Figure 1.2), suggests that the technological innovations of cartes were also harnessed to already existing changes that were taking place in the symbols that were being used to symbolize legitimate authority in changing social and political times. Authority under the conditions of the rising power of the bourgeoisie and an emerging democracy had already adopted a different set of symbols that are reproduced in the carte format. However, the veracity of images produced through the camera optics used in the making of carte portraits not only revalued and widened the availability of a whole new set of signs of the humanity and authenticity of the sitter, but through cartes they were connected to portraits of the holders of high judicial office. Thereby symbols of authenticity, humanity, openness and transparency were incorporated into the symbolic assemblage that is the surface of judicial portraiture. The seductive charm of cartes worked on judicial sitters. Evidence of this is to be found not only in the number of different portraits of Cockburn but also in the multiple carte portraits of other judges that can be found in a variety of archives today. Their seductive charm also worked on a variety of audiences who commissioned and bought judicial cartes, and who arranged these in album collections. While the frenzy of production and consumption of this particular type of picture was relatively short-lived, its legacy had a longer duration. First, it forever changed access to photography. Judges were some of the early users of this new type of picture because they had access to sufficient disposable income to commission their own pictures. They were also sufficiently in the public eye for studios to offer to make photographic images of them for later sale. The carte portraits studied here represent the start of a yet unbroken practice of photographic pictures of judges that continues in the age of digital photography. Second, the evidence presented here suggests that cartes also impacted upon portraits made by other means. Graphic artists sought to emulate the veracity of the photographic portrait in the portraits they produced and did so by copying carte portraits. They provided easy access to the visible evidence of senior judicial figures that could meet the demands of illustrated newspapers. It may be the case that Cockburn is something of an exception in terms of the number of portraits that were made of him and in the variety of formats used to make and circulate his portrait. One factor might be the length of time he held high judicial office – over twenty-five years. Another factor might be his own interest in the media and his public image. His obituary in The Spectator includes the comment, ‘he had a weakness for sensational cases’.48 This may well have ensured that his media profile was distinctive. His involvement in the Tichborne claimant case and that case’s profile in the media is certainly some evidence that he had an exceptional media presence at the time the portraits considered here

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were being made and circulated. But he was certainly not the only judge in a senior position who made us of carte portraits. A search of the archives used in the production of this article revealed many other examples. Nor was his the only carte that appears to have shaped judicial portraits in other mass media outlets. Picture searches reveal that the translation of Cockburn’s carte portraits into graphic portraits used in other media was not unique to him. The findings generated by way of this case study are indicative of more general developments that impacted upon the production and circulation of judicial images more generally. The changes this chapter explores continue to shape our experience of judges in and through visual culture today.

Notes 1 R. Teukolsky, ‘Cartomania: Sensation, Celebrity, and the Democratized Portrait’, Victorian Studies 57:3 (2015), pp. 462–475. 2 S.B. Beal, Carte de Visite Portraits of the Royal Family Eminent and Celebrated Persons (London: Victoria and Albert Museum, 1866). 3 For example the National Portrait Gallery has a collection of thirty-four portraits of Roundell Palmer, 1st Earl of Selborne, who held the office of Lord Chancellor in the 1870s. Twelve of these images are carte de visite portraits. See ‘Roundell Palmer, 1st Earl of Selborne (1812–1895), Lord Chancellor; lawyer’, www.npg.org.uk/collections/ search/person?LinkID=mp04030&wPage=1 [Accessed 26 January 2018]. Of the gallery’s nine portraits of Mr Justice William Baliol Brett, who was a judge in the Court of Common Pleas, three are carte de visite portraits. See ‘William Baliol Brett, 1st Viscount Esher (1815–1899), Judge’, www.npg.org.uk/collections/search/person/mp86064/ william-baliol-brett-1st-viscount-esher [Accessed 26 January 2018]. 4 See L.J. Moran, ‘Carte de Visite: Photography, Mass Media and the Production and Consumption of Judicial Pictures’, International Journal of Law in Context (forthcoming 2018). 5 See ‘Sir Alexander James Edmund Cockburn, 12th Bt (1802–1880), Judge’, www.npg.org. uk/collections/search/person/mp00944/sir-alexander-james-edmund-cockburn-12th-bt [Accessed 26 January 2018]. 6 The London Stereoscopic and Photographic Company was one of the thirty-five studios on Regent Street. It also had a base in the City of London, on Cheapside. For more on the studio’s locations see L.J. Moran, ‘Carte de Visite of “The Lord Chief Justice of England” (Sir Alexander James Edmund Cockburn, 12th Baronet) by London Stereoscopic and Photographic Company. Circa 1873’, Northern Ireland Legal Quarterly 68:3 (2017), pp. 245–257. 7 Pellegrini was a regular contributor to the magazine. The National Portrait Gallery has a collection of 482 portraits by this particular artist. See ‘Carlo Pellegrini (1839– 1889), “Ape”; caricaturist’, www.npg.org.uk/collections/search/person/mp03493/carlopellegrini?role=art [Accessed 26 January 2018]. 8 Anon. The Great Tichborne Trial, ca. 1874 / The London Stereoscopic & Photographic Company. State Library of New South Wales Sydney, Australia, http://archival.sl.nsw. gov.au/Details/archive/110337279 [Accessed 26 January 2018]. 9 Anon., Tichborne Justices, Center for the History of Medicine: OnView, Harvard Medical School, Harvard University, New Haven, https://collections.countway.harvard. edu/onview/items/show/13096 [Accessed 23 January 2018]. 10 A similar portrait of Cockburn dating from the same period (this time in the larger cabinet card format) with an institutional caption can be seen in the National Portrait Gallery’s collection. See Alexander Bassano, Sir Alexander James Edmund Cockburn,

Cartes de visite of the English judiciary 57

11 12

13 14 15 16 17 18 19 20

21 22

23 24 25 26

12th Bt, albumen cabinet card, 1875–1880, 6 5/8 in. × 4 1/4 in. (167 mm × 109 mm) overall, National Portrait Gallery, London, www.npg.org.uk/collections/search/portrait/ mw249766/Sir-Alexander-James-Edmund-Cockburn-12th-Bt?LinkID=mp00944&role= sit&rNo=6 [Accessed 26 January 2018]. The other carte portrait in which he is shown in civilian dress is a cameo portrait that shows little more than his head. There is no caption. See Hennah and Kent, Sir Alexander James Edmund Cockburn, 12th Bt, albumen carte-de-visite, 1860s, 3 1/2 in. × 2 1/4 in. (90 mm × 56 mm) image size National Portrait Gallery, London, www.npg.org.uk/collections/search/portrait/mw178952/ Sir-Alexander-James-Edmund-Cockburn-12th-Bt?LinkID=mp00944&role=sit&r No=1 [Accessed 26 January 2018]. The studio on Baker Street in central London opened in 1863. D.C. Stulik and A. Capman, Albumen: The Atlas of Analytical Signatures of Photographic Processes (Los Angeles: Getty Conservation Institute, 2013), www.getty.edu/ conservation/publications_resources/pdf_publications/atlas.html [Accessed 26 January 2018]. E.A. McCauley, A.A.E. Disdéri and the Carte de Visite Portrait (New Haven: Yale University Press, 1985). L. Perry, ‘The Carte de Visite in the 1860s and the Serial Dynamic of Photographic Likeness’, Art History 35:4 (2012), pp. 728–749. J. Plunkett, ‘Celebrity and Community: The Poetics of the Carte-de visite’, Journal of Victorian Culture 8:1 (2003), pp. 55–79. O. Matthews, The Album of Carte de Visité and Cabinet Photography 1854–1914 (London: Reedminster Publications Ltd, 1974), p. 29. W.C. Darrah, Carte de Visite in Nineteenth Century Photography (Gettysburgh: Darrah, 1981), p. 4. Perry, ‘The Carte de Visite in the 1860s’, p. 738. J. Hacking, ‘Camille Silvy’s Repertory: The Carte-de-Visite and the London Theatre’, Art History 5 (2010), pp. 856–885 (p. 871). R. Hargreaves, ‘Putting Faces to the Names: Social and Celebrity Portrait Photography’, in The Beautiful and the Damned: The Creation of Identity in the Nineteenth Century, ed. by P. Hamilton and R. Hargreaves (London: Lund Humphries in association with the National Portrait Gallery, 2001), pp. 17–56 (p. 43). See also Moran, ‘Carte de Visite of “The Lord Chief Justice of England”’. Moran, ‘Carte de Visite: Photography, Mass Media. . .’. The long title of the book outlining his approach, published in 1769, highlights the importance Granger gave to the role of system in the organization of portraits and thereby in the use of portraits and the production of their meaning. See J. Granger, A Biographical History of England From Egbert the Great the Revolution: Consisting of Characters Disposed in Different Classes and Adapted to a Methodical Catalogue of Engraved British Head Intended as an Essay Towards Reducing Biography to System, and a Help to the Knowledge of Portraits, With a Preface Showing the Utility of a Collection of Engraved Portraits to Supply the Defect and Answer the Various Purposes of Medals (London: Printed for T. Davies, in Russell Street, Covent Garden, 1769). The system is basically one of classification dedicated to the formation and display of sitters identified as the embodiment of legitimate institutional and established social hierarchies. See also Marcia Pointon, Hanging the Head: Portraiture and Social Formation in Eighteenth-Century England (New Haven: Yale University Press, 1993), p. 54. See McCauley, A.A.E. Disdéri, and G. Batchen, ‘Dreaming of Ordinary Life: Carte de Visite and the Bourgeois Imagination’, in Photography: Theoretical Snapshots, ed. by J. Long, A. Noble and E. Welch (Abingdon: Routledge, 2009), pp. 80–97. Perry, ‘The Carte de Visite in the 1860s’, p. 738. Moran, ‘Carte de Visite: Photography, Mass Media . . . ’. L.J. Moran, ‘Imagining the Judge: Fragments of a Study of Judicial Portraiture’, in Legal Staging: Visualisation – Mediatisation – Ritualisation: Legal Communication

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27 28 29 30 31

32 33 34 35 36 37 38

39 40 41 42 43 44 45

46 47 48

Leslie J. Moran Through Language, Literature, Media, Art and Architecture, ed. by Ǎ. Modéer and M. Sunnqvist (Copenhagen: Copenhagen University Press, 2012), pp. 205–236. L.J. Moran, ‘Judging Pictures: A Case Study of Portraits of the Chief Justices Supreme Court New South Wales’, International Journal of Law in Context 5:3 (2009), pp. 61–80. One example is to be found in Album 2 in the Lincoln’s Inn Collection. Another example is in the National Portrait Gallery’s collection of Cockburn portraits. J. Plunkett, Queen Victoria; First Media Monarch (Oxford: Oxford University Press, 2003), pp. 68–109. Perry, ‘The Carte de Visite in the 1860s’, p. 729. For example see J.J. Zoffany, George III, Queen Charlotte and Their Six Eldest Children, 1770, Oil on canvas, 104.9 × 127.4 cm (support, canvas/panel/str external), RCIN 400501, www.royalcollection.org.uk/collection/400501/george-iii-1738-1820-queencharlotte-1744-1818-and-their-six-eldest-children [Accessed 26 January 2018]. Perry, ‘The Carte de Visite in the 1860s’, p. 730. The lower production values and cheaper materials (paper and card) of carte portraiture are another dimension of their ‘failure’. Plunkett, ‘Celebrity and Community’. Hargreaves, ‘Putting Faces to the Names’. Plunkett, ‘Celebrity and Community’, p. 68. Perry, ‘The Carte de Visite in the 1860s’. S. Lloyd, ‘Intimate Viewing: The Private Face and Public Display of Portraits in Miniature and on Paper’, in The Intimate Portrait: Drawings, Miniatures and Pastels From Ramsay to Lawrence, ed. by S. Lloyd and K. Sloan (Edinburgh: National Galleries of Scotland and the British Museum, 2009), p. 18. J. Thompson, The Media and Modernity (Cambridge: Blackwell Publishers Ltd, 1995). Plunkett, Queen Victoria, p. 145. Plunkett, ‘Celebrity and Community’, p. 45. J.T. Morse Jr., Famous Trials (Boston: Little, Brown and Company, 1874). Anon., ‘Famous Trials By John T. Morse’, The North American Review 119 (1874), pp. 247–249. R. McWilliam, The Tichborne Claimant: A Victorian Sensation (London: Continuum, 2007). Jennifer Tucker’s work explores the ways in which the Tichborne case had a dramatic and wide-ranging impact on visual culture in general, and the position of photography in society more specifically. See J. Tucker, ‘Moving Pictures: Photographs on Trial in the Sir Roger Tichborne Affair’, in Documenting the World: Film, Photography, and the Scientific Record, ed. by G. Mitman and K. Wilder (Chicago: University of Chicago Press, 2016), pp. 23–44. C. Fox, Graphic Journalism in England During the 1830s and 1840s (New York: Garland Publishing Inc., 1988), p. 269. As Tucker notes, the documentary nature of photography was both well established by the 1870s but also contested, especially in the courts. See Tucker, ‘Moving Pictures’, pp. 36–37. ‘Sir Alexander Cockburn’, The Spectator, 27 November 1880.

Images cited Anon. ‘The Great Tichborne Trial, ca. 1874’, The London Stereoscopic & Photographic Company. State Library of New South Wales Sydney, Australia, http://archival.sl.nsw. gov.au/Details/archive/110337279 [Accessed 26 January 2018]. Anon. ‘Tichborne Justices, Center for the History of Medicine: OnView’, Harvard Medical School, Harvard University, New Haven, https://collections.countway.harvard.edu/ onview/items/show/13096 [Accessed 23 January 2018].

Cartes de visite of the English judiciary 59 Bassano, ‘Sir Alexander James Edmund Cockburn, 12th Bt’, albumen cabinet card, 1875– 1880, 6 5/8 in. × 4 1/4 in. (167 mm × 109 mm) overall, National Portrait Gallery, London, www.npg.org.uk/collections/search/portrait/mw249766/Sir-Alexander-James-EdmundCockburn-12th-Bt?LinkID=mp00944&role=sit&rNo=6 [Accessed 26 January 2018]. ‘Carlo Pellegrini (1839–1889), “Ape”; caricaturist’, National Portrait Gallery, London, www.npg.org.uk/collections/search/person/mp03493/carlo-pellegrini?role=art [Accessed 26 January 2018]. Hennah & Kent, ‘Sir Alexander James Edmund Cockburn, 12th Bt’, albumen carte-devisite, 1860s, 3 1/2 in. × 2 1/4 in. (90 mm × 56 mm) image size National Portrait Gallery, London, www.npg.org.uk/collections/search/portrait/mw178952/Sir-Alexander-JamesEdmund-Cockburn-12th-Bt?LinkID=mp00944&role=sit&rNo=1 [Accessed 26 January 2018]. Lincoln’s Inn Collection, Album 2. ‘Roundell Palmer, 1st Earl of Selborne (1812–1895), Lord Chancellor; lawyer’, National Portrait Gallery, London, www.npg.org.uk/collections/search/person?LinkID=mp040 30&wPage=1 [Accessed 26 January 2018]. ‘Sir Alexander James Edmund Cockburn, 12th Bt (1802–1880), Judge’, National Portrait Gallery, London, www.npg.org.uk/collections/search/person/mp00944/sir-alexanderjames-edmund-cockburn-12th-bt [Accessed 26 January 2018]. ‘William Baliol Brett, 1st Viscount Esher (1815–1899), Judge’, National Portrait Gallery, London, www.npg.org.uk/collections/search/person/mp86064/william-baliol-brett-1stviscount-esher [Accessed 26 January 2018]. Zoffany, J.J. ‘George III, Queen Charlotte and their Six Eldest Children’, Royal Collection Trust, 1770, www.royalcollection.org.uk/collection/400501/george-iii-1738-1820queen-charlotte-1744-1818-and-their-six-eldest-children [Accessed 26 January 2018].

Bibliography Anon. ‘Famous Trials By John T. Morse’, The North American Review 119:244 (1874), pp. 247–249. Batchen, G. ‘Dreaming of Ordinary Life: Carte de Visite and the Bourgeois Imagination’, in Photography: Theoretical Snapshots, ed. by J. Long, A. Noble and E. Welch (Abingdon: Routledge, 2009), pp. 80–97. Beal, S.B. Carte de Visite Portraits of the Royal Family Eminent and Celebrated Persons (London: Victoria and Albert Museum, 1866). Darrah, W.C. Carte de Visite in Nineteenth Century Photography (Gettysburgh: Darrah, 1981). Fox, C. Graphic Journalism in England During the 1830s and 1840s (New York, NY and London: Garland, 1988). Granger, J. A Biographical History of England From Egbert the Great the Revolution: Consisting of Characters Disposed in Different Classes and Adapted to a Methodical Catalogue of Engraved British Head Intended as an Essay Towards Reducing Biography to System, and a Help to the knowledge of Portraits, With a Preface Showing the Utility of a Collection of Engraved Portraits to Supply the Defect and Answer the Various Purposes of Medals (London: Printed for T. Davies, in Russell Street, Covent Garden, 1769) Hacking, J. ‘Camille Silvy’s Repertory: The Carte-de-Visite and the London Theatre’, Art History 5 (2010), pp. 856–885. Hargreaves, R. ‘Putting Faces to the Names: Social and Celebrity Portrait Photography’ in The Beautiful and the Damned: The Creation of Identity in the Nineteenth Century, ed.

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by P. Hamilton and R. Hargreaves (London: Lund Humphries in association with the National Portrait Gallery, 2001). Lloyd, S. ‘Intimate Viewing: The Private Face and Public Display of Portraits in Miniature and on Paper’, in The Intimate Portrait: Drawings, Miniatures, and Pastels From Ramsay to Lawrence, ed. by S. Lloyd and K. Sloan (Edinburgh: National Galleries of Scotland and the British Museum, 2009). Matthews, O. The Album of Carte de Visité and Cabinet Photography 1854–1914 (London: Reedminster, 1974). McCauley, E.A. A.A.E. Disdéri and the Carte de Visite Portrait (New Haven: Yale University Press, 1985). McWilliam, R. The Tichborne Claimant: A Victorian Sensation (London: Continuum, 2007). Moran, L.J. ‘Carte de Visite of “The Lord Chief Justice of England” (Sir Alexander James Edmund Cockburn, 12th Baronet) By London Stereoscopic and Photographic Company. Circa 1873’, Northern Ireland Legal Quarterly 68:3 (2017), pp. 245–257. Moran, L.J. ‘Carte de Visite; Photography, Mass Media and the Production and Consumption of Judicial Pictures’, International Journal of Law in Context (forthcoming 2018). Moran, L.J. ‘Imagining the Judge: Fragments of a Study of Judicial Portraiture’, in Legal Staging: Visualisation – Mediatisation – Ritualisation: Legal Communication Through Language, Literature, Media, Art and Architecture, ed. by Ǎ. Modéer and M. Sunnqvist (Copenhagen: Copenhagen University Press, 2012), pp. 205–236. Moran, L.J. ‘Judging Pictures: A Case Study of Portraits of the Chief Justices Supreme Court New South Wales’, International Journal of Law in Context 5:3 (2009), pp. 61–80. Morse Jr., J.T. Famous Trials (Boston: Little, Brown and Company, 1874). Perry, L. ‘The Carte de Visite in the 1860s and the Serial Dynamic of Photographic Likeness’, Art History 35:4 (2012), pp. 728–749. Plunkett, J. ‘Celebrity and Community: The Poetics of the Carte-de visite’, Journal of Victorian Culture 8:1 (2003), pp. 55–79. Plunkett, J. Queen Victoria: First Media Monarch (Oxford: Oxford University Press, 2003). Pointon, M. Hanging the Head: Portraiture and Social Formation in Eighteenth-Century England (New Haven: Yale University Press, 1993). ‘Sir Alexander Cockburn’, The Spectator, 27 November 1880. Stulik, D.C. and Art Capman. Albumen: The Atlas of Analytical Signatures of Photographic Processes (Los Angeles: Getty Conservation Institute, 2013). Teukolsky, R. ‘Cartomania: Sensation, Celebrity, and the Democratized Portrait’, Victorian Studies 57:3 (2015), pp. 462–475. Thompson, J. The Media and Modernity (Cambridge: Blackwell, 1995). Tucker, J. ‘Moving Pictures: Photographs on Trial in the Sir Roger Tichborne Affair’, in Documenting the World: Film, Photography, and the Scientific Record, ed. by G. Mitman and K. Wilder (Chicago: University of Chicago Press, 2016), pp. 23–44.

2

Sir Redmond Barry and the trial of Ned Kelly Representing the judge and judgment in nineteenth-century Australia Alice Richardson

Introduction In 1880, in Melbourne, Victoria, the Irish-born judge Sir Redmond Barry (1813– 1880) sentenced the outlaw Ned Kelly to death. Kelly would become an Australian icon. This chapter studies Barry’s early status as a figure of wise judgment, through images in the Australian press, before outlining the ways in which the judge was transformed in the twentieth century into a figure of bad judgment. This transformation was shaped by published accounts sympathetic towards Kelly as a ‘folk hero’ wronged by the police and judiciary, and expressed through the medium of film and art, including paintings by Sidney Nolan. Laura Basu has developed the concept of memory dispositif to convey a sense of the strategic use of memory over time: Barry’s role was critical to various rememberings of Kelly.1 Drawing on my extensive research on the treatment of the Kelly trial in law, folklore, works of dramatic fiction and cinema, this chapter is concerned not so much with the ‘real’ Sir Redmond Barry (whose reputation has been defended in a biography by Peter Ryan),2 as it is with the textual and visual representations of the judge and his judgment – the changing characterization – in the decades following Kelly’s execution in Old Melbourne Gaol in the morning of 11 November 1880. It seeks to explain how and why Barry has become the villain of the modern Kelly myth and to show that Barry’s early representations were more favourable.

Barry and the modern Kelly myth Today, Barry’s memory is dominated by Ned Kelly. According to fiction and inaccurate histories, Barry was an unjust judge who harshly sentenced Kelly’s mother, Ellen, for the attempted murder of a policeman. Modern myth has it that Ellen Kelly hit the policeman with a fire shovel to protect her daughter from his drunken advances. When the policeman pulled out a revolver, Kelly protected his family by shooting the policeman in the wrist. Kelly was not present at his mother’s trial, and Barry remarked, ‘If Kelly were here, I would have sentenced him to 15 years’.3 When Barry sentenced Ellen to three years’ imprisonment, without allowing her to care for her newborn, many considered Barry was too harsh. Peter Carey’s famous novel True History of the Kelly Gang (2000), would have Ned

62 Alice Richardson Kelly describe the judge like ‘a great fat leech hiding in the bracken its only purpose to suck the living blood’, spurning Kelly’s offer of surrender in return for his mother’s release.4 Barry’s actions were the catalyst for Kelly’s outlawry. Within two weeks of Ellen’s trial, four policemen went to Stringybark Creek to find where he was hiding. Kelly and his accomplices found them first, and shot three of them, however one escaped. Kelly had heard the police were out to kill him so he acted in self-defence. The authorities, however, believed it was cold-blooded murder and Kelly was outlawed, which allowed him to be shot on sight without trial and for his family and friends to be locked up without trial, on repeated remands. Barry presided over some of the court cases relating to the imprisonment of Kelly sympathizers.5 Kelly and his gang were on the run for two years. In that time, they robbed two banks, killed a police informant and tried to derail a police train. After being captured in a dramatic shootout wearing his famous armour, Kelly was tried by Barry for the murder of one of the policemen at Stringybark Creek. Barry orchestrated the trial outcome: ruling as inadmissible Kelly’s ‘Jerilderie’ letter, so the jury did not know Kelly acted in self-defence.6 He misdirected the jury so that the lesser charge of manslaughter could not be considered.7 By only allowing the options of murder or acquittal, a sentence of death was inevitable. Barry and Kelly had a heated debate during sentencing, with Kelly telling Barry, ‘we shall all go to a bigger court than this’ and ‘I will see you there, where I go’. The words were a curse, as soon after Kelly was put to death by hanging, Barry died (supposedly from a carbuncle on the neck).8 Barry’s last barbaric order before expiring was to have Kelly’s corpse given over to phrenologists.9 Despite a priest’s protests, Kelly was buried in unconsecrated prison grounds.10 His skull is missing to this day. Such is the Barry of modern myth. It misinterprets history: Barry did not threaten Ned Kelly with a fifteen-year sentence.11 Nor did Kelly say he would meet Barry at a ‘higher’ court (this remark was directed at the witnesses Kelly perceived to be liars).12 Kelly said ‘I will see you there’ to others, including Kelly’s sister, but those interactions were not considered a curse.13 Barry had been ill before Kelly’s trial, so his death was not a prophecy fulfilled.14 Barry did not object to the admissibility of the ‘Jerilderie’ letter or misdirect the jury.15 He had no offer from Kelly for his mother to be freed in exchange for him.16 His reputation as a hanging judge is unsupported by death penalty statistics.17 And he was not involved in decisions about the scientific study of Kelly’s corpse. Barry’s characterization is complex. He is the unjust judge who killed Ned Kelly as well as a founder of Australia’s cultural, artistic and intellectual hub in Melbourne. He is a historical figure, with multiple and competing characterizations constructed and developed over time. The leading memory studies scholar Pierre Nora argues that because we cannot live within ‘true’ memory, this is constructed through various genres and mediums like ballads, movies, news articles and artworks.18 Memory is inherently distanced and externalized. Ann Rigney has said that ‘memorial layers’ are often created to concentrate or conflate memories.19 Barry’s memory extends beyond his own judicial role: it has been conflated

Sir Redmond Barry and the trial of Ned Kelly 63 to encompass official oppression and judicial persecution in general. One method for this conflation is to ascribe to Barry the actions of other historical characters, for example: a police magistrate’s rejection of Kelly’s offer to exchange himself for his mother’s freedom;20 the biased words of a police magistrate at Kelly’s committal hearing;21 authorizing Kelly’s cadaver to be used for phrenology;22 and the barrister’s objection to the admissibility of the Jerilderie letter and decision not to present self-defence to the jury. Rigney does not draw a distinction between ‘real’ and ‘false’ memory. Changes in Barry’s characterization, though shaped by fictional and non-fictional genres, are not false or unnatural, to follow her interpretation. The use of genres and media is simply the order of the day.23 Rigney describes memory as a ‘self-perpetuating vortex of symbolic investment’.24 Despite having stability at the core, there is a conflation and layering of memories, so that memory is constantly remade and adapted. Basu’s memory dispositif highlights the strategic and historical aspects of a historical figure’s memory, which cause the relations composing the memory to change (sometimes unpredictably) over time. The formation of a dispositif has a dominant strategic function: ‘at a given historical moment of responding to an urgent need’.25 For example, the emergence in Barry’s ‘memory’ of injustice during Kelly’s trial fulfilled the function of discrediting capital punishment at a time of legislative and social change in Australia in the second half of the twentieth century. To understand the workings of Barry’s ‘memory’ we could explore its nature chronologically or look at individual elements (‘lines’). Various lines invent and reshape identities in the figure of Barry. Since Barry is one side of a coin that has Kelly on the other side, Barry’s memory includes a tangle of lines relating to and moving in reaction to changes in Kelly’s identities, linked to Australian identity and its interaction with traditions of social banditry. Barry and Kelly represent conflicting attitudes, points of view, values and ideals. Arguably, it is because of this interaction that their memories have endured for so long. Barry represents a commitment to cultural and intellectual advancement, and judicial authority. He also represents elitism, pomposity, retributive justice and upper-class dominance. De Serville has commented that Barry and Kelly represent in a way ‘almost too symmetrical for comfort . . . not just the two faces of Ireland (Ascendancy and Catholic) but two of the faces of Australia’. Barry represents ‘the civilised gentleman, who worked all his life to advance the spiritual and cultural state of the colony; and Kelly, the resourceful larrikin bushman, who lived for the day and bequeathed the colony a bitter legend’.26 Studying myth and legend in Britain, Stephanie Barczewski notes, because they are rarely unanimous on what the ideal image of the nation should be, its inhabitants are rarely unanimous on what constitutes a hero . . . there is always plenty of room for more than one type of national hero in a particular community at a particular time.27 Barczewski’s observation that national identity is contested and constantly evolving is useful in understanding the dynamic between Barry’s memory and Kelly’s

64 Alice Richardson memory. Like King John and Robin Hood, Barry and Kelly are diametrically opposed – one representing authority, the other representing resistance. To understand why Barry’s memory is conflated to represent unjust authority in general, we must turn to Eric Hobsbawm.28 For Hobsbawm, a ‘social bandit’ is no mere criminal, but a special type that rebels against authority on behalf of a community of supporters. Outlawed by the state, social bandits remain within peasant society to be ‘considered by their people as heroes, as champions, avengers, fighters for justice, perhaps even leaders of liberation’.29 I am not concerned here with whether Kelly was actually a social bandit, a debate addressed by others.30 The key point is that social banditry is a cultural tradition that can ‘transform criminal rogues into noble heroes’.31 The ‘reality of the social bandit’s life becomes unimportant as legend and folklore take over’.32 Some representations redefine Barry and Kelly in ways that strongly correspond with the concept of social banditry, amending the historical story and playing with the facts so that Kelly is reinvented as a social bandit and Barry is reinvented as the unjust authority that the bandit rebels against. Fantasy and imagination are used to rewrite Barry into the tradition of other invented villains, such as the Sheriff of Nottingham, the foe of Robin Hood.33 The layers of Barry’s memory relating to Kelly have become more prominent than other layers such as Barry’s cultural and academic contributions. Moreover, those layers of memory have been conflated so that he is seen to represent not merely his small role in sentencing Kelly, but unjust authority and judicial persecution in general. The strategic purpose (to use Foucault’s wording) is to give Ned Kelly an unjust authority to rebel against. Kelly cannot be a resistance figure against unjust authority without an unjust authority to rebel against.34

Early representations of Barry My sources fall into two groups: early representations which characterize Barry as a figure of good judgment, and later representations characterizing him as the opposite. Early representations established a point of influence and comparison for later ones. I start by considering press illustrations. The first visual depiction of the trial was ‘The Kelly Trial – Scene in Court’, an engraving in Illustrated Australian News (published in Melbourne, Victoria, Saturday, 6 November 1880, on page 201, with the front of the issue being page 193). On the left is Barry, elevated over the court on his large judicial chair placed on a raised judicial bench. The side view of the court emphasizes Barry’s full-bottomed wig and judicial robes. Although there is an attempt to create a likeness, the face in profile does not greatly resemble photographs of Barry so that we might now see this as a symbolic judicial figure complete with a facial expression that perhaps suggests impartiality (Figure 2.1 is the engraving as reprinted in an Adelaide newspaper). Kelly stands in the dock at the back. Kelly and the lawyers look at Barry with quiet reverence, there is no defiance – it will be seen that this is quite different to later trial representations. Overall, it is a standard depiction of court proceedings. Accompanying the image, the News provided a lengthy account of what happened

Sir Redmond Barry and the trial of Ned Kelly 65

Figure 2.1 ‘Scene at the Trial of Ned Kelly, Supreme Court, Melbourne’, Frearson’s Monthly Illustrated Adelaide News, December 1880, p. 189. Source: National Library of Australia, PIC Drawer 3656#15726 / nla.oj-138289008.

in court and commented that ‘trial by jury was a mere formality’ and that ‘no judge could hold the scales of justice more evenly, and with so much impartiality, as his Honour Mr Justice Barry’.35 In another illustration from the Melbourne press on the same day, ‘The Trial of Edward Kelly, the Bushranger’, in The Australasian Sketcher with Pen and Pencil, counsel makes submissions as Kelly leans over the dock to listen (Figure 2.2). The scene provides no close-up of Kelly. An unsympathetic portrayal of Kelly, the engraving shows the trial in a procedural manner, with the relevant actors present and undertaking their respective roles during the time of judgment. The large canopy surrounding the judicial bench dominates the scene and symbolizes Barry’s power. From our perspective, the judge’s official costume, including the wig, emphasizes the man’s seniority and authority. The artist chose to bathe Barry in light (presumably from a window high up in the courtroom), perhaps for artistic reasons, but Kelly is rendered in shadow. This scene might therefore be thought to depict a good judge and an evil bushranger: although it should be noted that Kelly’s bearded face, as he leans over, is illuminated. Again, the illustration does not resemble photographic images of Barry, so this is a generic image of a judge. Kelly appears with a dishevelled beard and a twisted, dark coat. Like other press illustrations, Kelly is shown as ‘rough, unseemly, uncut’.36 Stock characters are

Figure 2.2 ‘The Trial of Edward Kelly, the Bushranger’, The Australasian Sketcher with Pen and Pencil (Melbourne), November 1880, p. 289. Source: National Library of Australia.

Sir Redmond Barry and the trial of Ned Kelly 67 an important aspect of press illustrations, reflecting sharp deadlines for the illustrators (and engravers) of weekly papers.37 Barry appears as a generic judge, and Kelly is portrayed as a typical bushman, older than he actually was, and therefore ‘less innocent and less victimised’.38 Accuracy or creating a likeness was not the priority in illustrating Kelly’s trial. A week after Kelly’s execution, the subtitle of Melbourne Punch’s cartoon, on 18 November 1880, presents ‘the unerring arm of justice’ (Figure 2.3). In the illustration by Thomas Carrington, a large arm in police uniform is shown. Police are known as the ‘arms’ of the state and judges are known as the ‘hands’ of the state, so this is a visual pun: representing the law’s long arm delivering Kelly to Judge Barry.39 The hand is shown strongly gripped around Kelly’s body (the superintendent of Victorian police, Francis Augustus Hare’s account, The Last of the Bushrangers: An Account of the Capture of the Kelly Gang, 1895, ends with the assertion that ‘crime will be followed up and down with a determined hand’;40 and Kelly remarked in a famous newspaper interview before his trial ‘let the hand of the law strike me down if it will’).41 An ominous gallow’s shadow is cast below Kelly’s feet. Again, Kelly is shown as an old bushman – a hardened criminal rather than a young man in his twenties. Kelly’s ‘face is contorted in rage and disbelief’.42 In the background, the ‘arm of justice’ weaves snakelike across the countryside of Victoria, from a point marked ‘Wombat’, referring to the Wombat Ranges, the location of the Stringybark Creek shootings. Three corpses represent the policemen shot by Kelly: Constables Lonigan and Scanlan, and Sergeant Kennedy. Lonigan’s death was the subject of Kelly’s murder trial. The arm of justice goes past the locations of Kelly’s other crimes. ‘Jerilderie’ and ‘Euroa’, mark where Kelly robbed banks, ‘Beechworth’, where a member of his gang killed a police informant (represented by a single corpse), as well as ‘Glenrowan’ where Kelly attempted to derail the police train. A siege at the Jones’ Hotel is represented by a charred building and corpse. Kelly had taken hostages, the police from the train surrounded it, and eventually burned the hotel down while Kelly’s accomplices were inside. Only Kelly was captured and tried, after making a ‘final stand’ in his famous armour. The ‘arm of justice’ finishes at the shadow of the gallows, in the bottom right (or south east), thus representing Melbourne, the capital city of Victoria and the location of Kelly’s trial. Ian Jones suggests that Carrington, in his full-page ‘cut’ for Punch (unaccompanied by any paragraph description) was ‘helping purge the demon from all their imaginations; convincing all of them – even himself – that the law had triumphed; that Ned Kelly was dead’.43 The Age wrote it was ‘a great act of public justice’ that Kelly received the death sentence ‘for his numerous deeds of bloodshed and violence’.44 Capital punishment was then entrenched in the minds of the ruling elite in that jurisdiction, with execution rates higher than in the other Australian colonies.45 As Plater and Crofts argue, the penalty was central to ‘asserting and enforcing the authority of the government. In dealing with bushrangers, the Government was not just putting down cutthroats. It was proving that it was in fact the Government’.46 The novelette Ned Kelly the Ironclad Australian Bushranger (1881) used the name ‘Judge Lynch’ for its hanging judge character.47 A biography of Barry,

68 Alice Richardson

Figure 2.3 Thomas Carrington, ‘Sooner or Later’, Melbourne Punch, 18 November 1880, p. 5. Source: National Library of Australia.

published soon after his death in 1880, opined Barry ‘had the reputation of being a severe Judge . . . [and] did not hesitate to inflict severe sentences’. But it also said the report of the proceedings ‘showed how, even to an outlaw whose hands were imbrued with the blood of an offending victims, he was prepared to allow

Sir Redmond Barry and the trial of Ned Kelly 69 consideration far beyond his deserts’.48 The first images of the Kelly trial appear to represent a standard and even ‘just’ trial. The Illustrated Australian News depicted Barry as a revered judge, the second illustration had Barry symbolically surrounded by light and in the third ‘cartoon’ commentary on the trial, justice was represented grasping Kelly in an ‘unerring act’, which we might take to include a comment on Barry’s role. These early representations, constructing Barry as the virtuous judge who sentenced a villain to death, followed the attitudes expressed in printed texts from the time of the trial: that Barry was a man of good judgment. Barry had appeared in the press, including in biographical items with illustrations, before the Kelly trial, of course, including featuring in a series of portraits on prominent Victorian colonists in the Melbourne Leader (17 November 1872). The Melbourne Punch published humorous images lightly satirizing Barry’s selfaggrandizement and pomposity, with Barry as Napoleon; as circus performer on horseback, changing clothes between Chancellor’s robes, judicial robes, Captain’s uniform and Commissioner’s clothing; and a fictitious coat of arms with the words ‘Dieu et Mon Barry’ and ‘Barry come up’, with a unicorn and a lion facing away from Barry’s face in the centre.49 The images poked fun but were not hostile, as their intention was to humanize this senior colonist. Barry was known for establishing Victoria’s art gallery, public library, university and numerous other cultural and academic institutions. Cutting down ‘tall poppies’ was a favourite past time of the Melbourne Punch. Contemporary accounts of Barry were made by Edmund Finn (writing as ‘Garryowen’) of The Chronicles of Early Melbourne (1888), as well as the writerschoolmaster, Alexander Sutherland, who graduated from the University of Melbourne in 1874, while Barry was Chancellor. Sutherland wrote a long appreciation of Barry in the Melbourne Review for 1882: ‘The dearest object of his life was to see the community which he had adopted as his own, exalted and refined by all the culture that literature, science and art can afford’.50 Finn wrote that Barry’s ‘name was destined to be written on one of the brightest pages of Victorian history’.51 There was little discussion on Barry as a judge. In relation to the Eureka treason trials, Sutherland noted Barry ‘summed up in such a way as to indicate that his sympathies were with the diggers’.52 While Barry was alive, the only real questioning of his judgment was in relation to his unacknowledged thirty-year relationship with Louisa Barrow, the daughter of peasant farmers. Barrow’s husband left once her relationship with Barry was known. As the marriage was never annulled, Barry could not marry her. The fact that Barry was Protestant and Barrow was Catholic was also significant, especially considering they were both Irish. The relationship produced a son and daughter whose baptism records listed Patrick Barrow as the father.53 After her husband left, she had three more children who all carried Barry’s surname and the family appeared in public together.54 Barry financially supported the family in a separate residence and ensured the children received a good education. In the nineteenth century there was a strong link between notions of good judgment and the reputation and character of the judge. In ‘Masks and faces No. 111. An Acting

70 Alice Richardson Chief Justice’, October 1873, the writer ‘Sagittarius’ sarcastically praised ‘the symbolic purity of Sir Redmond’s linen’. He stated: The ‘white flower of a blameless life’ is now demanded by public opinion of all our Judges. This is but right. It would be a terrible thing to hear a man of loose life utter the voice of moral indignation and sentence to punishment a fellow-being not worse – save in position – than himself. . . . And Sir Redmond Barry has been before the community for more than twenty years [. . .]55 It was a time when familial relationships were key factors in professional advancement. The relationship with Barrow was considered scandalous and was the main reason Barry was not offered the role of Chief Justice. When Sir William a’Beckett retired in 1857, Barry expected to be appointed his successor, given that he had been on the Bench for five years, during which he had been Acting Chief Justice for two years. But William Stawell was appointed Chief Justice by Governor Sir Henry Barkly, based on his ‘impeccable record of legal service to the Crown . . . and a . . . totally blameless personal life to go with it’.56 ‘Behaviour mattered in the best circles’.57 G.F. Bowen articulated this in a letter seeking a suitable Chief Justice for Queensland: What we want is a gentleman rather than a mere lawyer. The principle officials in a Colony form a sort of social aristocracy. The Chief Justice ranks next to the Governor, and his influence extends far beyond the sphere of his judicial duties – indeed, whether for good or evil, it is immense.58 Barry’s biographer opines, ‘no doubt [Barry] feared [Barrow] would not be accepted in the exalted colonial social circles in which he moved – other wives of dubious social position had suffered just that fate’.59 The next visual representation to discuss is Barry’s official portrait (Figure 2.4).60 Robert Dowling’s portrait was created in 1886, six years after Barry’s death, when the artist was considered one of the finest portraitists in Australia. The portrait is now part of the collection at the Supreme Court of Victoria, in William Street, Melbourne. When the collection was established, it was said the portraits would hang in the court ‘as the many portraits of the sages of the law are held in the courts at Guild Hall’ (emphasis added).61 Barry’s portrait was commissioned as part of an attempt to create ‘an Australian pantheon of similar legal sages’.62 The Fire Judges’ portraits (then) located in the Guild Hall in London were the inspiration for the portraits. Like the other Supreme Court judges, Barry was seen to be working in the great patriotic or civic-minded tradition of these revered men who worked for free on property disputes following the Great Fire of London in 1666. The Victorian portraits are full-length portraits of judges wearing red and white robes and are a similar size and style. The Argus of Melbourne in its ‘Art Notes’ in 1885, which discussed the creation of portraits of Justice Molesworth, Chief Justice A’ Beckett and Redmond Barry as ‘the nucleus of a future gallery of Victorian worthies connected with the legal profession’, described Barry’s representation:

Sir Redmond Barry and the trial of Ned Kelly 71

Figure 2.4 Robert Dowling, portrait of Sir Redmond Barry, 1886. Source: Reproduced by permission of the Supreme Court of Victoria, Melbourne.

standing erect, clothed in the judicial scarlet and ermine, and the positive colouring of the picture is softened and relieved by the shadow thrown upon the lower portion of the robe by a massive chair on the judge’s right. One shapely leg is advanced somewhat, and the attitude of the figure is characterised by a simple dignity, appropriate to the high office of the subject.63

72 Alice Richardson There is much literature on judicial portraiture, and in this collection Les Moran studies the representation of the nineteenth-century British judge through photographic portraiture. Barry’s portrait fits into the visual tradition of judicial portraiture and the scholarly interpretation is that official portraiture is dominated by the signs and symbols of office.64 Barry’s portrait was commissioned to show him as a ‘sage of the law’ so the various elements of the portrait represent judgment in wisdom. Yet while the posture may, as the Argus art critic suggested, indicate a ‘simple dignity, appropriate to the high office’, the expression, so that writer also suggested, ‘partakes less, perhaps of the gravity of the bench, than of the geniality which the late judge was accustomed to exhibit when he was the courteous host of a pleasant dinner party’. Included in Barry’s portrait is a large judicial chair that was made for the ceremonial courtroom. The two other judicial portraits that were commissioned for the new courthouse, of Justices Molesworth and Stawell, feature the same chair. As the same chair appears in a number of portraits we might argue that the chair, representing judicial office (alongside the judicial costume and wig), helps establish a sense of continuity of office and the English common law, translated to Australia (the chair is in the courthouse today).65 The eminent Australian jurist Sir Victor Windeyer, has described the observance of old forms and customs in legal dress as ‘a manifestation of the continuity of the law of the land’.66 Barry was an Anglo-Irishman loyal to the British crown and knighted for his services. In the nineteenth-century colony of Victoria, the upper-class AngloIrish wielded significant power throughout political and legal institutions. Indeed Anglo-Irish judges dominated the Victorian Supreme Court bench for the first eighty years. The notion that a judge must be loyal to the crown was very strong in that jurisdiction at the time. Barry’s pro-British outlook and Anglo-Irish identity were seen as judicial virtues. By contrast, Ned Kelly was the son of Irish Catholic convicts and immigrants who opposed British rule in Australia. Later representations of Kelly, in the twentieth century, would emphasize the Anglo-Irishness of Barry and characterize Kelly as a patriot, rebel and martyr who sought to create a republic in North-Eastern Victoria. Barry and Kelly were men from opposing political ideologies, religious denominations and social classes. The final early depiction of Barry which I study closely here is through a new medium of representation and memory: via the film The Kelly Gang, released in 1919. The intertitle that appears following Barry’s sentencing of Kelly makes the following judgment: AND SUCH IS THE INEVITABLE FATE OF ALL WHO REBEL AGAINST THE RIGHTEOUS AND MIGHTY FORCES OF LAW AND ORDER.67 In fact the intertitle appeared immediately after a shot of Barry mouthing the sentence ‘death by hanging’. On the bottom left of the intertitle appeared a picture of old Melbourne Gaol, where Kelly was hanged. To the right of the text was depicted a winged figure of Justice holding a sword downwards as if justice had just been executed. The words ‘such is the inevitable fate’ mirrors Charles Henry

Sir Redmond Barry and the trial of Ned Kelly 73 Chomley’s True Story of the Kelly Gang of Bushrangers, published in Melbourne in 1900: ‘the trial ended in the only way possible, with a verdict of guilty and sentence of death against the outlaw’.68 The film therefore reflects the attitude expressed in the early Ned Kelly histories. Stephen Gaunson has noted in his study of the treatment of Ned Kelly in film that there is ‘no illustration of the verbal exchange between the accused and judge, and no evidence that the trial was handled unethically’.69 When the early films were made there had not been, as there would be later in the century, research uncovering aspects of the Kelly case that suggested the trial was unfair. Ned Kelly’s version of events, including his claim that he did not commit murder but acted in self-defence (contained in his ‘Euroa’ and ‘Jerilderie’ letters), was unknown.70 The early films, without a trial scene, still reveal attitudes about the trial. In Charles Tait’s film, the world’s first feature-length film, Kelly does not ask the police to surrender before shooting Lonigan, even though the programme states the police are asked to ‘bail up!’ The Stringybark Creek shootings are portrayed as a murderous attack rather than an attempt to bail up police officers that went terribly wrong. This would be very different in later film representations, where Kelly would be shown killing Lonigan in self-defence. The inconsistency between the programme and the final cut suggests that Tait’s film was shaped by censorship. It was not the only film to be thus affected. Another copy of The Kelly Gang (1919) exists lacking the trial scene and Barry’s mouthing of the words ‘Death by hanging’. Censorship laws differed between jurisdictions, resulting in different versions of the same movie. As the alternative version was in a separate jurisdiction, the trial scene may have been added to please the censors. The fact that Barry was played by the director suggests the trial scene was created at the last minute. The early films aimed to show the audience the consequences of a lawless life – a mission forced upon the filmmakers by censorship, as contemporary laws did not allow bushranging to be shown in a favourable light.71 In the early films, as with the representations in the illustrated press, Barry’s narrative role was to bring a criminal rogue to justice and judgment.

Later representations of Sir Redmond Barry A key aspect of good judgment is that a judge must be represented as a figure of integrity. The early representations of Barry circulating through the illustrated press showed him as a man of wise judgment, who justly sentenced the archetypal bushranger to death. There was nothing perceived to be untoward about Barry’s performance in court. Kelly was portrayed as a stock bushman and an archetypal rogue who deserved to go to the gallows. This would change in the twentieth century, as Ned Kelly became the hero. Ian Jones has noted that the foundation for this approach was laid earlier, in the folkloric and oral history treatment where Kelly was treated as a Robin Hood–like figure72 and presented as ‘Good-looking, brave, a fine horseman and bushmen and a crack shot, devoted to his mother and sisters’.73 Later representations of Barry would characterize him as the unjust judge who killed a national hero.

74 Alice Richardson I have already mentioned Hobsbawm’s theory of social banditry. In Graham Seal’s book The Outlaw Legend, he states that, in the Anglophone tradition of folkloric highwaymen and outlaws, there are a number of necessary characteristics. One of the most important characteristics is that they are a forced outlaw, usually driven to outlawry by persecution or oppression. Other important characteristics are that they kill in self-defence, and die as a result of unfairness, usually due to trickery, tragedy or betrayal. There are other aspects, of course, but these are the ones that that have shaped Barry’s memory, inviting us to pass judgment on him. Romanticizing Kelly has meant misjudging Barry. In the new account (and evidence) provided by James Jerome Kenneally’s The Complete Inner History of the Kelly Gang (1929), which was sympathetic to Ned Kelly, Sir Redmond Barry was no longer upholding justice but responsible for the Kelly Outbreak and its associated deaths, and cursed to a mythical trial at a ‘bigger court’ for what he had done.74 This view was visually represented in Sidney Nolan’s painting The Trial (1947). The foundation for this position was laid earlier, as Barry’s judgment about Ned Kelly first began to be questioned in relation to the trial of the bushranger’s mother, Ellen. The 1881 Royal Commission enquiring into the Kelly Outbreak queried the harshness of her sentence. Police Commissioner Standish, when questioned on the cause of Kelly’s outlawry, suggested that Barry’s actions were at fault: The ‘anger and indignation of the Kellys at their mother having received that severe sentence’.75 Later representations characterized Kelly and his family as the victims of wicked police and judicial persecution, which forced him against his will into a career of crime.76 Over time, the view that Barry caused the Kelly Outbreak was strengthened, and ended up dominating Barry’s memory. To use Ann Rigney’s terminology, that layer of memory was conflated. When combined, the various fictional accounts asserted that Barry intentionally provoked Kelly into outlawry by threatening a fifteen-year sentence and refusing his offer to trade himself for Ellen Kelly’s freedom. The historical record, by contrast, shows Barry did not do these two things.77

Self-defence and a death due to unfairness The emergence of legal scholarship on the Kelly trial started in 1968 with Louis Waller’s landmark essay ‘Regina v Edward Kelly’.78 Waller was the first to access Kelly’s trial documents and analyse the case from a legal perspective. Whereas Clune in 1954 said ‘never was a more hopeless brief given to a barrister than the brief to defend Ned Kelly’,79 by 1980 it was widely believed that Kelly had a case for self-defence and his trial was unfair. These two aspects correspond to characteristics of folkloric outlaws noted above: that they kill in self-defence, and die as a result of unfairness. In Roger Simpson’s teleplay The Trial of Ned Kelly (1977), the modern narrator criticizes Barry’s trial performance, inviting the audience to conclude that he orchestrated the outcome by not allowing the jury to consider self-defence, in particular, by challenging the admissibility of the ‘Jerilderie’ letter and misdirecting the jury.80 The docudrama showed a police witness deposing Constable Lonigan’s

Sir Redmond Barry and the trial of Ned Kelly 75 death was a murder but gave a reconstruction of Kelly’s version of events: killing in self-defence. The message was that Kelly’s version was true and the police witness committed perjury. The teleplay misrepresented history (the bullet wounds found on Lonigan’s body did not neatly fit with Kelly’s, or the police witness’s version of events; Kelly’s barrister objected to the admissibility of the ‘Jerilderie’ letter, not Barry; Barry did not misdirect the jury: since a plea of self-defence was not made by Kelly’s barrister, Barry was correct in not putting it to the jury for consideration.)81 There have been other theatrical judgments on the Barry judgment: live reenactments such as the Victorian Bar Theatre Company’s Regina v Edward Kelly (with a retrial in part two with Kelly given a better lawyer and a modern judge). The negative representations of Barry do not reveal much about Barry himself, but show attitudes towards what he represents. He is described as a ‘judge of the times’.82 Many aspects of nineteenth-century law are perceived by modern Australians to be barbaric, from the death penalty to the fact that Kelly was unable to give sworn evidence under the laws of the time. There was no court of appeal, meaning there was little judicial oversight.83 Some evidence would now be considered prejudicial to the accused.84 The duration of a trial was very short by modern standards.85 And there was a greater emphasis on punishment, retribution and deterrence. These issues are connected to Barry, as he was the face of Kelly’s trial and is now widely considered a hanging judge. Barry’s memory is shaped by modern attitudes towards this rather shameful past. The robing of the modern judge in the Victorian Bar’s retrial showed the Australian legal profession was attempting to distance themselves from Barry.86 The commentator in Simpson’s teleplay represents a modern Australia judging the nineteenth-century colonial legal system.

Conclusion This chapter has examined Barry’s changing visual history and shown his transformation from a figure of wise judgment. Early representations of Barry circulating through the Australian illustrated press showed him as the judge who sentenced the archetypal bushranger to death. But in later representations, Barry’s memory became complex and contradictory, with the layers of memory relating to Kelly’s trial becoming conflated with judicial persecution in general. Barry became the representation of bad judgment in this remaking of Ned Kelly as a Robin Hood figure: for which a Sheriff figure was required. Like Robin Hood, Kelly rebels against unjust authority – particularly the police and the judiciary. Following the folklore scholar Graham Seal, we can see Kelly as the archetypal figure who is required after injustice to take matters into his own hands.87 The early Ned Kelly stories neglected Barry as a villain. Indeed, Kelly barely mentioned Barry: he featured neither in Kelly’s dictated letters nor in his newspaper interviews. Barry ‘the unjust judge’ was constructed over time. And as a result the posthumous reputation of the man behind the representations has suffered. Sir Redmond Barry’s imposing statue is on the forecourt of the State Library of Victoria (see Figure 2.5).88 A second plaque was added in 1980 to mark the

Figure 2.5 Statue of Sir Redmond Barry by James Gilbert, forecourt of the State Library of Victoria, unveiled 23 August 1887. Source: Photograph by the Author, 2016.

Sir Redmond Barry and the trial of Ned Kelly 77 centenary of his death: a time when there were also commemorations of Ned Kelly’s death. The new inscription indicates the impact of modern readings of Kelly: evidently the authorities needed to ‘remind the people of Melbourne of the benefits they continue to receive from the vision and enterprise of this great man’. In the same year, Barry’s biographer, Peter Ryan argued of the impact of the Ned Kelly myth, ‘its devotees have created a straw man in the guise of Redmond Barry, the unjust judge. Beside him, they hope, the vulgar outlaw Kelly will cut a less pathetic figure’.89 The misjudgment of Barry continues: Sydney Morning Herald reported in 2015 a high school student’s question after learning that the statue in the forecourt represented the judge who had hanged Kelly, ‘How come the arseholes always get the statues?’90 Kelly’s armour is permanently exhibited at the State Library, where a staff member has commented: ‘Barry would be grinding his bronze teeth’ at the fact this, and Kelly’s death mask, are housed in the institution he proudly established.91

Notes 1 L. Basu, Ned Kelly as Memory Dispositif: Media, Time, Power, and the Development of Australian Identities (Berlin and Boston: Walter de Gruyter, 2012). 2 P. Ryan, Sir Redmond Barry: A Colonial Life (Melbourne: Melbourne University Press, 1980). 3 J.J. Kenneally, The Inner History of the Kelly Gang and Their Pursuers (Melbourne: Reviews Pty. Ltd, 1929). 4 P. Carey, True History of the Kelly Gang (St Lucia: Queensland University Press), p. 262. 5 ‘Beechworth Police Court’, Ovens and Murray Advertiser, 27 February 1879, p. 3, regarding John McElroy. 6 R. Simpson, The Trial of Ned Kelly (Richmond: Heinemann, 1977), p. 34. 7 J. Phillips, The Trial of Ned Kelly (Melbourne: Law Book Company, 1987), p. 94. 8 W. Fearn-Wannan, Australian Folklore: A Dictionary of Lore, Legends and Popular Allusions (Melbourne: Lansdowne Press, 1970), p. 399. 9 L. Kenna, The Putting Down of Ned Kelly (Bundoora: JIKA Publishing, 1995), p. 52. 10 Kenna, The Putting Down of Ned Kelly, p. 52. 11 ‘Sentences’, Ovens and Murray Advertiser, 15 October 1878, p. 3. 12 ‘Trial and Conviction of Edward Kelly’, The Argus, 30 October 1880, p. 8. The words said by Kelly have been taken out of context in later accounts. 13 A. Castles, Ned Kelly’s Last Days: Setting the Record Straight on the Death of an Outlaw (Crows Nest: Allen & Unwin, 2005), p. 194. 14 J. Coldery, ‘Edward Kelly: The Last Legal Rights’, in Ned Kelly Under the Microscope: Solving the Forensic Mystery of Ned Kelly’s Remains, ed. by C. Cormick (Collingwood, Victoria: CSIRO, 2014), pp. 203–204. 15 J. Stoljar, The Australian Book of Great Trials : The Cases that Shaped a Nation (Sydney: Pier 9, 2011), pp. 89–90. For Stoljar, history-Barry did not let the jury consider self-defence and therefore the charge of manslaughter, as this option was aborted by Kelly’s barrister. 16 Minutes of Evidence, Royal Commission Into the Kelly Outbreak (Victorian Parliamentary Papers, 1881), p. 131. It was not history-Barry who refused Kelly’s offer to exchange himself for his mother’s release, but Police Magistrate Alfred Wyatt. Kelly sought to trade himself for his mother after Ellen’s trial (Carey’s novel has this occurring before).

78 Alice Richardson 17 K. Laster, ‘Capital Crimes and the Supreme Court’, in Judging for the People: A Social History of the Supreme Court in Victoria 1841–2016, ed. by S. Smith (Melbourne: Allen & Unwin, 2016), p. 215, p. 224. 18 P. Nora, ed., Les Lieux de memoire, 3 vols: 1984–1992 (Paris: Gallimard, 1997). 19 A. Rigney, ‘Plenitude, Scarcity and the Circulation of Cultural Memory’, Journal of European Studies 35:1 (2005), pp. 11–28 (p. 19). 20 Carey, True History of the Kelly Gang, p. 262. 21 M. Brown, Australian Son (Melbourne: Angus and Robertson, 1948). 22 Kenna, The Putting Down of Ned Kelly, p. 52. 23 Rigney, ‘Plenitude, Scarcity and the Circulation of Cultural Memory’, p. 14; Basu, Ned Kelly as Memory Dispositif, p. 4. 24 Basu, Ned Kelly as Memory Dispositif, p. 4. 25 M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–77 (New York: Pantheon, 1980), p. 195. 26 P. De Serville, Pounds and Pedigrees: The Upper Class in Victoria: 1850–80 (South Melbourne: Oxford University Press, 1991), pp. 74–75. 27 S. Barczewski, Myth and National Identity in Nineteenth Century Britain: The Legends of King Arthur and Robin Hood (Oxford: Oxford University Press, 2000), p. 10. 28 E. Hobsbawm, Primitive Rebels: Studies in Archaic Forms of Social Movement in the 19th and 20th Centuries (Manchester: Manchester University Press, 1959); E. Hobsbawm, Bandits (London: Weidenfeld and Nicolson, 2000). 29 Hobsbawm, Bandits, p. 20. 30 The two books that best argue Kelly was, or was not, a social bandit are J. McQuilton, The Kelly Outbreak 1878–1880 (Melbourne: Melbourne University Press, 1979) and D. Morrissey, Ned Kelly: A Lawless Life (Ballarat: Connor Court Publishing, 2015). 31 S. Gaunson, The Ned Kelly Films: A Cultural History of Kelly History (Bristol: Intellect Books, 2013), p. 14. 32 McQuilton, The Kelly Outbreak, p. 59; Hobsbawm, Bandits, p. 151. See also S. Ross, Fact or Fiction: Bandits and Outlaws (London: Aladdin Books, 1995), p. 5. ‘History’s real bandits . . . were usually vicious criminals’. 33 The term ‘invented’ aligns with Hobsbawm’s understanding of ‘invented tradition’. See Bandits, p. 1. 34 Without Barry, there is no Ned Kelly. Kelly would just be a normal criminal, not a social bandit, and therefore unworthy of national hero status. 35 ‘The Kelly Trial – The Scene in Court’, Illustrated Australian News, 6 November 1880, p. 202, p. 203. 36 Gaunson, The Ned Kelly Films, p. 169. 37 L. Astbury, City Bushmen: The Heidelberg School and the Rural Mythology (Melbourne: Oxford University Press, 1985), p. 50. 38 Gaunson, The Ned Kelly Films, p. 169. 39 J. Resnik and D. Curtis, Representing Justice: Intention, Controversy, and Rights in City-States and Democratic Courtrooms (New Haven: Yale University Press, 2011), p. 45. 40 F.A. Hare, The Last of the Bushrangers: An Account of the Capture of the Kelly Gang (London: Hurst and Blackett, 1892). 41 ‘Interview With Ned Kelly’, The Age, 9 August 1880, p. 3. 42 T. Carrington and I. Jones, Ned Kelly: The Last Stand: Written & Illustrated By an Eyewitness (South Melbourne: Lothian, 2003), p. 33. 43 Carrington and Jones, Ned Kelly: The Last Stand, p. 33. 44 The Age, 30 October 1880. 45 ‘Victoria appears to have had greater anxiety. . . about the “convict stain”’. Laster, ‘Capital Crimes and the Supreme Court’, p. 217. 46 D. Plater and P. Crofts, ‘Bushrangers, the Exercise of Mercy and the “Last Penalty of the Law” in New South Wales and Tasmania 1824–1856’, University of Tasmania Law Review 32:2 (2013), pp. 295–343 (p. 297).

Sir Redmond Barry and the trial of Ned Kelly 79 47 J. Borlase, Ned Kelly: The Ironclad Australian Bushranger (London: A. J. Isaacs, 1881). 48 South Australian Register, 24 November 1880, p. 5. 49 For ‘Napoleon Barry’, Melbourne Punch, 7 January 1875, p. 6; for ‘Commissioner Barry in his Celebrated Transformation Act’, Melbourne Punch, 23 April 1863, p. 309; for ‘An Improvement, on the Royal Arms Intended for the Public Library’, Melbourne Punch, 12 January 1871, p. 12. 50 Barry’s non-judicial achievements made him ‘unusual among immigrants of his class, for most of them hoped to make a fortune in Australia and then return to England, Scotland or Ireland to enjoy it’, Sutherland, cited in Ryan, Sir Redmond Barry: A Colonial Life, p. 11. 51 E. Finn, The Chronicles of Early Melbourne (Melbourne: Fergusson and Mitchell, 1888), p. 867. 52 A. Sutherland, Victoria and Its Metropolis: Past and Present (Melbourne: McCarron, Bird, 1888), p. 374. Barry ‘showed a sensitivity towards the accused’ in the Eureka trials. Castles, Ned Kelly’s Last Days, p. 537. 53 A. Galbally, Redmond Barry: An Anglo-Irish Australian (Carlton, Victoria: Melbourne University Press, 1995), p. 69. 54 Galbally, Redmond Barry, pp. 69–70. 55 Quoted in Galbally, Redmond Barry, p. 177. 56 D. Reilley, ‘Two Gentlemen of Melbourne Town: Charles Joseph La Trobe and Redmond Barry’, La Trobeana 13:2 (2014), pp. 14–24 (p. 21), www.latrobesociety.org.au/ LaTrobeana/LaTrobeanaV13n2.pdf. 57 B. Kingston, The Oxford History of Australia: Volume 3: 1860–1900: Glad, Confident Morning (Melbourne: Oxford University Press, 1988), p. 287. 58 Kingston, The Oxford History of Australia: Volume 3, p. 287. 59 Galbally, Redmond Barry, pp. 103–104. Chief Justice Hanson of South Australia, ‘was cruelly ostracized by much of respectable society. . . because he had married his housekeeper’. A. Parkinson, ‘The Regret of Sir Samuel Way’, Australian Journal of Legal History 1 (1995), p. 255. Justice Montagu in Hobart and Justice Alfred Lutwyche, resident judge in Moreton Bay, suffered similar ostracism for marrying their widowed housekeepers. Lutwyche was not made Chief Justice of Queensland or allowed to administer the government in the governor’s absence. See P. Howell, ‘Lutwyche, Alfred James (1810–1880)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/lutwychealfred-james-4048/text6441, published first in hardcopy 1974 [Accessed 3 May 2018]. 60 Barry’s portrait can be found in J. Phillips, ‘A Black Letter Lawyer’, La Trobe Journal 73 (2004), pp. 23–28. 61 J. Boyd, ‘Commemorating Judges: Statues, Portraits, Busts and Street Names’, Victorian Historical Journal 85:2 (2014), pp. 340–352 (p. 343). 62 Boyd, ‘Commemorating Judges’, pp. 343–345. 63 ‘Art Notes’, The Argus, 4 December 1885, p. 8. 64 L. Moran, ‘Projecting the Judge: A Case Study in the Cultural Lives of the Judiciary’, in Studies in Law, Politics and Society (Bingley: Emerald Group, 2008), pp. 93–115. 65 M. Blok, ‘A Brief History of Court Attire’, The Advocate, 2006, p. 65. 66 V. Windeyer, ‘Of Robes and Gowns and Other Things’, Australian Law Journal 48 (1974), p. 403. 67 The Kelly Gang: Frame Blow-up of Intertitle, 1919, National Film and Sound Archive, Item number 572407-4. 68 C.H. Chomley, The True Story of the Kelly Gang of Bushrangers (Melbourne: Pater, 1900), ch 21, p. 2. 69 Gaunson, The Ned Kelly Films, p. 119. 70 The letters were first published in Brown, Australian Son; Kenneally, The Inner History of the Kelly Gang. 71 ‘Police Prohibit Film “Glorifying Criminals”’, The Argus, 16 May 1934, p. 9.

80 Alice Richardson 72 Nineteenth-century sources refer to perceptions of Kelly as a Robin Hood. See, for example, G.W. Hall, The Kelly Gang or the Outlaws of the Wombat Ranges (Mansfield: G W. Hall, 1879). 73 I. Jones, Ned Kelly: A Short Life (Melbourne: Lothian, 1995), p. 416. 74 Fearn-Wannan, Australian Folklore, p. 399. 75 Minutes of Evidence, Royal Commission Into the Kelly Outbreak, p. 10. 76 Kenneally, The Inner History of the Kelly Gang. 77 ‘Sentences’, Ovens and Murray Advertiser, 15 October 1878, p. 3. Hall, The Kelly Gang or the Outlaws of the Wombat Ranges, p. 24. Phillips, The Trial of Ned Kelly, p. 24. 78 L. Waller, ‘Regina v Edward Kelly’, in Ned Kelly: Man and Myth, ed. by C.F. Cave (Melbourne: Cassell, 1968), pp. 104–153. 79 F. Clune, The Kelly Hunters: The Authentic, Impartial History of the Life and Times of Edward Kelly, the Ironclad Outlaw (Sydney: Angus and Robertson, 1954), p. 326. 80 For scholarship supporting the view Barry misdirected the jury, Phillips, The Trial of Ned Kelly; G. Fricke, Ned’s Nemesis (Melbourne: Arcadia, 2007). 81 Stoljar, The Australian Book of Great Trials, p. 90; Castles, Ned Kelly’s Last Days, p. 169–170. Castles argues Kelly aborted the argument of self-defence. 82 This is said repeatedly in Phillips, ‘A Black Letter Lawyer’, pp. 23–28. 83 Fricke, Ned’s Nemesis, p. 142. 84 Fricke, Ned’s Nemesis, p. 145, argues the probative value or logical cogency of some evidence is outweighed by its prejudicial effect and a modern court would disallow it. 85 ‘By today’s standards it [Kelly’s two day murder trial] seems brief indeed. By the standards of the nineteenth century, it was a lengthy trial’, Waller, ‘Regina v Edward Kelly’, p. 147. 86 Ironically, the nineteenth-century robes used in the production are more old-fashioned than history-Barry’s. Photographs show he wore the same robes as the modern judge from the second part of the production (not lacy tabs). 87 G. Seal, The Outlaw Legend: A Cultural Tradition in Britain, America and Australia (Cambridge: Cambridge University Press, 1996). 88 Illustrated Australian News, 5 September 1883, p. 137 (front page) for the statue. 89 Ryan, Sir Redmond Barry: A Colonial Life, pp. 1–2. 90 H. Rayson, ‘Off Limits: Hannie Rayson Is Let Loose in the State Library’s Hidden Places’, Sydney Morning Herald, 10 July 2015, www.smh.com.au/entertainment/off-limitshannie-rayson-is-let-loose-in-the-state-librarys-hidden-places-20150704-gi3d52.html. 91 State Library of Victoria, ‘Redmond Barry: Visionary or Scoundrel?’, 2003, www.abc. net.au/radionational/programs/bigideas/redmond-barry3a-visionary-or-scoundrel/ 4762200.

Bibliography ‘A Photograph (Just Received) From the Great Exhibition. Victoria’s Eques-trian Performance. Captain – Justice – Commissioner Barry in His Celebrated Transformation Act’, Melbourne Punch, 23 April 1863, p. 309. ‘Art Notes’, The Argus, 4 December 1885, p. 8. Astbury, L. City Bushmen: The Heidelberg School and the Rural Mythology (Melbourne: Oxford University Press, 1985). ‘A Suggestion, and We Venture to Think an Improvement, on the Royal Arms Intended for the Public Library’, Melbourne Punch, 12 January 1871, p. 12. Barczewski, S. Myth and National Identity in Nineteenth Century Britain: The Legends of King Arthur and Robin Hood (Oxford: Oxford University Press, 2000). Basu, L. Ned Kelly as Memory Dispositif: Media, Time, Power, and the Development of Australian Identities (Berlin and Boston: Walter de Gruyt, 2012).

Sir Redmond Barry and the trial of Ned Kelly 81 ‘Beechworth Police Court’, Ovens and Murray Advertiser, 27 February 1879, p. 3. Blok, M. ‘A Brief History of Court Attire’, The Advocate, 2006, p. 65. Borlase, J. Ned Kelly: The Ironclad Australian Bushranger (London: A. J. Isaacs, 1881). Boyd, J. ‘Commemorating Judges: Statues, Portraits, Busts and Street Names’, Victorian Historical Journal 85:2 (2014), pp. 340–352. Brown, M. Australian Son (Melbourne: Angus & Robertson, 1948). Carey, P. True History of the Kelly Gang (St Lucia: Queensland University Press). Carrington, T. and I. Jones. Ned Kelly: The Last Stand: Written & Illustrated by an Eyewitness (South Melbourne: Lothian, 2003). Castles, A. Ned Kelly’s Last Days: Setting the Record Straight on the Death of an Outlaw (Crows Nest: Allen & Unwin, 2005). Chomley, C.H. The True Story of the Kelly Gang of Bushrangers (Melbourne: Pater, 1900). Clune, F. The Kelly Hunters: The Authentic, Impartial History of the Life and Times of Edward Kelly, the Ironclad Outlaw (Sydney: Angus & Robertson, 1954). Coldery, J. ‘Edward Kelly: The Last Legal Rights’, in Ned Kelly Under the Microscope: Solving the Forensic Mystery of Ned Kelly’s Remains, ed. by C. Cormick (Collingwood, Victoria: CSIRO, 2014), pp. 203–212. De Serville, P. Pounds and Pedigrees: The Upper Class in Victoria: 1850–80 (South Melbourne: Oxford University Press, 1991). Fearn-Wannan, W. Australian Folklore: A Dictionary of Lore, Legends and Popular Allusions (Melbourne: Lansdowne Press, 1970). Finn, E. The Chronicles of Early Melbourne (Melbourne: Fergusson and Mitchell, 1888). Foucault, M. Power/Knowledge: Selected Interviews and Other Writings 1972–77 (New York: Pantheon, 1980). Fricke, G. Ned’s Nemesis (Melbourne: Arcadia, 2007). Galbally, A. Redmond Barry: An Anglo-Irish Australian (Carlton, Victoria: Melbourne University Press, 1995). Gaunson, S. The Ned Kelly Films: A Cultural History of Kelly History (Bristol: Intellect Books, 2013). Hall, G.W. The Kelly Gang or the Outlaws of the Wombat Ranges (Mansfield: G W. Hall, 1879). Hare, F.A. The Last of the Bushrangers: An Account of the Capture of the Kelly Gang (London: Hurst and Blackett, 1892). Hobsbawm, E. Bandits (London: Weidenfeld & Nicolson, 2000). Hobsbawm, E. Primitive Rebels: Studies in Archaic Forms of Social Movement in the 19th and 20th Centuries (Manchester: Manchester University Press, 1959). Howell, P. ‘Lutwyche, Alfred James (1810–1880)’, Australian Dictionary of Biography (National Centre of Biography, Australian National University), http://adb.anu.edu. au/biography/lutwyche-alfred-james-4048/text6441, published first in hardcopy 1974 [Accessed 3 May 2018]. Illustrated Australian News, 5 September 1883, p. 137. Jones, I. Ned Kelly: A Short Life (Melbourne: Lothian, 1995). The Kelly Gang: Frame Blow-up of Intertitle, 1919, National Film and Sound Archive, Item number 572407–4. ‘The Kelly Trial – The Scene in Court’, Illustrated Australian News, 6 November 1880, pp. 201–203. Kenna, L. The Putting Down of Ned Kelly (Bundoora: JIKA Publishing, 1995). Kenneally, J.J. The Inner History of the Kelly Gang and Their Pursuers (Melbourne: Reviews Pty. Ltd., 1929).

82 Alice Richardson Kingston, B. The Oxford History of Australia: Volume 3: 1860–1900: Glad, Confident Morning (Melbourne: Oxford University Press, 1988). Laster, K. ‘Capital Crimes and the Supreme Court’, in Judging for the People: A Social History of the Supreme Court in Victoria 1841–2016, ed. by S. Smith (Melbourne: Allen & Unwin, 2016). McQuilton, J. The Kelly Outbreak 1878–1880 (Melbourne: Melbourne University Press, 1979). Minutes of Evidence, Royal Commission into the Kelly Outbreak (Victorian Parliamentary Papers, 1881). Moran, L. ‘Projecting the Judge: A Case Study in the Cultural Lives of the Judiciary’, in Studies in Law, Politics and Society (Bingley: Emerald Group, 2008), pp. 93–115. Morrissey, D. Ned Kelly: A Lawless Life (Ballarat: Connor Court Publishing, 2015). ‘Napoleon Barry – Meditating on His Abdication (By Our Own Delarouche)’, Melbourne Punch, 7 January 1875, p. 6. Nora, P., ed. Les Lieux de Memoire, 3 vols: 1984–1992 (Paris: Gallimard, 1997). Parkinson, A. ‘The Regret of Sir Samuel Way’, Australian Journal of Legal History 1 (1995). Phillips, J. ‘A Black Letter Lawyer’, La Trobe Journal 73 (2004), pp. 23–28. Phillips, J. The Trial of Ned Kelly (Melbourne: The Law Book Company, 1987). Plater, D. and P. Crofts. ‘Bushrangers, the Exercise of Mercy and the “Last Penalty of the Law” in New South Wales and Tasmania 1824–1856’, University of Tasmania Law Review 32:2 (2013), p. 294. ‘Police Prohibit Film “Glorifying Criminals”’, The Argus, 16 May 1934, p. 9. Rayson, H. ‘Off Limits: Hannie Rayson Is Let Loose in the State Library’s Hidden Places’, Sydney Morning Herald, 10 July 2015, www.smh.com.au/entertainment/off-limits-hannierayson-is-let-loose-in-the-state-librarys-hidden-places-20150704-gi3d52.html. Reilley, D. ‘Two Gentlemen of Melbourne Town: Charles Joseph La Trobe and Redmond Barry’, La Trobeana 13:2 (2014), pp. 14–24, www.latrobesociety.org.au/LaTrobeana/ LaTrobeanaV13n2.pdf. Resnik, J. and D. Curtis. Representing Justice: Intention, Controversy, and Rights in CityStates and Democratic Courtrooms (New Haven: Yale University Press, 2011). Rigney, A. ‘Plenitude, Scarcity and the Circulation of Cultural Memory’, Journal of European Studies 35:1 (2005). Ross, S. Fact or Fiction: Bandits and Outlaws (London: Aladdin Books Ltd, 1995). Ryan, P. Sir Redmond Barry: A Colonial Life (Melbourne: Melbourne University Press, 1980). Seal, G. The Outlaw Legend: A Cultural Tradition in Britain, America and Australia (Cambridge: Cambridge University Press, 1996). ‘Sentences’, Ovens and Murray Advertiser, 15 October 1878, p. 3. Simpson, R. The Trial of Ned Kelly (Richmond: Heinemann, 1977). South Australian Register, 24 November 1880, p. 5. State Library of Victoria. ‘Redmond Barry: Visionary or Scoundrel?’ 2003, www.abc.net. au/radionational/programs/bigideas/redmond-barry3a-visionary-or-scoundrel/4762200. Stoljar, J. The Australian Book of Great Trials : The Cases that Shaped a Nation (Sydney: Pier 9, 2011). Sutherland, A. Victoria and Its Metropolis: Past and Present (Melbourne: McCarron, Bird, 1888). ‘Trial and Conviction of Edward Kelly’, The Argus, 30 October 1880, p. 8. Waller, L. ‘Regina v Edward Kelly’, in Ned Kelly: Man and Myth, ed. by C.F Cave (Melbourne: Cassell, 1968), pp. 104–153. Windeyer, V. ‘Of Robes and Gowns and Other Things’, Australian Law Journal 48 (1974), p. 403.

3

The emotional reactions of judges in cases of maternal child murder in England, 1840–1900 Alison Pedley

Introduction In Victorian England, as is still the case today, the murder of a child was considered an abhorrent crime. An article in The Spectator in August 1865 commented, ‘In this matter of child murder opinion seems bewildered . . . among the respectable classes there is . . . a deep horror of the crime itself, deeper than those who judge’. The author continued, ‘everyone allows that babies born alive ought to be kept alive . . . mothers who kill them are . . . guilty of cruel murder’.1 Despite the labelling of the crime as heinous, issues such as poverty, domestic violence or an implication of insanity were all widely accepted as mitigating circumstances for its occurrence. The ‘accepted’ assumption of the cruelty and guilt of the homicidal mothers was not always apparent when such cases came to trial. Members of the male medico-legal fraternity were not devoid of feeling, and as such could be influenced by the same mitigating circumstances. They were products of their age, and whilst they were not expected to be unsympathetic or dispassionate, their decisions and actions were supposed to exclude sentiment or unnecessary sympathies. Simultaneously, however, courts were ‘theatres of justice’,2 and there was an understanding that judges should demonstrate conspicuous fairness and perhaps even compassion. With reference to cases of maternal homicide tried between 1840 and 1890, the chapter investigates the extent to which demonstrable emotional responses were acceptable, normal or indeed desirable reactions for Victorian high court judges. The sources used in this chapter range from institutional records through newspaper archives to personal papers, diaries and reminiscences. Relevant case studies were identified through consulting the admission registers of Bethlem Royal Hospital and Broadmoor Criminal Lunatic Asylum, where casebooks give detailed background information on the defendants, and could then be followed up by locating relevant asylum records held at Liverpool Record Office and through various Home Office and assize court records held at the National Archives.3 Newspaper articles have also been of great importance, being the source for most of the court reports and the reporting of judges’ speeches and pronouncements.4 Martin Wiener argues that the press used gender as a method ‘to draw sympathy for . . . women, even though (or perhaps because) juries, bar and bench were all male’.5

84 Alison Pedley As a counterpoint to press reports, the personal writings of judges give a reaction from a private point of view. The papers and bench books of Thomas Noon Talfourd and the personal reminiscences of Sir Henry Hawkins, published in 1904, are two such sources.6 These documents, together with biographical information and newspaper reports, give an understanding of the role that individual judge’s private opinions, and to an extent, emotional principles, may have had in influencing his reactions to certain court cases. One purpose in focusing on four men whose careers spanned the period is to illustrate changes in male attitudes towards sentiment and sensibility in Victorian Britain. The judges highlighted here are Sir Thomas Noon Talfourd (1795–1854), Sir James Shaw Willes (1814–1872), Sir Henry Hawkins (1817–1907) and Sir Gainsford Bruce (1834–1912). Talfourd and Willes were cultured men with a love of poetry and refinement of manners, both publishing non-legal literary works. In contrast and despite being of a similar age to Willes, Hawkins was not in the least an aesthete: mostly keen on horseracing and his dog, Jack. The youngest man, Gainsford Bruce, was north-country born and practised on the Northern and the North-eastern circuits before becoming an MP. He was described in Vanity Fair as ‘a rather dull but wholly estimable Tory of the uncompromising, eighteenth century kind’, the apparent epitome of a stiffupper-lipped Victorian man.7 In the course of my research I have found several instances of a judge displaying an emotional and sometimes a lachrymose reaction to court cases. Compassion was often expressed and demonstrated from the bench, and on occasion the suggestion of insanity was made by the judge rather than by defence counsel. After sentencing, even in capital cases, judges could be active in recommending mercy for a condemned prisoner or in endorsing an early discharge from the institution where the defendant was incarcerated. Sir James Shaw Willes was wellknown for his lachrymose reactions to particularly tragic court cases, ‘the learned Judge [became] so painfully afflicted . . . that at one time he buried his face in his notebook and shed tears’.8 He did not seem to be alone in this reaction. In 1840, at the Oxford Assizes, Baron Gurney was noted as being ‘much affected’ when passing the death sentence on Celia Tippen for the murder of her infant son, ‘amid the tears of a crowded courtroom’.9 Although Sir Henry Hawkins had a reputation as a ‘hanging judge’, he, too, seemed to have had some measure of compassion when trying cases of maternal child murder. Observers sometimes noted that Hawkins would have tears in his eyes when sentencing prisoners, whatever their crime.10 Whilst I concentrate here upon cases of maternal homicide, and particularly on those adjudged insane, the question of whether the killing of children resulted in more emotional courtroom displays than other criminal cases is also considered. Child murder by a woman was described as monstrous, abnormal and, as one article in the Glasgow Herald put it, contrary to ‘a woman’s most powerful instinct, the love of helpless children’.11 When cases of maternal child-killing came to court, medico-legal reactions seemed to emanate from an almost empathetic attempt to understand why the accused would destroy her own offspring. Current scholarship agrees that if criminal violence by a mother towards her child in this period could be attributed to mental disorder, the tendency was that she

Reactions in cases of maternal child murder 85 would be treated sympathetically by the press, the medical community and the legal fraternity.12 The fact that the young victim was the defendant’s own child was just one factor amongst others, including the mother’s social circumstances and state of mind, which influenced outcomes and reactions in court. Courtroom compassion for the homicidal mother has been noted by a number of scholars, yet the hypothesis that gender-driven socio-cultural values could influence the reactions of the judiciary has not been widely explored.13 The chapter will demonstrate that personal beliefs and principles could emotionally affect the judges’ responses to the homicidal mothers, and thereby influence judicial decisions on those women’s future lives.

‘Persons of exemplary conduct and affectionate parents’14 The matter of a woman’s respectability was integral to how she was viewed by the press, in the courtroom and potentially by the judge himself. Concepts of respectable behaviour impacted upon all aspects of the legal authorities’ interactions with women. Public perception of who counted as respectable, and who was not, varied depending on each section of society’s interpretation of the meaning of ‘respectability’. As David Cannadine writes, ‘middle-class observers believed only a minority of workers was respectable: the workers themselves often thought otherwise’.15 To a greater or lesser degree, diligence, temperance, decency, cleanliness, domesticity and regularity of habits, were all key desirable attributes.16 As Shani D’Cruze has demonstrated in her work on nineteenth-century sexual assault cases, such attitudes and judgments often served masculine and patriarchal ends. Greater importance was often attached to character assessment of both victim and perpetrator rather than to the individual circumstances of the case, and for women giving evidence, the very nature of their testimony was liable to convince observers that their respectability was compromised.17 It might be assumed that by committing a deed of ultimate violence against vulnerable victims, a mother had transgressed her expected role of the nurturer in the family, and thereby jeopardized her respectability. In actuality, newspaper reports and even court papers tended to highlight the respectable aspects of the family and household – stressing that the woman’s actions outside the parameters of respectability were caused by uncontrollable influences such as insanity. Interactions between male authority figures and the accused women were motivated both by dominant cultural social values and by expectations of gender. The period under discussion was a time of change in ideas and norms of ‘manly behaviour’. By the end of the nineteenth century, a desirable quality of ideal masculinity was control over one’s emotions. Where women were supposedly the ‘weaker sex’, driven by a natural nurturing instinct and ruled by their emotions, for the Victorians, men were rational and controlled. Overt expression of emotion was potentially the opposite of true manliness.18 Ideals of manliness included social responsibility, loyalty to one’s colleagues, and courtesy and protectiveness towards women. The mastery and control of emotions, coupled with physical courage and resilience, were important elements in creating an ideal

86 Alison Pedley respectable man. Although such attributes predated the Victorians, as the century progressed, the political and social influence of this ‘rugged’ moralistic and individualistic mode of manly behaviour grew.19 This development can be seen in male legal authorities’ shifting reactions to, and interactions with, cases of maternal homicide – when protective and paternalistic personal sensibilities sometimes drove emotional reaction to the woman’s situation.

‘Owing to emotion’20 Thomas Noon Talfourd held a place of some prominence in the legal, political and literary worlds. Charles Dickens was a fervent admirer of his, writing in a somewhat fulsome obituary that he was ‘the conscientious judge, the charming writer and accomplished speaker, the gentle-hearted, guileless, affectionate man’.21 Talfourd attended Reading School, studied law as pupil of Joseph Chitty, the special pleader, and read law with him until 1817. He was called to the bar in 1821, becoming a serjeant-at-law in 1833, and elevated to the bench in the Court of Common Pleas in July 1849. Talfourd was elected MP for Reading in 1835 and 1837, lost his seat in 1841, but was reelected in 1847. His principal achievement in Parliament was the introduction and passage of a bill concerning the custody of infants, and in 1837 he introduced an early copyright bill. Talfourd’s other claim to fame was as a writer. His first publication in 1811, when he was still a schoolboy, consisted of a volume of didactic poetry, and he wrote several tragedies. He was a great admirer of Wordsworth and a friend of Coleridge, Godwin, Hazlitt and particularly of Charles Lamb and was responsible for publishing Lamb’s letters and memorials. In the early years of his career, Talfourd supported himself largely by writing literary and theatrical criticism, and pamphlets on various subjects including the punishment of the pillory.22 He also supplemented his income by working for The Times as a reporter on the Oxford Assize Circuit.23 He died unexpectedly of an apoplexy at Stafford on 13 March 1854 while addressing the jury about the estrangement of the classes in English society. His final words give an indication of his belief in a fairer society: ‘If I were asked what is the greatest want in English society . . . I would say in one word, the want of sympathy’.24 An 1854 obituary of Talfourd in The Law Magazine described him as ‘a sound rather than a first-rate lawyer’, at his best when sympathizing with his client’s cause; ‘there never was advocate more considerate alike of the feelings of suitors [and] witnesses . . . nor did a more patient, painstaking or urbane judge ever dignify the bench’.25 Talfourd made copious notes on cases he heard as a judge at various criminal and nisi prius proceedings at assize courts, including the Old Bailey. The criminal cases he heard included infanticide, murder, manslaughter, rape, burglary and theft, assault, arson and bestiality. One of the most tragic was that of Ann Good of Wallingford, a servant tried at Reading Assizes in March 1853 for decapitating her newborn child. She was found ‘not guilty by reason of insanity’. Talfourd did not believe that she was insane at the time of the crime or thereafter, but because of the circumstances of the case felt she should be ‘an object of great

Reactions in cases of maternal child murder 87 compassion’.26 From his notes it is clear he had great sympathy for Good and that he felt the ultimate blame for her crime lay with her employer, who had seduced her. Talfourd’s total disapproval of the man comes through the trial report he wrote for Lord Palmerston: ‘She was utterly friendless . . . but a remarkably hardworking and sweet-tempered girl [whose] seducer was her Master and that . . . he had accomplished the ruin of her person by poisoning her mind’.27 Talfourd reiterated the fact that although, personally, he was not convinced of Good’s insanity, he accepted the jury’s view and supported the verdict, which meant she would be held at Her Majesty’s pleasure as a criminal lunatic rather than facing the death penalty. In March 1859, Agnes Bradley stood trial at Liverpool Assizes for the murder of her two-year-old son, and during his summing-up of the evidence the judge, Sir James Shaw Willes, broke down in tears. Bradley was a married, middle-class mother who had poisoned her young son with laudanum on 26 December 1856. She had been declared insane after the inquest into the death, and she then spent the next eighteen months in the County of Lancaster Lunatic Asylum at Rainhill before the case came to court. Throughout the trial, Willes was deeply affected by the evidence and moved to tears. So, too, was Bradley, whose obvious distress and contrition won her sympathy within the courtroom and no doubt with the jury. The defence counsel waived his right to address the jury, as he believed such an address was unnecessary after the evidence given, to which Willes agreed. Willes then addressed the jury, informing them on points of law regarding insanity and murder: [T]he law was clear that where a person was proved to cause the death of another by administering poison that was prima facie murder, and it rested on the prisoner to make out she was absolutely insane at the time she committed the offence or that she was labouring under some delusion arising from a morbid state of mind or some mental disease.28 Willes delivered his summing-up ‘amid evident emotion’, something that would not have been lost on the jury. He emphasized Bradley’s devotion to her family leading up to the events of Christmas 1856, that she ‘appeared to have treated her children with all-natural affection and attachment, and had, while suffering from . . . religious madness, been prompted to become her son’s murderess’. This was a crucial intervention, since whether or not the prisoner had been delusional was an important part of demonstrating that the defendant met the legal criteria to be found ‘not guilty by reason of insanity’. Willes pointed out to the jury that they must decide if Agnes both knew the nature of her fatal act and that it was a wrong act at the time she committed it. Driving the point home, Willes said that with ‘the medical evidence, the agony of distress of the mother . . . and the evident distraction of mind under which she was labouring’ they could only come to one conclusion, that of insanity. The jury duly acquitted Bradley on the ground of insanity. Willes’ character and actions have been analysed in depth by Thomas Dixon in the light of emotional sensibilities of the time.29 Dixon notes that Willes had a

88 Alison Pedley strong belief in the powers of good and evil, having a somewhat ‘theological turn of mind’.30 He believed in the influence of the Devil in causing crime and would express moral and theological views on the matter, and on redemption, when passing sentence.31 In the case of Bradley, Dixon describes Willes’ direction to the jury as a ‘metaphysically complex interpretation of the crime’, much in line with his religious beliefs.32 Bradley asserted that she had committed some dreadful sin and that her child was better off in the care of God. The medical superintendent at the County of Lancaster Lunatic Asylum wrote in her casebook notes that, ‘She states that she administered poison to her child under the perception that it would quickly go to heaven that God had cast her off. She was a damned woman and she felt too wicked to live’.33 At the inquest into the son’s death, the family’s medical attendant said that for some time ‘she [had been] labouring under decided . . . Melancholic Monomania’.34 Rather than a declaration of a deep religious belief, Bradley’s words were, perhaps, more a reflection of her depression and melancholic state of mind. The emphasis on the possibility that her delusions were motivated by religious belief may have been admitted as evidence of her insanity in order to appeal to Willes’ known religious convictions. The existence of melancholic and morbid anxieties and the possibility that they were symptoms of an unbalanced mind was by this point well established in medical and legal circles. Writing in 1902, Dr John Baker, Deputy Medical Superintendent of Broadmoor, described how many of his patients committed to Broadmoor for the murder of their children were not vicious by nature but driven by ‘morbid and mistaken maternal solicitude’. He continued ‘rarely do they [the insane mothers] deny the act, but excuse themselves that the child is happy in heaven’.35 At the Old Bailey in July 1867, when summing-up at the trial of Eleanor Bell for the murder of her son, Willes himself said that he ‘had a great objection . . . to people getting off on the pretence of insanity’; although he thought that Bell was ‘a real case of a demented person’. He stated that his knowledge of such matters came from having tried: four cases of this kind, one at Lincoln, one at Liverpool, one at Exeter and one at another town in which persons of exemplary conduct and affectionate parents had suddenly taken the lives of . . . their children and that it was proved that the persons charged were labouring under religious delusions.36 Willes accepted, as did many lawyers and medical men of the period, that fervent religious beliefs or delusions could be taken as a sign of mental derangement. Willes was also the judge in the infamous Road Hill Murder case where he once again became very emotional and shed tears when delivering the sentence on Constance Kent, a teenage girl convicted for the murder of her three-year-old brother.37 A newspaper article in 1865 reported that ‘the learned judge . . . broke down and, bending his head, cried bitterly’, the reporter had ‘rarely . . . seen a judge so deeply affected, even on occasions like the present’.38 Reflecting on Willes’ career and behaviour, Thomas Dixon suggests that Willes was ‘out of step with his times’ and that his own melancholia and other health problems probably

Reactions in cases of maternal child murder 89 led to his eventual suicide.39 Certainly, his colleague Sir John Taylor Coleridge referred to him as ‘a consummate lawyer, a great jurist, a man of much general reading and of great ability, damaged perhaps a little by over-refinement and subtlety and some little want of manliness’.40 Sir Henry Hawkins had a contemporary reputation of being a harsh judge, but showed compassion when trying many cases of maternal child homicide. He served as a judge in the High Court of Justice between 1876 and 1898 travelling the country to various assizes. In February 1887, he presided at the Spring Assizes at Liverpool in St Georges Hall. Amongst the cases was that of Elizabeth Berry accused of the murder by poison of her eleven-year-old daughter, and that of Margaretta Lewis for the murder of her newborn baby. Lewis was acquitted and Berry was found guilty and hanged in Walton Gaol in March 1887. Margaretta Lewis had been married six weeks and was about to emigrate to America with her husband. She gave birth in rented rooms in Liverpool, but soon after birth the baby died, either by her hand or of natural causes. Her landlady was suspicious of her strange behaviour, and after a search the body of the baby was found hidden in a chimney. A postmortem examination of the child’s body showed that one arm was broken, there was a mark round the neck, and all indications that the infant had had a ‘separate existence’ for probably a half-hour.41 The medical witnesses, Drs Williams and Pugh, stated that the injuries and marks were not inconsistent with an unassisted delivery.42 Hawkins, upon hearing that Lewis was ‘weak-minded’, questioned whether it was worthwhile proceeding further with the charge: ‘They had it in evidence, the learned judge pointed out, that the prisoner was a weak, hysterical woman, and that she was in such a state of frenzy that she could hardly know what she was doing’.43 Indicted on separate charges of murder, manslaughter and concealment of birth regarding the baby, Lewis was acquitted on all counts. Berry, on the other hand, was treated very differently. Her trial was directly after that of Lewis, lasted three days and was followed closely in the national press. The Head Nurse at the Oldham Union Workhouse, she was indicted for the murder by poison of her daughter, Edith. In court Berry was described as a ‘cool customer’, being ‘of the quietest demeanour, never appearing restless’ throughout the trial.44 At no time was there any suggestion of mental derangement or misguided solicitude in her defence, and counsel relied on the fact that there appeared to be no discernible motive for her actions. Hawkins addressed the point directly in his summing-up saying, ‘in all great crimes committed by persons in their senses, there is always a motive’. This time he had no compassionate regard for the accused, directing the jury to ‘not let your verdict be the result of either passion, or prejudice, or sympathy’. Berry was found guilty and was hanged on 14 March 1887. In sentencing, Hawkins gave an indication of why he felt no sympathy, saying it was ‘a murder so cold-blooded, so merciless and so cruel causing a poor little child, who you gave birth to, to suffer so much pain . . . and whose sufferings you have witnessed so callously – passes all belief’.45 In his Reminiscences, Hawkins wrote that he ‘was always lenient where there were mitigating circumstances . . . of mental weakness, great temptation, provocation

90 Alison Pedley or unhappy surroundings’. and that he ‘was down on cruelty’.46 With Berry there was no indication of any of these circumstances, but he did condemn her as the cruellest of mothers. As he said himself, Hawkins showed compassion to murdering mothers where the crime had been committed due to circumstances beyond the defendants’ control. For instance, in 1888 Mary Armstrong was found insane by the jury at the Derby Assizes after drowning her six-month-old son, and subsequently admitted to Broadmoor. Hawkins remarked that ‘privation, trouble and distress associated with debility of mind and body’ had caused her tragic actions and that the ‘poor afflicted creature . . . is deserving of our commiseration’.47 In his Reminiscences, Hawkins stated that he believed that ‘in the case of poor creatures who make away with their . . . offspring in the agony of their trouble and shame, there were always found very strong reasons for commutation, even to very limited periods of imprisonment’.48 Despite his epithet of ‘Hanging Hawkins’, Hawkins was keen to claim some ownership of emotion and he was proud to have been seen to shed a tear when passing a difficult sentence. According to his memoirs, he would have tears in his eyes on occasion when sentencing prisoners in any type of case. He was also keen to protect the integrity of the law before personal emotion, believing that the correct application of the law should take precedent over judges’ feelings and emotions.

‘To temper mercy with justice’49 Tears may have been an outward manifestation of a judge’s emotional response, but other reactions demonstrate that judicial emotive responses could be driven by the defendant’s situation in life and the circumstances of her crime. The accused woman could become, in the eyes of the judge and jury, a casualty of fate and her social environment. The judges were from the middle-classes and as such, they would believe that their role as men would be to act as protector and provider to his family and to the vulnerable of society. The protective role of masculinity was fundamental to Victorian middle-class men and their certainty of purpose.50 In cases of overt judicial emotional responses, any sympathy and compassion appears to be for the defendant and her situation, rather than with the nature or victim of her crime. The fact that a child was murdered, nor that it was the defendant’s own child, did not in itself elicit an emotional reaction. What was important was that the woman’s body and mind had possibly been weakened by seduction, molestation, abandonment, or destitution, and her vulnerability had ultimately driven her to commit the crime.51 As well as implied insanity, the mitigating circumstances of poverty, sexual abuse and domestic violence influenced the judges and others in court. The actions and complicity of male protagonists in causing the woman to commit her crime were cited in justification and rationalization of judicial decisions. It was not unknown for Hawkins to direct trials and question evidence to arrange a reprieve for ‘the weak, hysterical’ women who he saw as such victims. In a bigamy case heard in Liverpool in 1887, he was very distressed by the evidence of systematic abuse and eventual abandonment of the accused

Reactions in cases of maternal child murder 91 woman, Louisa Denson, by her first husband. As the Western Mail reported, ‘Justice Hawkins believing the woman’s story . . . severely rebuked the first husband for prosecuting the woman under such circumstances, and said he (the judge) should be wanting in humanity if he imprisoned her for a single hour’.52 He then ordered that the accused should sentenced to imprisonment for just 30 minutes. The event was recorded in a poem ‘The Woman and the Law! (A True Story told before Mr Justice Hawkins at the recent Liverpool Assizes)’, published originally in the Daily Telegraph but widely reproduced in other newspapers and recorded in his Reminiscences.53 His actions were very much in accordance with the culturally accepted role of men as protectors of women and certainly enhanced Hawkins’ reputation as a fair and feeling judge. ‘The case [that of Louisa Denson] was sufficient to excite sympathy in the sternest judicial bosom. And who shall say . . . that Hawkins, J., does not know how to temper mercy with justice?’54 As mentioned above, Thomas Talfourd did not hesitate to blame Ann Good’s employer for ruining the girl and her reputation. Similarly, Judge Gainsford Bruce reacted with horror to the case of Emily Wilson in 1893 on discovering that she had been ‘forcibly outraged by her stepfather during her Mother’s absence from home’ and that her subsequent pregnancy was the result.55 Emily Harriet Wilson was eighteen years of age and a domestic servant for the landlord of the Rockingham Arms at Wentworth, near Rotherham. On 9 April 1893, she went missing from her work, saying she was ill. After questioning by her employer, she admitted that she had given birth that morning, and the baby was lying in a box in the corner of her bedroom. She told a horrified neighbour that it had been born alive, but she had put a handkerchief into its mouth to stifle its cries. Her employer found the body under a quantity of clothes in Wilson’s servant box. Wilson said that she had intended to bury the body so that no one would know anything about it. At the inquest on 15 April 1893, Dr Barr, a local physician, testified that it was wellknown that when women give birth they were subject to ‘acute mania’ of a temporary nature, and because of this could not be judged responsible for their actions. The inquest jury found Wilson guilty of wilful murder and she was sent for trial. She was brought before Bruce at the Leeds Assizes on 10 May 1893. Dr Barr once again gave his opinion that she might not have been responsible for her actions at the time, which seemed to be borne out by the condition of the prisoner. Throughout the trial, Wilson sat in a dazed state, and did not seem to understand what was said to her. The jury found that she was insane at the time of the crime.56 Although Wilson was adjudged insane, Bruce was not as convinced as the jury by the evidence of insanity. In a letter to the Home Secretary, he said of the verdict, ‘the girl was only eighteen and her appearance was so innocent and unprepossessing that it was natural for a jury to accept any theory rather than . . . a verdict of murder’.57 Bruce actively tried to have her sent to a House of Correction rather than Broadmoor Criminal Lunatic Asylum, writing that ‘she is in no way a lunatic . . . she is perfectly sane . . . most childlike and simple and perfectly sensible and teachable’.58 He was unsuccessful in that endeavour but continued to attempt to have her discharged from Broadmoor, arguing that ‘if she were sent to some home or Refuge it might be the saving of her’.59 His intention, no doubt, was that she

92 Alison Pedley should be somewhere in a position away from home and presumably away from the influence of her stepfather, ‘the judge was anxious she should be treated with great leniency . . . if released a situation away from home will be found for her’.60 His reaction to the case of Christiana Waddington, also tried at Leeds Assizes in May 1893 for the murder of her baby, was a marked contrast to the Wilson case. Waddington was a twenty-nine-year-old married woman who had been deserted by her husband. She then cohabited with a neighbour, who subsequently abandoned her when she became pregnant with his child. Waddington entered the workhouse for her confinement and after leaving, drowned the five-week old baby in a tank of water. Despite the suggestion of her defence counsel that her ‘mind was unstrung by recent trouble [and that she] took the life of her infant in a moment of desperation and weakness’, no plea of insanity was entered or proposed.61 In addressing the jury, the defence counsel said that ‘it was the girl’s betrayer who ought to have stood in the dock charged with the murder of the child’.62 Despite even the prosecution adding that ‘it was the old story of a defenceless girl, betrayed and deserted’ and Waddington’s defence counsel’s compassionate plea ‘to bring in a verdict of manslaughter’, Bruce appeared to be quite cold in his summing-up, reminding the jury of ‘the sacredness of human life’ and ‘that in the face of the evidence they could not come to any other conclusion than that the prisoner was guilty’.63 Obviously, Bruce did not feel moved to recommend the lesser charge of manslaughter despite the counsels’ words. After ‘a brief consultation in the box’ the jury returned a verdict of guilty of ‘wilful murder’, coupled with a strong recommendation to mercy.64 Although Bruce noted that he had ‘regard to the distressing circumstances in which you [Waddington] were placed’, this had no bearing on the sentence passed: in all capital cases since 1861, it was mandatory to sentence any defendant found guilty of murder to death regardless of any recommendation by the jury.65 In court, Bruce did not appear to have the same sympathy for Waddington as he did for Wilson, maybe because Wilson appeared to be more vulnerable and morally innocent – a victim rather than a knowing woman, more in need of protection. For a middle-class judge, Waddington had contravened the tenets of respectable living: she had cohabited with another man although her husband was still alive. Whilst such cohabitation might have been acceptable within Waddington’s community, and possibly to the jury members, in the eyes of the law personified by late-Victorian judges, it was not. Cohabitation was itself scandalous for the professional middle-classes.66 Waddington’s desperate circumstances brought about by a second desertion, pregnancy and possible destitution do not seem to have elicited enough compassion in court to mean that the jury could reach a different verdict, and conviction for murder meant passing the death sentence was automatic. As was usual practice in capital cases, Waddington’s file was referred to the Home Secretary for further consideration, and the Home Office review papers give a different perspective on Bruce’s reaction. In a letter to the Home Secretary accompanying the trial papers, Bruce wrote ‘There is no doubt, I fear, that the murder of the child was a deliberate act. That the poor woman was in a destitute condition [. . . and . . .] the circumstances in which she was placed were very

Reactions in cases of maternal child murder 93 distressing’. He described Waddington’s erstwhile partner as ‘a ne’er-do-well & would do nothing for her’ and that in his opinion as the crime was ‘was a very serious one’, she should ‘suffer a long-term of penal servitude’.67 From press reports, Bruce appears to have been unsympathetic in manner to the accused, but perhaps a more humane side of his character was demonstrated by his support for Waddington having her sentence commuted to imprisonment. The press reports of the Waddington case appear to demonstrate judicial indifference, with Bruce appearing to be a less than sympathetic judge, one not swayed by compassion or emotion. He was not indifferent to the sufferings caused by abandonment, desperation and destitution, however; when summing-up, he gave his judicial rulings in line with procedure and not personal feelings. His approach was more in keeping with expectations of a professional middle-class man of the later Victorian period, than the more emotionally driven reactions of some judges earlier in the century.

Conclusion At the beginning of the nineteenth century, in certain situations, it was acceptable for a man to display a lachrymose response in public. By the latter part of the Victorian period ‘the age of pathos was over’ and public tears were less favourably viewed.68 Judges educated in the second half of the century would have come under the influence of the ‘stiff-upper-lip’ approach to sentiment and emotion.69 Later Victorians tended to view masculine repression of emotionally driven sentimentality as a sign of strength and ‘civilization’. Whilst it was not in itself undesirable for men to have feelings and emotions, they should not allow such traits to impact on judgment or actions. The display of emotion through tears and overt sentimentality was for women, children and other (often implicitly or explicitly depicted as ‘lesser’) nations. To an extent all judges’ emotive responses would be influenced by their social milieu and conventions of the time to which they belonged. Talfourd, for instance, was a man of the Dickensian period when ‘pathos’ within writings and life were acceptable and grown men were not afraid to show emotion in public. As we have seen, Willes was liable to have lachrymose reactions to particularly tragic court cases. Weeping judges were not unknown in the justice system of the early nineteenth century, but as the century progressed, they became rare. In an 1870 article in the Glasgow Herald, a writer spoke out explicitly against the demonstration of emotion. Sir Fitzroy Kelly was castigated for being greatly affected and shedding tears when passing the death sentence on a female prisoner; We confess that we cannot understand this display of feeling still less can we admire it. It seems to us closely akin to that morbid sentiment which makes pseudo-philanthropists treat every capital criminal as a victim and converts the hangman’s cap into the martyr’s aureole.70 The writer’s attitude was more akin to a later Victorian view of the display of male sentimentality. By the end of the century, a judge weeping in court was noted as an unusual sight.

94 Alison Pedley The hypothesis that personal principles and social environment would influence judges’ emotional reactions and responses to women defendants and, specifically, mothers who had killed their own children, may be an oversimplification of the reality. Whilst it is possible to find comparable examples of members of the judiciary demonstrating compassion and sensitivity in such court cases throughout the period, it should not be assumed that all Victorian judges would display overt emotion in court. They were highly individual characters and certainly would not all behave in the same way. It was not required or reasonable that judges should be devoid of feelings, but it was agreed that they should be applied in the correct manner. As Hawkins said, ‘in many cases the feelings of the Judges would interfere with the course of justice, and murderers would receive more sympathy than their victims’. He continued, ‘yet Judges do have sympathy and that [sympathy] can be, and is, these days properly exercised’.71 A desirable trait for a judge was to be sympathetically fair-minded in one’s responses in the courtroom, albeit within judicial guidelines, and demonstrate a modicum of compassionate understanding towards vulnerable defendants. The likelihood of a judge crying in court was significantly lower during the latter half of the century, although it did sometimes occur. In 1899, Mr Justice Bicknell cried as he passed the death sentence on a female defendant, causing a newspaper reporter to comment ‘it is not often that a judge gives way to tears in his court’. Bicknell’s emotional response appears to have exacerbated by three factors – it was the first time in his judicial career he had had to pronounce the capital sentence, the defendant was woman and she had made a ‘pathetic appeal . . . for mercy for the sake of her children’.72 Demonstrating just how rare and shocking such a sight had become by this point, the scene was described in the Halifax Courier as ‘almost without parallel in the annals of trials’. It would have been more accurate to say that it was a sight more attuned to an earlier era of judicial behaviour.73

Notes 1 The Spectator, 12 August 1865. 2 T. Hitchcock, ‘Whispers and Cries: Listening to the Voices of the Dead at the Old Bailey’ (Unpublished keynote lecture, The Digital Panopticon Conference: The Global Impact of London Punishments 1780–1925, September 2017); L. Mulcahy, Legal Architecture (Abingdon: Routledge, 2011), pp. 176–177; V. Nagy, Nineteenth Century Female Poisoners: Three English Women Who Used Arsenic to Kill (Basingstoke: Palgrave Macmillan, 2015), p. 132. 3 See variously Berkshire Record Office [henceforth BRO], D/H14 D/1/1/1/1, Broadmoor Hospital Archive: Admissions Registers 1863–1871, BRO D/H14 D1/1/1/2 Broadmoor Hospital Archive: Admissions Registers 1868–1900; Bethlem Museum of the Mind [henceforth BMM] ARD-01/02 Bethlem Royal Hospital: Criminal Patient Admission Registers, 1816–1864; BMM CBC-03 A06/7 Bethlem Royal Hospital: Incurable and Criminal Patient casebooks 1850–1857. 4 For key context see J. Rowbotham, K. Stevenson and S. Pegg, Crime News in Modern Britain: Press Reporting and Responsibility, 1820–2010 (Basingstoke: Palgrave Macmillan, 2013). 5 M.J. Wiener, ‘Convicted Murderers and the Victorian Press: Condemnation vs. Sympathy’, Crime and Misdemeanours 1 (2007), pp. 110–125 (p. 112).

Reactions in cases of maternal child murder 95 6 H. Hawkins Brampton, ed. R. Harris K.C. The Reminiscences of Sir Henry Hawkins, Baron Brampton (London: T. Nelson, 1904). See also BRO D/EX 1410, Legal and personal papers of Thomas Noon Talfourd, judge and writer, 1795–1854. The Talfourd collection is written in somewhat difficult handwriting, however valuable evidence has been gleaned from it. 7 Vanity Fair, 21 May 1892. 8 The Times, 28 March 1859. 9 The Times, 8 April 1840. 10 Harris, The Reminiscences of Sir Henry Hawkins, p. 289. 11 Glasgow Herald, 26 September 1870. 12 See amongst others M.L. Arnot, ‘Gender in Focus: Infanticide in England 1840–1880’ (unpublished PhD thesis, University of Essex, 1994); C.A. Conley, Certain Other Countries: Homicide, Gender and National Identity in Late Nineteenth-Century England, Ireland, Scotland and Wales (Columbus: Ohio State University Press, 2007); J. Knelman, Twisting in the Wind: The Murderess and the English Press (Toronto: University of Toronto Press, 1998); H. Marland, ‘Getting Away With Murder? Puerperal Insanity, Infanticide and the Defence Plea’, in Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000, ed. by M. Jackson (Aldershot: Ashgate, 2002), pp. 168–192; R. Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981); P. Prior, Madness and Murder: Gender, Crime and Mental Disorder in Nineteenth-Century Ireland (Dublin: Irish Academic Press, 2008); T. Ward, ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder 1860–1938’, Social and Legal Studies 8:2 (1999), pp. 163–180; L. Zedner, Women, Crime and Custody in Victorian England (Oxford: Clarendon Press, 1991). 13 For example Conley, Certain Other Countries; Smith, Trial By Medicine. 14 Kentish Mercury, 15 July 1867. 15 D. Cannadine, Class in Britain (London: Penguin, 1998), p. 92. 16 C.W. Masters, The Respectability of Late Victorian Workers: A Case Study of York, 1867–1914 (Newcastle upon Tyne: Cambridge Scholars Publishing, 2010), pp. 2–5. 17 S. D’Cruze, ‘Sex, Violence and Local Courts. Working-class Respectability in a Midnineteenth-century Lancashire Town’, British Journal of Criminology 39:1 (1999), pp. 39–55 (p. 39). 18 B. Griffin, The Politics of Gender in Victorian Britain: Masculinity, Political Culture and the Struggle for Women’s Rights (Cambridge: Cambridge University Press, 2012), pp. 171–173. 19 J. Tosh, Manliness and Masculinities in Nineteenth-Century Britain (Harlow: Pearson, 2005), pp. 86–87. 20 Harris, The Reminiscences of Sir Henry Hawkins, p. 187. 21 C. Dickens, Household Words 4 (25 March 1854), pp. 117–118. 22 A number of barristers also worked on the side as journalists or critics in this period, although this could garner a mixed response from colleagues: see Rowbotham, Stevenson and Pegg, Crime News, pp. 45–50. 23 E. Hall, ‘Talfourd, Sir Thomas Noon (1795–1854)’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/ 26951 [Accessed 3 August 2017]. 24 Talfourd’s final words. ‘Charge to the Grand Jury, Stafford Assizes’, 13 March 1854. Quoted in Illustrated London News, 18 March 1854. 25 Anonymous, ‘Art. VIII. – The Late Mr. Justice Talfourd’, The Law Magazine: Or, Quarterly Review of Jurisprudence 20:51 (1854), pp. 208–326 (p. 305, p. 321). 26 The National Archives [henceforth TNA] HO 18/379/19. Home Office Criminal Petitions: Report on the Case of Ann Good, 13 December 1853. 27 TNA HO 18/379/19. Letter from Thomas Talfourd to the Home Office, 7 December 1853.

96 Alison Pedley 28 Mr Justice Willes, quoted in The Times, 28 March 1859, p. 11. All quotes cited in the following paragraph are taken from the same source. 29 See T. Dixon, ‘The Tears of Mr Justice Willes’, Journal of Victorian Culture 17:1 (2012), pp. 1–23 and T. Dixon, Weeping Britannia: A Portrait of a Nation in Tears (Oxford: Oxford University Press, 2015), pp. 169–182. 30 Dixon, ‘The Tears of Mr Justice Willes’, p. 18. 31 Dixon, ‘The Tears of Mr Justice Willes’, p. 18. 32 Dixon, ‘The Tears of Mr Justice Willes’, p. 17. 33 Liverpool Record Office M614 RAI/8/3. County of Lancaster Lunatic Asylum, Rainhill Archive, Casebook: Female Patients, 1856–1860. 34 TNA PL 27/14. Palatinate of Lancaster: Crown Court: Depositions. 1856–1858, Borough of Liverpool. R. v Bradley. Inquest regarding the death of John Carr Bradley, 31 December 1856. 35 J. Baker, ‘Female Criminal Lunatics: A Sketch’, The British Journal of Psychiatry 48 (1902), pp. 13–28 (p. 16). 36 Kentish Mercury, 15 July 1867. The case at Lincoln was that of Ann Wilson who was admitted into Bethlem in 1861, at Liverpool that of Agnes Bradley, and at Exeter, Elizabeth Thomas, committed to Bethlem in 1863. All three women were married, found insane by the jury at their trial and then released after relatively short periods of incarceration. 37 The Times, 22 July 1865. 38 Bristol Mercury, 22 July 1865. 39 Dixon, Weeping Britannia, p. 180. 40 Dixon, Weeping Britannia, pp. 173–179. 41 The proof of ‘separate existence’ had a complicated case law and required a range of postmortem tests. Test results were notoriously open to misinterpretation, but were an essential feature of all homicide trials involving newborn infants. Without such proof, it was impossible to proceed with a charge of murder or manslaughter, only one for concealment of birth. See Arnot, ‘Gender in Focus’. 42 Liverpool Mercury, 11 February 1887. 43 Liverpool Mercury, 24 February 1887. 44 Oldham Chronicle, 25 February 1887. 45 Liverpool Mercury, 25 February 1887. 46 Harris, The Reminiscences of Sir Henry Hawkins, p. 187. 47 Derbyshire Courier, 28 July 1888. 48 Harris, The Reminiscences of Sir Henry Hawkins, p. 289. 49 St. James’s Gazette, 8 February 1887. 50 J. Tosh, A Man’s Place: Masculinity and the Middle-Class Home in Victorian England (New Haven: Yale University Press, 1999), pp. 61–62 and p. 108. 51 M.L. Arnot, ‘Perceptions of Parental Child Homicide in English Popular Culture 1800–1850’, Law, Crime and History 1 (2017), pp. 16–74 (p. 33). 52 Western Mail, 8 February 1887. 53 Daily Telegraph, 8 February 1887. 54 St. James’s Gazette, 8 February 1887. 55 TNA HO 144/496/X42157. Home Office case file of Emily Harriet Wilson, 1893–1899. 56 York Herald, 12 May 1893. 57 TNA HO 144/496/X42157. Letter from Sir Gainsford Bruce to H.H. Asquith in the matter of Emily Harriet Wilson, 14 May 1893. 58 TNA, HO 144/496/X42157. Letter from Sir Gainsford Bruce to H.H. Asquith, 14 May 1893. 59 TNA HO 144/496/X42157. Letter from Sir Gainsford Bruce to H.H. Asquith, 14 May 1893. 60 TNA HO 144/496/X42157. Home Office memorandum written directly on file, 18 May 1893.

Reactions in cases of maternal child murder 97 61 62 63 64 65 66 67 68 69 70 71 72 73

Huddersfield Chronicle, 12 May 1893. York Herald, 12 May 1893. York Herald, 12 May 1893. Huddersfield Chronicle, 12 May 1893. York Herald, 12 May 1893. G.S. Frost, Living in Sin: Cohabiting as Husband and Wife in Nineteenth-Century England (Manchester: Manchester University Press, 2008), pp. 40–41. TNA HO 144/249/A54860. Letter from Sir Gainsford Bruce to H.H. Asquith in the matter of Christiana Waddington, 14 May 1893. Dixon, Weeping Britannia, p. 181. Griffin, The Politics of Gender, p. 173. Glasgow Herald, 26 September 1870. Harris, The Reminiscences of Sir Henry Hawkins, p. 226. Halifax Courier, 25 November 1899. Halifax Courier, 25 November 1899.

Bibliography Anonymous. ‘Art. VIII. – The Late Mr. Justice Talfourd’, The Law Magazine: Or, Quarterly Review of Jurisprudence 20:51 (1854), pp. 208–326. Arnot, M.L. ‘Gender in Focus: Infanticide in England 1840–1880’ (unpublished PhD Thesis, University of Essex, 1994). Arnot, M.L. ‘Perceptions of Parental Child Homicide in English Popular Culture 1800– 1850’, Law, Crime and History 1 (2017), pp. 16–74. Baker, J. ‘Female Criminal Lunatics: A Sketch’, The British Journal of Psychiatry 48 (1902), pp. 13–28. Berkshire Record Office D/H14 D/1/1/1/1. Broadmoor Hospital Archive: Admissions Registers 1863–1871. Berkshire Record Office D/H14 D1/1/1/2. Broadmoor Hospital Archive: Admissions Registers 1868–1900. Bethlem Museum of the Mind ARD-01/02. Bethlem Royal Hospital: Criminal Patient Admission Registers, 1816–1864. Bethlem Museum of the Mind BMM CBC-03 A06/7. Bethlem Royal Hospital: Incurable and Criminal Patient Casebooks 1850–1857. Bristol Mercury, 22 July 1865. Cannadine, D. Class in Britain (London: Penguin, 1998). Conley, C.A. Certain Other Countries. Homicide, Gender and National Identity in Late Nineteenth-Century England, Ireland, Scotland and Wales (Columbus: Ohio State University Press, 2007). County of Lancaster Lunatic Asylum, Rainhill Archive. M614 RAI/8/3. Daily Telegraph, 8 February 1887. D’Cruze, S. ‘Sex, Violence and Local Courts. Working-class Respectability in a Mid-nineteenthcentury Lancashire Town’, The British Journal of Criminology 39:1 (1999), pp. 39–55. Derbyshire Courier, 28 July 1888. Dickens, C. Household Words 4 (25 March 1854), pp. 117–118. Dixon, T. ‘The Tears of Justice Willes’, Journal of Victorian Culture 17:1 (2012), pp. 1–23. Dixon, T. Weeping Britannia: A Portrait of a Nation in Tears (Oxford: Oxford University Press, 2015). Frost, G.S. Living in Sin: Cohabiting as Husband and Wife in Nineteenth-Century England (Manchester: Manchester University Press, 2008),

98 Alison Pedley Glasgow Herald, 26 September 1870. Griffin, B. The Politics of Gender in Victorian Britain: Masculinity, Political Culture and the Struggle for Women’s Rights (Cambridge: Cambridge University Press, 2012). Halifax Courier, 25 November 1899. Hall, E. ‘Talfourd, Sir Thomas Noon (1795–1854)’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/ 26951 [Accessed 3 August 2017]. Harris, R. ed. H. Hawkins Brampton. The Reminiscences of Sir Henry Hawkins, Baron Brampton (London: T. Nelson, 1904). Hitchcock, T. ‘Whispers and Cries: Listening to the Voices of the Dead at the Old Bailey’ (Unpublished Keynote Lecture, The Digital Panopticon Conference: The Global Impact of London Punishments 1780–1925, September 2017). Huddersfield Chronicle, 12 May 1893. Illustrated London News, 18 March 1854. Kentish Mercury, 15 July 1867. Knelman, J. Twisting in the Wind: The Murderess and the English Press (Toronto: University of Toronto Press, 1998). Liverpool Mercury, 11 February 1887; 24 February 1887; 25 February 1887. Liverpool Record Office M614 RAI/8/3. County of Lancaster Lunatic Asylum, Rainhill Archive, Casebook: Female Patients, 1856–1860. Marland, H. ‘Getting Away With Murder? Puerperal Insanity, Infanticide and the Defence Plea’, in Infanticide: Historical Perspectives on Child Murder and Concealment, 1550– 2000, ed. by M. Jackson (Aldershot: Ashgate, 2002), pp. 168–192. Masters, C.W. The Respectability of Late Victorian Workers: A Case Study of York, 1867– 1914 (Newcastle upon Tyne: Cambridge Scholars Publishing, 2010). Mulcahy, L. Legal Architecture (Abingdon: Routledge, 2011). Nagy, V. Nineteenth Century Female Poisoners: Three English Women Who Used Arsenic to Kill (Basingstoke: Palgrave Macmillan, 2015). The National Archives [henceforth TNA] HO 18/379/19. Home Office Criminal Petitions: Report on the Case of Ann Good, 13 December 1853. Oldham Chronicle, 25 February 1887. Prior, P. Madness and Murder: Gender, Crime and Mental Disorder in Nineteenth-Century Ireland (Dublin: Irish Academic Press, 2008). Rowbotham, J., K. Stevenson and S. Pegg. Crime News in Modern Britain: Press Reporting and Responsibility, 1820–2010 (Basingstoke: Palgrave Macmillan, 2013). Smith, R. Trial By Medicine. Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981). St. James’s Gazette, 8 February 1887. The Times, 8 April 1840; 28 March 1859. TNA HO 144/249/A54860. Home Office case file of Christiana Waddington. TNA HO 144/496/X42157. Home Office case file of Emily Harriet Wilson, 1893–1899. TNA PL 27/14. Palatinate of Lancaster: Crown Court: Depositions. 1856–1858, Borough of Liverpool. See R. v Bradley. Inquest regarding the death of John Carr Bradley, 31 December 1856. Tosh, J. A Man’s Place: Masculinity and the Middle-Class Home in Victorian England (New Haven: Yale University Press, 1999). Tosh, J. Manliness and Masculinities in Nineteenth-Century Britain (Harlow: Pearson, 2005). Vanity Fair, 21 May 1892.

Reactions in cases of maternal child murder 99 Ward, T. ‘The Sad Subject of Infanticide: Law, Medicine and Child Murder 1860–1938’, Social and Legal Studies 8:2 (1999), pp. 163–180. Western Mail, 8 February 1887. Wiener, M.J. ‘Convicted Murderers and the Victorian Press: Condemnation vs. Sympathy’, Crime and Misdemeanours 1 (2007), pp. 110–125. York Herald, 12 May 1893. Zedner, L. Women, Crime and Custody in Victorian England (Oxford: Clarendon Press, 1991).

4

‘What will most tend towards morality’ Sir Cresswell Cresswell and the Divorce Court, 1858–1863 Gail Savage [. . .] how good Sir CRESSWELL is! Sense, temper, firmness, all are his. If I on earth were made Dictator His powers, now great, should still be greater. There’s many a wrong we could redress well If aided by Sir CRESSWELL CRESSWELL.1 ‘Sir Cresswell Cresswell represents 5,000,000 of English wives’.2

The passage of the 1857 Divorce Act replaced the awkward procedure for divorce that called for three different kinds of judicial proceedings culminating with the passage of a private bill through Parliament. Instead, a single, secular court would hear matrimonial cases. The new Divorce Court opened early in 1858 to considerable uncertainty about its future impact, especially in light of the heated disagreements over the bill during its passage through Parliament.3 Would the court regard the defence of the husband’s authority in the household as its primary duty? Or would it take on additional duties to protect the blameless wife from the failures of tyrannical and abusive husbands like George Norton?4 The judge chosen to oversee proceedings before the new court would be in a position to reshape matrimonial litigation. An examination of the career of Cresswell Cresswell as the first Divorce Court judge provides an opportunity to assess the principles that Cresswell brought to bear on the cases before him. In particular, Cresswell’s observations in explaining his decisions upheld a rigorous vision of marital morality and expressed a gendered view of the responsibilities of spouses towards one another that did not challenge the double standard of sexual morality but also did not exempt husbands from their moral responsibilities towards their wives and their marriages. This analysis will enrich our knowledge of the career of an important judicial figure as well as further our understanding of the factors that shaped Cresswell’s decisions.5 Lord Aberdeen, whose government had sponsored an earlier, much narrower divorce bill in 1854, thought it prudent to withhold judgment about the potential impact of the new court. He confided to Lord Brougham, who had championed the divorce bills in the House of Commons: ‘notwithstanding all the discussion

‘What will most tend towards morality’ 101 which has taken place, I am persuaded that it is still very imperfectly understood, at least in its practical effects. I think before long, that we shall see consequences which at present are very little expected’.6 Aberdeen’s assessment proved prescient. The first few years of the new Divorce Court saw turmoil and uncertainty, caused by both the need to grapple with some of the unintended consequences of implementing the 1857 Divorce Act and the unexpectedly large number of litigants who sought to take advantage of the new court. The first order of business, naming the judge, turned into a more drawn-out process than anyone anticipated, as it proved difficult to recruit a suitable candidate. Judge in place, the court opened its doors in February 1858 to conduct business only to find itself immediately swamped by eager litigants. Although the number of petitions presented to the new court appears extremely small to the modern eye, inured to the phenomenon of mass divorce, contemporary observers reacted with shock to the volume of business entertained by the court, especially the number of divorce petitions submitted by wives. In addition, the publicity generated by the court’s business caused much consternation, and the impact of detailed newspaper reporting of divorce cases rippled through English culture.7 In response to controversies over these developments lawmakers returned to the subject of divorce in 1859 and 1860 to pass legislation intended to rectify some of the perceived shortcomings of the original act. Sir Cresswell Cresswell, the ultimate selection as the first Divorce Court judge, advised the government on these important revisions to the 1857 statute. In addition, during his six years’ tenure as judge until his death in 1863, Cresswell issued decisions that defined the terms of the court’s business for the rest of the nineteenth century.

Cresswell Cresswell’s appointment: not the first choice Immediately after the passage of the Divorce Act in August 1857, the government faced the reality that the new court would begin hearing cases shortly after the first of the year in 1858. This deadline did not leave much time to prepare for the implementation of a legal procedure that would draw upon all three strands of English legal tradition – common law, equity law and ecclesiastical law. The new judge, whoever he might be, faced a formidable task. As he began sounding out possible candidates, Lord Chancellor Cranworth worried that ‘there is little to induce any of the Judges of Westminster Hall to accept the post’.8 The process that led to Sir Cresswell Cresswell’s appointment underscores the clubby nature of the law reform community and the political considerations governing judicial appointments in the mid-nineteenth century.9 Cresswell was not the first candidate for the position. Two men, in particular, had prior claims on preferment: Stephen Lushington and Richard Bethell. Bethell, as Attorney General, had taken charge of the debates on the divorce bill in Commons.10 Although not well liked, he had acquired impressive credentials, first as a barrister and then as a law reformer. Lushington had enjoyed a long and distinguished career in the ecclesiastical courts and so had extensive experience in cases dealing with matrimonial law. He had also served on the Commission on

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Ecclesiastical Courts in the 1830s and on the Divorce Commission in the early 1850s.11 Lord Chancellor Cranworth thought first of Lushington, but Brougham raised objections that Cranworth found persuasive.12 Already seventy-five, Lushington was getting on in years, and, as Cranworth explained to Palmerston: ‘The feeling is that everything should be done to detach the court from its Ecclesiastical connection, & to make it to all intents & purposes a common law court’. Cranworth concurred with Brougham’s suggestions: ‘If we do not offer the post to Lushington, I agree with you in thinking that a common lawyer ought to be selected’.13 But when Brougham named Fitzroy Kelly14 as a possible candidate, Cranworth rejected him out of hand because he thought Palmerston would oppose giving Kelly the peerage necessary to lure him to take on the responsibility of the new court, since ‘Kelly has always been, though a law reformer, a decided political opponent, as I believe sitting & voting on the opposition bench’.15 Meanwhile, Palmerston sounded out his Attorney General, Richard Bethell.16 Bethell turned down the appointment, explaining: ‘In conducting the Divorce & Testamentary Bills thro’ the House of Commons, I had to propose Clauses which added considerably to the Salary & Patronage of the future Judge’. To accept the position that he had helped to endow would detract from his status as a ‘disinterested adviser’ and make it appear that he had acted for his ‘own aggrandisement’.17 Bethell’s personal unpopularity, combined with doubts about his skill in conducting the divorce debates, might explain Palmerston’s wish to move him to a position less overtly political, but, from Bethell’s point of view, taking on the Divorce Court would not have advanced his ambition to become Lord Chancellor, an ambition he later achieved. So both self-interest and duty motivated Bethell’s rejection of the opportunity to lead the Divorce Court. Cranworth then proposed Sir William Erle,18 another law reformer, an active judge, a safe Whig and ‘an admirable lawyer & in all respects a Gentleman’.19 Worried by the passing of time, he pressed Palmerston for an early reply to this suggestion. Palmerston approved Cranworth’s suggestion to approach Erle.20 Erle, however, did not want the position either, later reflecting: ‘I thank a kind Providence which guided me to refuse the glittering bait’.21 It began to appear that Cranworth’s worries about finding a suitable candidate to accept the new judgeship had some substance. And indeed, this would turn out to be a problem for future governments, as judging divorce cases proved to be unpopular work for many in the small judicial community. At this juncture, almost two months after the passage of the Divorce Act and three months before the Divorce Court would begin to hear cases, Cranworth suggested Cresswell Cresswell, a fifth choice. Cranworth recommended Cresswell to Palmerston as an experienced judge who ‘would do the duties of the office extremely well’. Cresswell had served on the bench at the Court for Common Pleas for fifteen years and had already earned his retirement. Going to the new court would allow him to keep his salary while doing what Cranworth predicted would be ‘easy work’. Cresswell would, in addition, gain the rank of Privy Councillor.22 Pleased when Cresswell showed some interest in the position, Cranworth assured Palmerston: ‘this appointment will do

‘What will most tend towards morality’ 103 us credit’.23 After some initial reluctance, Cresswell accepted the honour and the challenge of presiding over the new court. As Cranworth reported to Brougham: Cresswell has agreed to become the Judge of the new Probate & Divorce Court – I feel he will do the work well. He was not at first very willing to accept the post, as it will bring him no additional salary & will impose on him the obligation of learning some new law. The place will however leave him a fair share of leisure even supposing the business to be much more than it has hitherto been . . . I do not think we could have made a better selection.24 At the end of October 1857 the issue of who would take the position of the judge of the new court was settled after two months of uncertainty. Cresswell had only a few months to prepare himself for the judicial unknown. His response to this challenge would be shaped by both his well-known rectitude and his experience practicing and judging in the common law. Cresswell’s appointment at first occasioned some surprise and consternation because he took up this new duty at the age of sixty-four, a lifelong bachelor and a staunch Tory. Women worried that his lack of personal knowledge of the married state would lead him to take the masculine point of view, and husbands worried that a bachelor might not fully enter into their difficulties. As a columnist for Punch put it: a bachelor, especially if he has been talked at by married men (who will scoff at matrimony like anything, and yet would as soon part with their heads as their wives), I say what does he know about forbearing and putting up with things? Perhaps he has lived in chambers, with a sycophant valet and a terrified laundress.25 Neither wives nor husbands anticipated the possibility that Cresswell might become a champion of aggrieved wives. Cresswell came from a distinguished Northumberland family, and he had already enjoyed a career of some accomplishment when he took up his new appointment in 1858. He attended Charterhouse and Emmanuel College, Cambridge, where he studied under a Senior Wrangler who later earned some notoriety as Justice Maule. Maule had delivered the famous ironic opinion that critiqued the state of the law in the case of a poor working man convicted of bigamy recapitulated by Charles Dickens in Hard Times.26 Cresswell went on to study law at the Inner Temple, and he was called to the bar in 1819. He served a lengthy apprenticeship on the Northern Circuit, overshadowed at first by the brilliant array of advocates on that circuit that included Brougham and James Scarlet.27 Cresswell entered Parliament in 1837, serving as a loyal Peelite backbencher. When a vacancy on the bench occurred in 1841, Sir Robert Peel and Lord Lyndhurst, then Lord Chancellor, turned with confidence to Cresswell to take up the responsibility of a judge in the Court of Common Pleas, and he served in that capacity until he became the first judge-ordinary of the Divorce Court in 1858.28

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Cranworth’s prediction that the workload of the new court would be light proved to be wildly off the mark. Cresswell did not share this expectation and approached his new duties with considerable seriousness of purpose. In his address to the bar of the new court upon its opening, Cresswell confided: ‘I cannot take my seat in this court without feeling many anxious fears lest I should prove unequal to the discharge of the duties which I have taken upon myself’.29 Those duties proved challenging, as Cresswell endeavoured to define just how to apply the new law to his judicial intervention into marital life gone wrong.

‘Labours of the pitchfork’ and their consequences Supporters of divorce law reform and the legal profession greeted the legislation with an appropriately restrained approval. In a summary discussion of the mechanics of the new law, The Law Times pointed with satisfaction to the way in which the law treated the status of women, its placement of divorce litigation under the jurisdiction of the high court and the decision to open the practice of divorce law to both solicitors and barristers.30 But the law, the product of protracted and bitterly contested debates, could not be considered well drafted, and, as law reformer John Macqueen put it: ‘The labours of the pitchfork are visible on every page’.31 The first years of the new court’s operation revealed marital transgressions of unanticipated scope, and the adjudication of early cases exposed inefficiencies as well as unexpected and undesirable consequences of such magnitude that legislators found themselves debating additional legislation in 1859 and 1860 to enact corrective measures. Three issues in particular, none anticipated by either opponents or supporters of civil divorce, excited the most comment. The delay in litigation, occasioned by the original requirement that three judges sit together to decide divorces, led to pressure to allow the judge-ordinary of the Divorce Court to hear cases by himself. The detailed accounts of divorce cases that appeared in the newspaper coverage of the court led to demands that such reports be suppressed in the interests of public morality. Finally, the apprehension that collusive cases – those the product of husbands and wives acting in concert with one another rather than adversarially, as the law required – had been passing through the court undetected led to demands for empowering an officer of the Crown to investigate and expose such cases. The issues of collusion and publicity especially generated considerable anxiety, and Cresswell’s views on these matters influenced the legislative outcome of these debates. Lord Brougham took a particular interest in the problem of collusive litigation, and, with his usual energy and drive, he pressed for an adjustment to the divorce law to mitigate this problem. Late in 1858 or early in 1859 Brougham began circulating proposals for naming an officer of the court to represent the Attorney General in divorce cases. Although this proposal did not elicit universal approbation, Brougham had the support of Cresswell himself, who wrote in response to Brougham’s proposals: ‘I quite concur in your suggestion that for the sake of the public some officer should be appointed to watch proceedings & if necessary to intervene’.32

‘What will most tend towards morality’ 105 When the government subsequently introduced a bill to combat delays in litigation by lengthening the list of judges authorized to sit in the Divorce Court, it included a provision that mandated the notification of the Attorney General of suspicious divorce petitions in order that he might initiate inquiries about the possibility of collusion.33 That such a procedure might prove effective to prevent collusion met with some scepticism,34 but the House of Lords concurred with this part of the bill.35 When the bill reached the Commons, this provision confronted more stringent criticism. Described as ‘insufficient for the objects desired’ and as ‘perfectly useless’, the clause was struck out of the bill.36 Worry about such collusive divorces did not subside, however, and when Parliament returned to the issue in the following year the suggested innovation in procedure met with legislative success. Presumably, the work of the Queen’s Proctor, the title accorded the Attorney General carrying out this duty, in guarding against collusion might stem the tide of improperly granted divorces.37 While Brougham highlighted the dangers of collusion, another of the 1857 Divorce Act’s supporters, Lord Campbell, worried about how newspaper reports of the details of divorce cases might undermine public morality. Campbell had played a leading role in the passage of the 1857 Obscene Publications Act, legislation opposed by Lords Lyndhurst and Brougham and Cranworth, and so had a particular interest in this issue.38 In January 1859, after taking a turn hearing cases in the new court, Campbell confided his deep misgivings to his journal: ‘like Frankenstein, I am afraid of the monster I have called into existence’.39 In the House of Lords, Campbell suggested that the court should hear cases behind closed doors: ‘so that the details of cases of a certain character should not be made public’.40 The bill subsequently proposed by the government to deal with the problems in administering the new law included a clause giving the court the power to hear cases in camera ‘whenever the Court thought the claims of decency required it’.41 This proposal to combat the threat to public decency posed by suggestive newspaper accounts of divorce cases did not enjoy the same legislative success as the efforts to combat collusive divorce actions. In 1859 and 1860 the Parliamentary debates about prohibiting newspaper coverage of divorce cases revealed the tension between those who believed that public morality was best served by closing the proceedings of the Divorce Court to the press and to the public and those who believed that the public rehearsal of the details of divorce litigation served as a punishment to those who ended up in court and as a warning to those not yet ensnared. As one MP argued, the Divorce Court dealt with questions ‘deeply affecting the public whose interest it was to know what the causes which had led to so important a social disruption as the breaking of the marriage tie’.42 Another put this case quite simply, declaring that in prohibiting public access to divorce proceedings ‘one of these great means of operating upon the public morality would be entirely taken away’.43 The motion to close the court to the public failed, by a majority of 185 votes.44 This outcome accorded with the views of Judge Cresswell. His firm belief in the deterrent effect of the publicity associated with divorce litigation led William Gladstone to reverse his position on this issue.45 A public official tasked with the duty of exposing collusive

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divorce litigation and given the power to rescind improperly granted divorces and the details of divorce litigation conducted in open court freely published became central features of nineteenth-century English divorce litigation. These measures accorded with the views of the first Divorce Court judge, who, behind the scenes quietly advocated for them.

Sir Cresswell Cresswell and English divorce: ‘a bridge in chaos’46 The narratives that unfolded before Cresswell’s bench, reported in titillating detail by the press, fascinated and horrified a large reading pubic. These domestic tragedies also challenged the presumptions of those who had formulated official policy with respect to marriage and divorce. Legislators had crafted the law to protect husbands from their wives, most obviously in insisting on differential grounds for divorce to the disadvantage of wives. A husband had only to prove his wife guilty of a single act of adultery to obtain a divorce, while a wife had to prove an additional marital offence – desertion, cruelty, bigamy – coupled with adultery to divorce her husband. Despite this legislatively imposed handicap, many wives filed petitions – for divorce, for separation, for protection of their property. The stories told by wives were often so horrific that it proved difficult to deny their claims for relief. Divorce petitions revealed to public view details of daily lives marked by great suffering and warped by bizarre behaviour, unveiling a dark underside to family life very unsettling to those in positions of authority. A sampling of cases heard by Cresswell during his first year suggests the challenges he faced.47 In the first case to come on for a hearing before Cresswell, Anne Deane sought a judicial separation from her husband Arthur. The two had been married a long time, since 1835, and they had eight children. Arthur Deane had been a brewer, but he developed ‘idle and dissolute habits’ and lost all his money. His finances rejuvenated by an inheritance, he entered the army in 1850, but in 1856 he changed careers again, joining a theatrical company. He then deserted his wife and formed an adulterous relationship with an actress. Witnesses proved all these allegations, Cresswell pronounced the separation, and he ordered that Arthur pay Anne an annual alimony of £80, based on his proven income of £164.48 Two characteristics of the Deane case repeatedly manifested themselves in the sample cases drawn from petitions filed in 1858 and 1859. First, Mrs Deane rather than Mr Deane initiated the litigation, and wives filed a much larger proportion of these petitions than lawmakers expected. Secondly, the socio-economic status of these couples spanned a greater range than expected, given the restrictiveness of the statute and the intent of legislators. These divorce suits recorded examples of husbands egregiously flaunting the most fundamental tenets of morality. For instance, Eleanor Sarah Leigh married William Leigh in Valparaiso, South America, in January 1852. On their wedding day, William asked his new bride to ‘receive’ into their new household Emily Courtois, with whom William had previously formed an ‘improper and illicit connection’. When Eleanor refused to agree to this arrangement, William eloped with

‘What will most tend towards morality’ 107 Emily, leaving Eleanor destitute and dependent upon the English community in Valparaiso, whose kindness enabled her to return to England in 1853, where Eleanor had since lived dependent upon her father.49 Martha Cattle claimed that her husband Charles had committed adultery, most recently with her own niece, and had violently abused her ever since their marriage in 1848. Middlesex magistrates demonstrated their support for her claims by sentencing Charles Cattle to three months imprisonment for violent assault in August 1857. In November 1858 Martha Cattle petitioned for a divorce.50 In its first year, the Divorce Court also heard cases of a particular kind of cruelty that it would continue to encounter throughout the century. Matilda Jones petitioned for a divorce in April 1858, claiming that her husband, Thomas Benjamin Jones, had committed adultery with ‘divers loose women’. She coupled this accusation with one of cruelty, charging that her husband had ‘communicated to your Petitioner a certain virulent and loathsome disease’ and that her ‘bodily faculties . . . have been and are seriously injured and the peace of mind and comfort of your Petitioner destroyed’. Her husband, a fisherman, apparently took advantage of whatever sexual opportunities he found while on his voyages.51 Wives also proved capable of immoral behaviour. Josiah Charter, a draper from Dalston, sought to divorce his wife, Eliza. Shortly after their marriage in 1848 Eliza had become addicted to alcohol and went back to live with her family. She then became acquainted with a man named Charles Barwick, ‘otherwise called or known by the name of Norfolk Charley’, and the two had been living together as man and wife for several years.52 Wives could also engage in violent behaviour. William Rea, a clerk to a Birmingham corn dealer, enumerated numerous occasions of assault in a petition for a judicial separation. His wife, Mary, had struck him with a brass candlestick, a poker, a chair and a fire iron. On one particularly notable occasion she had ‘struck and bruised him with the cover of a coal box and kicked and bruised him in his private parts and threatened to murder him’.53 Husbands and wives, solicitors and clerks, gentlemen and fishermen all joined a cacophony of complaint, seeking from the Divorce Court an end to domestic relations that had become toxic and permission from the state to begin a new private life. Cresswell grappled with the equities of these difficult cases and many others. In carrying out his duties, he had to draw upon the principles of ecclesiastical legal practice in considering cases of nullity and separation, but he had to utilize common law rules of evidence in cases of divorce.54 Cresswell, noted for his conservatism rather than his radicalism, would not deviate very much from the legal traditions that framed his work. But, under Cresswell’s guidance, the Divorce Court claimed the high moral ground, stringently enforcing a high standard of marital behaviour, and this sometimes meant taking the part of the wife against the husband. Cresswell’s adjudication of cases revolving around charges of cruelty exemplifies the way in which he exercised his influence.55 Cresswell confronted the problem of identifying behaviour cruel enough to justify a judicial separation or a divorce for a wife who could also establish her husband’s adultery. In grappling with this, Cresswell had to work within a legal

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tradition that insisted upon a strictly limited definition of marital cruelty that required violence as an element of behaviour recognized as cruel. Lord Stowell had enunciated the leading opinion on this issue with his judgment in the 1798 case of Evans v Evans: The causes must be grave and weighty, and such as shew an absolute impossibility that the duties of married life can be discharged. In a state of personal danger no duties can be discharged; for the duty of self-preservation must take place before the duties of marriage, which are secondary both in commencement and in obligation; but what falls short of this is with great caution to be admitted. . . . What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offenses in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on one side as well as the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation, and if this cannot be done, both must suffer in silence.56 This crucial statement of principle remained the standard that English judges followed until 1870, when Lord Penzance’s decision in Kelly v Kelly formally broadened the definition of cruelty beyond a husband’s actual violence.57 This conservatism in the recognition of cruelty contrasted to the expansion of the concept of cruelty in other jurisdictions. In America, for instance, mental cruelty provided a fertile field for divorce litigation, and in France the concept of honour, creatively utilized by advocates, weakened the insistence on a direct relationship between what was recognized as cruel behaviour on the one hand and the physical body of the victim on the other.58 Cresswell’s early judgments as reported in the law columns of The Times show him responding with great care to the judicial challenges he faced. He drew upon Stowell’s definition of cruelty in order to distinguish between those whose plight merited the relief provided by divorce or separation and those whose circumstances, however difficult, did not justify the state’s intervention. In the case of Bostock v Bostock, heard by the court during the spring and summer of its first year of operation, Cresswell struggled with the problem of defining cruelty. After taking some time to deliberate, Cresswell chose to stick close to Stowell’s strictures, explaining: The history of the married life of this couple was most melancholy. For 30 years they were continually quarreling and they brought up a large family of children, upon whom their example must have had a most injurious effect.

‘What will most tend towards morality’ 109 But he could not on that account separate them. Lord Stowell observed in ‘Evans v. Evans’ that one wished to separate those who wished to be separated, but the law did not allow him to indulge that feeling, for it said that a separation could not be granted in consequence of a mere disinclination to cohabit. That disinclination must be founded upon reasons which the law approved.59 If a ‘mere’ three decades of bitter conflict did not qualify as cruelty in the eyes of the law, more aggressive behaviour might not either. In the case of Gasc v Gasc, a husband petitioned for a judicial separation citing his wife’s desertion and cruelty as grounds. Mr Gasc got his decree because the court accepted the evidence of Mrs Gasc’s unjustified departure from her home, but Cresswell dismissed the charges of cruelty, remarking: ‘the court would have enough to do if every husband whose face was scratched in a matrimonial squabble could get a divorce’.60 Cresswell proved consistently unreceptive to husbands who charged their wives with cruelty. For example, in dismissing a husband’s petition for a judicial separation in Scott v Scott, Cresswell explained: there was no doubt upon the evidence that the respondent was a drunken, profligate woman, who made her husband miserable, but he could not fail to see that the real cause of the present application was merely a wish to get rid of her, and he must be cautious in not allowing the court to be opened to cases of that description.61 Wifely failures, even egregious ones, did not justify a charge of cruelty. Neither did they constitute a justification for a husband’s violent response. In his ruling in the case of Pearman v Pearman & Burgess, Cresswell made this distinction clear: Although a husband might restrain his wife from using personal violence to him when she lost control through drunkenness, yet there was no law which allowed a man to beat a drunken wife, and if he lost his temper and did beat her he was no doubt guilty of cruelty.62 Cresswell elaborated on this view in the case of Russell v Russell, another husband’s petition for a judicial separation on the grounds of his wife’s cruelty. Russell obtained his decree because he established that his wife posed a ‘personal danger’ to him, but Cresswell warned: ‘it must be clearly understood that the court would not grant a judicial separation merely because the woman was drunken and profligate, and wasted her husband’s money’.63 A drunken husband’s violence did not similarly arouse Cresswell’s protective impulses. In Moore v Moore, the wife petitioned for a judicial separation claiming her husband’s cruelty. Cresswell observed: this was one of a large class of cases in which domestic happiness had been destroyed by indulgence in habits of intemperance. Many of the assaults had

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Cresswell’s use of the word ‘provocation’ might suggest that he thought that only innocent or exemplary wives deserved the protection of the law, but as we have just seen, that does not seem to have been the case for Cresswell. In another wife’s petition alleging her husband’s cruelty, Cresswell declared: ‘It was not to be endured that anyone should be allowed so far to forget himself not only as a husband but as a man, as to treat a woman as the respondent had treated the petitioner with impunity’.65 Cresswell’s opinions, taken together, establish a rough spectrum extending from mere unhappiness through moderate mutual combat to substantive violence perpetrated by one spouse upon the other. We can catch a glimpse of this spectrum in the remarks Cresswell made in the case of Gee v Gee. Mrs Gee had petitioned for a judicial separation on the grounds of her husband’s cruelty and desertion. Mrs Gee’s counsel summed up the case for his client with a plea that the court grant Mrs Gee the relief she prayed, and thus enable her hereafter to lead a life of ‘peace & happiness’. Cresswell responded that: he had no power to decree that the petitioner should hereafter lead a life of peace & happiness. He would, however, grant her a decree for a judicial separation from the husband, who appeared to be an intolerable brute.66 The attempt to maintain this strict legal standard for cruelty associated with the guidance of Lord Stovell might work to leave wives in thrall to abusive husbands, but it also expressed a search for some material standard by which to judge cruel behaviour. The victim’s body would presumably bear witness in a way that observers could readily apprehend and so provide an alternative to assessing claims based on a subjective sense of having been harmed. This reluctance to grapple with states of mind also stemmed in part from the view that pain and trouble are a normal part of life – the human condition, and so not within the power of the state to relieve. As Cresswell saw it, he did not have the power to grant Mrs Gee ‘peace & happiness’, but he could protect her from an ‘intolerable brute’. Or, as Cresswell put it in considering a case made difficult by the recriminations between husband and wife: ‘Married people might make each other as miserable as they pleased, but that was not sufficient grounds for a separation’.67 Cresswell’s judgments did not adhere consistently to the requirement that a husband’s cruel acts be violent. In the case of Milner v Milner, a wife petitioned for divorce on the grounds of her husband’s adultery and cruelty. Mr Milner had so insulted his wife on a public street that a passer-by had mistaken her for a prostitute. Although Mrs Milner also claimed that her husband had beaten her, it was her public humiliation that claimed Cresswell’s attention. He declared indignantly: ‘a man who treated his wife in the street as a common prostitute was guilty

‘What will most tend towards morality’ 111 of the grossest and most abominable cruelty’. Since there was no doubt about the husband’s adultery (evidenced by a maid-servant’s illegitimate child), Cresswell gave Mrs Milner her freedom with a full divorce. Remember that Stowell had allowed for the possibility that in a ‘few cases’ ‘wounds’ of the ‘mental feelings’ could constitute cruelty. For Cresswell, treating a wife as if she were a prostitute constituted one of those cases.68

Conclusion J.M. Biggs, in his evaluation of Cresswell’s tenure at the Divorce Court, thought that his decisions exhibited an inconsistency perhaps explained by Cresswell’s lack of experience with the application of ecclesiastical law.69 This view of Cresswell contrasts with A. James Hammerton’s, who saw Cresswell responding to the urgency of the grievances presented by suffering wives.70 An examination of the discussions surrounding Cresswell’s appointment shows that a preference for common law over ecclesiastical law played an important role in evaluating the credentials of those proposed to oversee the new court, and so his moves away from the standards of cruelty previously established perhaps exhibit a greater consistency than Biggs perceived. In addition, in reaction to the marital woes poured out before his bench, Cresswell’s decisions took the statute, clearly intended by legislators to hedge around the privileged position of husbands, and used it, in so far as that was possible, to protect wives from at least the most egregious consequences of husbandly failure. Cresswell explicitly equated these failures with unmanliness, thus serving to reinforce the masculine component of domesticity. That Cresswell might have taken this position perhaps ought not to have come as a surprise to contemporary observers, since he had already articulated such views from time to time in his previous judgments in cases of violence between husbands and wives that had come before him prior to his appointment to the Divorce Court.71 After six years at the head of the Divorce Court, Cresswell died from injuries sustained in a carriage accident at the age of seventy, his judicial skills apparently undiminished by age. Ironically, Lushington, older than Cresswell by twelve years and rejected as a candidate for the Divorce Court judgeship in 1857 in part because of his age, continued his work as Dean of Arches until 1867 and died ten years later, in 1873, at the age of ninety-one. Cresswell had, by that time, grown tired of the tedium and dreariness of the domestic conflicts paraded before his bench.72 Before his death, the moral vision that Cresswell brought to his duties left a legacy that shaped the practice of divorce law in significant ways for the rest of the nineteenth century. Cresswell, a respected judge but a lifelong bachelor at the end of his career, proved critical for forming the character of the new court. Cresswell’s distinctive name combined with a personality defined by a firm rectitude also provided much raw material for humour among contemporary observers. Taking a retrospective view after fifty years of divorce litigation, the Hon. Mr Justice Bargrave Deane expressed the view that divorce law administration and procedure should conform to ‘what will most tend to morality’. Deane, who had

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served for many years first in the divorce bar from the 1890s and then as a judge in the Divorce Court, declared: ‘I do not think you ought to look at what is expedient or what is cheap . . . but what will make for the morality of the country’.73 The work of Cresswell did much to identify the Divorce Court’s legal responsibilities with this view, that the Court had a duty to uphold the highest moral standards of behaviour for not only the wife, but also the husband.

Notes 1 Anon., ‘Sir Cresswell Cresswell’, Blackwell’s Edinburgh Magazine 90 (November 1861), pp. 597–598. 2 ‘Divorce a Vinculo: Or the Terrors of Sir Cresswell Cresswell’, Once a Week 2 (15 February 1860), p. 185. 3 There is a large literature on the protracted 1856 and 1857 debates about the divorce bill. For the most recent narrative account see H. Kha and W. Swain, ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’, Journal of Legal History 37:3 (2016), pp. 303–330. 4 George Norton, the estranged husband of author Caroline Norton, achieved notoriety through his 1836 suit against Lord Melbourne for criminal conversation with his wife. The conflicts between George and Caroline Norton formed the inspiration for Caroline Norton’s campaign for the 1857 Divorce Act. On Caroline Norton and divorce law reform see M. Poovey, Uneven Developments: The Ideological Work of Gender in Mid-Victorian England (Chicago: University of Chicago Press, 1988), pp. 51–88, and G. Savage, ‘Caroline Norton (1808–1877): The Injured Wife, Scandal, and the Politics of Feminist Memory’, in Biographical Misrepresentations of British Women Writers: A Hall of Mirrors and the Long Nineteenth Century, ed. by B. Ayres (Basingstoke: Palgrave Macmillan, 2017), pp. 169–188. 5 See P. Polden, ‘Judging Judges: The Reputations of Nineteenth-century Judges and Their Sources’, in Making Legal History: Approaches and Methodologies, ed. by Anthony Musson and Chantal Stebbins (Cambridge: Cambridge University Press, 2012), pp. 53–71, for a discussion of the lack of serious research on the careers of nineteenthcentury judges. 6 University College London Archives and Special Collections [henceforth UCLASC], Brougham Papers, MS 10.251. Aberdeen to Brougham, 24 August 1857. 7 B. Leckie, Culture and Adultery: The Novel, the Newspaper, and the Law, 1857–1914 (Philadelphia: University of Pennsylvania Press, 1999), pp. 62–111. See also L. Surridge, Bleak Houses: Marital Violence in Victorian Fiction (Athens: Ohio University Press, 2005). 8 UCLASC, Brougham Papers, MS 33.399. Cranworth to Brougham, 18 September 1857. 9 A.A. Paterson, ‘Judges: A Political Elite?’, British Journal of Law and Society 1:2 (1974), pp. 118–135, discusses the changing role of political considerations in judicial appointments from the nineteenth to the twentieth centuries. See also M. Lobban, ‘The Politics of English Law in the Nineteenth Century’, in Judges and Judging in the History of Common Law and Civil Law: From Antiquity to Modern Times, ed. by Paul Brand and Joshua Getzler (Cambridge: Cambridge University Press, 2012), pp. 102–137, for a discussion of the role of political affiliation in the careers of nineteenthcentury judges. 10 T.A. Nash, The Life of Richard Lord Westbury (London: Richard Bentley and Son, 1888). 11 S.M. Waddams, Law, Politics and the Church of England: The Career of Stephen Lushington 1782–1873 (Cambridge: Cambridge University Press, 1992). 12 UCLASC, Brougham Papers, MS 33.399. Cranworth to Brougham, 18 September 1857.

‘What will most tend towards morality’ 113 13 UCLASC, Brougham Papers, MS 33.399. Cranworth to Brougham, 18 September 1857. 14 Called to the bar in 1824, Sir Fitzroy Edward Kelly (1796–1880) had enjoyed a very successful practice in commercial law and worked as counsel for the East India Company and the Bank of England. He served in Parliament as a Conservative, but he also took a bipartisan interest in law reform. C.J.W. Allen, ‘Kelly, Sir Fitzroy Edward’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/15295 [Accessed 24 May 2018]. 15 UCLASC, Brougham Papers, MS 33.399. Cranworth to Brougham, 18 September 1857. 16 British Library Palmerston Papers, BL Add Mss 48580, f. 435. Palmerston to Bethell, 1 October 1857. 17 University of Southampton Special Collections [henceforth USSC], Palmerston Papers GC/CR/59/Enc 1. Bethell to Palmerston, 3 October 1857. 18 Called to the bar in 1819, Sir William Erle (1793–1880) was appointed a judge in the Court of Common Pleas in 1845 by Lord Lyndhurst, despite Erle’s Whig connections. Erle served in the House of Commons 1837–1841. C.J.W. Allen, ‘Erle, Sir William’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/8838 [Accessed 24 May 2018]. 19 USSC Palmerston Papers GC/CR/57/1. Cranworth to Palmerston, 17 September 1857. 20 USSC Palmerston Papers GC/CR/59. Cranworth to Palmerston, 7 October 1857. 21 Erle quoted in H.E. Fenn, Thirty Five Years in the Divorce Court (Boston: Little, Brown and Company, 1911), p. 15. 22 USSC Palmerston Papers GC/CR/60. Cranworth to Palmerston, 12 October 1857. 23 USSC Palmerston Papers GC/CR/61. Cranworth to Palmerston, 17 October 1857. 24 UCLASC, Brougham Papers. Brougham MS 35.222. Cranworth to Brougham, 26 October 1857. 25 ‘A Lady and a Judge’, Punch 33 (5 December 1857), p. 233. 26 ‘Sir William Henry Maule’, The Law Magazine and Law Review; Or, Quarterly Journal of Jurisprudence 5 (May–August 1858), pp. 1–34, for Cresswell as pupil see p. 3 and for Maule and divorce reform see p. 14. 27 Jamaican-born and Cambridge-educated, James Scarlett became one of the most prominent and highest-earning lawyers of his day. He was also father-in-law to Lord Campbell. See G.F.R. Baker, revised by E.A. Cawthon, ‘Scarlett, James, First Baron Abinger (1769–1849)’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/24783 [Accessed 24 May 2018]. 28 J.S. Getzler, ‘Cresswell, Sir Cresswell’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/6673 [Accessed 24 May 2018]; W. Forsyth, ‘Sir Cresswell Cresswell’, The Law Magazine and Law Review 20 (1865–66), pp. 179–188; E. Walford, ‘The Right Hon. Sir Cresswell Cresswell’, The Law Times 38 (22 August 1863), pp. 535–537; ‘Sir Cresswell Cresswell’, The Solicitor’s Journal & Reporter 7 (1 August 1863), pp. 743–744; 8 August 1863, p. 749; The Law Times 41 (3 March 1866), p. 276; ‘The Late Sir Cresswell Cresswell’, Times, 31 July 1863. 29 ‘Reports of Cases’, The Law Magazine and Law Review, or Quarterly Journal of Jurisprudence 5 (May–August 1858), p. 241. 30 ‘The New Practice of Judicial Separation and Divorce’, The Law Times 30 (13 February, continued through 20 February, 27 February, 6 March 1858), pp. 287–288, 298– 299, 312–313, 326–327. 31 John Fraser Macqueen quoted in ‘New Laws Relating to Divorce and Probate’, The Law Magazine & Law Review, Or Quarterly Journal of Jurisprudence 5 (May–August 1858), p. 131. 32 UCLASC, Brougham Papers. Brougham MS 1073. Cresswell to Brougham, 10 December [1858?]. 33 Hansard, 3rd ser., vol. 154 (1859), col. 143.

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Hansard, 3rd ser., vol. 154 (1859), cols. 145–146. Hansard, 3rd ser., vol. 154 (1859), cols. 516–518. Hansard, 3rd ser., Vol. 155 (1859) cols. 1377–1378. On the Queen’s Proctor and its work see G.L. Savage, ‘The Divorce Court and the Queen’s / King’s Proctor: Legal Patriarchy and the Sanctimony of Marriage in England, 1861–1937’, Canadian Historical Association Papers 24:1 (1989), pp. 210–228, and W.E. Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom (New Haven: Yale University Press, 2015), pp. 143–180. C. Manchester, ‘Lord Campbell’s Act: England’s First Obscenity Statute’, Journal of Legal History 9:2 (1988), pp. 223–241. Life of John, Lord Campbell, ed. by Hon. Mrs Hardcastle (London: J. Murray, 1881), vol. 2 p. 361. Hansard, 3rd ser., vol. 153 (1859), col. 1381. Hansard, 3rd ser., vol. 155 (1859), col. 143. Hansard, 3rd ser., vol. 155 (1859), col. 626. Hansard, 3rd ser., vol. 155 (1859), col. 621. Hansard, 3rd ser., vol. 155 (1859), col. 629. J. Morley, The Life of William Ewart Gladstone (New York: Palgrave Macmillan, 1903), 1:572, n. ‘The Right Hon. Sir Cresswell Cresswell’, The Law Times 38 (22 August 1863), p. 536. A systematic sample of one in twenty petitions filed with the Divorce Court from 1858 through 1908 forms the basis for the selection of the following cases from among the files held by the National Archives. ‘Deane v Deane’, The Times, 20 March 1858. The National Archives (henceforth TNA) J77/32/L12. Leigh v Leigh, 13 May 1858. TNA J77/8. Cattle v Cattle, 15 November 1858. TNA J77/29/J4. Jones v Jones, 24 April 1858. On the role of venereal disease in divorce litigation, see G. Savage, ‘“The Wilful Communication of a Loathsome Disease”: Venereal Disease and Marital Conflict in Victorian England’, Victorian Studies 34:1 (1990), pp. 35–54. TNA J77/8/12. Charter v Charter & Barwick, 8 June 1858. TNA J77/44 pt. 1/R24. Rea v Rea, 30 March 1858. See D.C. Wright, ‘Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858–1866’, University of Richmond Law Review 38 (2004), pp. 903–991 for a detailed analysis of the first nine years of the Divorce Court’s operation. Important work on cruelty includes J.M. Biggs, The Concept of Matrimonial Cruelty (London: Athlone Press, 1962); E. Foyster, Marital Violence: An English Family History, 1660–1857 (Cambridge: Cambridge University Press, 2005); A.J. Hammerton, Cruelty and Companionship: Conflict in Nineteenth-Century Married Life (London: Routledge, 1992); Surridge, Bleak Houses. See in particular Hammerton’s discussion of Cresswell’s influence, pp. 124–128, where he traces Cresswell’s reactions to the cases that came before him and the development of his treatment of cruelty. Quoted in Hammerton, Cruelty and Companionship, p. 120. Biggs, Matrimonial Cruelty, pp. 36–38. See R.K. Griswold, ‘The Evolution of the Doctrine of Mental Cruelty in Victorian American Divorce, 1790–1900’, Journal of Social History 20:1 (1986), pp. 127–149. The Times, 20 July 1858. For a detailed examination of the Bostock marriage and litigation see Hammerton, Cruelty and Companionship, pp. 82–89. ‘Gasc v Gasc’, The Times, 9 November 1859. ‘Scott v Scott – Judgment’, The Times, 12 January 1860. ‘Pearman v Pearman and Burgess’, The Times, 30 January 1860. ‘Russell v Russell’, The Times, 22 February 1860. ‘Moore v Moore’, The Times, 1 August 1859.

‘What will most tend towards morality’ 115 65 66 67 68 69 70 71

‘Stone v Stone’, The Times, 30 April 1860. ‘Gee v Gee’, The Times, 5 November 1858. ‘Rush v. Rush (judicial separation)’, The Times, 16 May 1860. Sw & Tr 4 (1861), 240; 164 E.R. 1508. Biggs, Matrimonial Cruelty, pp. 33–34. Hammerton, Cruelty and Companionship, pp. 124–128. M.J. Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004), pp. 127, 178. 72 Forsythe, ‘Cresswell’, p. 185. 73 Royal Commission on Divorce and Matrimonial Causes, Minutes of Evidence, Vol. 1, Parliamentary Papers, 1912–13, XVIII, Cd. 6479, pp. 359–527 (answer to Q795, p. 411).

Bibliography ‘A Lady and a Judge’, Punch 33 (5 December 1857) p. 233. Allen, C.J.W. ‘Erle, Sir William’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/8838 [Accessed 24 May 2018]. Allen, C.J.W. ‘Kelly, Sir Fitzroy Edward’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/15295 [Accessed 24 May 2018]. Anon. ‘Sir Cresswell Cresswell’, Blackwell’s Edinburgh Magazine 90 (November 1861), pp. 597–598. Baker, G.F.R. revised E.A. Cawthon. ‘Scarlett, James, First Baron Abinger (1769–1849)’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/24783 [Accessed 24 May 2018]. Biggs, J.M. The Concept of Matrimonial Cruelty (London: Athlone Press, 1962). British Library Palmerston Papers, BL Add Mss 48580, f. 435. Palmerston to Bethell, 1 October 1857. ‘Deane v Deane’, The Times, 20 March 1858. ‘Divorce a Vinculo: Or the Terrors of Sir Cresswell Cresswell’, Once a Week 2 (15 February 1860), p. 185. Fenn, H.E. Thirty Five Years in the Divorce Court (Boston: Little, Brown and Company, 1911). Forsyth, W. ‘Sir Cresswell Cresswell’, The Law Magazine and Law Review 20 (1865–66), pp. 179–188. Foyster, E. Marital Violence: An English Family History, 1660–1857 (Cambridge: Cambridge University Press, 2005). ‘Gasc v Gasc’, The Times, 9 November 1859. ‘Gee v Gee’, The Times, 5 November 1858. Getzler, J.S. ‘Cresswell, Sir Cresswell’, in Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004), www.oxforddnb.com/view/article/6673 [Accessed 24 May 2018]. Griswold, R.K. ‘The Evolution of the Doctrine of Mental Cruelty in Victorian American Divorce, 1790–1900’, Journal of Social History 20:1 (1986), pp. 127–149. Hammerton, A.J. Cruelty and Companionship: Conflict in Nineteenth-Century Married Life (London: Routledge, 1992). Hansard, 3rd ser., vol. 153 (1859), col. 1381. Hansard, 3rd ser., vol. 154 (1859), col. 143.

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Hansard, 3rd ser., vol. 154 (1859), cols. 145–146. Hansard, 3rd ser., vol. 154 (1859), cols. 516–518. Hansard, 3rd ser., vol. 155 (1859), col. 143. Hansard, 3rd ser., vol. 155 (1859), col. 621. Hansard, 3rd ser., vol. 155 (1859), col. 626. Hansard, 3rd ser., vol. 155 (1859), col. 629. Hansard, 3rd ser., vol. 155 (1859) cols. 1377–1378. Kha, H. and W. Swain. ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’, Journal of Legal History 37:3 (2016), pp. 303–330. ‘The Late Sir Cresswell’, Times, 31 July 1863. The Law Times 41 (3 March 1866), p. 276. Leckie, B. Culture and Adultery: The Novel, the Newspaper, and the Law, 1857–1914 (Philadelphia: University of Pennsylvania Press, 1999). Life of John, Lord Campbell, ed. by Hon. Mrs Hardcastle (London: J. Murray, 1881). Lobban, M. ‘The Politics of English Law in the Nineteenth Century’, in Judges and Judging in the History of Common Law and Civil Law: From Antiquity to Modern Times, ed. by P. Brand and J. Getzler (Cambridge: Cambridge University Press, 2012), pp. 102–137. Manchester, C. ‘Lord Campbell’s Act: England’s First Obscenity Statute’, Journal of Legal History 9:2 (1988), pp. 223–241. Morley, J. The Life of William Ewart Gladstone (New York: Palgrave Macmillan, 1903), vol. 1. ‘Moore v Moore’, The Times, 1 August 1859. Nash, T.A. The Life of Richard Lord Westbury (London: Richard Bentley and Son, 1888). The National Archives J77/8. Cattle v Cattle, 15 November 1858. The National Archives J77/8/12. Charter v Charter & Barwick, 8 June 1858. The National Archives J77/29/J4. Jones v Jones, 24 April 1858. The National Archives J77/32/L12. Leigh v Leigh, 13 May 1858. The National Archives J77/44 pt. 1/R24. Rea v Rea, 30 March 1858. ‘New Laws Relating to Divorce and Probate’, The Law Magazine & Law Review, or Quarterly Journal of Jurisprudence 5 (May–August 1858), p. 131. ‘The New Practice of Judicial Separation and Divorce’, The Law Times 30 (13 February, continued 20 February, 27 February, 6 March 1858), pp. 287–288, 298–299, 312–313, 326–327. Paterson, A.A. ‘Judges: A Political Elite?’, British Journal of Law and Society 1:2 (1974), pp. 118–135. ‘Pearman v Pearman and Burgess’, The Times, 30 January 1860. Polden, P. ‘Judging Judges: The Reputations of Nineteenth-century Judges and Their Sources’, in Making Legal History: Approaches and Methodologies, ed. by A. Musson and C. Stebbins (Cambridge: Cambridge University Press, 2012), pp. 53–71. Poovey, M. Uneven Developments: The Ideological Work of Gender in Mid-Victorian England (Chicago: University of Chicago Press, 1988). ‘Reports of Cases’, The Law Magazine and Law Review, or Quarterly Journal of Jurisprudence 5 (May–August 1858), p. 241. ‘The Right Hon. Sir Cresswell Cresswell’, The Law Times 38 (22 August 1863), p. 536. Royal Commission on Divorce and Matrimonial Causes, Minutes of Evidence, vol. 1, Parliamentary Papers, 1912–13, XVIII, Cd. 6479, pp. 359–527. ‘Rush v Rush (Judicial Separation)’, The Times, 16 May 1860. ‘Russell v Russell’, The Times, 22 February 1860.

‘What will most tend towards morality’ 117 Savage, G.L. ‘Caroline Norton (1808–1877): The Injured Wife, Scandal, and the Politics of Feminist Memory’, in Biographical Misrepresentations of British Women Writers: A Hall of Mirrors and the Long Nineteenth Century, ed. by B. Ayres (Basingstoke: Palgrave Macmillan, 2017), pp. 169–188. Savage, G.L. ‘The Divorce Court and the Queen’s/King’s Proctor: Legal Patriarchy and the Sanctimony of Marriage in England, 1861–1937’, Canadian Historical Association Papers 24:1 (1989), pp. 210–228. Savage, G.L. ‘“The Wilful Communication of a Loathsome Disease”: Venereal Disease and Marital Conflict in Victorian England’, Victorian Studies 34:1 (1990), pp. 35–54. Schneider, W.E. Engines of Truth: Producing Veracity in the Victorian Courtroom (New Haven: Yale University Press, 2015). ‘Scott v Scott – Judgment’, The Times, 12 January 1860. ‘Sir Cresswell Cresswell’, The Solicitor’s Journal & Reporter 7 (1 August 1863), pp. 743–744. ‘Sir William Henry Maule’, The Law Magazine and Law Review; or, Quarterly Journal of Jurisprudence 5 (May–August 1858), pp. 1–34. The Solicitor’s Journal & Reporter 7 (8 August 1863), p. 749. ‘Stone v Stone’, The Times, 30 April 1860. Surridge, L. Bleak Houses: Marital Violence in Victorian Fiction (Athens: Ohio University Press, 2005). Sw & Tr 4 (1861), 240; 164 E.R. 1508. The Times, 20 July 1858. University College London Archives and Special Collections, Brougham Papers, MS 10.251. Aberdeen to Brougham, 24 August 1857. University College London Archives and Special Collections, Brougham Papers, MS 33.399, Cranworth to Brougham, 18 September 1857. University College London Archives and Special Collections, Brougham Papers MS 35.222, Cranworth to Brougham, 26 October 1857. University College London Archives and Special Collections, Brougham Papers MS 1073, Cresswell to Brougham, 10 December [1858?]. University of Southampton Special Collections, Palmerston Papers GC/CR/57/1. Cranworth to Palmerston, 17 September 1857. University of Southampton Special Collections, Palmerston Papers GC/CR/59/Enc 1. Bethell to Palmerston, 3 October 1857. University of Southampton Special Collections, Palmerston Papers, GC/CR/59. Cranworth to Palmerston, 7 October 1857. University of Southampton Special Collections, GC/CR/60. Cranworth to Palmerston, 12 October 1857. University of Southampton Special Collections, GC/CR/61. Cranworth to Palmerston, 17 October 1857. Waddams, S.M. Law, Politics and the Church of England: The Career of Stephen Lushington 1782–1873 (Cambridge: Cambridge University Press, 1992). Walford, E. ‘The Right Hon. Sir Cresswell Cresswell’, The Law Times 38 (22 August 1863), pp. 535–537. Wiener, M.J. Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004). Wright, D.C. ‘Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858–1866’, University of Richmond Law Review 38 (2004), pp. 903–991.

5

‘Infamous falsehoods’ Judges, perjury and affiliation trials in England, 1855–1930 Ginger Frost

In 1855, the Home Office received a letter from Charles Coe, the son of a prosperous farmer in Norfolk, complaining about the magistrates in the Terrington Petty Sessions. In August, Coe was summoned for an affiliation hearing before them by Maria Vasser, a poor woman, who named him as the father of her child. The first hearing was long and involved, but Coe prevailed by denying ever having courted Maria. As a result, Maria not only got no maintenance for her child, but the magistrates immediately committed her to trial for perjury. If Coe was correct, Vasser had told flagrant lies in her testimony, and the magistrates refused to tolerate that level of dishonesty. When this news reached her neighbours in the village at Terrington, however, several witnesses came forward to say that they had seen her with Coe in compromising positions. The magistrates, upon this new evidence, allowed a second summons, and this time found for Vasser, ordering Coe to pay her weekly sums for the child. In addition, they also committed Coe for trial for perjury (without dropping the charge against Vasser). In the meantime, Coe appealed the affiliation order to the quarter sessions, an action the judge adjourned until after the perjury trials. Thus, three different courts – the petty sessions, the quarter sessions, and the assizes – eventually became involved in the affiliation proceedings, based on the wildly conflicting evidence given by the two sides in the dispute.1 At the perjury trials, the affiliation case was refought in its entirety. Coe’s charge was the first one on the list, so Vasser’s side was the prosecution, giving them the advantage, since she could testify and he could not (as a defendant). Still, the testimony took several hours. Vasser had seven witnesses who claimed they saw Coe courting her throughout the village, including one woman who saw him lying on top of her. For his part, Coe had strong testimony from Maria’s landlady, who claimed Vasser was pregnant before she met Coe. A different putative father of the child, Richard Rackaby, further asserted that Maria told him the child was his (after which, he added, he had immediately joined the army, since this allowed him to avoid paying maintenance). With such blankly conflicting testimony, the credit-worthiness of the witnesses was decisive in the verdict. The prosecutor insisted to the jury that they ‘should give more credit to the witnesses for the prosecution [Vasser’s], because the girl being very poor could not offer them an inducement to support her statement, but the defendant was comparatively rich

‘Infamous falsehoods’ 119 and could bring up any number of witnesses’. The judge based his summation on a similar argument, ‘impressing on the jury that seven witnesses, who could have no corrupt motives, corroborated the girl’s evidence’. When the jury found Coe guilty, but recommended mercy, His Lordship insisted that perjury was a most grievous offense in the sight of God, and against the law of every country. . . . You had connection with the woman and kept company with her, and your appeal to Almighty God that you would speak the truth, and nothing but the truth, aggravated your offence. He gave Coe two years at hard labour. The prosecution then dropped the perjury charge against Vasser, and Coe’s appeal to the quarter sessions was likewise vacated.2 Many aspects of this case were typical of perjury trials associated with affiliation suits. Despite her poverty and her sex, Vasser prevailed in the contest; indeed, her poverty and sex aided her, since her witnesses were ‘disinterested’ and thus more credible. Also typically, this was a case brought at mid-century, the time Wendie Ellen Schneider has identified as the high tide of perjury prosecutions. In the 1840s and 1850s, the numbers rose so much ‘judges worried whether perjury prosecutions would become the inevitable sequel to virtually every trial’, as plaintiffs and defendants who lost civil or criminal actions used perjury charges to reverse their fortunes. Still, the numbers alone were not the most disturbing aspect. Perjury trials demonstrated the impossibility of making sound judgments in many types of legal hearings. If witnesses told flagrant lies under oath, how could judges or juries come to correct decisions? The entire viability of the English system, much lauded by legal scholars, relied on witnesses’ agreement to tell the truth. If this became a dead letter, what jury could feel secure in its verdict, and what judge in his sentencing? Moreover, perjury trials often complicated the normal power structures of class and gender. As a defendant in a criminal trial could not testify in his or her own behalf until 1898, a perjury trial of a male effectively silenced him while allowing the woman to testify freely. And though conviction rates in general were low for perjury in the Victorian period, men prosecuted for perjury associated with affiliation suits were likely to be found guilty. Women and men might well have had similar conviction rates in perjury over all (the statistics are not broken down by gender), but women had a strong advantage when support for illegitimate children was at issue.3 This chapter is based on a collection of perjury cases associated with affiliation hearings between 1860 and 1930, gathered from newspapers, government documents and law books, a total of 101 trials. The vast majority came from newspaper searches, but 15 per cent came from appeals, either to the Court of Criminal Appeal or to the Home Office. These were part of a broader data base of 2,000 illegitimacy trials, including over 400 affiliation summonses. Most affiliation proceedings did not have a sequel either as an appeal or a perjury case, but those that did showed similar patterns to wider sexual litigation. Both civil and criminal courts tried sexual offences according to strong gender stereotypes. In general,

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women had more success in civil cases (breach of promise, seduction suits) and less in the criminal courts (rape, aggravated assaults) for a number of reasons. For one thing, civil law required a lower standard of proof than criminal proceedings. For another, no one’s freedom and/or life was at stake in the outcome of a civil trial, as opposed to one of rape or assault. Finally, civil trials centred mostly on economic recompense; magistrates anxious not to have to support illegitimate children favoured giving awards to women to avoid doing so.4 Perjury cases were criminal actions, but ones associated, in large numbers, with civil actions in petty sessions and county courts. According to Schneider, perjury trials continued to follow a variety of low-level suits, such as licensing issues, bankruptcy hearings and affiliation summonses, even after the heyday of perjury trials had passed.5 Thus, a perjury suit over an affiliation case combined the jeopardy of a criminal trial with the sexual and gender expectations of a civil suit. The many different forums, unfortunately, also offered additional opportunities for witnesses to prevaricate, omit facts or flatly lie, forcing magistrates, judges and juries to question the bases for their judgments at all levels of the legal system.

A deliberate poisoning of the tree of justice Lying under oath was so common in affiliation proceedings because these trials rehashed failed relationships and unwise liaisons before the local community and the press. In other words, these hearings were not merely legal disputes, but social judgments about the couples’ degrees of responsibility for illicit relationships. Both partners were concerned about how their neighbours, employers and fellow church members regarded them in the wake of the births of illegitimate children. Of course, the money was also important; the weekly awards were small but crucial supplements to a working-class budget. An affiliation hearing, then, combined two powerful incentives to win the day – money and sex – which made for a strong temptation to ‘fudge’ the facts if necessary.6 As the Coe–Vasser case demonstrated, in many trials the evidence was contradictory and involved multiple lying witnesses on both sides. This was distressing to most observers, since such blatant falsehoods made a mockery of the justice system. As Charles Atkinson wrote in 1913, ‘On an application for a bastardy order there is usually a direct conflict of evidence, rank perjury being committed on one side or the other – not infrequently on both’.7 A pained resignation to this fact was the most common reaction in the legal community, but at times, magistrates or legal scholars suggested reforms to stem the tide of dishonesty. M.D. Chalmers, a magistrate, complained in 1895 of the ‘terrible residuum of wilful and corrupt perjury, which urgently calls for a remedy, if the administration of justice is not to be reduced to a farce’.8 Still, Chalmers considered – and ultimately rejected – the idea of hearing perjury trials in summary jurisdiction rather than the assizes, fearing angry magistrates would react too harshly to people who had shown the court such disrespect.9 The editors of the Law Times could only suggest ignoring most perjury as a way to lessen its impact: ‘Judges and juries may do much by discountenancing it . . . petty juries

‘Infamous falsehoods’ 121 should acquit the defendant unless the very clearest proof of the alleged perjury be produced’.10 Sir Francis Newbolt, a King’s Counsel, argued in 1923 for the use of medical evidence in paternity suits, precisely because of the almost universal perjury in affiliation summonses. He complained that a defendant in a bastardy suit ‘rarely shows any hesitation about committing perjury’, but a ‘doctor’s report, if not in his favour, might well deter him from swearing to the contrary’. Given the limitations of medical evidence in the 1920s, his audience was unconvinced by this assertion. Until reliable blood tests came into use, affiliation cases remained dependent on contradictory witnesses.11 Interestingly, despite the Victorian assumption that women lied about putative fathers (a major reason for the change in the law of bastardy in 1834), by the midVictorian period, judges and commentators agreed that the temptation to lying under oath was stronger for the man than the woman.12 Social disgrace had already fallen on the woman with the birth of the child. In other words, her reputation was ruined before the suit; she thus had only the economic motive, though that was a strong one. Indeed, the legal judgment that she was ‘more sinned against than sinning’ might restore some of her standing in the community, making the affiliation hearing a way to earn (or retain) community sympathy. In contrast, the summons threatened both the man’s reputation and pocketbook, giving him a double motive to lie. Hugh Barclay, a magistrate in Perth, insisted: In almost every opposed case there is oath against oath, and therefore, there exists no manner of doubt that there exists gross perjury on one side or the other, and in my experience almost always in that of the man . . . very few criminal prosecutions have been attempted, though there existed no manner of doubt of the perpetration of the crime which above every other looses [sic] the moral tie which binds man to truth and probity, and lets in every other offence.13 Barclay kept a log of all defended cases in his district, and found that in 295 of the 735 claims (40 per cent), one or both of the parties had to be lying; he based this on the assumption that any defended case involved perjury.14 Both men and women did so because they reasoned they were unlikely to face trial. Newbolt, in fact, declared that ‘No respondent in a bastardy case is ever prosecuted for perjury’, a statement that was inaccurate but reflected common beliefs.15 In the battle to stop lying under oath, then, the Victorian courts primarily targeted putative fathers.

Male defendants Unsurprisingly, given these assumptions, male defendants far outnumbered female defendants in perjury trials associated with affiliation. Of the 101 perjury cases in my data base, sixty-one were against the putative father and twenty against his witnesses (a total of 80 per cent); in contrast, the mothers were charged only sixteen times and their witnesses, four. Conviction rates also favoured women. The

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fathers were convicted forty-seven times and acquitted twelve (two have no trial data), a conviction rate of 79.6 per cent. The sentences, though, were not excessive; twenty served six months or less, while sixteen served between seven and eighteen months. The man’s friends or relatives had a similar conviction rate and, in some cases, much longer sentences. The man’s witnesses were found guilty in fourteen of eighteen trials (77.7 per cent) with widely varying lengths of sentence. Eight served eight months or less, but the other six served terms of three to seven years. In contrast, women were convicted only six of sixteen times (37.5 per cent), and five of the six served six months or less (the other served twelve months). Their witnesses had an even lower conviction rate – one of four (25 per cent), though that one got a twelve-month sentence. In other words, gender was key to a successful suit for perjury in affiliation proceedings; women were prosecuted in only one of five cases and were less than half as likely than men to be found guilty. Men also served longer sentences if convicted, and these disadvantages extended to their witnesses as well. Prosecuting a man for perjury was economically counterproductive, since he could not pay maintenance while incarcerated. Men went to trial, then, in three ways. First, magistrates reasoned that if they made examples of some men, others would hesitate to lie under oath. Second, as with so many civil cases, a woman prosecuted if she lost the affiliation hearing; a successful perjury prosecution might mean a new summons (or vice versa, a man who lost at the affiliation hearing might prosecute the woman to help his appeal to the quarter sessions). Third, in some cases the lies were so obvious as to demand prosecution. In 1888, Robert Brown said he did not know the mother of his child and denied writing to her. This testimony was easily contradicted by the man who had written the letter for him. Brown was married, and so reluctant to admit the affair, but the Recorder at the Old Bailey gave him twelve months’ hard labour for lying under oath.16 Prosecutions were less likely when frightened or desperate men said stupid lies without thought; if such cases did get to court, judges were merciful. As Newbolt put it, some lies came because ‘the young man in his ignorance is genuinely surprised at the result, and thinks he is safe to deny all knowledge of it’.17 In 1901, Maud Gregg summoned William John Hewlett at the Pershore Petty Sessions. The magistrates made the order despite Hewlett’s flat denial of being with her. The magistrates then prosecuted him for perjury. At the trial, he was found guilty, but Justice Bigham considered that Hewlett had ‘sufficient punishment’ by losing the summons and released him on his own recognizances. The furious magistrates appealed to the Home Office: ‘He [the defendant] did not express one word of regret from beginning to end . . . the Justices are somewhat puzzled when they endeavour to find any justification for the case being dealt with as if it were a trivial offence’. The Home Office asked for an explanation, and Bigham wrote that the boy was young, and most people lied in these trials. Moreover, he had done little harm, since no one believed him, and the young woman was better off with the man out of prison and working to pay her. The Home Office stressed this last argument in their letter to the magistrates, comforting them that perhaps now Maud would get the money owed to her.18 Similarly, Justice Charles was merciful

‘Infamous falsehoods’ 123 to Francis Ganley, a motor driver who pled guilty to having committed perjury at an affiliation case in 1928. He scolded Ganley, saying he forgot ‘28 years’ good citizenship’ and acted ‘like a blackguard’ when his lover became pregnant. Given Ganley’s remorse and his need to support his parents and sister, though, Charles released him on a bond of £10.19 When women prosecuted men, they usually did so in order to try to get an adverse judgment overturned or to regain their characters. Here they were helped by the common belief by the courts that a man who had ‘ruined’ a woman should take responsibility for his actions. If he did not marry her, he should at least provide for their child and certainly not tell lies about her in open court. Doing so was unmanly and cowardly, as judges’ speeches to defendants showed. For instance, Justice Charles, in the case above, ended his tirade against Ganley by saying, ‘It is difficult to imagine a dirtier or shabbier performance’, despite the fact that Ganley had repented his actions.20 In cases where men accepted no responsibility, judges were even more scathing. Justice Williams’ reaction to a perjury trial in February 1883 was typically outraged. John Iddon, a farmer’s son, had courted a woman named Oldfield, and she got pregnant. Despite several witnesses to the two walking out together, Iddon testified that he had hardly spoken to her and insinuated that she had been with many men. Several of his friends testified to her promiscuity, and the court dismissed the summons. In order to regain her character, Oldfield prosecuted him for perjury. After hearing the evidence, the jury found him guilty, and Williams agreed that this was an ‘aggravated’ case: Having ruined the poor girl, the least the prisoner could have done was to make her what reparations he could . . . . But, instead of that, he had met her oath by oath . . . . He defeated her upon one occasion, and . . . not only by perjured evidence, but by insinuating a great many things against her – such as she had gone with other men – sought to defeat her again. Therefore, the prisoner’s offense seemed a most serious one [. . .] Williams gave Iddon twelve months at hard labour.21 In these cases, the judges used their discretion in sentencing to impress on men the need to uphold masculine responsibilities, connecting their legal punishments with broader social judgments about gender roles. In doing so, they were often in accord with local opinion. Judges’ chivalric instincts also came to the fore with very young women partnered with older, better-off men, highlighting another social issue, that of class. Though women lost more cases against well-off defendants (who could hire effective legal representation), the assumption that poor women were victims of highborn seducers meant some managed to prosecute the men successfully. Coe’s disadvantages in convincing the jury that his witnesses were telling the truth was an example of this; he was rich and Vasser was poor, so he might have bribed her landlady or first lover, while her witnesses were ‘disinterested’ villagers.22 When better-off men abused their positions, judges, in particular, were deeply unimpressed. Justice Cave was repulsed by the behaviour of John Owen Williams,

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thirty-two, who had apparently seduced and deserted a seventeen-year-old girl and then lied about it. Cave complained, ‘he had instructed his counsel to reiterate a charge of perjury against the young woman, although he must have known perfectly well that the allegation was false. His was certainly a grave offense’. Cave gave Williams twelve months at hard labour.23 George Lucas, a coal dealer, fortynine, accused the young woman who summoned him of forging the letter she put into evidence to prove their relationship. She retaliated with a perjury charge, heard before the Manchester assizes in 1908. The jury found Lucas guilty, and Mr Yates gave him twenty months, explaining, ‘the case was a bad one, because of the prisoner’s attempt to blacken the character of the girl’.24 One reason for the judges’ adverse reactions was the ease with which men could besmirch the already-damaged reputations of unwed mothers. Single mothers were in a poor position to defend their sexual reputations, and judges feared that the already-harsh judgment of their neighbours might adversely affect the legal outcome. George Hewins, born to a single woman in Stratford in 1879, described the affiliation hearing of his mother against his father, Tom Farr, as an endless assault on Emma Hewins’s reputation. First, Farr’s lawyer insisted that she ‘walked the streets’, and told others that ‘e’s the most respectable young man I been with, and I means to put it on ’im!’ He added that her testimony was unreliable as she ‘spent a great deal of ’er time in public houses!’ He further called a witness who sold her some ‘medicine’ that, the defence implied, had been meant to procure abortion. Farr then flatly denied ever dancing with, courting or writing to Emma, since her reputation was bad. The place where Tom’s case was weak was his alibi on the night of the dance – a disreputable man named Womack, whom the magistrates did not trust. In addition, Emma ‘was pretty’ and, due to years in service, knew how to speak to the upper classes, so she ‘made a good respectable impression’ on them. They ordered 3s a week from Tom. His father threatened to appeal to the quarter sessions, and Tom only backed down because Emma had the support of her redoubtable aunt, Cal Cook, a force in the neighbourhood with enough money to fight the appeal. In the end, Farr paid support, but the ease with which he painted Emma as a loose woman after a perfectly conventional workingclass courtship was instructive about women’s difficulties. In fact, George later concluded that even with the win in court ‘the damage was done’ to his mother’s reputation.25 Given these gender disparities, the willingness of juries to hold men to a higher standard of honesty was understandable. Significantly, men’s witnesses, made up primarily of family and friends, got even harsher penalties than the putative fathers. Judges sympathized with parents, who naturally wanted to protect their children, but not with others. Horace Feller, the brother of Arthur Feller, testified that Caroline Penfold had sex with him as well as Arthur, painting her as a loose woman. The Cranbrook magistrates dismissed the summons as a result. Ann then got two friends to testify that she was with them during the times Horace said they were together, and sued for a second summons. This time, the magistrates made the order and then prosecuted Horace for perjury. Horace’s friends testified at the perjury trial that Caroline had admitted the affair to them, but the jury did not believe them. Justice Blackburn

‘Infamous falsehoods’ 125 grumbled that ‘it was clear that the most gross and deliberate perjury had been committed on one side or the other’; when the jury decided the fault lay with Horace, Blackburn gave him twelve months.26 ‘Conspiracies’ of men to ruin women got the longest sentences and much criticism from judges and the public. To call a woman a prostitute destroyed her future prospects. The women in these cases were already disadvantaged by having had premarital children; such testimony added insult to injury. Benjamin Davies, his father Emanuel, and his friend Charles Pilkington were all charged with perjury stemming from an affiliation case brought by Julia Israel against Benjamin. Emanuel testified that his son was visiting Pilkington during the time of conception, and the magistrates dismissed her summons. Julia later proved that Pilkington, rather than spending the day with Benjamin, was out of town. Emanuel could not have witnessed their day together either, as he was in London on business. Benjamin and Charles were both convicted (the latter pled guilty), and they got twelve and six months in prison, respectively. The charges against Emanuel were dropped at the trial, likely because the prosecutors thought he had been duped by his son or perhaps because they accepted that fathers naturally protected their children. Parents sometimes got mercy; friends, cousins or even brothers did not.27 A combination of aggravating circumstances – a very young woman, several men traducing her character, criminal behaviour – made for very long prison stays for the men involved. In 1883, Ellen Newton, only eighteen, summoned James Rowbotham as the father of her child. In response, his brother William drugged Ellen and persuaded his servant, James Brookes, to lie on the stand and say she had sex with him. He also got other workmates (cattle dealers) to say they had sex with her as well. The two brothers and Brookes faced perjury charges at the Chester Assizes in the wake of the affiliation hearing. The jury found all guilty, and Justice Brett gave James, the putative father, eighteen months, and the servant who lied for his master five years. His fiercest scorn, though, he reserved for William: [He] had never in his experience heard of a more infamous action than that of William Rowbotham in making the girl Newton drunk or drugging her for the purpose of . . . destroying her character, and then suborning the man Brookes, a servant, to tell a most infamous falsehood. . . . They had endeavoured to bolster up these falsehoods by calling as witnesses a parcel of reckless cattle dealers, some of whom swore . . . absolutely falsely. Brett gave William seven years’ penal servitude for his wrong-headed defence of his brother.28 Notably, the man who served the shortest sentence was the putative father. Relying on relatives, friends and workmates to refute women’s testimonies, then, entailed risks. In some cases, the litigation spanned out to two or three trials, enveloping widening groups of male friends. In a case in 1893, six men, five of whom were miners who worked with the putative father, were tried for perjury. Three of them had testified that they had sex with Mary Ann Todd, so

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the magistrates at the affiliation hearing had dismissed the summons. A subsequent investigation by Todd’s friends, though, indicated that all had lied, and at the assizes, they were convicted of perjury and got seven months in prison. In addition, three more men, who testified falsely at the first perjury trial, were themselves later convicted of perjury, and they all received three years’ penal servitude. The Birmingham Daily Post concluded: the prisoners had entered into a deliberate and disgraceful conspiracy to bear false witness against the unfortunate girl. . . . The immediate result of this conspiracy has been to harass, almost beyond human endurance, a poor girl who has had to hawk, from court to court . . . the story of her fall and shame, no doubt long and bitterly repented of. The sentence . . . [is] one of extraordinary severity. But . . . it is no slight punishment which will avenge a deliberate poisoning and perversion of the course of justice at its source.29 The historian is struck by the number of men who apparently lied under oath to save one man from paying for Todd’s child (and is also struck by the fact that men committed perjury during a trial for perjury, indicating the futility of such trials to stop courtroom lying). The average award in this period was 2s 6d, so nine men were tried and six went to prison to keep one man from paying half a shilling a week. Of course, for miners, even this small amount made a difference; this was also true for Todd. Thus, both sides doggedly fought over small amounts in a zerosum game. In the end, six men served long prison sentences for their part in the battle. Trials of groups of male witnesses are the clearest examples of the difficulties of coming to correct judgments in disputes about sexuality. Judges and juries struggled to render sound decisions when so many men lied in multiple trials and at various levels. Juries’ guilty verdicts were their way of correcting the original wrongs done to women like Todd. Judges, for their part, warned all future perjurers by giving exemplary sentences, though likely with only small effect.30 Male defendants overall had high conviction rates, but they were acquitted if they discredited the prosecutors. In this way, as in so many others, the perjury trial was a rehearing of the affiliation suit, with both parties’ reputations on the line. In 1877, Albert Stock was a witness in the affiliation summons of Ann Matthews against James Jenkins. Ann gave evidence at the perjury trial; in the course of her testimony she admitted that she had three illegitimate children. The jury decided she was not a reliable witness and acquitted Stock, and the ‘decision was received with applause, which was at once suppressed’.31 In a case in 1890, Justice Wills stopped the case because he was so disgusted by the mother’s testimony. He insisted that ‘the evidence of the plaintiff in that action showed an utter want of shame, and the order ought never to have been made against the defendant’.32 Women did not have to be pure to bring affiliation or perjury cases, but they still had to pass character tests. In a civil trial, sexual shortcomings did not matter as much, but in a criminal trial, as with rape cases, the man’s freedom was at stake. Thus, character tests were crucial, and a too sexually active woman was not credible.33 Still, views of men’s sexual aggression and women’s passivity

‘Infamous falsehoods’ 127 persisted in the face of much evidence to the contrary, so men were acquitted only in the most egregious cases.

Women defendants Despite the well-known fear that women frequently swore falsely about the fathers of their children, they were not prosecuted for perjury as often as men, nor were they convicted at the same rate. Only sixteen women faced charges, and ten of these were acquitted. Men charged women with perjury to overturn any award at the petty sessions or to support appeals to the quarter sessions, with the occasional success. Tallis Hemingway got an order against Thomas Whittingdon, despite his contention that the actual father was a man named Crowther. She insisted she did not know Crowther and had not told anyone he was the father, but later evidence showed that she had lied. Whittingdon prosecuted her in an effort to vacate the affiliation order. He likely succeeded, since Hemingway got the longest sentence for a convicted woman – twelve months at hard labour.34 The ten cases in which women were acquitted were mostly too short to indicate why juries found for them. For example, Emily Denny, a servant, was charged with perjury for her testimony in an affiliation case, but the newspaper reported only that Justice Quain determined the evidence was not sufficient for a conviction and directed an acquittal. The fact that Denny was only fifteen may have had an influence.35 Similarly, Sarah Ann Hickie was eighteen when she was charged with perjury by Charles Morton. She had obtained an order of maintenance, and he had appealed it and in the meantime had prosecuted her for perjury. Both Hickie and Morton worked at the same club as servants, and he painted her as a prostitute; as the newspaper put it, the ‘evidence for the prosecution was of a very disgusting character, and exhibited an exceedingly low state of morality’. Despite this, the Common Sergeant, Mr Brindley, sympathized with Hickie, who had come to work at a place that was equivalent to a brothel: ‘To his mind it would resemble the case of the man who went from Jerusalem to Jericho and who fell among thieves’. The jury acquitted her, thus jeopardizing Morton’s appeal.36 Even women who lied to support the male defendants in affiliation cases got more lenient treatment than male witnesses in the same situation. Ellen Fearnley faced perjury charges for her testimony in an affiliation trial of her son Percy. She claimed he was away from home during the relevant period, as did Percy’s married sister, Alice Mellows. Jane Cox later proved that this was untrue, and she prosecuted all three of them for perjury. Percy got five months in gaol, while his mother got three months and his sister one. Percy was only eighteen, so his mother’s protective instinct was natural, though her defence was that she had simply made a mistake about the day (Alice said the same). Though the defences failed, their sentences were comparatively light.37 Married women could also claim that they obeyed their husbands when they committed perjury, another excuse not open to men. In 1866, Jane Jeffreys sued Jonas Wasmartin, a boot manufacturer, as the father of her child. During the trial, she denied the child was the product of her relationship with Richard Hodges, but the subsequent perjury trial showed

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they had married in 1862. Both she and Richard were convicted, but she was released on a bond of £10, while Richard got twelve months. The Common Serjeant justified the different sentences on the reasoning that Jane had acted under her husband’s direction.38 The view that women were naturally emotional also helped them defeat perjury charges.39 In a case in 1868, Charlotte Stagg, a servant, had denied ever threatening her employer, Mrs Baker, in an effort to get her to support her affiliation case against the gardener, George Stevens. Baker testified that Stagg had threatened to tell everyone Baker was sleeping with Stevens, a threat overheard by two other servants. In the affiliation trial, Stagg denied ever making such a threat, so Baker prosecuted her for perjury. Stagg’s counsel, however, convinced the jury to acquit her by arguing that the threat was ‘made in a great passion’ and ‘in a moment of vexation’, and thus Stagg could plausibly have forgotten her speech at the affiliation trial.40 This case contrasts starkly with men who tried to claim emotional amnesia. Percy Fearnley, only eighteen, told a stupid (and easily disproved) lie during his affiliation case. In his subsequent perjury trial, his defence counsel argued that he ‘had never been in trouble before, and on this date he seemed to have lost his head’, not an implausible response, given Fearnley’s youth. The jury nevertheless found him guilty, and Justice Kennedy gave him five months at hard labour.41 A few affiliation and perjury cases hinted that some women colluded to get favourable awards for their friends and relatives, just as men did. Again, in contrast to male defendants, the courts were indulgent with women in these cases. In 1884, Mary Ann Davies claimed her second illegitimate child was the product of the man who fathered her first in 1880. Her only corroborating witness was a woman with three illegitimate children who had given evidence several times in affiliation proceedings. The Ystrad Police Court thus dismissed the case on the grounds of insufficient evidence, but did not prosecute either woman for perjury.42 In 1905, Samuel Harvey brought a perjury case against Elizabeth Hayes and two of her witnesses after he lost an affiliation case. Hayes did not recant, but one of her witnesses, Florence Robinson, changed her story. When asked why she lied in the first trial, she replied, ‘I thought I should be doing a girl a good turn’.43 Despite this evidence, the magistrates dismissed the perjury charges. Given women’s severe economic and social disadvantages, based on the New Poor Law of 1834, courts may well have assumed unwed mothers had been punished sufficiently by having to care for the children on their own. In addition, women did not destroy the reputations of men by their lies to the same extent that men’s lies damaged women’s reputations. Thus, social judgments interacted with legal ones in the gendered reactions to perjury trials, both in the verdicts and the sentencing of men and women.

Judges versus the Home Office Though the advantages for women were clear in these cases, the larger criminal justice system was gender-biased in a different way. The Home Office’s attitude

‘Infamous falsehoods’ 129 towards lying under oath was more nuanced, especially on the issue of sentencing, where it came into conflict with many judges. This disagreement came out most clearly in a file about Edwin Murfin, who was found guilty of perjury stemming from a 1905 affiliation case in Staffordshire. Murfin was twenty-two and a farm labourer. He admitted having sex with the mother of the baby, but denied doing so in the relevant time, writing letters to her or making any appointments to see her. All these claims were contradicted by witnesses, and he was found guilty of perjury, and the judge, Justice Keating, gave him five years, an unusually long sentence. Murfin applied for early release to the Home Office, and the civil servants debated the case. Keating defended his sentence in June 1907: The view of judges has been that, generally, perjury should be punished by imprisonment for 3 to 12 months; but, that when there has been a deliberate attempt to injure the character, or to defraud or to pervert justice in criminal proceedings, the sentences should, as a rule, be from 5 to 7 years P.S. [penal servitude]. Keating insisted that Murfin’s attempt to ‘defraud’ Annie Phillips and to cause ‘irreparable’ damage to her reputation fit into the latter category. He opposed mitigating the sentence unless Murfin ‘will render the said amends . . . in his power by a public acknowledgement of the paternity of the child & by some provision for the maintenance of the child’. The Home Office asked the Chief Constable to see if Murfin would do this, but Edwin refused. Phillips had waited almost too late to call the summons, so the child was entirely supported by her; she put it out to nurse while she worked.44 Phillips’ difficulties helped explain the sympathetic reaction of neighbours and magistrates, as well as Keating; the locals blamed Murfin for Phillips’ poverty and her child’s lack of support. The Home Office and the Chief Constable did not dispute Murfin’s guilt, but insisted that the punishment was grossly disproportionate. The Chief Constable argued that the five-year sentence was ‘ridiculous’ because Murfin told a ‘silly lie’ similar to many told in criminal courts and subsequently ignored. Why treat this one so harshly? The civil servants largely agreed. A resigned attitude to perjury comes through the minutes in the file; indeed, one civil servant, a former lawyer, claimed when asked by a solicitor why he did not prosecute a witness for perjury, ‘I told him he might as well ask me to order the prosecution of a cat for mewing’. Most of the concern, though, was with the length of the punishment. A full report on all perjury convictions for the past five years showed that almost three-fourths of those found guilty received less than six months. Many civil servants regarded the lies as not terribly harmful. One insisted, for example, in January 1906, ‘it is worse when the motive is to get money you have no right to’. In July 1907, ‘H.H.S.’ went further and asserted that Murfin’s lie had not hurt Phillips, since, as the mother of an illegitimate child, she ‘has not so much character to lose’. The fact that his lies lost her the original case, and now time had run out to sue a new summons, was her fault for delaying too long. Phillips lost fourteen years of weekly support for the child, but this was not a

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strong consideration to the civil servants, unlike Justice Keating, who considered it central to the punishment. Murfin was released after serving two years of his five-year sentence.45 This file indicated that the view of unwed mothers as ‘natural’ liars and sexually promiscuous was far from absent in the criminal justice system.46 A woman’s loss of social standing due to an illegitimate child required less, not more, punishment for a male perjurer in this reckoning. The Home Office faced calls for early release in several other perjury cases; not all of the public sided with the women. The Todd case, given the very long sentences involved, provoked appeals to the Home Office, though in this instance, ‘H.O. refused weighty applications for reduction of the P. S. sentence’. The men had colluded in a conspiracy to destroy Todd, so the Home Office supported the exemplary punishments. In contrast, in 1894, the Home Office reduced the sentence of Richard Moore, who was seventeen and a railway worker. Moore was another working-class man who flatly denied ever seeing the mother of the children (she had twins). Mary Fishwick, herself only eighteen, generated much local sympathy, as the twins fell ill and died, and she herself took months to recover from the births. As the local newspaper explained, Moore was advised strongly by his lawyer not to testify, but insisted on doing so and ‘categorically denied what had been stated by the claimant and her witnesses’. The jury found him guilty in the subsequent perjury trial, but recommended him to mercy ‘on account of his youth’. Justice Wills, though, was unimpressed, complaining, ‘Prisoner had deserted her in trouble and then tried to swear away her character up to the last possible moment. This was an extremely common offence, and was a very serious one’. He gave Moore twelve months at hard labour, which the Home Office reduced to nine months because of Moore’s ‘youth and good character’.47 In cases with disagreements between the Home Office, the assize courts, and the petty sessions, the issues were not merely about gender but also involved class stereotypes. Working-class men were excusable for ‘stupid’ lies because they barely knew better. Perhaps they should be punished in egregious cases, but the punishment should be months, not years. Murfin, for example, was described as ‘uneducated’, and thus unaware of how serious lying under oath could be. The fact that Phillips was also ignorant of her rights and thus delayed her case too long was her fault, but Murfin’s stupidity was his most potent argument for mercy. In other words, working-class men convicted of perjury got some mitigation due to their class. Magistrates and judges tended to see the women as more victimized, but the possibility that they were sexually aggressive was not lost on the Home Office or some commentators. Chalmers, for example, insisted that almost all cases brought under the Criminal Law Amendment Act of 1885 were made by ‘dirty little girls. . . . It is horrible to think of the misery that must have been endured by innocent men through the lies of these nasty little wretches’.48 One is also reminded of the difficulty of prosecuting assault or rape charges. Perjury, like those, was a criminal offence. Thus, when perjury-after-affiliation trials were heard, they brought up the same issues of sexual credibility as sexual violence cases, mostly in the appeal stages rather than the trials themselves. The

‘Infamous falsehoods’ 131 Home Office believed that perjury was harmful to the legal system but impossible to stop, and thus moderation in sentencing was advisable. Some judges, on the other hand, considered lying about a woman’s sexuality as deserving of long sentences, at least in trials with aggravating factors. This rift within the criminal justice system gave men back some of the advantages they lost at trial. The conflict was also partly the result of the combination of civil and criminal law in perjury, which meant that women’s sexual reputations mitigated the sentencing, if not the results, of the trials. Finally, these instances showed the tangled web of prejudices and assumptions that underlay the vexed issue of maintenance for illegitimate children. Local issues also influenced the punishments for perjury, even for assize judges, who were not based locally. One reason Moore received twelve months was the sympathy for Fishwick, who lost her children and her health and then had her reputation damaged by his false testimony. Many of the potential jurors must have wanted Moore to suffer some punishment for his part in her misery, as did the judge. Thus, both judge and jury used legal power available in the perjury trial to enforce a social judgment about Moore’s sexual misdeeds. Such local reactions are clear in reports on affiliation proceedings where the bare facts in the newspapers seem utterly contradictory or odd to the modern reader, yet the audience in the hearing openly preferred one side or the other, usually the woman. A case in Wales in 1870 against a ‘revivalist preacher’ led to the man’s burning in effigy by the local community and his being ‘loudly hissed’ when he left the court.49 In another case in 1876, the defendant, James Evans, made a strong and vigorous defence, but when the Brynmawr magistrates sided with Mary Ann Watkins, ‘The decision was received with applause in the crowded court’.50 Similarly, local feeling was obvious in the Coe–Vasser litigation in 1855, when neighbours came forward to defend Vasser after her arrest for perjury. Though the Home Office, far removed from such influences, was less impressed with women’s claims of victimization, the courts at all levels, and the local communities, viewed the problem through different lenses. For them, the man’s lies were more serious than the woman’s, and punishment for the former was appropriate and necessary.

Conclusion Unwed mothers had numerous disadvantages in the legal and economic system, which largely denied them support for their children. Only a minority got maintenance orders from the fathers, and many of these went unenforced. In part because of these structural disadvantages, magistrates and judges were sympathetic to women both in the summonses and in perjury trials. Women’s characters were destroyed more completely by men’s lies, thus the higher sentences given to male perjurers. Judges and juries tended to see women as the victims of male ‘seducers’ and act accordingly when those men lied to avoid their responsibilities, combining social and legal judgments through the means of the criminal courts. Women who lied were excused as over-excited, mistaken, or not ‘willfully’ committing perjury. Men, supposedly more rational and responsible, could not excuse their perjuries

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so easily, and were seen as ‘shabby’ or unmanly if they tried to avoid paying. And, most especially, male relatives and friends who lied under oath could expect long prison sentences if caught. Both sides might build conspiracies to win their cases, but only men got years of penal servitude as a result. In addition to local attitudes, assize court judges were central to this dynamic, since they had complete control of sentencing. In the end, most justices were more sympathetic to ‘seduced and abandoned’ women than their male counterparts. Still, perjury cases punished the ‘bad apples’ without altering the structural disadvantages of women in court, and negative views of women remained in the minutes of the Home Office. These cases also demonstrate the lengths to which both men and women went to avoid maintaining illegitimate children. The historian notes the excess of effort to avoid paying (or to achieve getting) relatively small amounts. Poor men who hoped to marry other women and have legitimate families could not afford to pay for an illegitimate child as well. Women, for their part, had such low wages that they could not hope to support the child without some assistance. Affiliation cases and the perjury trials that resulted from them thus showed dogged determination to prevail on both sides, ranging from the petty sessions to the quarter sessions to the assize courts. As Schneider has argued, using perjury trials to overturn adverse civil judgments was common at mid-century. Though the number of perjury trials went down after the 1850s, those associated with affiliation remained a strong minority of the cases, due to the small margins for error of the working poor. In addition to the obvious limitations of the law of perjury, these cases show the problems of the English approach to illegitimacy, which left many children without breadwinners. Rather than reform these laws, the English instead prosecuted a handful of men (and even fewer women) for lying about paternity. This choice meant that perjury remained a major part of affiliation suits until they finally ended. Perjury trials were an extremely blunt instrument to root out falsehoods in proceedings over illegitimate children. Any law system relying on witnesses to be honest about sexual misdeeds or their incomes was doomed to fail, and affiliation hearings were about both sex and money. Much of the ire at the dishonesty – and some of the longer sentences – likely resulted from both judges’ and juries’ frustration at being unable to make sound verdicts because so many of the witnesses fabricated testimony with seemingly little remorse. Legal scholars and judges usually resigned themselves to ‘inevitable’ dishonesty, but the constant lying under oath remained a deeply troubling undercurrent in the British judicial system.

Notes 1 The National Archives [hereafter TNA], Home Office files, HO 45/OS6239, October– November 1855. 2 Norfolk Chronicle, 20 October 1855; Beverley Guardian, 2 August 1856; Norfolk Chronicle, 2 August 1856 (for quotes) and 18 October 1856. 3 W.E. Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom (New Haven: Yale University Press, 2015), pp. 17–47, quote from p. 17.

‘Infamous falsehoods’ 133 4 G. Frost, Illegitimacy in English Law and Society, 1860–1930 (Manchester: Manchester University Press, 2016), pp. 12, 109–117; G. Frost, Promises Broken: Courtship, Class, and Gender in Victorian England (Charlottesville: University Press of Virginia, 1995); S. Lettmaier, Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal, 1800–1940 (Oxford: Oxford University Press, 2010); A. Clark, Women’s Silence, Men’s Violence: Sexual Assaults in England, 1770–1845 (London: Virago, 1987); C. Conley, ‘Rape and Justice in Victorian England’, Victorian Studies 29:4 (1986), pp. 519–536; J. Barber, ‘“Stolen Goods”: The Sexual Harassment of Female Servants in West Wales during the Nineteenth Century’, Rural History 4:2 (1993), pp. 123–136; S. D’Cruze, Crimes of Outrage: Sex, Violence and Victorian Working Women (DeKalb: Northern Illinois University Press, 1998); K. Stevenson, ‘“Crimes of Moral Outrage”: Victorian Encryptions of Sexual Violence’, in Criminal Conversations: Victorian Crimes, Social Panic, and Moral Outrage, ed. by J. Rowbotham and K. Stevenson (Columbus: Ohio State University Press, 2005), pp. 232–246. 5 Schneider, Engines of Truth, p. 28. 6 G. Frost, ‘Claiming Justice: Paternity Affiliation in South Wales, 1870–1900’, Rural History 24:2 (2013), pp. 177–198; R. Davies, ‘“In a Broken Dream”: Some Aspects of Sexual Behaviour and the Dilemmas of the Unwed Mother in South-West Wales, 1887–1914’, Llafur 3:4 (1983), pp. 24–33; B. Harvey, ‘The Putative Fathers of Swinton, England: Illegitimate Behavior Under the Old Poor Laws, 1797–1835’, Journal of Family History 40:3 (2015), pp. 373–398. 7 C. Atkinson, ‘Corroboration in Bastardy Cases’, Law Magazine and Review 40 (February 1915), p. 178. 8 M.D. Chalmers, ‘Petty Perjury’, Law Quarterly Review 11 (1895), pp. 220–221. 9 Chalmers, ‘Petty Perjury’, p. 218. 10 Law Times 39 (1863–64), p. 227. 11 F. Newbolt, ‘Evidence of Resemblance in Paternity Cases’, Transactions of the MedicoLegal Society 31 (1923–24), pp. 40–41. 12 For this view of women, see U. Henriques, ‘Bastardy and the New Poor Law’, Past and Present 37 (1967), pp. 103–129; P. Thane, ‘Women and the Poor Law in Victorian and Edwardian London’, History Workshop Journal 6 (1978), pp. 29–51; L.F. Cody, ‘The Politics of Illegitimacy in an Age of Reform: Women, Reproduction, and Political Economy in England’s New Poor Law of 1834’, Journal of Women’s History 11:4 (2000), pp. 131–156. 13 H. Barclay, ‘On the Law and Practice of England and Scotland in Affiliation Cases’, Law Magazine and Review Monthly 3 (1874), p. 1115. 14 Barclay, ‘On the Law and Practice’, pp. 1117–1118. 15 Newbolt, ‘Evidence of Resemblance’, p. 32. 16 Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 24 May 2018), November 1888, trial of ROBERT THOMAS BROWN (30) (t18881119–71); The Times, 23 November 1888. 17 Newbolt, ‘Evidence of Resemblance’, p. 32. 18 TNA, HO 144/667/X83397, 22 June 1901–8 August 1901. 19 Manchester Guardian, 1 May 1928. 20 Manchester Guardian, 1 May 1928. See also Frost, Promises Broken, pp. 80–97; Lettmaier, Broken Engagements, pp. 126–170; F. Barret-Ducrocq, Love in the Time of Victoria (London: Verso, 1991), pp. 86–122. For expectations for men as providers, see J. Tosh, A Man’s Place: Masculinity and the Middle-Class Home in Victorian England (New Haven: Yale University Press, 1999); J.M. Strange, Fatherhood and the British Working Class, 1865–1914 (Cambridge: Cambridge University Press, 2015); L. King, Family Men: Fatherhood & Masculinity in Britain, 1914–1960 (Oxford: Oxford University Press, 2015) and essays in Gender and Fatherhood in the Nineteenth Century, ed. by T.L. Broughton and H. Rogers (Basingstoke: Palgrave Macmillan, 2007).

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21 Liverpool Mercury, 8 February 1883; Manchester Guardian, 8 February 1883. 22 P. Brooks, The Melodramatic Imagination: Balzac, Henry James, Melodrama, and the Mode of Excess (New Haven: Yale University Press, 1976), pp. 28–49; A. Clark, ‘Queen Caroline and the Sexual Politics of Popular Culture in London, 1820’, Representations 31 (1990), pp. 47–68, especially 52–54. 23 Manchester Guardian, 29 October 1884; North Wales Chronicle, 1 November 1884. 24 Manchester Guardian, 30 November 1908. 25 G. Hewins, The Dillen: Memories of a Man of Stratford Upon Avon, ed. by A. Hewins (Oxford: Oxford University Press, 1981), pp. 5–7. 26 The Times, 30 July 1860. 27 The Times, 12 June 1879; 21 June 1879; Old Bailey Proceedings Online (www.old baileyonline.org, version 8.0, 24 May 2018), September 1879, trial of BENJAMIN DAVIS (17) (t18790915–755); Old Bailey Proceedings Online (www.oldbaileyonline. org, version 8.0, 24 May 2018), September 1879, trial of CHARLES PILKINGTON (40) (t18790915–756); Old Bailey Proceedings Online (www.oldbaileyonline. org, version 8.0, 24 May 2018), September 1879, trial of EMANUEL DAVIS (40) (t18790915–757). 28 Manchester Guardian, 9 February 1883. 29 Birmingham Daily Post, 17 July 1893; Manchester Guardian, 15 July 1894; The Times, 27 February 1893; Newcastle Weekly Courant, 15 July 1893. 30 Frost, ‘Claiming Justice’, pp. 189–194. 31 Western Mail, 26 March 1877. 32 Manchester Guardian, 26 November 1890; Manchester Weekly Times, 28 November 1890. 33 Frost, Promises Broken, pp. 98–117; K. Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880–1929 (Chicago: University of Chicago Press, 1993), pp. 132–133; A. Clark, ‘Rape or Seduction? A Controversy Over Sexual Violence in the Nineteenth Century’, in The Sexual Dynamics of History: Men’s Power, Women’s Resistance, ed. by London Feminist History Group (London: Pluto Press, 1983), pp. 13–27. 34 The Times, 24 December 1860; Hull Packet and East Riding Times, 28 December 1860. 35 Manchester Guardian, 9 August 1873. 36 The Times, 30 April 1880. 37 Manchester Guardian, 7 August 1906. 38 Old Bailey Proceedings Online, www.oldbaileyonline.org, version 8.0, 24 May 2018, July 1866, trial of JANE JEFFREYS (27) (t18660709–625); The Times, 11 May 1866 and 13 July 1866. 39 E. Showalter, The Female Malady: Women, Madness, and English Culture, 1830–1980 (New York: Penguin, 1985). 40 Reynolds Newspaper, 12 July 1868; The Times, 7 July 1868; Old Bailey Proceedings Online, www.oldbaileyonline.org, version 8.0, 24 May 2018, July 1868, trial of CHARLOTTE STAGG (20) (t18680706–568). 41 Manchester Guardian, 7 August 1906. 42 Western Mail, 26 March 1884. 43 Manchester Guardian, 6 March 1905. 44 TNA, HO 144/237/A52196; file includes memorandum and depositions of the case; Justice Keating to Home Office, 3 June 1907; Chief Constable of Staffordshire to Home Office, 9 July 1907. See also Bournemouth Daily Echo, 6 December 1905. 45 TNA, HO 144/237/A52196. See variously Memorandum on the Murfin case, 17 January 1906 by A.L.W.; Minute by N.S.S., 12 March 1906; Reply to Minute, 14 March 1906; Chief Constable to Home Office, 11 July 1907; Minute by H.B.S., 6 July 1907; Release Notice, 14 December 1907 (he was on license until December 1910). 46 J. Kucich, The Power of Lies: Transgression in Victorian Fiction (Ithaca: Cornell University Press, 1994), pp. 12–13.

‘Infamous falsehoods’ 135 47 TNA, HO 144/237/A52196; Memorandum over recent perjury cases; Lancaster Guardian, 29 September 1894; 6 October 1894; 3 November 1894. 48 Chalmers, ‘Petty Perjury’, p. 220; Schneider, Engines of Truth, pp. 186–187; 193–199. 49 Western Mail, 2 July 1870 and 6 July 1870. 50 Western Mail, 28 November 1876; see also Frost, ‘Claiming Justice’, pp. 192–194.

Bibliography Atkinson, C. ‘Corroboration in Bastardy Cases’, Law Magazine and Review 40 (February 1915), pp. 178–187. Barber, J. ‘“Stolen Goods”: The Sexual Harassment of Female Servants in West Wales During the Nineteenth Century’, Rural History 4:2 (1993), pp. 123–136. Barclay, H. ‘On the Law and Practice of England and Scotland in Affiliation Cases’, Law Magazine and Review Monthly 3 (1874), pp. 1103–1119. Barret-Ducrocq, F. Love in the Time of Victoria (London: Verso, 1991). Beverley Guardian, 2 August 1856. Birmingham Daily Post, 17 July 1893. Bournemouth Daily Echo, 6 December 1905. Brooks, P. The Melodramatic Imagination: Balzac, Henry James, Melodrama, and the Mode of Excess (New Haven: Yale University Press, 1976). Broughton, T.L. and H. Rogers, eds. Gender and Fatherhood in the Nineteenth Century (Basingstoke: Palgrave Macmillan, 2007). Chalmers, M.D. ‘Petty Perjury’, Law Quarterly Review 11 (1895), pp. 217–222. Clark, A. ‘Queen Caroline and the Sexual Politics of Popular Culture in London, 1820’, Representations 31 (1990), pp. 47–68. Clark, A. ‘Rape or Seduction? A Controversy Over Sexual Violence in the Nineteenth Century’, in The Sexual Dynamics of History: Men’s Power, Women’s Resistance, ed. by London Feminist History Group (London: Pluto Press, 1983), pp. 13–27. Clark, A. Women’s Silence, Men’s Violence: Sexual Assaults in England, 1770–1845 (London: Virago, 1987). Cody, L.F. ‘The Politics of Illegitimacy in an Age of Reform: Women, Reproduction, and Political Economy in England’s New Poor Law of 1834’, Journal of Women’s History 11:4 (2000), pp. 131–156. Conley, C. ‘Rape and Justice in Victorian England’, Victorian Studies 29:4 (1986), pp. 519–536. Davies, R. ‘“In a Broken Dream”: Some Aspects of Sexual Behaviour and the Dilemmas of the Unwed Mother in South-West Wales, 1887–1914’, Llafur 3:4 (1983), pp. 24–33. D’Cruze, S. Crimes of Outrage: Sex, Violence and Victorian Working Women (DeKalb: Northern Illinois University Press, 1998). Dubinsky, K. Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880–1929 (Chicago: University of Chicago Press, 1993). Frost, G. ‘Claiming Justice: Paternity Affiliation in South Wales, 1870–1900’, Rural History 24:2 (2013), pp. 177–198. Frost, G. Illegitimacy in English Law and Society, 1860–1930 (Manchester: Manchester University Press, 2016). Frost, G. Promises Broken: Courtship, Class, and Gender in Victorian England (Charlottesville: University Press of Virginia, 1995). Harvey, B. ‘The Putative Fathers of Swinton, England: Illegitimate Behavior Under the Old Poor Laws, 1797–1835’, Journal of Family History 40:3 (2015), pp. 373–398.

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Henriques, U. ‘Bastardy and the New Poor Law’, Past and Present 37 (1967), pp. 103–129. Hewins, G. The Dillen: Memories of a Man of Stratford Upon Avon, ed. by Angela Hewins (Oxford: Oxford University Press, 1981). Hull Packet and East Riding Times, 28 December 1860. King, L. Family Men: Fatherhood & Masculinity in Britain, 1914–1960 (Oxford: Oxford University Press, 2015). Kucich, J. The Power of Lies: Transgression in Victorian Fiction (Ithaca: Cornell University Press, 1994). Lancaster Guardian, 29 September 1894; 6 October 1894; 3 November 1894. Law Times 39 (1863–64), p. 227. Lettmaier, S. Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal, 1800–1940 (Oxford: Oxford University Press, 2010). Liverpool Mercury, 8 February 1883. Manchester Guardian, 9 August 1873; 8 February 1883; 9 February 1883; 29 October 1884; 26 November 1890; 28 November 1890; 15 July 1894; 6 March 1905; 7 August 1906; 30 November 1908; 1 May 1928. Manchester Weekly Times, 28 November 1890. The National Archives, Home Office files, HO 45/OS6239, October–November 1855. The National Archives, HO 144/237/A52196. The National Archives, HO 144/667/X83397, 22 June 1901–8 August 1901. Newbolt, F. ‘Evidence of Resemblance in Paternity Cases’, Transactions of the MedicoLegal Society 31 (1923–24), pp. 31–44. Newcastle Weekly Courant, 15 July 1893. Norfolk Chronicle, 2 August 1856; 18 October 1856; 20 October 1855. North Wales Chronicle, 1 November 1884. Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 24 May 2018), July 1866, trial of JANE JEFFREYS (27) (t18660709–625). Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 24 May 2018), July 1868, trial of CHARLOTTE STAGG (20) (t18680706–568). Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 24 May 2018), September 1879, trial of BENJAMIN DAVIS (17) (t18790915–755). Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 24 May 2018), September 1879, trial of CHARLES PILKINGTON (40) (t18790915–756). Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 24 May 2018), September 1879, trial of EMANUEL DAVIS (40) (t18790915–757). Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 24 May 2018), November 1888, trial of ROBERT THOMAS BROWN (30) (t18881119–71); Reynolds Newspaper, 12 July 1868. Schneider, W.E. Engines of Truth: Producing Veracity in the Victorian Courtroom (New Haven: Yale University Press, 2015). Showalter, E. The Female Malady: Women, Madness, and English Culture, 1830–1980 (New York: Penguin, 1985). Stevenson, K. ‘“Crimes of Moral Outrage”: Victorian Encryptions of Sexual Violence’, in Criminal Conversations: Victorian Crimes, Social Panic, and Moral Outrage, ed. by J. Rowbotham and K. Stevenson (Columbus: Ohio State University Press, 2005), pp. 232–246. Strange, J.M. Fatherhood and the British Working Class, 1865–1914 (Cambridge: Cambridge University Press, 2015).

‘Infamous falsehoods’ 137 Thane, P. ‘Women and the Poor Law in Victorian and Edwardian London’, History Workshop Journal 6 (1978), pp. 29–51. The Times, 30 July 1860; 24 December 1860; 11 May 1866; 13 July 1866; 7 July 1868; 12 June 1879; 30 April 1880; 23 November 1888; 27 February 1893. Tosh, J. A Man’s Place: Masculinity and the Middle-Class Home in Victorian England (New Haven: Yale University Press, 1999). Western Mail, 2 July 1870; 6 July 1870; 28 November 1876; 26 March 1877; 26 March 1884.

6

Authoritative judgments in a provincial town Responses to everyday offending in Plymouth, 1860–1900 Kim Stevenson and Iain Channing

Introduction An ongoing challenge in the present era is how to deal with the perpetual lowlevel everyday offending that can disrupt social cohesion and significantly impact upon a community’s sense of wellbeing. The Victorians also experienced similar anxieties regarding the ‘anti-social’ behaviour of individuals perceived as threatening the welfare of the more law-abiding citizenry. In particular, disorderly conduct, or what was adjudged to be ‘intemperate’, bad or immoral behaviour fuelled by intoxication and drunkenness could easily coalesce, igniting arguments and brawls that had the potential to develop into more serious public disorder. Possessed of a strong sense of moral duty, typically induced by local temperance and teetotal agendas, elites across what were known as the Three Towns of Plymouth, Devonport and East Stonehouse, felt entitled to ‘sit in judgment’ in ways that affected the livelihoods and liberty of numbers of individuals within their domain. Their estimations of the boundaries between responsible and unacceptable levels of social behaviour reveal the prioritization of essentially parochial initiatives and associations that sought to idealize local social conformity with somewhat less regard for the imposition of national standards and models. Stricter policing regimes and law enforcement crackdowns were supported and reinforced by magisterial and civic approval, raising questions for contemporaries about whether such strategies could be defended on the grounds that intervention was as much in the best interests of those affected as it was for the welfare of the wider community. This chapter presents a case study of the provincial town of Plymouth, highlighting the kinds of judgments, judicial and civic, moral and pragmatic, made by those charged with reacting and responding to low-level offending and the factors that influenced their determinations. Examples of such everyday judgments made by the local magistracy, the police, Poor Law Guardians, clergy and concerned philanthropists suggest that there was a markedly and distinctively localized aspect to such decision-making. We argue that the respective religious, social and political dimensions of the Three Towns are reflected in, and underpin, the judgments made in each and that there is a discernible difference between the more moralistic judgmental approach evident in Plymouth compared to the more pragmatic style of decision-making adopted in Devonport and Stonehouse.

Authoritative judgments in a provincial town 139

Triality: The Three Towns By the second half of the nineteenth century, Plymouth, which until its amalgamation in 1914 comprised the three quite distinct towns of Plymouth, Devonport (formerly Plymouth Dock until renamed in 1824 to distinguish it from Plymouth) and East Stonehouse, had developed an unenviable and notorious reputation (see the map of c. 1845 in Figure 6.1). Intemperate and licentious behaviour involving both its permanent inhabitants and a floating population of visiting sailors to this Royal Navy and commercial port had become commonplace. When ashore, service and merchant navy personnel were, unsurprisingly, generally enthusiastic consumers of alcohol, providing welcome custom for the Three Towns’ breweries and beerhouses, but the consequent incidents of drunkenness, immorality and lowlevel crime were less well received by local residents. The systematic prosecution of such anti-social behaviour is evidenced in court registers and local press reports, including the Western Times, Western Daily News and Western Weekly News, which published regular summaries of cases heard at the three magistrates’ courts. Watch Committee records also single out drunkenness and demoralizing behaviour, offensive language and low-level violence as ongoing problems throughout the period.1 The prevalence of drink-fuelled offending meant that from the 1850s a strong temperance discourse emerged across the Three Towns. Increasingly, the more civic-minded townspeople disapproved of the numerous public houses and off-licences situated in close proximity along the main thoroughfares. By the 1890s, there were 343 public houses in Plymouth alone, including 54 licensed premises within 320 yards of the commercial fishing port at Sutton Harbour, equating to 1 for every 232 persons.2 As well as the criminal justice system, citizens also looked to the clergy to impose moral and spiritual direction. Nonconformist churches operated across all of the Three Towns but it was Plymouth that had a long-established reputation for noncompliance (and political nonconformity), generating a strong presence of General Baptists, various Methodists, Congregationalists and Unitarians.3 Many nonconformists were powerfully in favour of at least temperance, while those of a more zealous persuasion, represented by the Plymouth Total Abstinence Society founded in 1836, advocated absolute teetotalism, banning all alcohol for all classes. In comparison, while some nonconformist congregations could be found in Devonport, it was essentially an Anglican town, and so tended to be more broadminded. This related to the Bishop of Exeter’s appeal in the 1840s to build a number of new churches to mitigate Devonport’s ‘appalling spiritual destitution’ where 26,000 people in a fifth of a square mile had ‘no parochial church or chapel anywhere’.4 Devonport’s awareness of its naval presence also made it more benevolent; the dozens of public houses the dockyard sustained inclined it to adopt a generally pragmatic approach veering more towards temperance than teetotalism. This is reflected in the tireless efforts of National Temperance League campaigner, Dame Aggie Weston, ‘The Sailor’s Friend’, who founded the Devonport Seamen’s Mission and the first Royal Sailors’ Rest by the Dockyard gates in 1876, making it her mission to convince all sailors and their families to take the pledge and dispense with beer to save them from ‘degeneration’.5

Source: Image courtesy of the University of Plymouth.

Figure 6.1 R. Brown, ‘Plan of Plymouth, Stonehouse and Devonport’, in Route Book of Devon: A Guide for the Stranger & Tourist (1845; new edition: Exeter: Henry Besley, 1850), between pp. 282–283.

Authoritative judgments in a provincial town 141 Situated between the two towns, the County Borough of East Stonehouse was also highly dependent on the liquor trade, hosting eleven of Plymouth’s sixteen breweries and their tenanted beerhouses in its section of Union Street.6 Close to the Royal Marines’ barracks, this notorious area was the main target for moral suasionists, though it was less affected by Plymouth’s absolutionists. Union Street, which linked the Three Towns, was policed by the Plymouth Borough Police at its eastern end, partly under the supervision of the Devon County Police Stonehouse Division in the middle, with the Devonport Borough Police patrolling its western end. This triumvirate division was also replicated in the independent jurisdictions of the three respective magistrates’ courts, including the Devonport Guildhall, which housed its borough police station. Although a more geographically discrete location than Union Street, the adjacent dockyard made it as equally challenging an area for its civic authorities.

Magisterial judiciousness Unusually, and despite the combined size of the Three Towns (Devonport was the largest town in the south-west at the turn of the nineteenth century), there was no assize court, so indictable offences were tried at the county assizes at Exeter. This gave the towns’ justices of the peace (JPs) considerable control over local criminal justice policy, with each town council refusing to appoint any paid stipendiary magistrates to avoid undermining the autonomy of their respective benches.7 The magistracy operated as a unilateral regime without any clear separation of powers at least until the County Councils Act of 1888 shifted some of their responsibilities for local administration to the new county councils. In all Three Towns there was a powerful crossover between service in the borough and membership of the bench; by virtue of their office, the mayors and deputy mayors were automatically appointed as JPs, assisted by other prominent citizens of good standing. Devonport civic society was dominated by the local aristocracy. Sir Edward St. Aubyn (Lord Levan) was the first mayor of the renamed town, and both he and his son, Sir Edward John, sat as chairmen of the bench. The family supplied land and finances for the church building programme, construction of the Guildhall and the combined workhouse and prison designed by James Pier St. Aubyn. As Emsley asserts, it should not be assumed there was any clear partition between those elites who administered the law and the lower classes expected to obey it.8 However, judgments on individuals who violated the criminal law could differ according to national, regional and local priorities, the expectations of those initiating prosecutions and the individual perspectives of the JPs. By the midnineteenth century, magisterial judgments generally had become more complex due to progressive changes within the criminal justice system (including the Jervis Acts of 1848) overlain with stereotypical expectations of how men and women should conduct themselves in their respective spheres. Conley reminds us that ‘Victorian justice was shaped by three of the central concerns of Victorian society in respectability, public order and class’.9 Her survey of offending in Victorian Kent confirmed that ‘The law was determined as much by local tradition

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as parliamentary statutes . . . the respectable men of the local community defined crime and justice through the JPs who represented “wealth and intelligence”’.10 Plymouth also had a tradition of long-serving JPs underlining its nonconformist heritage. For example, the Reverend Professor F.E. Anthony, a Liberal educationalist, sat from 1870 to 1907. William Prance, chairman of the Devon and Cornwall Banking Company and later mayor of Plymouth, sat from 1826 until his death in 1861, though reportedly he was not a quick and brilliant man or remarkable for his eloquence . . . his sterling worth lay beneath a somewhat phlegmatic exterior. To have lived so long and yet leave behind the memory of no public fault, error of judgement, haste of temper or mistake of purpose is a great thing.11 What characterizes such men was their zeal and dedication as local reformers and philanthropists with strong moral views. Not only were they apparently infallible in their judgments, but such community justice would have been heavily influenced by their principled agendas, exemplifying Worrall’s assertion that summary justice is not just a quicker cheaper form of ‘proper’ justice, it has the potential to be a qualitatively different form of justice. It is based on the assumption that there exists an entity called ‘the community’ which although it consists of widely differing interests, can ultimately accommodate that difference in a natural consensus, which is reflected in the administration of justice rather than being constructed by it.12 The Devonport magistracy was particularly unusual in recruiting non-civilian naval and marine officers, including serving and retired admirals and captains, partly because the temptations offered by the victuals assembled by the military establishments encouraged local theft and fraud.13 As a permanent shore position, the surgeon general of the naval base was also a standing member. These service personnel sat in judgment over all cases scheduled at the magistrates’ court, not just those that involved servicemen or service related offending. This emphasizes the significant presence of the Royal Navy and marines in Devonport’s civic administration but it also engendered a more pragmatic dimension to the decisions of the bench as these were officers who understood the motives of service personnel, the inevitable individual consequences of their actions and the implications for the reputation of the navy and the town itself. Tackling immoral and drunken behaviour proved a constant headache for the Three Towns’ authorities, with prosecutions for drink-related offences appearing almost daily in the court registers.14 The Beerhouse Act of 1830 had encouraged the sale and consumption of malt liquor in drinking parlours and lodging houses to wean the population off its over-reliance on gin, making beerhouses the main locale for drinking and prostitution. Judgments concerning intoxication were particularly problematic as sailors in the Royal Navy were entitled to

Authoritative judgments in a provincial town 143 a daily lunchtime rum ration and after months away at sea sought contact with sex workers to satisfy other needs. The prostitutes frequenting public houses were a particular concern as licensees would turn a blind eye to their presence as it attracted more custom. While the specific act of prostitution was not unlawful, prostitutes could be arrested for being ‘idle and disorderly’ under the Vagrancy Act of 1824 and imprisoned if believed to be a public nuisance or affront to respectability. Magistrates were responsible for regulating beerhouses and held powers to refuse a licence where there was evidence of a ‘disorderly house’. In 1865, after complaints from ‘a highly respected body of gentlemen in the town’, four beerhouse keepers were charged at Stonehouse Police Court for harbouring prostitutes. The police superintendent informed the justices that there were 154 brothels in the vicinity of a short section of Union Street and that 100 prostitutes worked just two streets adjacent to the marine barracks, where some 2,000–3,000 soldiers were based. The chairman of the bench, Mr Trotter, expressed his concern about the impact on the town: ‘We look upon your occupation with the most profound and unmitigated disgust, for the consequence on the morals and health of the town is too fearful to contemplate’, pronouncing it ‘a scandal to the entire neighbourhood that the conduct in our streets is more disorderly, and obscene, than in any town, probably, in the United Kingdom’.15 The men were convicted, fined £1 each plus 9s 6d costs and ordered to eject the 100 women who frequented their premises. Protesting at the impact on their livelihood, the women, marshalled by a sympathetic Royal Marine, marched in file to the workhouse where they demanded entry but were turned away by the master. They were permitted to stay at their lodgings for a few days until the Board of Guardians was forced to agree that the ‘unfortunate women’ could all be admitted. The case illustrates the invidious position of many women who, either intentionally or unavoidably, relied on supplementing their income through prostitution only to be judged according to elite patriarchal perceptions of class, gender and authority. This raises questions about the relationship between criminal justice and social justice as posited by Carlen and Worrall in the context of an individual’s free will ‘to shape her own actions, identity and consciousness independently of the economic, ideological and political circumstances in which she finds herself’.16 There is evidence, contrary to the national condemnation of prostitution resulting in the enactment of the Contagious Diseases Acts, that some JPs understood and tacitly accepted the dilemmas facing women whose partners were away at sea, provided they did not produce a child that a returning sailor could not have fathered. JP Mr Roberts assured twenty-three-year-old Caroline Wilson, the first applicant made homeless by the Stonehouse decree, that ‘Every gentleman present must feel deep sympathy with you’, stressing that he did not believe imprisonment was the answer but that the workhouse was a suitable alternative. However, when offered admittance to the house, Caroline and every other woman, bar two, refused, declaring that while they were young and of good health they would not cross its threshold and sacrifice their liberty.17 Interestingly, the women could not be detained under the recently enacted Contagious Diseases Act of 1864 as it only

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applied to the parishes of Plymouth and Devonport, not Stonehouse. What the magistrates were clearly trying to do by targeting the publicans was to encourage those who were itinerant prostitutes to leave the area and potentially move the problem to Plymouth or Devonport. In a later example, the Stonehouse magistrates demonstrated humanity in not imprisoning Elvita Stanford who pleaded guilty to unlawfully keeping a brothel, declaring ‘What can I do for a living?’ Having lost her husband sixteen months previously, she was responsible for five children from his first marriage, including one who was ‘disformed’. The bench were suitably pragmatic in their judgment, adjourning the case to assist Elvita in securing legitimate employment in a local laundry.18 This evidences Rowbotham’s assertion that the judgmental powers of JPs and exercise of discretion enabled them to steer a nuanced path that balances satisfying the needs of the state to manage the criminal justice process and to be identified as the main providers of “justice” alongside the needs of the community for a comprehensible and accessible justice system.19 Recent research acknowledges that in the modern context, while undoubtedly some magistrates do exercise similar discretion, generally there is insufficient recognition of the impact on mothers and their children of even short sentences imposed for minor infractions and that sentencing frameworks that limit such imprisonment are inconsistently applied.20

Police orders For the borough forces of Plymouth and Devonport, the Watch Committees, under the Municipal Corporations Act of 1835, could appoint as chief constable (head constable in Devonport) their ‘public-facing representative of idealistic moral dignity’.21 As members of the Watch Committee, magistrates could indirectly impose their will on the local populace by setting policing agendas; however, their subsequent decisions in court did not always reinforce the objectives set. The reluctance of some magistrates to deal strictly with licensees and prostitutes created tensions with the police who were attempting to implement their wishes. In the 1880s, Plymouth’s chief constable, Arthur Wreford, regularly charged landlords for allowing prostitutes to habitually visit licensed premises and remain longer than was justifiably necessary for drink and refreshment, but initially such prosecutions made little difference. The Plymouth magistrates only imposed small fines and were reluctant to revoke a publican’s licence even where there was strong evidence that groups of prostitutes would regularly gather, meaning there was no effective sanction on landlords or brewery owners to curb prostitution.22 As Cox and colleagues note, ‘local magistrates were frequently under pressure from moral campaigners to more actively enforce the law but also had to negotiate the complex web of the wider interests of both commercial and local community residents’.23

Authoritative judgments in a provincial town 145 From 1885, street prostitution (halfpenny and penny whores in the terminology of the day) became more visible as the Criminal Law Amendment Act made brothels illegal but beerhouses still welcomed sex workers to enter and ply their trade. It was only when two fifteen-year-old boys, found incapable from drinking brandy bought for 3s 6d from the Vestry Arms, appeared at the Plymouth Petty Sessions that Mr Algar (the mayor) and Messrs Brook and James urged Wreford to ‘give attention to the house, it was a disgraceful thing that boys of their age should be able to obtain enough brandy at one house to make them drunk’.24 Wreford initiated more prosecutions but in 1891 informed the Watch Committee that he needed another chief inspector and eleven constables to effectively police the town and ‘greatly minimize the evils’. In return, he would ensure the problem received increased vigilance from his officers but pleaded for more severe fines from the magistrates otherwise ‘I do not think a complete remedy is possible’. He also advocated the need for more public open spaces where citizens could convene, as the only locations where ‘the class of people who create the difficulties can resort’ were licensed premises.25 Wreford led the Plymouth Borough force for twenty-six years until his unexpected demise in 1892, prompting Plymouth’s elite to seek a more authoritative replacement, ideally an outsider and a nonconformist, a new broom who could clean up the town’s dirtier problems. In July, the Watch Committee appointed Joseph Sowerby, the man who would become the publicans’ nemesis. A highly regarded former chief clerk from Leeds City Police, keen temperance advocate and moral campaigner, Sowerby quickly made it abundantly clear that he would eliminate drunkenness, prostitution and gambling. He openly confirmed his nonconformist stance and temperance credentials when he joined Plymouth’s Free Methodist Temperance League, receiving plaudits from some of the more conservative amongst the town’s respectable luminaries. Firmly believing that a strong message needed to be sent out to the public and the liquor industry he immediately made his presence felt, instigating an early form of zero-tolerance policing.26 Sowerby ordered his constables to ‘blitz’ the town and fill the magistrates’ courts with charges of drunk and disorderly, drunk and incapable and using obscene language.27 Examples prosecuted by Sowerby include John Tippet and Mary Kennedy who appeared on the same day at Plymouth Guildhall for the fortieth and fifty-fourth time, respectively for drink-related offences. Tippet promised to take the pledge and was treated sympathetically with a 10-shilling fine whereas Kennedy was imprisoned for one month. The Mayor commented it was in her own and the community’s best interests: ‘it was a mercy to send her to prison, where she would be kept out of harm’s way and prevented from polluting the minds of young children with her filthy language’.28 An ongoing problem was the return of drunkards discharged from the workhouse in the morning who returned intoxicated in the evening, such as Catherine Hall, arrested for using obscene language and causing a disturbance, with seventeen previous convictions she was imprisoned for fourteen days for being drunk and disorderly.29 Hoppen notes that in respect of indictable offences ‘the Victorians proved remarkably successful in containing and even reducing crime at a time of broadly growing prosperity, when according

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to much received modern wisdom, the opposite should have occurred’,30 attributing much of this to the growth in effective policing. However, our Plymouth case study shows that it was far more problematic to minimize the incidence of minor everyday offending, especially as the ‘revolving door’ of alcohol-fuelled poverty and addiction necessitated more humane and less punitive judgments. Sowerby was one of the new moral activists, middle-class Liberals and Conservatives who invoked the concept of the Christian crusades to contest late nineteenth-century ‘degeneration’. Over the next decade, he made considerable progress towards stamping out drunkenness, spearheading a morality campaign aligned with the National Social Purity Crusade in 1901 to prosecute the keepers and owners of disorderly houses by-lined in the local press as ‘The Sowerby Crusade’.31 He personally visited more than 300 licensed traders (notably entering forty premises on one day) asserting that he could not trust his constables to monitor the beerhouses as the licensees were supplying them with liquor while on duty.32 This was another concern requiring the judgment of Sowerby and is discussed below. He prosecuted seventy-nine beerhouse keepers for licensing offences, including unlawfully permitting drunkenness and harbouring thieves and prostitutes, convincing the Plymouth magistrates to close sixty public houses. Arguments raged at town council meetings between teetotallers, temperancers and the Licensed Victuallers’ Protection Association, who claimed its members were suffering significant financial loss as a result of the crackdown. After just one year in office, Sowerby was accepted into Plymouth’s elite inner circle having earned the ‘confidence of the magistrates and the Watch Committee’.33 He developed a reputation for tackling anti-social behaviour, visiting Liverpool, Leeds, Cardiff, Manchester and Portsmouth to compare how they dealt with immorality and gave expert evidence to the Royal Commission on Liquor Licensing Laws.34 The temperance agenda provided the context for Sowerby’s campaign against drunkenness, and its success can be directly attributed to the concerted judgments he and his associates made about those who supplied and sold intoxicants. Taking on the mantle of the morality ‘judge’ on behalf of the town’s authorities, he also sought to extinguish betting, gambling and even whist drives. Others might have been censured for their officiousness but Sowerby’s judgments were motivated by genuine philanthropic concerns about local social problems and the landlords’ practice of rack-renting, tempering any likely criticism.35 His opinion was more readily received and accepted because it was endorsed through his strong connections with the town’s social and religious networks which, although primarily nonconformist, garnered the support of local elites and arguably even more important, the local press. It was not just the local populace that were victim to Sowerby’s ‘Crusade’, the police officers themselves also fell within the remit of increasing moral regulation. The rank and file were generally drawn from the working classes, presenting difficulties in fulfilling their ‘policing’ role as they shared many of the values and assumptions of those they were employed to police.36 Opportunity for physical conflict was high as in the mid-nineteenth century there was significant resistance to the creation of professional police forces encroaching on ‘the daily lives and

Authoritative judgments in a provincial town 147 recreational activities of the working classes’.37 Consequently, judgments upon police officers took two interlinked forms: officers were often judged on their physical capabilities and rewarded with demonstrating courage and masculinity in the line of duty but were punished if they succumbed to the masculine expectation to partake in vices, such as drinking alcohol, which they were simultaneously tasked to police. Policing in the Victorian era was often dangerous. Archer argues that physical prowess was an important part of male masculinity and resorting to violence to settle disputes a common occurrence, including disputes involving police officers.38 Plymouth was no different; in 1880 one newspaper revealed how ‘The police were subjected to great violence’ when describing a serious riot between the police, naval men and a disorderly mob.39 Other violence towards the police was specific and calculated. Edward Bunter, a marine store dealer, stabbed Silas Annis, an Inspector of the Dockyard Division of the Metropolitan Police based at Devonport, with a sword. The wound was six inches deep and Bunter admitted that his attack was premeditated and that he wished his arm was stronger so his thrust could have had more effect.40 The danger presented to officers through physical conflict was omnipresent. Statistics from Her Majesty’s Inspector of Constabulary in 1879 show the likelihood of officers from Plymouth and Devonport being assaulted. That year, Devonport Borough Police, with a total strength of fifty officers, prosecuted twenty-two people for assaults on police officers, twenty of them successfully. Plymouth’s contingent was eighty-nine police officers with sixty of the sixty-one prosecutions proceeded against successful. Considering that other physical confrontations may not have been recorded, this still represents a high number of incidents warranting legal action.41 With such potential for violent confrontation an expectation of physical prowess harnessed the culture of masculinity and, being ‘a class apart’ from an often suspicious or uncooperative working-class population, the culture of isolation intensified. Recent ethnographic research on the police has highlighted how sub-cultures of masculinity and isolation can influence negative behaviours such as problematic alcohol consumption.42 The conduct books of the Plymouth and Devonport police forces reveal that drinking affected a significant number of officers. The punishments issued to transgressing officers highlight the individual discretion of the serving chief constable and the support they received from their respective Watch Committees. The Plymouth conduct book, covering those appointed from 1874 until 1915 makes it possible to assess how endemic inappropriate alcohol consumption was. Using a sample of 154 police officers, 52 received a formal punishment for poor conduct, most commonly ‘drunk and unfit for duty’ or ‘drinking intoxicating liquor whilst on duty’, 32 officers (21 per cent of the sample) had been punished at least once for these behaviours.43 Devonport reveals an identical statistic as 21 per cent of officers (25 from a sample of 120) were also reprimanded for alcohol-related behaviours.44 In Plymouth, Sowerby’s appointment marked a noticeable change in policy in dealing with officers who drank. The punishment of his predecessor, Wreford, typically ranged from a caution, a fine (between 2s 6d and 5s), or the reduction

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of one class. For a second offence, Wreford issued the dual punishment of a 10-shilling fine and a four-day suspension. Under Sowerby’s leadership, a first offence typically meant the loss of one badge and a suspension ranging between five and seven days with loss of pay.45 He also revealed his temperance values when he ordered one officer to sign the pledge after a second offence. In Devonport, following the appointment of Chief Constable John Matters (1893–1908) an increase in penalties for officers who drank alcohol on duty is less detectable. Punishments for first offences were the same as those imposed by Matters’ predecessor Samuel Evans, reprimand by the Watch Committee and/or a fine ranging from 5 to 10 shillings. Sowerby’s temperance connection prompted a sterner attitude towards his officers’ consumption of alcohol. He urged his men to attend temperance meetings and must have been delighted when, just four months after his appointment, forty officers had taken the pledge confirming his influence of a more moralistic and perspicacious style of judgment.46 But by the early twentieth century, Sowerby’s temperance values became outdated in relation to the desired attributes of police officers. Using force instruction books which were issued to new recruits, Klein notes that the new message was that ‘real men knew how to hold their drink and were intelligent enough not to compromise the reputation of the force over a beer’.47 Being at the front line, the moral integrity of police officers needed to adhere to the kind of culture imposed by Sowerby’s strict moral code in order to enforce the law on the local populace. Sowerby’s success in shaping a more professionalized force was recognized in an open letter published on his retirement noting that Plymouth had become a ‘much more moral, clean and better behaved borough’ as a result of his stewardship.48

Guardians’ prudence While numerous examples of convictions for drunkenness can be found at the Stonehouse and Devonport courts, it was Plymouth, through Sowerby’s prosecutions, that vigorously sought to curb public drinking and promoted a moralistic stance. Sowerby’s success, aided by the magistracy and Watch Committee, would have been ineffective without the support of other local agitators such as Isaac Foot,49 who Sowerby knew through the Methodist Temperance League. Like Sowerby, Foot was a passionate Methodist and teetotaller, financing the Notte Street Christian Mission Hall and investing in the Salvation Army Congress Hall. He helped create the Band of Hope at Devonport, encouraging more than 250 young naval apprentices to sign the pledge of total abstinence.50 Foot was also a Guardian and no doubt acted as a conduit between Sowerby and the Plymouth Board of Guardians. He and other temperancers lobbied hard to prohibit alcohol being used as a ‘medicinal measure’ in the workhouse but they met with considerable resistance from other Guardians. This reveals a real tension amongst those prominent civic-minded leaders of the town who were nonconformist and others in positions of at least some power and responsibility who were not. There was also a significant difference of opinion between the Plymouth Guardians and those of Devonport and Stonehouse highlighted in a survey of

Authoritative judgments in a provincial town 149 Home Office reports detailing the amount spent on alcohol in every workhouse in the country from 1885 to 1893. Plymouth had the highest spend per inmate within the county and the Three Towns, and was one of the highest nationally by a considerable margin, purchasing on average £50 each of spirits, wine and beer annually, despite a 20 per cent reduction of inmates from 1891.51 In 1893, the average annual spend per inmate nationally was 3s 11d: Plymouth’s was 5s 11d, making the Plymouth Union the fourth highest spender of the twenty national unions reviewed.52 In comparison, Stonehouse did not purchase any wine and malt liquor from 1885 onwards and dispensed with spirits in 1893. Devonport dispensed with wine and beer in 1892 but continued to purchase spirits for medicinal purposes only. Somewhat ironically, given such statistics, the indomitable Mrs Ripley, another of Foot’s contemporaries and (together with her husband) well-known temperance campaigner, delivered weekly temperance lessons ‘of the strongest kind’ to the Plymouth inmates. In September 1887 she and Foot led a united temperance demonstration involving all the total abstinence societies where Mr Square (another temperance Guardian) read ‘A paper on the Medical Aspects of Temperance’ that singled out women for retribution and recommended that workhouse medics should not prescribe alcohol.53 Mrs Ripley later proposed that the board petition Parliament to enforce the Direct Veto Bill locally as no-one needed to be reminded of how ‘often the question of drink was connected with pauperism’.54 The bill aimed to make licensing districts coterminous with electoral districts so that local voters could decide whether public houses should be prohibited from selling liquor. But other Guardians had vested interests to protect, such as Mr Sercombe, a local wine merchant and member of the Plymouth and Devonport Wine Spirit and Beer Trade Protection Society, who opposed the motion on the basis that ‘even the teetotallers themselves had admitted that a Local Bill was not a practical measure and unworkable’.55 The board remained divisive over the need to reduce the amount of liquor purchased, and even when in 1893 the Local Government Board eventually notified the Plymouth Guardians that it was sending an inspector to investigate the (ab)use of alcoholic drinks in the workhouse, Sercombe was still joking that half-pints of beer were necessary as a ‘medicinal measure’.56 In the latter half of the nineteenth century, the provision of poor relief began to change. The architecture of the workhouses built after the Poor Law Act of 1834 was designed to be foreboding in appearance, resembling the contemporary prisons and sending a strong signal that poverty was to be treated as a crime.57 While this promoted the virtues of independent labour, from the 1860s onwards there was recognition that the majority of inmates were aged, sick, infirm or very young, meaning a large proportion were not fit for work. Yet, by 1881, both the Plymouth and Devonport Unions provided few alternatives for those who required poor relief. The census that year reveals that children (aged between zero and fifteen years) made up 24 per cent and 22 per cent of the inmate population, respectively. Inmates over the age of sixty were also highly represented in both workhouses, 38 per cent and 35 per cent, respectively.58 Despite the greater classifications of

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paupers resident in the different institutions, discriminating between the deserving and undeserving poor outside the workhouse continued to be enforced with rigour.59 With non-secure employment, the circular motion of being in casual work, seeking employment and requesting poor relief dominated the relationship of the working class, the poor and the pauper. Those who were out of work and in need of assistance were judged by the Guardians who determined what relief they should receive. By the turn of the twentieth century in Plymouth, Social Democratic Federation activists were making their mark on local administration. The socialist John Tamlyn was elected to the Board of Guardians in 1905 and tirelessly campaigned for the better treatment of the town’s poor. The Plymouth Guardians invested heavily in improving their facilities, introducing the ‘scattered home’ system, where thirteen or fourteen same-sex children lived together away from the workhouse with a foster mother, and the opening of a new infirmary in 1909. That year the Reverend W.H. Child praised their accomplishments of the preceding twelve years that saw Plymouth establish ‘the principle of a rational treatment of children . . . [and] a humane and rational treatment of the sick and suffering’.60 While the provisions were improving for children, the aged and the sick, judgments on the able-bodied poor were also becoming more sympathetic. The Guardians recognized the level of distress in the town and became more willing to grant out-relief rather than implement the workhouse test.61 Following a pejorative review from the Local Government Board in 1907 on their expenditure, the Plymouth Guardians began to enforce stricter sanctions in an attempt to reduce the amount of out-relief. Judgments now acquired an element of moral indignation as claimants were rejected, accused of being ‘lazy and given to drinking’. The Plymouth Ratepayers’ Association brandished the Plymouth Guardians a ‘most callous and hard-hearted lot of beings’, though Tamlyn and others continued to fight for the return to a more sympathetic and supportive form of poor relief.62 The legacy of Plymouth’s investment in its poor law services led to a bitter rivalry with neighbouring Devonport. Plymouth’s greater pauper levels and improved facilities meant that its expenditure was the highest of the Three Towns. Subsequently, the Devonport board successfully utilized its own low rates to oppose the merger of the two unions following the amalgamation of the Three Towns in 1914. In 1909, the expenditure met out of the rates by the Plymouth board was £43,253, compared to just £16,114 spent by the Devonport board.63 To the cost of the ratepayers, the Plymouth Guardians had started to use their administrative discretion to demonstrate a more moralistic approach to improving the conditions and life chances of the deserving poor. The Devonport Guardians had more pragmatically favoured keeping the rates low and the extra facilities to a minimum.

Philanthropic and clerical acumen Across the Three Towns, moral campaigners waged war against drunkenness and immorality bolstered by clergy members from all denominations. Sowerby

Authoritative judgments in a provincial town 151 enjoyed the endorsement of the Methodist Temperance League, its secretary, Reverend John Thornley, was also the Connexional Temperance Secretary of the United Methodist Free Church and Past Grand Chaplain of the Independent Order of Good Templars, a total abstinence group founded by the Baptist Joseph Livesey.64 Other members included the Reverend Professor Chapman, a prominent nonconformist, Congregational Unionist and supporter of the Plymouth Boys Brigade and Plymouth Sailors’ Home; Reverend John Balmer of the Free Methodist Church; Reverend Richard Watters, pastor of Hope Chapel and United Methodist minister; and Samuel Yates Ormerod, founder of the Plymouth YMCA.65 Sowerby therefore occupied a pivotal and formidable position, acting as both the town’s prosecutor and Watch Committee intermediary he could operationalize the Methodist Temperance League’s objectives by personally directing and implementing policing strategies. In Devonport, Aggie Weston’s campaigns were endorsed by the Reverend T.C. Childs of St Mary’s who was indefatigable in his efforts to preach to the poor and destitute, focussing particularly on the itinerant population of sailors and their families. He believed that ‘itinerancy’ explained why out of forty-six local public houses, thirty-six were ‘notorious’ brothels.66 The Reverend Prebendary Wilkinson, who gave evidence to the Royal Commission on the Contagious Diseases Acts in 1882, was similarly concerned. Aggie’s temperance magazine, Ashore and Afloat, is still published today, though it is significantly less judgmental than its 1885 equivalent. Sub-titled A Copiously Illustrated and Interesting Paper for the Household, District and Class, it would have sparked cynical interest amongst many of its intended readership with its cover-to-cover dogma and judgmental stance about the real-life dangers and consequences of drink, and explicit and implicit reprimands that there was no other alternative but Christian indoctrinated teetotalism. Aggie would no doubt have been highly dismissive of Yeomans’ supposition that ‘People could be no more coerced into sobriety any more than they could be left to govern themselves’.67 Such temperance discourse facilitated the enactment of the Licensing Act of 1872, which imposed much tighter regulation of the licensing of public houses and sale of intoxicating liquor, curbing the freedom of the lower and working classes. But it specifically excluded private members’ clubs and wine cellars, highlighting the hypocrisy of those who sought to judge others less fortunate. Police constables were now authorized to enter licensed premises at any time, and magistrates were given the power to impose conditions and restrictions on licensees and owners found to be running their houses irresponsibly. Yeomans confirms that the act should be understood as ‘a regulatory framework allowing for a series of behavioural choices that are constructed in moral terms as either approved or condemned, right or wrong, good or evil’.68 In other words, it allowed judgments to be made by the elite upon the lower classes and the legislation, both directly and indirectly, provided the justification for making judgments about the social and moral behaviour of individuals themselves and the wider local community. The temperance agenda had of course affected local breweries who were increasingly concerned about their loss of revenue and were smarting after being

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castigated by Sowerby because of the exorbitant rates they demanded from their licensees. The Heavitree Brewery challenged Sowerby’s campaign to close down as many pubs as possible at Exeter Quarter Sessions in 1896, appealing the Plymouth justices’ refusal to renew the licence of the Royal Exchange Inn because the former tenant, prosecuted by Sowerby, had received two previous convictions. There had been no previous convictions or conditions attached to the pub before his campaign. The justices were represented by Isaac Foot, highlighting again the intimacy of local social, clerical and temperance networks, who called the Reverend Hugh Baker, chaplain of the Seamans’ Mission, to depose that the Exchange was frequented by a certain class of person which he ‘hoped there was no class lower’. However, Judge Edge found for the Brewery as the justices’ argument that there were already too many pubs in the vicinity did not justify refusing the licence.69 Despite this setback, Sowerby continued to target the industry, producing an extensive audit70 of all 347 licensed premises in the town to support his claim that by 1902 drunkenness had considerably decreased in the borough although nationally the number of convictions had generally increased. The average population per licensed premises in Plymouth was now one of the highest, further evidencing his effective strategies. Summonsed to appear before the Royal Commission on Liquor Licensing Laws he attributed these successes to the ‘improved social condition of the people’ brought about by the police supervision of public houses and the ‘enlightened attitudes of the young’. Licensees were now more co-operative in managing their houses and responsive to police advice, in 1893 Sowerby had prosecuted twenty-eight publicans, in 1897 just nine.71 Thus a case can be made that the imposition of a highly moralistic judgmental approach, publicly championed largely by one individual but with the backing of the town’s authorities and local elites, could significantly benefit the wider community.

Conclusion Authoritative judgments made by a variety of municipal and criminal justice agencies across the Three Towns in the late nineteenth century demonstrate the value of commonsense decision-making. The discretion used across the different jurisdictions to implement their respective agendas reveals the influence of social elites. Within this framework, the role of the lay magistrate has been key to setting those priorities. Zedner suggests that the lay magistracy ‘is probably best explained as a historical legacy that would be an unlikely feature of a modern, rationally conceived system’ and that ‘criminal justice agencies are products of historical evolution and often appear “atomized” operating independently of each other’.72 Judgments of everyday offending in Plymouth challenge this notion of the different agencies acting in isolation. The study of how these authoritative judgments formalize is not simple or straightforward, and their examination requires synthesis and interrogation of summary judgments; an aspect of the justice system many historians have been more dismissive of, preferring to focus on decision-making in relation to serious crime.

Authoritative judgments in a provincial town 153 Today, individual police forces, in consultation with interested stakeholders and in conformity with national standards, must devise formalized annual policing plans incorporating strategic objectives that target community concerns. Multiple agencies working for crime reduction and community safety is not just a police initiative but a legal requirement for all local authorities following the Crime and Disorder Act of 1998. Police engagement in such partnerships is often lauded as something novel or original, especially when compared to the policing in the 1970s.73 Yet, what this study of Plymouth demonstrates is that policing history is composed of varying levels of continuity and change; once forgotten initiatives and practices are frequently reinvented without recognition to its past heritage. Another striking similarity between the late-Victorian period and today is the concern about alcohol consumption and its relationship to anti-social behaviour and the local economy. Similarly, judgments about the unemployed and the level of state support they should receive continues to ignite political debate. The continuation of negative police sub-cultures and how officers should be disciplined for transgressing rules and regulations also endure, with Reiner arguing that police alcoholism is a ‘perennial problem’.74 The different responses adopted by the ruling classes of the Three Towns in regard to all these issues demonstrate how diverse values, whether moralistic or pragmatic, can affect the judgments made and reveal the relative autocracy enjoyed by provincial authorities when exercising discretion to set individual agendas in combating low-level offending.

Notes 1 E.A. Dickaty, From Rattles to Radio: A History of the Plymouth Police (Plymouth and West Devon Record Office (PWDRO) 922, 1977), p. 37. 2 Western Times, 23 October 1896. 3 See R.N. Worth, The History of Plymouth From the Earliest Period to the Present Time (2nd edition; Plymouth: Brendon, 1873), pp. 162–163. 4 Western Morning News, 21 January 1848. 5 Ironically, Plymouth and Stonehouse had first established a Seamen’s and Soldiers’ Friend Society in 1820 (PWDRO 750). 6 C. Robinson, Union Street (Plymouth: Pen & Ink Publishing, 2000), p. 72. 7 See The Times, 15 July 1840 for report of Devonport’s refusal to appoint and Western Morning News, 21 December 1870 for call to appoint in Plymouth. 8 C. Emsley, Crime and Society in England 1750–1900 (4th edition; Harlow: Pearson, 2005), pp. 11–12. 9 C. Conley, The Unwritten Law: Criminal Justice in Victorian Kent (Oxford: Oxford University Press, 1991), p. 173. 10 Conley, The Unwritten Law, pp. 202, 204. 11 Plymouth and Devonport Journal, 28 March 1861. 12 A. Worrall, ‘Sisters in Law? Women Defendants and Women Magistrates’, in Gender, Crime and Justice, ed. by P. Carlen and A. Worrall (Oxford: Oxford University Press, 1987), p. 109. 13 This was also the practice at Chatham and Portsmouth. 14 For example, the Western Weekly News’ dedicated sections ‘News from the Three Towns’. 15 The Royal Cornwall Gazette, 14 December 1865. 16 Carlen and Worrall, Gender, Crime and Justice, p. 1. 17 Royal Cornwall Gazette, 14 December 1865.

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18 Western Daily Mercury, 23 June 1895. 19 J. Rowbotham, ‘The Shifting Nature of Blame’, in Shame, Blame and Culpability, ed. by J. Rowbotham, M. Murayeva and D. Nash (Abingdon: Routledge, 2013), p. 71. 20 L. Baldwin and R. Epstein, Short But Not Sweet: A Study of the Impact of Short Custodial Sentences on Mothers and Their Children (Leicester: De Montfort University, 2017). 21 K. Stevenson, ‘Chief Constables as Moral Heroes’, in Leading the Police: A History of Chief Constables, ed. by K. Stevenson, D.J. Cox and I. Channing (Abingdon: Routledge, 2017), p. 93. 22 Western Weekly News, 10 October 1885. 23 D. Cox et al., Public Indecency in England 1857–1960 (Abingdon: Routledge, 2015), p. 41. 24 Western Weekly News, 23 July 1887. 25 Dickaty, From Rattles to Radio, p. 41. By the early twentieth century a number of public parks had been created across the Three Towns. 26 Stevenson, ‘Chief Constables as Moral Heroes’, pp. 91–108. 27 ‘Plymouth News’, Trewman’s Exeter Flying Post, 17 June, 6 September, 23 September 1893 and see Magistrates Court, Plymouth, Summary convictions 1875–1905 (PWDRO, 1540). 28 Western Weekly News, 11 November 1893. 29 Western Weekly News, 10 October 1885. 30 K.T. Hoppen, The Mid-Victorian Generation 1846–1886 (Oxford: Clarendon Press, 1998), p. 115. 31 Plymouth Free Methodist Temperance League Notebook (PWDRO, 854/2). 32 PP, Royal Commission on Liquor Licensing Laws: Second Report (Cmnd.8523, 1897), p. 215. 33 Plymouth Comet, 1 July 1893. 34 Royal Commission on Liquor Licensing Laws, pp. 215–217. 35 Where licensees rented out one or two rooms to whole families for permanent residence, in some cases there were between twenty and thirty adults and children. Sowerby was concerned that children living in such public lodgings were exposed to the immoral activities that took place there. 36 F. Dodsworth, ‘Men on a Mission: Masculinity, Violence and the Self-presentation of Policemen in England, c. 1870–1914’, in A History of Police and Masculinities, 1700– 2010, ed. by D. Barrie and S. Broomhall (London: Routledge, 2011), pp. 123–140. 37 R. Storch, ‘The Policeman as Domestic Missionary: Urban Discipline and Popular Culture in Northern England, 1850–1880’, in The Victorian City: A Reader in British Urban History, 1820–1914, ed. by R.J. Morris and R. Rodger (London: Longmans, 1993), p. 283. 38 J.E. Archer, ‘“Men Behaving Badly”? Masculinity and the Uses of Violence, 1850– 1900’, in Everyday Violence in Britain, 1850–1950, ed. by S. D’Cruz (Harlow: Pearson, 2000), pp. 41–54. 39 The Dundee Courier & Argus and Northern Warder, 17 February 1880. 40 The Royal Cornwall Gazette, 28 July 1865. 41 PP, Reports of the Inspectors of Constabulary (to the Secretary of State (1879)), pp. 245, 249. 42 R. Reiner, The Politics of the Police (4th edition; Oxford: Oxford University Press, 2010). 43 Plymouth Constabulary Conduct Book (South West Police Heritage Trust A2004.03582). The sample excluded officers who joined in 1914, as many were former Devonport officers and on amalgamation their service history was not recorded. The book was not updated beyond 1915. 44 Plymouth Constabulary Conduct Book (A2004.03586). 45 In 1893 a Plymouth police constable earned between 23 and 33 shillings a week, depending on class.

Authoritative judgments in a provincial town 155 46 Western Morning News, 24 November 1892. 47 J. Klein, ‘Quiet and Determined Servants and Guardians’, in A History of Police and Masculinities, ed. by Barrie and Broomhall, p. 205. 48 The Plymouth Pictorial, 2 April 1917. 49 Father of the future Liberal MP Sir Isaac Foot and grandfather of Michael Foot. 50 Western Weekly News, 22 August, 3 October 1885. 51 In 1885 with 592 inmates Plymouth purchased 425 pints of spirits (£50.6s7d), 988 pints of wine (£39.11s5d) and 885 pints malt liquor (£51.13s5d): PP, House of Commons, Return of Quantity of Spirits and Wine Consumed in Workhouses in England and Wales, 1885 (18 June 1886), p. 13. In 1893 the equivalent figures were 556 (£80.18s), 738 (£90.17s) and 644 (£37.11s) with 558 inmates: PP, House of Commons, Return of Quantity of Spirits and Wine Consumed in Workhouses in England and Wales, 1892 and 1893 (12 February 1895), p. 21. 52 Return of Quantity of Spirits and Wine Consumed in Workhouses in England and Wales, 1892 and 1893, p. 45. The highest was West Ham, 7s 8d; Wolverhampton, 7s 0d; Bristol, 6s 11d. 53 Western Weekly News, 24 September 1887. 54 Western Weekly News, 10 June 1893. 55 Western Weekly News, 10 June 1893. 56 Western Weekly News, 11 February 1893. 57 F. Driver, Power and Pauperism: The Workhouse System 1834–1884 (Cambridge: Cambridge University Press, 1993). 58 For complete census list see P. Higginbotham, The Workhouse, www.workhouses.org.uk/ Plymouth/ and www.workhouses.org.uk/StokeDamerel/ [Accessed 8 January 2018]. 59 Driver, Power and Pauperism, p. 72. 60 Western Morning News, 13 January 1909. 61 The official procedure was that if a case for poor relief was genuine the claimant would be willing to enter the workhouse; if not then the case was not genuine. However, it was cheaper to provide out-relief but this went against the rationale of deterrence. 62 Western Evening Herald, 9 January 1909. 63 F. Geen, Opposition of Parish of Devonport, 1914 (PWDRO, 517/11). 64 Western Daily Mercury, 14 January 1895. 65 Plymouth Methodist Temperance League, 1890 (PWDRO, 854/2). 66 Devonport Online www.devonportonline.co.uk/historic_devonport/buildings_historic/ st-marys/st-marys.aspx [Accessed 8 January 2018]. 67 H. Yeomans, Alcohol and Moral Regulation: Public Attitudes, Spirited Measures and Victorian Hangovers (Bristol: Policy Press, 2014), p. 83. 68 Yeomans, Alcohol and Moral Regulation, p. 83. 69 Heavytree Brewery v Plymouth Justices, Western Times, 23 October 1896. 70 Chief Constable’s Report on Houses Licensed for the Retail of Intoxicating Liquor (PWDRO, 274/678, January 1903). 71 PP, Royal Commission on Liquor Licensing Laws: Second Report (Cmnd.8523, 1897), p. 217. 72 L. Zedner, Criminal Justice (Oxford: Oxford University Press: 2004), pp. 17, 21. 73 S. Byrne and K. Pease, ‘Crime Reduction and Community Safety’, in Handbook of Policing, Second Edition, ed. by T. Newburn (Abingdon: Routledge, 2008). 74 Reiner, The Politics of the Police, p. 128.

Bibliography Archer, J.E. ‘“Men Behaving Badly”? Masculinity and the Uses of Violence, 1850–1900’, in Everyday Violence in Britain, 1850–1950, ed. by S. D’Cruz (Harlow: Pearson, 2000), pp. 41–54.

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Baldwin, L. and R. Epstein. Short But Not Sweet: A Study of the Impact of Short Custodial Sentences on Mothers and Their Children (Leicester: De Montfort University, 2017). Byrne, S. and K. Pease. ‘Crime Reduction and Community Safety’, in Handbook of Policing, ed. by T. Newburn (2nd edition; Abingdon: Routledge, 2008). Carlen, P. and A. Worrall, ed. Gender, Crime and Justice (Oxford: Oxford University Press, 1987). Chief Constable’s Report on Houses Licensed for the Retail of Intoxicating Liquor (PWDRO, 274/678, January 1903). Conley, C. The Unwritten Law: Criminal Justice in Victorian Kent (Oxford: Oxford University Press, 1991). Cox, D. et.al. Public Indecency in England 1857–1960 (Abingdon: Routledge, 2015). Devonport Online, www.devonportonline.co.uk/historic_devonport/buildings_historic/stmarys/st-marys.aspx [Accessed 8 January 2018]. Dickaty, E.A. From Rattles to Radio: A History of the Plymouth Police (Plymouth and West Devon Record Office (PWDRO) 922, 1977). Dodsworth, F. ‘Men on a Mission: Masculinity, Violence and the Self-presentation of Policemen in England, c. 1870–1914’, in A History of Police and Masculinities, 1700– 2010, ed. by D. Barrie and S. Broomhall (London: Routledge, 2011), pp. 123–140. Driver, F. Power and Pauperism: The Workhouse System 1834–1884 (Cambridge: Cambridge University Press, 1993). The Dundee Courier & Argus and Northern Warder, 17 February 1880. Emsley, C. Crime and Society in England 1750–1900 (4th edition; Harlow: Pearson, 2005). Geen, F. Opposition of Parish of Devonport, 1914 (PWDRO, 517/11). Heavytree Brewery v Plymouth Justices, Western Times, 23 October 1896. Higginbotham, P. The Workhouse, www.workhouses.org.uk/Plymouth/ and www.work houses.org.uk/StokeDamerel/ [accessed 8 January 2018]. Hoppen, K.T. The Mid-Victorian Generation 1846–1886 (Oxford: Clarendon Press, 1998). Klein, J. ‘Quiet and Determined Servants and Guardians’, in A History of Police and Masculinities, 1700–2010, ed. by D. Barrie and S. Broomhall (London: Routledge, 2011). Plymouth Comet, 1 July 1893. Plymouth Constabulary Conduct Book (South West Police Heritage Trust A2004.03582; A2004.03586). Plymouth and Devonport Journal, 28 March 1861. Plymouth Free Methodist Temperance League Notebook (PWDRO, 854/2). ‘Plymouth News’, Trewman’s Exeter Flying Post, 17 June, 6 September, 23 September 1893. The Plymouth Pictorial, 2 April 1917. PP, House of Commons, Return of Quantity of Spirits and Wine Consumed in Workhouses in England and Wales, 1885 (18 June 1886). PP, House of Commons, Return of Quantity of Spirits and Wine Consumed in Workhouses in England and Wales, 1892 and 1893 (12 February 1895). PP, Reports of the Inspectors of Constabulary (to the Secretary of State (1879)). PP, Royal Commission on Liquor Licensing Laws: Second Report (Cmnd.8523, 1897). PWDRO 750, Seamen’s and Soldiers’ Friend Society in 1820. PWDRO, 1540, Magistrates Court, Plymouth, Summary Convictions 1875–1905. Reiner, R. The Politics of the Police (4th edition; Oxford: Oxford University Press, 2010). Robinson, C. Union Street (Plymouth: Pen & Ink Publishing, 2000). Rowbotham, J. ‘The Shifting Nature of Blame’, in Shame, Blame and Culpability, ed. by J. Rowbotham, M. Murayeva and D. Nash (Abingdon: Routledge, 2013). Royal Cornwall Gazette, 14 December 1865, 28 July 1865.

Authoritative judgments in a provincial town 157 Stevenson, K. ‘Chief Constables as Moral Heroes’, in Leading the Police: A History of Chief Constables, ed. by K. Stevenson, D.J. Cox and I. Channing (Abingdon: Routledge, 2017). Storch, R. ‘The Policeman as Domestic Missionary: Urban Discipline and Popular Culture in Northern England, 1850–1880’, in The Victorian City: A Reader in British Urban History, 1820–1914, ed. by R.J. Morris and R. Rodger (London: Longmans, 1993). The Times, 15 July 1840. Western Daily Mercury, 14 January 1895, 23 June 1895. Western Evening Herald, 9 January 1909. Western Morning News, 21 January 1848, 21 December 1870, 24 November 1892, 13 January 1909. Western Times, 23 October 1896. Western Weekly News, 22 August 1885, 3 October 1885, 10 October 1885, 23 July 1887, 24 September 1887, 11 February 1893, 10 June 1893, 11 November 1893. Worrall, A. ‘Sisters in Law? Women Defendants and Women Magistrates’, in Gender, Crime and Justice, ed. by Pat Carlen and Anne Worrall (Oxford: Oxford University Press, 1987), p. 109. Worth, R.N. The History of Plymouth From the Earliest Period to the Present Time (2nd edition; Plymouth: Brendon, 1873). Yeomans, H. Alcohol and Moral Regulation: Public Attitudes, Spirited Measures and Victorian Hangovers (Bristol: Policy Press, 2014). Zedner, L. Criminal Justice (Oxford: Oxford University Press, 2004).

Part II

Judgments in culture

7

Judging the judges The image of the judge in the popular illustrated press Craig Newbery-Jones

In recent years, the relationship between law and popular culture has been extensively examined through legal scholarship, and particular attention has been given to how popular sources represent the lawyer.1 A principal aim of ‘law in popular culture’ research is to explore how texts depict the profession – and their ethics, regulation, educative processes and practices – while examining how this has shaped societal perceptions of the lawyer. Work has been undertaken on the depiction of crime and punishment, the law and legal process in nineteenth-century texts, including the mainstream and popular press.2 Yet judges deserve a more substantial analysis, particularly given their status as figureheads for the law (transcending the adversarial role and combativeness of the barrister), as founts of justice and representatives of the Crown and State. This chapter therefore studies their public image in this time of public judgment when mass legal culture was being formed. The visualization of law, lawyers and the legal process forming during the Victorian epoch created a legal visual culture for the masses. Technological developments and innovations in printing reproduced text and images quickly and with greater ease, leading to their mass production.3 The press was the great commentator on social, economic and cultural changes, quick to highlight the numerous problems that emerged. While much work has been done into governmental responses to these problems, the judge’s role as a moral arbiter is underresearched. This chapter also examines this aspect of judges’ public reputations through representations in popular culture which permitted the public to critique judges and their legal judgment.

The ‘lawyer’ and nineteenth-century popular culture Scholars have argued that the public engage with the law and lawyers predominantly through popular culture.4 For Travis, ‘individuals do not, for the most part, have very much direct contact with the legal system . . . knowledge and experience of the law is mediated by and filtered through the lens of popular culture’.5 For Sherwin, popular culture through the visual mass media ‘contributes to law by helping to shape the very processes of thought and perception by which jurors judge and voters vote’.6 Cultural texts lead and reflect public opinion on law,

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lawyers and legal issues. This was certainly the case with the nineteenth-century press due to its popular characteristics. The press experienced technological and industrial revolutions. At the same time, transport developments and cost reduction with the removal of stamp duties and paper duties ensured a proliferation of material such as newspapers and periodicals, more widely and efficiently distributed from the metropolis and provincial centres. With the expansion of a regional press came reports not simply of national, but also regional legal intelligence.7 Most regional newspapers reported legal issues from the central London courts, alongside news from local courts, including assize or quarter sessions, and the lesser courts of the petty sessions and police court. The press’s expansion and permeation of all classes of society created a ‘press culture’ involving widespread exposure to, and extensive public interaction with, the press.8 Newspapers developed from a medium for the elite to one for all classes, making it truly a source of popular culture. A shift from an elite readership (as for The Times in the 1830s), to a more widespread cross-class distribution occurred with the success of the cheaper daily press. Thus the Daily Telegraph, a penny paper launched in 1855, had, by 1861, a circulation of 141,000, more than double The Times’s daily circulation.9 Coupled with increased literacy, this cheap press allowed the poor to follow current affairs and engage with ideas and opinions expressed in these publications.10 The popular press may be studied as an expression of popular attitudes towards the law and officers of the law, such as judges. The law was an important aspect of reportage in the nineteenth century; indeed, ‘law stories have consistently made up a significant portion of the popular culture’.11 Early in the period, these articles regularly appeared in the national and regional press, in daily and weekly papers and across papers with a wide range of readerships, demonstrating a cultural reach across all classes (see Figure 7.1).12 These case reports, a source of general and professional interest, differed greatly

Figure 7.1 ‘Law Intelligence’, Illustrated London News, 18 February 1843, p. 118. Source: Image courtesy of the University of Plymouth.

Judging the judges 163 from the sensationalist and investigative approach in modern legal intelligence and crime reporting.13 This was because in the mid-nineteenth century ‘briefless’ barristers compiled accurate and often legally nuanced reports of cases for the press to supplement their sporadic and meagre incomes, although this relationship between barrister and press declined by the 1860s as reports began to be compiled by a growing class of professional journalists.14 The verbatim style of reporting often listed many facts, points of evidence and legal questions raised by barristers in court, along with the testimony of suitors, defendants and witnesses, and the opinions of presiding judges.15 This legal accuracy, combined with precise and regular reporting, gave the public intimate details of cases. Unlike modern legal culture, these reports and accompanying legal intelligence were not just confined to professional periodicals, but featured regularly in popular newspapers and periodicals. This was mass reportage of legal affairs, not just causes célèbres, but many criminal and civil cases. It allowed the public to engage with legal affairs and procedure and inevitably there emerged legal heroes and villains in the celebrity that surrounded these important characters in the courtroom.16 The public image of the barrister varied, and a comparison between their public reputation and press depiction of judges is instructive. Some barristers, such as Sir Edward Clarke and Edward Marshall Hall, were regarded as heroes by the public, whereas others, like Edwin James, Charles Phillips and Dr Kenealy (a divisive figure through his role in the Tichborne Claimant movement), might be perceived as villains. This was influenced by representation in legal press reportage. For example, Clarke was praised as one of the finest forensic orators of the late-Victorian period and his professional conduct was widely exalted.17 This esteem is also evidenced through other forms of legal literature such as biographies, autobiographies, case compendiums and collected speeches.18 Conversely, barristers guilty of professional misconduct such as Edwin James (in his case, just plain illegal behaviour) were publicly vilified. When James’s conduct became news, and he was subsequently disbarred, the press depicted this disgrace extensively and encouraged a wider discussion around the ethics and conduct of the bar.19 If barristers were the principal legal actors in Victorian court procedure, judges held the starring role in the public mind, and a fundamental part of mainstream legal reporting in the press. Often their judgments, judicial opinion, and comments to juries are reported verbatim. This is true for lower-ranking judges such as assize judges and judges in the new county courts.20 There was more detailed exposure of higher-ranking judges in London occupying positions of state such as the Lord Chief Justice.21 Widespread reporting ensured the public was as aware of judges as it was of barristers. Mainstream press sources seem to have represented judges far more positively than barristers, perhaps due to their elite status as legal officers and their historical legacy as the guardians or keepers of justice. Judges were the apex of the profession, rising through the ranks of the bar to receive silk (become KCs/QCs) before elevation to the bench. The press allowed the public to follow the individual careers of judges, read reports of their oratory as barristers and their subsequent judgments as judges. There was also long standing cultural fascination with judges particularly based around the opposing motifs of the merciful judge and the hanging judge.22

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The representation of judges and the judiciary is more complex in the periodical press, particularly the satirical press.23 These included much more editorial and opinion pieces in reference to individual judges and the judiciary that, by their very nature, were more diverse. These pieces were quick to highlight personal shortcomings and professional faults. That being said, the satirical press was less critical than it was towards other aspects of the ‘law’ and represented judges less negatively than barristers. Inevitably publications such as The Age and The Satirist in the 1820s and 1830s were critical of the judiciary due to their radical mission, but the popular periodicals held judges in higher esteem.24 Judges were often praised for their legal discourse and represented through positive motifs. Judges such Sir William Bovill, Baron Tenterden, Baron Denham, Baron Campbell, Baron Coleridge, Sir Robert Lush and Sir Alexander Cockburn, whether through extensive reporting in legal procedure or in their legal public offices via regular law intelligence, became publicly recognisable.25 Judges were judged for their legal decisions in individual cases.26 Law intelligence was not just a feature of newspapers destined for the burgeoning professional middle class, but permeated the cheap, working-class weeklies.27 Coupled with an extensive public knowledge of legal affairs, this meant that judges were an important part of a popular culture of the law, a time of ‘public judgment’, when an engagement with legal subject matter unparalleled in earlier periods led to substantial public participation in the process of judgment. This included the legal judgment of those involved in such hearings and the judgment of those in the ‘court’ of public opinion. The press was the nineteenth-century equivalent of the television in its function as a vehicle for popular participation.28 It allowed the public to engage with politicians and others, allowed them to reflect upon key issues, form or affirm opinions and even contribute to ongoing debates through editorials and correspondence. It was not just through words that the judge was represented through the press, since reports were increasingly accompanied by illustrations and pictorial representations of news, including sketches of key figures and events. As a result, visual images of legal professionals including the judge and the barrister permeated this popular medium. The following section focuses on the image of the judge.

Visualizing the judge in the press Despite increasing literacy, Victorians were hungry for images, and the mass press gradually incorporated visual images, increasingly available through technological improvements. The public appetite for more elaborate and in-depth reporting encouraged newspaper and periodical publishers to include illustrations and sketches in their publications, and illustrated newspapers appeared as the Victorian press became the first to convey to a mass public a visual culture in which crime and the legal process (and legal institutions, sites and individuals) were far from marginal, due to public appetite. The most famous illustrated newspaper with a legal focus was the Illustrated Police News, with a peak readership of 600,000 and average weekly readership of up to 200,000 (but we must remember that

Judging the judges 165 newspapers were shared, for instance in pubs, reading rooms and among friends). This paper fed the public desire for illustrated crime stories and was famed for its depictions of gory crimes and macabre murders on its cover. Images of judges appear throughout the visual press, generally accompanying a case report or supplementing a factual piece about a judge.29 These included articles that profiled judges as celebrities or public figures, acted as detailed obituaries upon their passing and highlighted their careers at points of advancement and elevation. This was particularly true when concerning a high-ranking judge.30 There are also examples of holders of high judicial office being included as an in-text illustration, even where there is no direct relevance to the surrounding text.31 This ensured that individual judges could be visualized by the public and that the public became familiar with these lawyers. The celebrity status of senior judges can be seen in newspapers and periodicals. Late-Victorian middle-class periodicals such as The Strand Magazine had regular pictorial features on celebrities, including judges. Judges were included in singlepage features such as ‘Portraits of Celebrities at Different Times of their Lives’; in 1898 this included Lord Justice Smith with various sketch and photographic images recording different stages of his life from his youth, including portraits in barrister’s robes, in judicial wig and out of costume.32 This treatment of judges as celebrities affirmed their status in popular culture. Judges also featured in illustrated biographies running to four or five pages, such as the Strand’s nine-page biography of Henry Hawkins (triggered by his elevation to the peerage) which explained his early life, notable cases, famous decisions and collected speeches (see Figure 7.2).33 Numerous illustrations presented him at different stages in his career. Such pieces created an intimate relationship between the public and these lawyers. Hawkins’ life also demonstrates how, via the press representation of legal cases the public could follow lawyers from their early appearances at the bar through to their elevation to the superior courts and into retirement. The legal literacy of the public and the widespread reporting of legal cases meant that this celebrity status was continuously affirmed within popular legal culture. It also provided a means through which the public would pass judgment on such individuals and their suitability for promotion. The celebrity of judges is also exemplified by the various illustrated announcements of judges being elevated to the superior courts and judicial offices of state. The press was the principle medium through which such information was publicly communicated; while such announcements were made in professional papers such as the Law Times, these were inaccessible to the public. The inclusion of such promotions in the popular press demonstrates how there was a public appetite for such information and how such judges became publicly recognisable. These promotions were announced through an illustrated biography that often outlined the judge’s background and career and incorporated information of relevance to the public. For example, in the elevation of Mr Justice Lush to the Court of Queen’s Bench in 1847, he was described as coming from ‘humble beginnings’ as an attorney’s clerk before being admitted as a student at Gray’s Inn.34 Such narratives ensured that some judges exemplified the Victorian ideals of hard

Figure 7.2 Sir Harry Hawkins, The Strand Magazine, vol. 4, July to December 1892, p. 262. Source: Image courtesy of James Gregory.

Judging the judges 167 work and self-improvement. Such details also allowed the public to pass judgment on these individuals beyond the courtroom. Senior judicial figures who had risen from humble beginnings and were visually represented in the press, gave the readers public figures they could emulate. Other representations of these preeminent figures of judgment showed them taking up their seats – literally seats of judgment – at the bench. The Sphere depicted Lord Alverstone taking his seat at the law courts in his new role as the Lord Chief Justice in 1900.35 Representation of these moments of pageantry and tradition demonstrated to the public the status of senior judges in society, the vigour of the legal culture and the significance of these legal traditions. The centrality of legal affairs to Victorian life can also be viewed in the visual representation of judges undertaking various state and law-court activities. This included their portrayal in ceremonial roles such as the opening day of the assizes (often known as Legal Sunday) and the termly opening of the Royal Courts of Justice.36 Legal Sunday in the assize towns and the opening of the courts were often public spectacles, and the public would have at least been familiar with these displays of pageantry. Assize time in the provincial towns was a great communal moment for regional political leaders, lawyers, judicial officers and jurors. The public would come to town on business, visit fairs and markets, attend court and perhaps witness displays of capital punishment until public executions were abolished in 1868. The termly opening of the Royal Courts was an even more important and impressive display of legal culture, which presented to the public all the judges of this superior court. This central display of legal culture mirrored assize rituals but included all justices of the superior courts. Press illustrations allowed the public to engage with such events at a distance while also demonstrating legal tradition and custom. The judge’s role in these public events raised the profile of senior judges in the press and presented them undertaking their legal duties outside the courtroom. It was not just domestic judges that featured in the press; European and colonial judges were also depicted in illustrated pieces.37 The latter were as much a part of legal culture as judges in domestic courts, but it can be argued that their press appearance was even more important due to their colonial roles and remoteness to Britain. In an Indian murder case that concerned a gang murder in a ‘very public street’ in Bombay supposedly by eighteen ‘Parsees’ upon one of their own members, reported in the Illustrated London News in September 1844, the judge was the only white officer of the law.38 The barrister was represented as Indian, as were all the witnesses, the Omlah (the Indian courtroom staff), and police officers. The accused was represented in Parsi costume. The paper discusses how this was an excellent opportunity to show English readers the functioning of English justice in the empire. The judge was represented in a white suit (deemed more suitable to the climate than the usual wig and gown), reclining on a chair and smoking a pipe: very different to the formality of the judge in English courts. The roles of the Omlah are also included in great detail. The judge being a European with native Indians taking the other positions in administration of justice, the case as reported was a display of colonial power, British judicial authority and an assumption of

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the superiority of English law. The press also reported on legal cases across the British Isles, reporting on the elevation of Irish and Scottish judges to their superior courts and printing their obituaries. These were often accompanied by illustrations and stories from these courts.39 Judges were also visually depicted in cartoons and caricatures in the mainstream and satirical press. The most enduring caricatures of judges appeared in Vanity Fair (1868–1914), a ‘society’ magazine best remembered for its caricatures of public figures which included judges and officers of state such as the Lord Chancellor, in the robes of their office or in their daily attire.40 As these were caricatures, they involved some exaggerated features but were less grotesque and offensive than eighteenth-century caricatures.41 In fact, these were generally without malice and were a pictorial record of the celebrities of the day, often accompanied by a short explanation of the individual, his role and personality. The fact that judges featured in these caricatures further demonstrates the celebrity of the judge and the recognition by the press of their important position within popular culture. Judicial caricatures and cartoons also appeared in periodicals such as Punch, Judy, Fun, Tomahawk and Ally Sloper’s Half-Holiday (see Figure 7.3). Generally, the judicial office is represented through positive imagery and visual metaphors. This may involve, as in Punch in 1858, representing judges through anthropomorphism as owls and pelicans (symbols of wisdom and truth).42 Such symbols might have been understood by many, and certainly the public were able to judge the accuracy of such visualizations when compared to the representation of judicial behaviour in mainstream press reporting. The ability of the public to ‘read’ such images and understand the symbolism is fundamental to allowing them to affirm or challenge the judgments in the press.43 Satirists held the judicial office in relative esteem but willingly attacked individual judges’ integrity or character if they thought it appropriate. When the satirical press represented flaws in a judge’s character, they were represented in robes and their supposed or alleged discretions were discussed.44 Generally the manner of visual representation of the judge in satirical or non-news publication was far less critical than that of other lawyers who were members of the bar.45 This was largely due to their superior status and less adversarial and contentious role in court procedure, and to their roles as founts of royal justice. Judges also featured in visual advertisements in the late-Victorian press. There are numerous examples of their use to market numerous products, including cocoa, tobacco and soap.46 They figured because of their widespread association with truth and honesty, in order to evoke similar ideas in the products advertised. But the associations might also be played with. Employing the image of three judges to sell Pears’ soap in 1886 is suggestive.47 Perhaps judges have unimpeachable moral characters, but the advertiser’s line, ‘used by all the best judges’, here implied otherwise by a need to cleanse themselves. The judge’s robes and white wigs also signified wisdom and sobriety. While these advertisements did not generally represent specific judges, when they did this can be seen to affirm their celebrity status, since a company would only seek an endorsement from an individual judge who might be thought to have influence. The image of the

Figure 7.3 Illustration from ‘Papers from Pump-Handle Court. A Recollection of the Long Vacation’, Punch, 26 November 1887, p. 241. Source: Image courtesy of Judith Rowbotham.

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long-bottom wig and robes of the judiciary had become symbolic of high status and cultural authority. Across these illustrations in the press, individual judges were often represented in their robes in court or in specific public situations. This highlighted these traditions and legal roles to the public and made these individuals publicly recognisable. The robes were synonymous with the office that these individuals held, be it Lord Chancellor, Master of the Rolls, or Lord Chief Justice. This also allowed the public to recognize and participate in national legal affairs. Judges were also represented in barristers’ robes which acted more generally as a metaphor for the law. However, the judiciary was more generally represented through motifs or visual metaphors that symbolized the profession, the law, knowledge, wisdom and authority, notably in the popular satirical press. Lawyers, including judges, became visual metaphors for truth, justice and legal power.

Judges as moral arbiters in the press Legal judgment was an important facet of popular culture since the press judged those who facilitated and passed legal judgment, encouraged public engagement with this sphere of judgment and invited the public to witness it and participate in the legal process. Interaction between public, press and legal process placed the judiciary and their responses to social and legal problems directly in the public gaze. A period of great change, immense progress and widely discussed social injustice, the nineteenth century debated these transformations and the judicial response through the press. For example, displays of mercy by judges in cases of infanticide by those women fallen on hard times, and sorrow for those poor souls injured in railway accidents or boiler explosions were not common, but could be witnessed.48 Two opposing examples can be observed in Lloyd’s Weekly Newspaper and the Morning Chronicle. In Lloyd’s a judge was reported as admonishing a woman who had dismembered her dead child and hidden the remains in a trunk, as being unnatural in her brutal conduct. In another case, the Chronicle reported the presiding judge encouraging mercy for the prisoner.49 It was conflicting cases such as these that encouraged public expectation for judicial mercy and judges to act as moral arbiters. However, public expectation for such intervention may have been misplaced due to constraints placed on these lawyers by precedent and procedure. While law and morality are commonly considered to be intertwined, this relationship is much more complex. Legal positivists (such as H.L.A. Hart) have theorized that law exists as a practice independent from morals, governed by its own language, rules and conventions, whereas natural law theorists (such as Thomas Aquinas in the thirteenth century) view law as intricately linked to morals.50 Judges are generally considered to adjudicate disputes or interpret the law that is circumscribed by rules and conventions because of the institutional setting, constraints, formalities and consequences.51 Tension between the judge as moral arbiter and technician has caused conflict within modern popular legal culture, and this may be true of the nineteenth century, too, due to judges’ perceived role

Judging the judges 171 as exemplars of morality in a society formally shaped by Christian values. One such example is Mr Justice Bayley, who exalted the virtues of efficient justice and mercy for those not yet hardened in crime, and was regarded as both a Christian judge and a humane man.52 Arguably the public perceived the judge as a moral figure who embodied contemporary Christian values, who ought to respond to socio-legal problems with some compassion rather than be a mere mechanic of the law. This morality and humane nature is especially true when contrasted with the anathema held by society for those judges who were seen as corrupt.53 In the nineteenth-century press, there are numerous examples of judges speaking strongly against individuals and their illicit conduct, but being conscious of being bound by the law, both in procedure and precedent. In 1854, a particularly controversial case concerned a hearing in the Worship Street Police court regarding violent spousal abuse. Louis Charles Tennyson D’Eyncourt was reported in the press as declaring to the court, the public and the reporters that the injuries inflicted on an elderly wife were by her husband, the accused, but with insufficient evidence to allow the full force of the law the man was sentenced to three months’ hard labour.54 Based upon the evidence of the attending constable, it was clear to the court that the man had beaten his wife but the victim claimed she had no recollection of the incident. D’Eyncourt was only able to sentence the prisoner for an assault (and at half the suggested sentence of sixth month’s imprisonment with hard labour), rather than arraign this as an indictable offence. An example of a police magistrate acting within the law and the evidence presented, while refusing to interfere in a moral capacity, his decision was criticized in the press. Punch referred to this as a conviction of ‘half guilty’ and claimed that they had little taste for this ‘judicial half-and-half’ currently being offered.55 Other publications in the satirical press presented judicial mercy. In Ally Sloper’s Half-Holiday, juryman Sloper is fined £10 for coming into court late, a real issue outlined in the regional press.56 But the fine is later remitted when the juryman explains that he thought the court sat at eleven. Sloper doffs his cap in respect or thanks to the judge, illustrating the respect directed at the judiciary. However, this item also demonstrates judicial mercy, compassion and the discretion they exercised in court procedure and application of the law.57 There are numerous press descriptions of judges recounting evidence in a cool and dispassionate manner and instructing the jury to divest themselves of feelings and assess the evidence on its value.58 However, a dispassionate attitude in press reporting might have been at odds with a public desire for judicial moralizing, especially when popular movements for social and moral improvements permeated society. Judges were also reported as condemning witnesses, parties and other court officers with censoriousness and occasionally anger. When judges behaved in this manner, they were criticized.59 Sir John Stewart was described as ‘the most ridiculous thing, an angry judge’ during a case in Chancery after ‘breaking forth fiercely’ in denunciation of a ‘vile and scurrilous press’.60 Sir Alexander Cockburn was described as an angry judge following his return to the bench after lunch on the Lewes Assize in 1868, when he found the sheriff and seven jury members still eating, viewing it as disrespectful to the court and the office.61 The

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same wrath was shown to a disrespectful counsel when he accused Lord Newton of being asleep.62 Judges were also reported speaking with censure to prisoners and parties in the assize courts: Coleridge severely reprimanding parties in a rape case where the victim and prisoner had both continually changed their stories in 1839, for example.63 Sir James Shaw Willes was widely reported as weeping upon hearing evidence and passing sentences, especially in cases concerning child murder. Dixon has seen these displays of emotion as an embodied attitude and intellectual, social and religious performance.64 Willes’s tears dramatize the friction between the judge as an officer constrained by law and procedure and as a feeling individual interested in the moral good while seeking a measure of justice. There are also examples of judges drawing upon their own morality but under the guise of the law and procedure. For example, Mr Justice Cresswell, examined in Gail Savage’s chapter in this collection, was widely criticized for recommending a defendant withdraw his guilty plea for manslaughter, plead non-guilty instead, and so ‘take a chance’ on justice in 1842.65 This case concerned the trial of a man who, alarmed following an attack on his house, fired a shot at random and killed a servant. However, the prisoner persisted with his plea and was sentenced to three months’ imprisonment, which was deemed to be harsh. Cresswell’s actions were criticized as immoral in the popular press.66 While this could be seen as attempting to extend mercy through judicial discretion Cresswell was criticized for action that was seen as an affront to truth and justice. Baron Parke was criticized in the press in a celebrated murder case in 1849. Charles Phillips was representing Courvoisier, the Swiss valet accused of murdering his master Lord William Russell. On the beginning of the third day, the prisoner confessed his guilt to Phillips. Phillips insisted that he could not continue and that he should plead guilty. However, Courvoisier insisted on continuing his defence. Unsure how to proceed, Phillips approached the bench and Parke instructed him to adhere to his client’s wishes. Phillips and Parke were criticized in the press, which argued that this showed the immorality of the legal profession and undermined due process.67 Yet the desire for judges to act as moral arbiters and to engage in moral judgment alongside legal judgment was desired by the public and, when it was lacking, the press criticized the judge. Lord Abinger’s inconsistent censure of immorality was highlighted and criticized in The Examiner and the provincial press.68 In the reporting of the trial of valet Nicholas Suisse for theft from the late Marquis of Hereford, Abinger was condemned for failing to censure the accused and instead referring to his ‘excellence of character’. This was contrasted to his condemnation a few days earlier of some ‘gentlemen of the turf’. Abinger (see Figure 7.4) was also criticized for inconsistent application of legal procedure.69 This tension between public expectation and the judge’s role as moral arbiter was also echoed in judicial thinking. Fifoot refers to the ‘contemporary itch to moralise’ in Victorian jurists and judiciary, but suggested that judges and lawmakers did not feel impelled ‘at all hazards to equate moral and legal obligation’ and were not alarmed ‘if the two seemed at times to diverge’.70 Conversely, Wiener describes this morality as structuring ‘much of the discourse of those making and administering’ the law.71 In an ‘age of improvement’ inevitably judicial thinking

Figure 7.4 ‘Lord Abinger’, Illustrated London News, 4 March 1843, p. 151. Source: Image courtesy of the University of Plymouth.

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was influenced by public moral concerns, yet this was carefully balanced by the desire to remain objective in operating the law. The judge could also be witnessed in other cultural representations, including the theatrical stage. The musical satire of Gilbert and Sullivan is replete with references to justice and the representation of judges. The judge’s decision to marry the plaintiff (Angelina) at the end of Trial by Jury (1875) could be viewed as a moral solution to an immoral dilemma, even though the judge’s morality has been critiqued. The Lord Chancellor in Iolanthe (1882) is also morally questionable, particularly his desire to marry his ward. However, his decision to assist Iolanthe at the end of the play demonstrates his sharp legal mind, desire for a just outcome and his role as a moral arbiter. Much like the press representation of judges, these operettas satirized the judge’s immorality in personal life but often showed them acting with morality and ingenuity in their professional capacity. These popular sources displayed a clear tension between the desire of judges and the public for the judiciary to act as moral arbiters and the constraints of the law and legal process.

Conclusion The nineteenth century was a time of public judgment. Legal judgment was an important thread in the fabric of popular culture and the widespread reportage of law and legal procedure positioned the ‘lawyer’, including the judge, within visual culture and in the eye of public judgment. Judges featured extensively in the press, and like barristers at times they became household names. Celebrities within the profession and within a popular legal culture due to extensive reporting and visual representation, a complex portrayal of judges was transmitted to the public. Individual judges were often represented due to their conduct and professional behaviour, be it good or ill, whereas the judicial office often appeared more favourably. The judge’s role as a moral arbiter was an aspect for consideration. Tensions between the law’s function in the context of social and legal problems and the remedial role of the judge created uncertainty and criticism. This chapter is merely the beginning of the study needed into the relationship between the public, press and legal actors in the nineteenth century.

Notes 1 For cinema and film see M.R. Asimow, ‘Bad Lawyers in the Movies’, Nova Law Review 24 (2000), pp. 533–592; M. Asimow, ‘When Lawyers Were Heroes’, University of San Francisco Law Review 30 (1995–96), pp. 1131–1138; and F.M. Nevins, ‘When Celluloid Lawyers Started to Speak: Exploring Juriscinema’s First Golden Age’, in Law and Popular Culture, ed. by M.D.A. Freeman (Oxford: Oxford University Press, 2005), pp. 109–129. For television, see J. Denvir, ‘Law, Lawyers, Film and Television’, Legal Studies Forum 24 (2000), pp. 279–721, and S. Machura, and S. Ulbrich, ‘Law in Film: Globalizing the Courtroom Drama’, Journal of Law and Society 28 (2001), pp. 117–132. For literature, see C. Menkel-Meadow, ‘The Sense and Sensibilities of Lawyers: Lawyering in Literature, Narratives, Film and Television, and Ethical Choices Regarding Career and Craft’, McGeorge Law Review 31 (1999–2000), pp. 1–129, and R.A. Posner, Law and Literature (3rd edition; Boston: Harvard University Press, 2009).

Judging the judges 175 2 See J. Rowbotham and K. Stevenson, eds., Criminal Conversations: Victorian Crimes, Social Panic, and Moral Outrage (Columbus: Ohio State University Press, 2005); J. Rowbotham and K. Stevenson, eds., Behaving Badly: Social Panic and Moral Outrage: Victorian and Modern Parallels (Aldershot: Ashgate, 2003); R. Sindall, Street Violence in the Nineteenth Century: Media Panic or Real Danger? (Leicester: Leicester University Press, 1990); V.A.C. Gatrell, The Hanging Tree Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994); B. Karloff, Murder and Moral Decay in Victorian Popular Literature (Ann Arbor: UMI Research Press, 1986); R.D. Altick, The English Common Reader: A Social History of the Mass Reading Public, 1800–1900 (Chicago: University of Chicago Press, 1957); C. Elkins, ‘The Voice of the Poor: The Broadside as a Medium of Popular Culture and Dissent in Victorian England’, Journal of Popular Culture 14 (1980), pp. 262–274 and H.H.J. Dyos and M. Wolff, eds., The Victorian City: Images and Realities (London: Routledge, 1999), vol. 1. 3 R.-G. Rummonds, Nineteenth-Century Printing Practices and the Iron Handpress (London: Oak Knoll Press, 2004). 4 For example, R. Posner, Law and Literature (London: Harvard University Press, 1998) and R. Sherwin, When Law Goes Pop (London: University of Chicago Press, 2000). 5 M. Travis, ‘Making Space: Law and Science Fiction’, Law & Literature 23:2 (2011), pp. 241–261 (p. 250). 6 R. Sherwin, When Law Goes Pop (London: University of Chicago Press, 2000), p. 18. 7 J. Rowbotham, K. Stevenson and S. Pegg, Crime News in Modern Britain: Press Reporting and Responsibility, 1820–2010 (Basingstoke: Palgrave Macmillan, 2013), pp. 17–19. 8 See R.D. Altick, Victorian People and Ideas (New York: W.W. Norton, 1974), pp. 59–64. 9 L. Brown, Victorian News and Newspapers (Oxford: Clarendon Press, 1985), p. 22. 10 P. Horn, Amusing the Victorians: Leisure, Pleasure and Play in Victorian England (London: Amberley Publishing, 2014), p. 304. 11 Sherwin, When Law Goes Pop, p. 17. 12 A. King and J. Plunkett, ‘The Word of Law/The Law of the Word’, in Victorian Print Media (Oxford: Oxford University Press, 2005), pp. 81–121. 13 See generally, Rowbotham, Stevenson and Pegg, Crime News in Modern Britain. 14 Rowbotham, Stevenson and Pegg, Crime News in Modern Britain, pp. 23–25; L. Brake and M. Demoor, eds., Dictionary of Nineteenth Century Journalism in England and Ireland (Cambridge: Academia Press, 2009), pp. 147–148. 15 E.g., R v Courvoisier [1840] 173 ER 869 (1688–1897) and its reportage in The Times, 19 June 1840. The actions and words of counsel, defendant, the judge and a number of witnesses are reported in detail. 16 See C.J. Newbery-Jones, ‘Legal Heroes and Practising Villains in the Nineteenth Century Press’, Plymouth Law and Criminal Justice Review 1 (2014), pp. 58–69; P. Brooks and P.D. Gewirtz, Law Stories: Narrative and Rhetoric in Law (New Haven: Yale University Press, 1998); J.B. Baron and J. Epstein, ‘Is Law Narrative?’, Buffalo Law Review 45 (1997), pp. 141–201; J. Rowbotham and K. Stevenson, ‘For Today in This Arena . . . Legal Performativity and Dramatic Convention in the Victorian Criminal Justice System’, Journal of Criminal Justice and Popular Culture 14:2 (2007), pp. 113–141. 17 For example, see John Bull, 13 June 1891; Pall Mall Gazette, 12 June 1891; The Pall Mall Gazette, 19 April 1886; The Times, 19 June 1840; Lloyd’s Weekly Newspaper, 18 April 1886. 18 E. Marjoribanks, The Life of Sir Edward Marshall Hall (London: Gollancz, 1929); E. Clarke, The Story of My Life (London: J. Murray, 1918); D. Walker-Smith and E. Clarke, The Life and Famous Cases of Sir Edward Clarke (London: Eyre and Spottiswoode, 1942); E. Marjoribanks and J. Mortimer, Trials of Marshall Hall (London: Penguin, 1989); and E. Clarke, Sir Edward Clarke: Public Speeches 1880–1890 (London: Routledge, 1890).

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19 For example, The Standard, 20 July 1861; Morning Post, 20 July 1861; The Examiner, 20 July 1861; Sheffield and Rotherham Independent, 20 July 1861; Royal Cornwall Gazette, 26 July 1861; on wider discussions of ethics, Spectator, 8 February 1862; Reynolds’s Newspaper, 2 February 1873; Daily News, 3 December 1874; Reynolds’s Newspaper, 27 May 1894. 20 For assize courts, e.g., Woolmer’s Exeter and Plymouth Gazette, 11 August 1827, on judicial intervention and response to question from prisoner at the Devon Assizes; also the arrival of Judge Burrough to Exeter, outlines the members of the grand jury and the swearing in of the magistrates. On new county court judges, e.g., Woolmer’s Exeter and Plymouth Gazette, 17 April 1847, explains Judge Tyrell’s opening address at the establishment of the county court for debt in Exeter; settlement of the Bristol court in Bristol Mercury, 27 March 1847, and Liverpool court in Liverpool Mercury, 27 April 1847. 21 See Lord Coleridge in the ‘Baccarat Scandal’, in Sheffield Daily Telegraph, 10 June 1891; Pall Mall Gazette, 15 June 1891; Western Mail, 17 June 1891. See Morning Post, 11 February 1869 for the Lord Chief Justice’s criticism of press reporting of legal procedure prejudicing the trial, or his comments in the Tichborne claimant trial in, e.g., Lancaster Gazette, 2 August 1873, and Reynolds’s Newspaper, 17 August 1873, and in the case of Head v. Markham and another in Morning Post and Daily News, 20 December 1877. 22 See H.M. Hyde, Judge Jeffries (2nd ed.; London: Butterworths, 1948) on the hanging judge and K.J. Kesselring, Mercy and Authority in the Tudor State (Cambridge: Cambridge University Press, 2003), p. 79. 23 See criticism of Lord Coleridge’s attitudes to American Law in Punch, 17 November 1883, criticism of his professional practice in Punch, 2 June 1883, criticism of Sir Alexander Cockburn’s adherence to legal process in Fun, 25 November 1891, and an attack on Lord Campbell’s popularity, Judy, 12 January 1870. 24 See criticism of Lord Eldon and Court of Chancery in The Age, 12 June 1825, and The Age, 24 August 1828; criticism of pace of justice and role of justices of King’s Bench, The Satirist, 23 October 1831, and on role of the judge in setting bail bonds, The Satirist, 17 June 1832. 25 An example of such extensive reporting can be seen in one of the cause célèbres of the century, the trial of the Tichborne Claimant, Arthur Orton, in R. v. Castro (1873–1874) QB. See Sheffield Daily Telegraph, 11 January 1873; The Graphic, 14 June 1873; Daily News, 14 June 1873; Birmingham Daily Post, 7 October 1873. While these generally presented a formal representation of judges in this case (Mellor, Cockburn and Lush), the extent of such reporting ensured these judges were at the forefront of popular culture and in common public knowledge; see R. McWilliams, The Tichborne Claimant (London: Bloomsbury, 2007). ‘Law Intelligence’ regularly appeared in many newspapers and periodicals, with summaries of cases from superior courts, appointment of judges and other legal news. Intelligence in the national dailies often reappeared in regional papers. 26 For example, see criticism of Coleridge’s decision not to award costs in a poaching case, Pall Mall Gazette, 6 March 1877. This paper also included quotations of criticism from other daily papers (including The Standard and the Daily Post). 27 See coverage such as Morning Post, a conservative-leaning publication with a predominantly middle-class readership, and Lloyd’s Weekly Newspaper and Reynolds’s Newspaper with lower- to lower-middle-class readerships and the most widely read newspapers of the Victorian epoch. 28 M. Gurevitch, S. Coleman and J.G. Bulmer, ‘Political Communication – Old and New Media Relationships’, in E. Katz and P. Scannell, eds., ‘The End of Television? Its Impact on the World (So Far?)’, The Annals of the American Academy of Political and Social Science Series (2009), pp. 164–181 (p. 168).

Judging the judges 177 29 Accompanying case reports, see Esher in Penny Illustrated Paper, 7 February 1891; Laurence in Penny Illustrated Paper, 10 May 1902; Pollock in Penny Illustrated Paper, 5 December 1891, and Illustrated Police News, 24 November 1877; Coleridge in Penny Illustrated Paper, 17 November 1877, and in Penny Illustrated Paper, 13 June 1891. For illustrations of judge-focused pieces that include obituaries, appointments to office or even the termly opening of the superior courts, see Lush in Penny Illustrated Paper, 7 January 1882; Manisty in Penny Illustrated Paper, 8 February 1890; Herschell in Penny Illustrated Paper, 29 October 1892; Coleridge in Penny Illustrated Paper, 14 April 1894. 30 For example, Lush in Illustrated London News, 25 November 1865, and Amphlett, Illustrated London News, 7 February 1874. 31 For example, see Edinburgh Evening News, 3 July 1894. 32 Strand Magazine 15, January–June 1898. 33 Strand Magazine 17, January–June 1899. 34 See the elevation of Lush to the Court of Queen's Bench in Illustrated London News, 25 November 1865. 35 The Sphere, 3 November 1900. 36 See escorting of judges by the Sheriff of Oxford’s Javelin Men and the procession on Assize Sunday in Illustrated London News, 15 March 1845, and the judges in the Royal Courts of Justice in Illustrated London News, 16 December 1882. 37 Illustrated London News, 21 September 1844. 38 See M. Sharafi, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772– 1947 (Cambridge: Cambridge University Press, 2014): Parsi legal culture followed very particular lines and occupied a special place in the colonial legal imagination. 39 See, for example, Derby Daily Telegraph, 3 September 1890; The Sketch, 28 June 1899; Illustrated London News, 4 May 1895; The Graphic, 29 August 1891; Morning Advertiser, 1 November 1866; The Sketch, 4 November 1896. 40 Vanity Fair, 31 July 1869, and Vanity Fair, 20 March 1869. 41 See D. Donald, The Age of Caricature: Satirical Prints in the Reign of George III (London: Yale University Press, 1996) and V.A.C. Gatrell, City of Laughter: Sex and Satire in Eighteenth-Century London (New York: Walker and Company, 2007). 42 Punch, 18 December 1858, and Punch, 6 December 1881. 43 See generally, R. Brosch and R. Pohl, eds., Victorian Visual Culture (Heidelberg: Universitätsverlag, Winter, 2008). 44 Punch, 29 February 1868, and Ally Sloper’s Half-Holiday, 18 October 1890. 45 C. Newbery-Jones, ‘Constructing a Popular Public Image of the Bar in the Nineteenth Century’, PhD, University of Exeter, 2017, pp. 187–252. 46 Illustrated London News, 16 June 1886; Illustrated London News, 21 July 1894. 47 Illustrated London News, 6 June 1886. 48 Durham County Advertiser, 25 March 1853; Morning Chronicle, 13 December 1859; Lloyd’s Weekly Newspaper, 3 August 1879; Daily News, 14 March 1899. 49 Lloyd’s Weekly Newspaper, 3 August 1879; Morning Chronicle, 13 December 1859. 50 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71 (1958), pp. 593–629 (pp. 601–602); T. Aquinas, Summa Theologica, I–II, Q.90, A.I. 51 S. Mancini and M. Rosenfeld, ‘The Judge as a Moral Arbiter? The Case of Abortion’, in Constitutional Topography: Values and Constitutions, ed. by A. Sajó and R. Uitz (The Hague: Boom Eleven International, 2010), pp. 1–20. 52 Morning Chronicle, 19 December 1822. 53 Bristol Mercury, 18 May 1872. 54 Punch, 3 June 1854, quoting Morning Post, 18 May 1854. For illustrated obituary, Illustrated London News, 19 December 1896. 55 Punch, 3 June 1854. 56 For example, North-Eastern Daily Gazette, 6 November 1889.

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57 Ally Sloper’s Half-Holiday, 23 November 1889. 58 For coolness, see The Standard, 17 June 1842. For jury instruction, Trewman’s Exeter Flying Post, 24 August 1820; Northampton Mercury, 7 April 1827; Essex Standard, 31 May 1839. 59 This relates closely to the perception of weeping judges crossing boundaries, in T. Dixon, Weeping Britannia: Portrait of a Nation in Tears (Oxford: Oxford University Press, 2015), pp. 174–176. 60 Dundee Courier & Argus, 14 July 1863. He was also described as an angry judge in the case of Lumley v Desborough, though here, the report also said that he was not easily moved to censure and wrath, The Star, 9 June 1870. 61 Liverpool Mercury, 19 March 1868. 62 Hampshire Telegraph, 6 December 1890. 63 Morning Chronicle, 8 August 1839. 64 T. Dixon, ‘The Tears of Mr Justice Willes’, Journal of Victorian Culture 17:1 (2012), pp. 1–23 (pp. 22–23). 65 The Examiner, 26 March 1842. 66 The Examiner, 26 March 1842. 67 One such example can be seen in The Examiner, 24 November 1849. 68 The Examiner, 27 August 1842, see coverage in Bristol Mercury, 3 September 1842, and Leicester Chronicle, 3 September 1842. 69 The Era, 4 September 1842. 70 C.H.S. Fifoot, Judge and Jurist in the Reign of Victoria (London: Stevens, 1959), pp. 55–56. 71 M.J. Weiner, Reconstructing the Criminal: Culture, Law and Policy in England, 18301914 (Cambridge: Cambridge University Press, 1994), p. 53.

Bibliography The Age, 12 June 1825, 24 August 1828. Ally Sloper’s Half-Holiday, 123 November 1889, 8 October 1890. Altick, R.D. The English Common Reader: A Social History of the Mass Reading Public, 1800–1900 (Chicago: University of Chicago Press, 1957). Altick, R.D. Victorian People and Ideas (New York: W.W. Norton, 1974). Aquinas, T. Summa Theologica (Literally translated by the Fathers of the English Dominican Province, 3 vols; New York: Benziger, 1947–1948), vol.1, First Part of the Second Part: Treatise on Law, Question 90, Article 1. Asimow, M.R. ‘Bad Lawyers in the Movies’, Nova Law Review 24 (2000), pp. 533–592. Asimow, M.R. ‘When Lawyers Were Heroes’, University of San Francisco Law Review 30 (1995–96), pp. 1131–1138. Baron, J.B. and J. Epstein. ‘Is Law Narrative?’, Buffalo Law Review 45 (1997), pp. 141–201. Birmingham Daily Post, 7 October 1873. Brake, L. and M. Demoor, eds. Dictionary of Nineteenth Century Journalism in England and Ireland (Cambridge, MA: Academia Press, 2009). Bristol Mercury, 3 September 1842, 27 March 1847, 18 May 1872. Brooks, P. and P.D. Gewirtz. Law Stories: Narrative and Rhetoric in Law (New Haven: Yale University Press, 1998). Brosch, R. and R. Pohl, eds. Victorian Visual Culture (Heidelberg: Universitätsverlag, Winter, 2008). Brown, L. Victorian News and Newspapers (Oxford: Clarendon Press, 1985). Clarke, E. Sir Edward Clarke: Public Speeches 1880–1890 (London: Routledge, 1890). Clarke, E. The Story of My Life (London: J. Murray, 1918).

Judging the judges 179 Daily News, 14 June 1873, 3 December 1874, 20 December 1877, 14 March 1899. Denvir, J. ‘Law, Lawyers, Film and Television’, Legal Studies Forum 24 (2000), pp. 279–299. Derby Daily Telegraph, 3 September 1890. Dixon, T. ‘The Tears of Mr Justice Willes’, Journal of Victorian Culture 17:1 (2012), pp. 1–23. Dixon, T. Weeping Britannia: Portrait of a Nation in Tears (Oxford: Oxford University Press, 2015). Donald, D. The Age of Caricature: Satirical Prints in the Reign of George III (London: Yale University Press, 1996). The Dundee Courier & Argus, 14 July 1863. Durham County Advertiser, 25 March 1853. Dyos, H.J. and M. Wolff, eds. The Victorian City: Images and Realities (London: Routledge, 1999), vol. 1. Edinburgh Evening News, 3 July 1894. Elkins, C. ‘The Voice of the Poor: The Broadside as a Medium of Popular Culture and Dissent in Victorian England’, Journal of Popular Culture 14 (1980), pp. 262–274. The Era, 4 September 1842. Essex Standard, 31 May 1839. The Examiner, 26 March 1842, 27 August 1842, 24 November 1849, 20 July 1861. Fifoot, C.H.S. Judge and Jurist in the Reign of Victoria (London: Stevens, 1959). Fun, 25 November 1891. Gatrell, V.A.C. City of Laughter: Sex and Satire in Eighteenth-Century London (New York: Walker and Company, 2007). Gatrell, V.A.C. The Hanging Tree Execution and the English People, 1770-1868 (Oxford: Oxford University Press, 1994). The Graphic, 14 June 1873, 29 August 1891. Gurevitch, M., S. Coleman and J.G. Bulmer. ‘Political Communication – Old and New Media Relationships’, in E. Katz and P. Scannell, eds. ‘The End of Television? Its Impact on the World (So Far?)’, The Annals of the American Academy of Political and Social Science Series (2009), pp. 164–181. Hampshire Telegraph, 6 December 1890. Hart, H.L.A. ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71 (1958), pp. 593–629. Horn, P. Amusing the Victorians: Leisure, Pleasure and Play in Victorian England (London: Amberley Publishing, 2014). Hyde, H.M. Judge Jeffries (2nd edition; London: Butterworths, 1948). Illustrated London News, 21 September 1844, 15 March 1845, 25 November 1865, 7 February 1874, 24 November 1877, 16 December 1882, 6 June 1886, 16 June 1886, 21 July 1894, 4 May 1895, 19 December 1896. John Bull, 13 June 1891. Judy, 12 January 1870. Karloff, B. Murder and Moral Decay in Victorian Popular Literature (Ann Arbor: UMI Research Press, 1986). Kesselring, K.J. Mercy and Authority in the Tudor State (Cambridge: Cambridge University Press, 2003). King, A. and J. Plunkett. ‘The Word of Law/The Law of the Word’, in Victorian Print Media (Oxford: Oxford University Press, 2005), pp. 81–121. Lancaster Gazette, 2 August 1873.

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Leicester Chronicle, 3 September 1842. Liverpool Mercury, 27 April 1847, 19 March 1868. Lloyd’s Weekly Newspaper, 3 August 1879, 18 April 1886. Machura, S. and S. Ulbrich. ‘Law in Film: Globalizing the Courtroom Drama’, Journal of Law and Society 28 (2001), pp. 117–132. Mancini, S. and M. Rosenfeld. ‘The Judge as a Moral Arbiter? The Case of Abortion’, in Constitutional Topography: Values and Constitutions, ed. by A. Sajó and R. Uitz (The Hague: Boom Eleven International, 2010), pp. 1–20. Marjoribanks, E. The Life of Sir Edward Marshall Hall (London: Gollancz, 1929). Marjoribanks, E. and J. Mortimer. Trials of Marshall Hall (London: Penguin, 1989). McWilliams, R. The Tichborne Claimant (London: Bloomsbury, 2007). Menkel-Meadow, C. ‘The Sense and Sensibilities of Lawyers: Lawyering in Literature, Narratives, Film and Television, and Ethical Choices Regarding Career and Craft’, McGeorge Law Review 31 (1999–2000), pp. 1–129. Morning Advertiser, 1 November 1866. Morning Chronicle, 19 December 1822, 8 August 1839, 13 December 1859. Morning Post, 20 July 1861, 11 February 1869. Nevins, F.M. ‘When Celluloid Lawyers Started to Speak: Exploring Juriscinema’s First Golden Age’, in Law and Popular Culture, ed. by M.D.A. Freeman (Oxford: Oxford University Press, 2005), pp. 109–129. Newbery-Jones, C.J. ‘Constructing a Popular Public Image of the Bar in the Nineteenth Century’ (PhD, University of Exeter, 2017). Newbery-Jones, C.J. ‘Legal Heroes and Practising Villains in the Nineteenth Century Press’, Plymouth Law and Criminal Justice Review 1 (2014), pp. 58–69. Northampton Mercury, 7 April 1827. North-Eastern Daily Gazette, 6 November 1889. Pall Mall Gazette, 6 March 1877, 12 June 1891, 15 June 1891 , 19 April 1886. The Pall Mall Gazette, 19 April 1886, 12 June 1891. Penny Illustrated Paper, 17 November 1877, 7 January 1882, 8 February 1890, 13 June 1891, 7 February 1891, 5 December 1891, 29 October 1892, 14 April 1894, 10 May 1902. Posner, R.A. Law and Literature (London: Harvard University Press, 1998). Posner, R.A. Law and Literature (3rd edition; Boston: Harvard University Press, 2009). Punch, 3 June 1854, 18 December 1858, 29 February 1868, 6 December 1881, 2 June 1883, 17 November 1883. R. v Castro (1873–74) QB. R v Courvoisier [1840] 173 ER 869 (1688–1897). Reynolds’s Newspaper, 2 February 1873, 17 August 1873, 27 May 1894. Rowbotham, J. and K. Stevenson, eds. Behaving Badly: Social Panic and Moral Outrage: Victorian and Modern Parallels (Aldershot: Ashgate, 2003). Rowbotham, J. and K. Stevenson, eds. Criminal Conversations: Victorian Crimes, Social Panic, and Moral Outrage (Columbus: Ohio State University Press, 2005). Rowbotham, J. and K. Stevenson. ‘For Today in This Arena . . . Legal Performativity and Dramatic Convention in the Victorian Criminal Justice System’, Journal of Criminal Justice and Popular Culture 14:2 (2007), pp. 113–141. Rowbotham, J., K. Stevenson and S. Pegg. Crime News in Modern Britain: Press Reporting and Responsibility, 1820–2010 (Basingstoke: Palgrave Macmillan, 2013), pp. 17–19. Royal Cornwall Gazette, 26 July 1861. Rummonds, R.-G. Nineteenth-Century Printing Practices and the Iron Handpress (London: Oak Knoll Press, 2004).

Judging the judges 181 The Satirist, 23 October 1831, 17 June 1832. Sharafi, M. Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (Cambridge: Cambridge University Press, 2014). Sheffield Daily Telegraph, 11 January 1873, 10 June 1891. Sheffield and Rotherham Independent, 20 July 1861. Sherwin, R. When Law Goes Pop (London: University of Chicago Press, 2000). Sindall, R. Street Violence in the Nineteenth Century: Media Panic or Real Danger? (Leicester: Leicester University Press, 1990). The Sketch, 4 November 1896, 28 June 1899. The Spectator, 8 February 1862. The Sphere, 3 November 1900. The Standard, 17 June 1842, 20 July 1861. The Star, 9 June 1870. Strand Magazine 15, January–June 1898, 17, January–June 1899. The Times, 19 June 1840. Travis, M. ‘Making Space: Law and Science Fiction’, Law & Literature 23:2 (2011), pp. 241–261. Trewman’s Exeter Flying Post, 24 August 1820. Vanity Fair, 31 July 1869 and Vanity Fair, 20 March 1869. Walker-Smith, D. and E Clarke. The Life and Famous Cases of Sir Edward Clarke (London: Eyre and Spottiswoode, 1942). Western Mail, 17 June 1891. Wiener, M.J. Reconstructing the Criminal: Culture, Law and Policy in England, 1830– 1914 (Cambridge: Cambridge University Press, 1994). Woolmer’s Exeter and Plymouth Gazette, 11 August 1827, 17 April 1847.

8

The matter of judgment Comparing gendered perspectives on Victorian legal culture in popular literature Judith Rowbotham

This chapter focuses on Victorian popular literature, and the matter or material that it incorporated in order to pass judgment specifically on the legal culture of the day. In so doing, this literature reveals the wider cultural contexts in which Victorian legal judgments need to be understood, both as law and as reflections of the culture of the day. It is a commonplace to think of law as comprising a set of rules and regulations, originating in binding customs that reflect the boundaries of acceptable behaviour in a society, where proven law-breaking produces the consequence of what is held to be an appropriate retribution for the offending action. What should be remembered is that law is always more than the statutes and binding legal precedents that comprised the formal legal process. For contemporaries at any point, these are made comprehensible by being framed and contextualized within a narrative, and one that contains characters and causation (or justification) for actions. It acts as a form of ‘life course’ history, of the type now acknowledged to be so valuable when derived from court and census records, along with newspaper reportage. The fictional versions of such life course histories may be soundly legally informed and rooted in real experiences, or be misleading, according to the insights and knowledge of the author. Victorian popular literature catered to, and was consumed by, a legally informed reading audience – one that expected legal detail, and also accuracy in that detail. This indicates that a positive judgment by scholars can be made as to the usefulness of its fictional depictions of the criminal justice process at work. This was still a period when the private citizen bore the key responsibility for bringing criminal prosecutions as well as civil actions, acting on behalf of the community or state in so doing. To do so effectively (in terms of costs and time taken) required a level of knowledge of the details and nuances of the law which is not considered necessary in the early twenty-first century, given that the state (via the Crown Prosecution Service) now acts as the default prosecutor in criminal matters. The law’s narrative is enhanced and made memorable by its inherent performativity.1 It is not, here, claimed that the narratology of the law is simply another form of literature, but rather that the specialist legal narrative has long been made more accessible and user-friendly to lay audiences when presented through literary forms that comment on and explain its processes. For legal historians, therefore,

The matter of judgment 183 plays, poetry and prose (fiction and non-fiction) are a valid and valuable source for academic analysis of the law in action at any point in time. In terms of the nineteenth century, that Dickens, for instance, along with other literary ‘greats’ of the Victorian era like Wilkie Collins and Anthony Trollope, sat in judgment on the merits and demerits of the legal culture of their day is a wellestablished trope in the field of law and literature, and one taken note of by other disciplines.2 As early as 1928, the jurist Sir William Holdsworth was identifying Dickens as a key source for legal historians.3 What interested such authors when passing judgments on the legal process was the daily operation of the law. As Holdsworth put it, Dickens focused his critical powers upon ‘the machinery by which the law was enforced, the men who enforced it . . . and the actual effects of the rules of law, substantive and adjective, upon the men and women of his day’.4 Other, legally trained Victorian writers, notably W.S. Gilbert, were more accurate in their satirical comments on the law and how contingent it was in practice, especially when judgments were passed. The message in most of Gilbert’s operatic libretti is that it is when the law is ‘tweaked’ by self-interest and the pursuit of happiness that justice is best served.5 However, if more technically correct, and amusingly revealing of the levels of informed criticism about the law in action, Gilbert is less successful in the limited structure imposed by a musical drama at revealing the nuances of the daily impact of experiencing the law in an everyday context. Here, authors of fiction like Dickens enjoyed a real advantage in that it was an expectation that they would reveal, in full detail, the full narrative of a life-course history. Dickens regularly incorporated comment on the law and its human impact as a way of urging reform. He had a background in law, first aged fifteen as a solicitor’s clerk in Gray’s Inn and subsequently as a journalist reporting proceedings in the old Doctors’ Commons, which gave him firsthand experience of the law at work, but it was a jaundiced view, especially once he became a journalist. Mr Bumble’s comment in David Copperfield (1850) to the effect that ‘the law is a ass – an idiot’, closely paralleled Dickens’s own perspective on the law’s operations.6 As a regular critic in favour of legal reform, he focused predominantly on its negative aspects and absurdities. In Bleak House (1853) he depicted the law through the case of Jarndyce v Jarndyce as a consuming monster; in David Copperfield, including through Mr Micawber’s comments on the profession, the law was presented a self-generating and self-aggrandizing juggernaut, yet one that was essentially trivial in its focus on detail. He was also deeply critical of legal officials. At times his attacks were clearly targeted at individuals and not simply generic, as Philip Collins has revealed.7 Indeed the critical judgments passed on the legal profession from the 1830s to the 1850s by writers, including journalists, satirists and cartoonists, helps to explain why that profession felt so urgent a need to rehabilitate itself that it became actively involved in the reportage of crime and law news in the expanding newsprint industry.8 Dickens produced a view of the law that was distinctly one-sided. Despite this, he has added significantly to our understanding of the impacts on, and judgments made by, contemporaries on the law in action through his depictions of the criminal justice process.

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If Dickens was (in many ways) backward looking and superficial in his legal knowledge, Fitzjames Stephen was wrong to judge Dickens so dismissively as a commentator on the law.9 One thing that is plain from Stephen’s own works – that this jurist had little comprehension of individual human weaknesses and follies in association with the law, and little patience with them. He appreciated the mechanisms of the law, but not the individuals who, on a daily level, were affected by it. Dickens did. He early spotted the importance of the modern uniformed police to the life of the community, for example, and clearly believed that the police (being drawn from the community they were to police) were more genuinely interested in the welfare of communities and individuals than magistrates or other philanthropically minded middle-class activists. If this was a judgment rooted in a bias which was, in its way, as unbalanced as his comments on the legal profession, it was one which also led to a useful insights into the ways in which the police interacted with local communities in locations like London, in particular. The resulting insights into the intersections between the legal process and daily life relate not just to the judgments themselves, but also to the impact these judgments had on individuals and communities as part of a narrative contextualization of the criminal justice process. Dickens’s own tastes when it came to depicting and discussing crime were ‘common tastes’, while Dickens himself ‘was, of all great writers, the closest in outlook to the common man of his day’.10 This gendered choice of language is, however, particularly telling. This chapter chooses, instead to focus on the extent to which the more ephemeral and thus less known popular fiction of that era, substantially authored by women, provides even more diverse and deeper insights into judgment processes which balance out the universally masculine focus of the literary giants. In works by Dickens, as well as in those by Wilkie Collins and Trollope, for example, women and children were heavily stereotyped as good or bad. Women, particularly, were normatively depicted simply as victims of male criminality or as villainous figures who challenged gender normativity by possessing a predilection for violence, immorality and deceit – all essentially unwomanly attributes. However, the women and juveniles who peopled the pages of the popular didactic fiction aimed at mass audiences (with a presumption of a substantively young and/or female readership) were presented in ways that permitted a more nuanced array of character traits and associated behaviours, a complexity which also regularly extended to male figures in their fiction. This diversity is permissible because, apart from anything else, the majority of the offending perpetrated or experienced by such women and children was generally not at indictable levels and did not need such wholesale moral condemnation. Consequently, the texts aiming at what might be considered less culturally discriminating audiences may be less impressive in terms of literary merit, but it can be argued that they are at the same time more illuminating of the nuances of contemporary thought, certainly on a mass scale. As Chapple has reflected, ‘Authors, like historians, respond to the spirit of their age and consequently mould their evidence in ways that embody their less tangible attitudes and values’, a process which provides women with the opportunity to voice their own judgments

The matter of judgment 185 on contemporary legal issues and their consequences for women.11 One key reason for this lay in the moral requirement that many publishing houses espoused, which required that their authors provide fiction, which taught moral as well as practical life lessons, rather than being simply exciting adventurous reading.12 This expectation was particularly valid when it came to women authors whose literary output was directed mainly towards youthful or mass, rather than elite, reading audiences. They had to be seen, in their own lives, to live up to the highest moral standards, so that it could be judged that their prose, in turn, would reflect these and have a positive effect on readers. This, in turn, meant avoiding anything that smacked of the unnecessarily sensational. Hesba Stretton (Sarah Smith, 1832–1911), in Cobwebs and Cables (1881), was critical of the cynical yet striking prose emanating from the pen of fictional authoress Mrs Ronald Sefton. The tale took pains to explain to readers that her bitterness was the outcome of Felicita Sefton’s own sins and self-indulgence, which had created an unfortunately sensational life history for her. This led her to turn her pen in such morally unprofitable directions that, though her works were commercially popular and supported her family, she would not let her own children read them.13 Unlike the fictional Mrs Sefton, authors like Stretton, alongside other didactic authors, including Mrs O. Walton (Amy Catherine Deck, Mrs Octavius Walton, 1849–1939), Evelyn Everett Green (1856–1932), Rosa Nouchette Carey (1840– 1909) and Charlotte Yonge (1823–1901), could be advertised to the purchasers of such literature for impressionable young and/or female minds as reflecting the life values and experiences of their writers, and containing snapshots of reality interpreted through ‘wholesome’ values. These women used their own experiences as philanthropists and social activists, announcing this within their texts, especially when depicting the ways in which their characters experienced the law. They drew consciously upon the judgments which had shaped them as women rather than creative authors, to contextualize their narratives. Consequently, such didactic literature can be used to provide substantive insights into everyday realities associated with the legal process, and the physical locations in which narratives were placed and judgments delivered. Most female writers in this genre took care to point out to readers via interjectionary moral exhortations and explanatory introductions, that they were writing fact-based fiction, what would today be described as ‘faction’. In this they regularly devoted considerable space to discussions of the impact of the law and its judgments. Reiterating an earlier point, it is even more thought-provoking to realize that the women and children who make up the bulk of their characters do not experience the consequences of major offending. Instead, they feel the fallout associated with involvement in summary or everyday offending: law-breaking of the type concluded within the magistrates’ courts rather than being referred to the higher courts. The scenarios found in their narratives were either based on the personal knowledge and experience of encounters with the legal culture and individuals affected by this, or on narratives derived from newspapers, both local and national. However, especially where the anticipated reading audiences were young, as in productions like Hesba Stretton’s Jessica’s First Prayer (1867) or Mrs Walton’s A

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Peep Behind the Scenes (1877), the physicality of violence within a domestic location was hinted at euphemistically.14 Parental ‘ill-usage’, ‘cruelty’ or ‘harshness’ was the preferred terminology, with occasional references to a young hero’s or heroine’s fear of father’s fist or belt, or mother’s slaps and smacks. It was judgmental, certainly, but not so graphically depicted that it might frighten respectable young readers. The aim was to arouse sympathy and through that philanthropic impulses. In Stretton’s depiction, therefore Jessica’s arms were simply ‘black and blue from the cold or from ill-usage’, for instance.15 In another of her tales, set in Liverpool, Nelly is locked out on a bitter, snowy night by her drunken father and the mother ‘dursn’t stir to open the door’ because ‘he would nearly kill her’.16 There was certainly moral, if not legal, judgment being passed on such neglectful and cruel parents, who were usually also shown to be lacking in Christian sensibilities and moral constraints in their general conduct, with parental drunkenness being blamed for much of the ills of the child. Moral judgment was displayed through the commentary on the everyday aspects of the criminal justice process incorporated into these narratives. Such authors were influenced heavily in the perspectives taken on the gendered judgments of their own background culture. Many of their popular novels, like Stretton’s Storm of Life (1876), depicted in real detail the ways in which the legal culture of the day was perceived and how individuals and communities reacted to the management of offenders.17 Individual figures of authority within the broader legal culture, from policemen to lawyers, magistrates and judges were portrayed in terms of how they related to the law-breakers who came before them. The police were a regular feature in such literature. The street-arab genre of writing, in which authors such as Hesba Stretton, ‘Brenda’ (Mrs Georgina Castle Smith, 1845–1933) and Mrs O. Walton specialized, looked with greater sympathy than authors like Dickens at vagrant or near-vagrant children.18 Such children, who inhabited the streets at least in daylight hours, and retreated to poor lodgings or workhouse casual wards at night, were powerfully associated with the criminal classes, and so were considered by many commentators, as well as policemen, as a ‘dangerous’ group.19 Hesba Stretton’s heroine Jessica displayed a fear of the law and police that incorporated a judgment on the lack of sympathy of the police and their activities. The malnourished and brutalized child was used to being unsympathetically moved on by local policemen when she stopped to take shelter.20 Other tales by female authors were also not slow to pass judgment on the habits and reactions of the police, in ways that were not complimentary to established policing tactics and strategies. Echoing Stretton, they commented disapprovingly on the habit of too many police constables of judging too harshly, of going by appearances and not taking time to enquire into the actual circumstances of poor women and children. Typically, Adela Mount (Mrs T. Bricknell Perry) wrote of how Dorothy May, an orphaned waif, was vulnerable because, in her friendless condition, she was likely to be ‘given in charge for vagrancy’ by the ‘perlice on the beat’, so she was wiser to go straight to the local workhouse casual ward and beg admittance there.21 Froggy’s Little Brother was equally critical of the police, noting the terror they struck into children: ‘the children set up a loud cry at the

The matter of judgment 187 terrible apparition of a “tall, live policeman”’.22 In one such tale, A Brother’s Promise (1890), a police sergeant turned out to be one of the positive figures in the narrative. Tellingly, though, as Sergeant Scott befriended the two street arabs Tommy and Teddie, he spent time questioning the judgment his fellows would pass on him for such conduct: ‘it does not become my position as a policeman to be making friends of crossing-sweepers’. But being that relative rarity in fictional policemen, a committed Christian, Sergeant Scott was prepared to face criticism, making him an exception which proves the rule, for these authors.23 A more sympathetic perspective was generally taken of the magistracy, both rural and urban, in terms of their attitudes to the poor, though they can be criticized for credulity in relying over-much on police testimony in their courts. In M.E. Clement’s improving tale Chords of Love, the magistrate took the opportunity to explain to young Charlie how difficult the decisions facing the bench could be when dealing with youths who have mixed with bad company and so put themselves under suspicion. Charlie gave testimony to Mr Goodbody, his kindly employer and local magistrate which ‘took a great burden off me and my colleagues’, by placing a potential suspect in a place which cleared him of involvement in a burglary: ‘the case was one of the most difficult ones, where there is just so much evidence we dare not dismiss it and yet so little that it seems hard to commit the prisoner for trial’.24 Generally, there was a sense amongst these authors that the magistracy was a well-meaning element within the criminal justice system, one likely to be sympathetic, certainly to those considered redeemable. In Stretton’s In Prison and Out, David Fell had, in desperation, taken to begging to get money for food for his dying mother, and had been arrested. Taken before the magistrates, the Chair of the bench took time to enquire whether there had been any previous charges against him rather than automatically assuming he was a lad of bad character. Unfortunately for David, ‘a second policeman stepped into the witness-box, and David turned his dazed eyes upon him. He had never seen him before’. The policeman claimed ‘I have a previous charge of stealing iron against the prisoner –’, adding that David had been ‘convicted of theft before your worship six months ago’.25 As Stretton reflected, on a busy day the Bench had ‘no more time’ to spend on a boy who, on police testimony, was ‘clearly guilty of begging and who had been convicted of theft’: it was not ‘thought in the least necessary to enquire if the boy’s vehement denial had any truth in it’. And even then the magistrates had sentenced David to three months’ imprisonment in order to be ‘taught a trade by which you may earn an honest living’, making it plain the Bench’s intention was rehabilitation not punishment.26 Attitudes towards judges were more complex. This exploration of the work of women authors has already begun to demonstrate that their fiction provides a glimpse of the workings of the criminal justice system that is substantially absent from any of the categories of official records dealing with justice delivery and its impacts. Women, after all, were never in a position to deliver official conclusions to any encounter with the criminal justice system. It was therefore only within these fictional narratives that women could voice their opinions publicly on the legal culture and practices of the day.

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Consequently, the didactic fiction written by women reveals certain aspects in particularly graphic detail which were not touched on by men. Notably this included the extent to which respectable families were damaged by association with crime, due to the social judgments passed when a family member was caught up in the criminal justice system. Thus the life course histories depicted in such texts are not confined to the perpetrators of crime, but are extended to include those of family and friends, to depict the extent to which they are affected by the social judgments following on from conviction in the courts. Charlie’s nemesis in Chords of Love, Tom Bent, was thrown out of his parental home by a stern father who informed him that he would not be housed. Tom had not been guilty of any serious crime, and had instead appeared as a witness for the prosecution, but in the course of the trial it became plain that he best interpretation of his prior actions was juvenile delinquency and there were strong hints (especially in the stern warning of the recorder at the quarter sessions) that he was fortunate not to be in the dock himself. Thus, his father reasoned that he would not damage his reputation by appearing to condone his son’s bad behaviour.27 The more respectable the family’s reputation, the worse the impact on the members should one of them go astray, wilfully or accidentally. One of the best explorations of this is provided by Charlotte Yonge’s novel, The Trial (1864). She specialized in tales depicting large families and their interactions with both themselves and the wider community. The Trial picked up on the characters in her 1856 bestseller, The Daisy Chain, the May family, and used them to frame the Ward family, mentioned only in passing previously. Mr Ward senior was the local apothecary, but his elder son, Henry, had trained as a doctor. The novel focused on the challenges facing Henry and his siblings after being orphaned, when the younger son, Leonard, was charged with the murder of his uncle. Despite his good character and the support of friends like Dr May, the apparent strength of the evidence ensured Leonard’s conviction.28 The novel title signified not only the assize proceedings but also how the Ward family (including Leonard) bore up under the trial of the family’s reputation being so damaged. What Yonge dwelt on in the portion of the narrative from the inquest to the remand in the magistrates’ court and up to the assize hearing was what would have been the most direct experience of women at the time: the gossip and publicity surrounding the event. Gossip there would always have been, and – as murder broadsheets remind us – it was not always local.29 However, it was not the gossipy neighbours like Mrs Pugh who made it particularly hard, it was the national attention given via the newspapers. Yonge described how newsboys on the railway shouted ‘To-day’s paper account of the inquest’, for instance, while ‘the illustrated papers sent down artists, whose three-legged cameras stared in all directions’.30 Being ‘the case of the Assize week’ the court was ‘so crowded that but for the favour of the sheriff, Mr and Mrs Rivers, with Tom and Gertrude, could hardly have obtained seats’, since ‘Nearly the whole population of Stoneborough, Whitford and Blewer was striving to press into court’.31 Again, the comment on the judge is telling of the female perspective. Women of Yonge’s social standing met judges during the social events that always accompanied

The matter of judgment 189 assize sessions locally. It was an occasion for dinners, balls and theatrical performances and other select social gatherings, where the circuit judges were feted and where their presence in a particular hostess’s house gave her enhanced status locally. In Leonard Ward’s trial, Yonge noted ‘the stern sadness that came over the features naturally full of kindness and benevolence’ – indicating a familiarity with the judge in question – underlined by further developments explaining the impact of conviction on friends and family and the process of a post-conviction.32 Subsequent to Leonard’s conviction by the jury and passing of the death sentence by the judge, Yonge provided a detailed account of the process of petitioning for mercy and the social interactions framing that, including the discussions at dinner parties during Assize Week with the judges and local county gentry, who had all been ‘deeply touched’ by Leonard’s conduct in the courtroom during his trial.33 The key here was that in the moral judgment of those who knew him best, especially members of the May family, Leonard was incapable of the act of which he was convicted, due to circumstantial evidence substantially – his siblings also believed in his innocence. How did they cope? Would they, once he was convicted, abandon him as a lost cause or continue to fight for him? The innocent Leonard Ward himself, his sentence commuted to life imprisonment, took the moral blame of, against his brother’s wishes, taking a job with the disreputable relative he supposedly murdered, and thereby setting in train the events which disgraced his family. One telling passage emphasizes a key duty for prison chaplains was to convince those convicted to confess, and so confirm the proper working of the justice system. In an exchange between Leonard and Dr May, the latter asked if he was able to seek comfort from the chaplain, and Leonard responded: ‘Not while he thinks me guilty . . . I suppose it is his duty but I wish he would keep away. I can’t stand his striving at making me confess and I don’t want to be disrespectful’.34 The remainder of the novel focuses on the ultimately successful efforts of the May family to clear Leonard and bring home the crime to the real culprit. Another nephew was finally brought to confess on his death-bed and before witnesses, making evidence sufficient to convince the Home Secretary to pardon Leonard and release him. After recovering his health (physical and moral), Leonard was convinced that he was still worthy of some good things, and so accepted an invitation to become a missionary in New Zealand – a rehabilitated man but given the judgments of society, not quite rehabilitated enough to stay in England.35 The older brother, Henry was less resigned to the social trial of being the brother of a youth so accused. Being crushed by ‘shame and despair’, Henry ‘declared that he could never show his face at Stoneborough again, let the result be what it might. . . . He should change his name and leave the country’. For him, ‘the stain was on his house and the guilt would be brought home’ to that house.36 Selling his practice and house, he set out with his sisters for the United States, changing the family name to Warden to ensure he was not ‘recognised as the convict’s brother’, and ‘keeping up no communication with the prisoner except under cover to Dr May’.37 This harshness to his younger brother, combined with his own arrogance in ignoring the pain of the separation to his sisters, Averil and Minna, brought

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the latter to her death and broke the health of the former permanently. Even when the real culprit was uncovered and Leonard released, Henry remained adamant that he would not resume communication with his brother. This immoral behaviour is contrasted, especially at home in Stoneborough, with the generosity of spirit and lack of criticism of Leonard shown by the May family. But the point is made that the Mays were unusual, and even then they could not totally rehabilitate Leonard Ward in the judgmental eyes of British society, and fairly, too. Leonard had brought his experience on himself by his selfish youthful folly, and society did not forget that, no matter how repentant the released and pardoned prisoner was. Besides Charlotte Yonge, some of the best depictions of social judgment at work, commenting on the criminal justice process and framing the outcomes of criminal trials is to be found in that other specialist in fiction showcasing lifecourse histories: Mrs Henry Wood. Born Ellen Price (1814–1887), Wood suffered from curvature of the spine and spent much of her life lying on sofas and observing what went on around her or reading newspapers – especially the crime reports. As well as having an acute eye for detail, she was also blessed with an unusually retentive memory.38 Contemporaries consequently recognized the ‘real-life’ basis for her stories in terms of clearly identifiable physical locations, events and even characters. Careful investigation confirms the contemporary impression of those who knew her that her plots amounted in essence to a retelling of actual and identifiable incidents and themes, often only thinly disguised, and derived from news sources interpreted through personal experience and values. As one commentator put it, ‘I have it on excellent authority, that our authoress . . . never invented a single plot that had not in it a substratum of truth’.39 Her son, remembering her emphasized that her narratives were ‘dramatically placed before people’ but also that they ‘worked out in the lives of men and women, with a realism which suggests fact rather than fiction’.40 Personal experience taught her lessons about the shame that accrued to family members following on from the misdeeds of one of them, especially where such wrong-doing had at least the potential to catch the attention of the criminal justice process. While the details have remained obscure, it seems from an accumulation of evidence and contemporary comments about Mrs Henry Wood’s marriage (a conclusion supported by the numerous tales she wrote where a husband’s financial fraud created a crisis for his family) that Henry Wood was not only a poor businessman but also one caught out in financial dishonesty. This was something enabled by the fact that he was conducting business on behalf of his family firm in the Dauphiné district (notably Lyon) in France. That firm was a banking and shipping business, headquartered in Bristol, and in 1855, the Woods hurriedly left France after twenty years and returned to Britain, but not to either Bristol or Worcester, presumably in order to avoid the judgment of local society over Mr Wood’s sudden ‘retirement’ from business. From the late summer and early autumn of 1855, Mrs Henry Wood and her children were resident at Wellington House, Malvern (one of its many boarding houses), and it must be speculated that this was while her husband negotiated with his family over his ‘failure’ in business.41 It was from this juncture on that Mrs Henry Wood became the family

The matter of judgment 191 breadwinner. Her once wealthy father had suffered from the final failure of the once-flourishing glove-trade in Worcester, and could not support her, and so she turned to writing. She had, from around 1850 published anonymously copious short stories in Bentley’s Miscellany. It was then owned by Harrison Ainsworth, whose cousin Francis both worked with him on the magazine and was a friend of the Woods family. He it was who recruited Mrs Henry Woods as an unpaid contributor. This relationship with Harrison Ainsworth seems to explain her fascination in her writings with the law and its impact, because Ainsworth had trained and practiced as a lawyer before turning to writing as a full-time profession. She continued to write short stories for both Bentley’s Miscellany and Ainsworth’s new title, The New Monthly Magazine, but now being paid a yearly sum for those contributions.42 Tellingly, many of them from this period dealt with the awful impact on families of a carelessly spendthrift or even fraudulent husband, brother or son. Crucially, though, she turned to the more lucrative occupation of novel writing, where she was able to dwell at more length on the fallout from fraud and deception in novels like Oswald Cray (1864), which contains depictions of the impacts of forgery and extravagance to criminal degrees. On his deathbed, Dr Davenal confessed to his daughter that her brother, Edward, had perpetrated a crime of forgery to get money, and that in order to save him and the Davenal family from the shame that would result from Edward’s deservedly standing at ‘his country’s bar’, he had felt impelled to do ‘anything, everything’ to save him from discovery.43 Still worse, her close relative by marriage, Mark Cray, undertook a foolish and fraudulent investment which brought ruin – to him and many others.44 His wife, Caroline, died and one important message of the novel is that it was the sense of shame gnawing away at her that eventually killed her, especially as her husband remained both unremorseful and determined on fraudulent speculation to restore his fortunes. Her aunt commented to her doctor ‘it is all this disgrace which has brought it on’, and he confirmed that while the germs of the disease (cancer) were in her, her husband’s actions had hastened it.45 In such tales, Wood clearly passed moral judgment herself on the judgments of both the criminal justice system and society. She showed little sympathy for the direct and indirect perpetrators of financial folly and fraud (one must question whether there was an amount of self-blame here), but considerable sympathy for the families of those so affected and a clear will to persuade readers to be more forgiving to those who bore no blame for the wrong-doings of the men and women responsible for bringing financial ruin upon themselves and those around them. As her writing deliberately sought to bring home to people, committing a crime did not only bring misery upon the perpetrator but, when that crime entered the criminal justice system, upon the family members – and while they might be innocent, the ‘taint’ of criminality was pervasive in the judgment of society. Mrs Henry Wood firmly believed, as she said in one of her novels that ‘Unpleasant things occur in real life, and if true pictures have to be given of the world as it exists, as it goes on its round, day by day, allusion to them cannot be wholly avoided’.46 It was in this spirit that so much of her writing was dominated

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by depictions of the criminal justice system at work and the widespread nature of the effects of its judgments. Tellingly, though, she was – like Yonge – not critical in any way of the mechanics and machinery of the criminal justice process. It is depicted as efficient but not heartless, and a necessary element in the safeguarding of society. Even Wood’s police figures are sympathetically portrayed, unlike the authors of street-arab fiction.47 Her social judgments particularly were far from black and white. As in Yonge’s work, so in the equally morally nuanced writings of Mrs Henry Wood, sympathy for the family, at least, and often – surprisingly – for the perpetrator manifest themselves both through the storyline itself and the accompanying authorial commentary. In Yonge’s The Trial, Leonard Ward was unjustly convicted of murder. Wood regularly depicted murders where there was no mistaking the killer, and where the burden of her narrative dealt with the trial and aftermath of those genuinely guilt. She had (one of the reasons why she was considered a sensation novelist) an understanding of the complexities that created offenders, both petty and serious, and impelled them into wrong-doing, and far more so than Yonge managed in The Trial. An amount of this depth of understanding must lie in the fact that she so regularly fictionalized genuine events.48 The impact of murder provided the core to her novel, Within the Maze (1872), in which Sir Adam Andinnian deliberately shot a man who was ‘annoying’ the woman he had secretly married. Adam Andinnian is surprisingly sympathetically depicted – his impulsive temper which he had not learnt to control led to the tragedy where, for ‘one moment’s mad act’, he blighted not only his life but that of his wife and his family – ‘the disgrace and blight . . . was terrible’.49 Again, she spent time depicting the wider fallout of such behaviour. For Adam’s brother Karl, a newly promoted captain in the army, his brother’s arrest brought him the knowledge that if his brother was convicted not only was the military career he loved ended, but also his hopes of winning the hand of his colonel’s daughter: ‘it was a matter that admitted of no alternative. To remain amidst his fellow officers with his only brother disgraced and punished was not to be thought of’.50 His colonel agreed: ‘Had he been a general, he must have done the same [resigned his commission]. A man who has a brother working in chains cannot remain an officer in the Queen’s service. Had the brother been hanged, I think the Commander-in-Chief would have been justified in cashiering Captain Andinnian if he had not taken the initiative’.51 It is made plain that, on inheriting the baronetcy, Karl can only hope to work to redeem the family reputation by living a quiet, and respectable life in the country, attending to his duties as landlord. Interestingly enough, there was no question of him being invited to join the local magistracy – only his heir might look to that. Contextually, Wood was particularly powerful in portraying court scenes, from the assizes down to the magistrates’ courts. With the assizes, supporting Yonge’s depiction of a similar event in The Trial, she commented on the widespread newspaper coverage of events and that during the assize weeks ‘thousands of curious people’ thronged the town, ‘hoping to get a place in court’.52 But her depictions of the more mundane realities of everyday crime in a range of stories and novels including her Johnny Ludlow series (1873–1899) are particularly useful. These

The matter of judgment 193 provide depictions which are not found elsewhere of, for instance, the extent to which local communities were involved with the summary courts and the judgment processes there. Wood was similar to Dickens in the numbers of sub-plots and minor characters drawn from all social classes that she included in her tales. Unlike him, she provides descriptions of the summary courts at work, showing how they were places of daily resort for entertainment as well as informationgathering for local communities. Interestingly, she regularly used as part of her plot development their ability to generate community gossip about crimes appearing there to ensure that the ‘right’ culprits were discovered. Intrinsic to this, her texts demonstrate how witnesses were frequently drawn from all classes, and as individuals, clearly had confidence that an informed sense of justice and ‘fairness’ was an integral part of the consciousness of the community as well as of the legal professionals.53 For contemporary critics, this made her overly domestic and lacking in an instinct for sensationalism: for the legal historian, this provides a range of insights not visible elsewhere in Victorian fiction. Her courtroom scenes regularly interspersed the main narrative line and served to flesh out the characters of those involved. Typically of Wood’s writings, Sir Dene Clanwaring in Dene’s Hollow (1871) was shown to be a kindly man, thereby, and a generally benevolent magistrate and, on the ench, one prepared to listen carefully to the evidence presented rather than hastening through the process, being impelled to this by his sense of social duty.54 In conclusion, this chapter has demonstrated that one of the most valuable sources for providing insights into the human contexts in which the legal process worked, certainly for the Victorian period, is the literature of the day, and particularly the moralistic, didactic and improving tales written by women. Careful reading of a wide range of such literature and the life-course histories of individuals provided in their pages reveals the extent to which a knowledge of the law at this period inflected the understanding of the criminal justice process for all classes. It also demonstrates that, while not uncritical, that understanding was frequently complex and nuanced, and not automatically in line with official legal pronouncements. There was a degree of independence in judgments passed on the criminal justice process which was permitted by a regular engagement with the law, even amongst the working classes. Yet underpinning it all was a confidence that in the end, in the overwhelming majority of cases, the criminal justice system worked to the advantage of the community as a whole, and not just its upper echelons.

Notes 1 On law’s performativity, see J. Rowbotham and K. Stevenson, ‘“For Today in This Arena. . .”: Legal Performativity and Dramatic Convention in the Victorian Criminal Justice System’, Journal of Criminal Justice and Popular Culture 14 (2007), pp. 113–141. 2 See, amongst others, New Directions in Law and Literature, ed. by E. Ankler and B. Myers (Oxford: Oxford University Press, 2017); The Happy Couple: Law and Literature, ed. by J. Neville Brooks (Sydney: Federation Press, 1994); A. Quéma, Power and Legitimacy: Law, Culture and Literature (Toronto: University of Toronto Press,

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2015); N. Lacey, Women, Crime and Character: From Moll Flanders to Tess of the D’Urbervilles (Oxford: Oxford University Press, 2008); B. Peterson, History, Fiction and Germany: Writing the Nineteenth Century Nation (Detroit: Wayne State University Press, 2005); J. Hart, Fictional and Historical Worlds (Basingstoke: Palgrave Macmillan, 2012); J. Rowbotham, Good Girls Make Good Wives: Guidance for Girls in Victorian Fiction (Oxford: Basil Blackwell, 1989). W.S. Holdsworth, Charles Dickens as a Legal Historian (New Haven: Yale University Press, 1928). Holdsworth, Charles Dickens, p. 7. For instance, see W.S. Gilbert, The Mikado (1885). C. Dickens, David Copperfield, 3 vols (London: Richard Bentley and Son, 1839), vol. III, p. 279. P. Collins, Dickens and Crime (Basingstoke: Palgrave Macmillan, 1962), pp. 183–188, for example. For further discussion, see J. Rowbotham, K. Stevenson and S. Pegg, Crime News in Modern Britain: Press Reporting and Responsibility (Basingstoke: Palgrave Macmillan, 2013), especially Chapter 1. Anon. (James Fitzjames Stephen), ‘The License of Modern Novelists’, Edinburgh Review 106, July 1857, pp. 124–156. The article was a diatribe against both Dickens and Charles Reade for their lack of proper legal knowledge. Collins, Dickens and Crime, p. 1. J.A.V. Chapple, Documentary and Imaginative Literature 1880–1920 (London: Blandford Press, 1970), p. 15. Rowbotham, Good Girls, p. 28. H. Stretton, Cobwebs and Cables (London: Religious Tract Society, 1881). Born Sarah Smith, Stretton was the child of an evangelical printer, and in her own right a philanthropic activist. See E. Lomax, The Writings of Hesba Stretton: Reclaiming the Outcast (Abingdon: Routledge, 2016). H. Stretton, Jessica’s First Prayer (London: Religious Tract Society, 1867); Mrs O. Walton, A Peep Behind the Scenes (London: Religious Tract Society, 1877). Stretton, Jessica’s First Prayer, p. 3. H. Stretton, Nelly’s Dark Days (London: Houlston, 1870), pp. 16–17. H. Stretton, The Storm of Life (London: Religious Tract Society, 1876). Brenda’s best known work was Froggy’s Little Brother (London: Religious Tract Society, 1875). Some men, especially amongst Anglican and nonconformist ministers, and writers of both fiction and non-fictional, comment on the phenomenon; and were sympathetic, blaming not the children and their ‘bad’ propensities but adults (especially parents) who neglected and abused children, driving them onto the streets, e.g., Silas Hocking, Methodist minister and author of works like Her Benny (1879) and Our Joe (1888) and Benjamin Waugh, Congregationalist minister, author of the powerful The Gaol Cradle – Who Rocks It? (1873) and founder of the NSPCC. M. Flegel, Conceptualising Cruelty to Children in Nineteenth Century England (Abingdon: Routledge, 2016), pp. 172–174; E. Hopkins, Childhood Transformed: Working Class Children in Nineteenth Century England (Manchester: Manchester University Press, 1994), pp. 199–202. Stretton, Jessica’s First Prayer, pp. 1–3. A. Mount, Dorothy’s Trust (London: S.W. Partridge, 1888), pp. 12–13. Brenda, Froggy’s Little Brother, p. 109. J. Challacombe, The Brothers’ Promise (London: Religious Tract Society, 1890), pp. 58–60. A prolific author (writing 1886–1922), she was the wife of Reverend William Challacombe. M.E. Clements, The Chords of Love (London: T. Nelson, 1895), pp. 48–50. Though a regular writer of children’s didactic fiction, Clements remains obscure apart from reviews referring to her as female.

The matter of judgment 195 25 H. Stretton, In Prison and Out (London: Religious Tract Society, 1887), p. 13. 26 Stretton, In Prison and Out, pp. 13–14. Rehabilitation did not occur due to the bad influences found in prison (echoing Waugh, The Gaol Cradle). On this novel, see J. Rowbotham, ‘Innocent Recidivists? Contested Presentations of Women and Girls c.1850–1900’, in Recidivism: A European Perspective, ed. by M. Porrot (Geneva: Librairie Droz, 2005). 27 Clements, Chords of Love, pp. 56–60. 28 C. Yonge, The Trial: Or More Links of the Daisy Chain (London: Palgrave Macmillan, 1884), pp. 183–188. 29 See Ballads and Broadsides in Britain, 1500–1800, ed. by P. Fumerton, A. Guerrini and K. MacAbee (Aldershot: Ashgate, 2010), pp. 77–79, 187–190. 30 Ballads and Broadsides in Britain, p. 182. The image arising in the minds of contemporary readers would almost certainly have been of the Illustrated Police News, which pursued exactly such a policy with headline-grabbing cases. 31 Ballads and Broadsides in Britain, pp. 183–184. 32 Ballads and Broadsides in Britain, pp. 196–197. 33 Ballads and Broadsides in Britain, pp. 205–207. 34 Ballads and Broadsides in Britain, p. 210. 35 Ballads and Broadsides in Britain, p. 422. 36 Ballads and Broadsides in Britain, p. 172. 37 Ballads and Broadsides in Britain, p. 230. 38 C. Wood, ‘In Memoriam’, in 2 parts, The Argosy (1877), I: March, p. 424. 39 ‘S.M.C.’, ‘Mrs. Henry Wood and Worcestershire’, The Argosy, June 1892, p. 464. 40 Even the improbable plot of East Lynne (1861) was founded on actual events. See H. Swann, Who’s Who in Fiction? A Dictionary of Noted Names in Novels, Tales, Romances, Poetry, and Drama (1974; Charleston: BiblioLife, 2016) entry for Isabel Carlyle. 41 ‘Visitors At Malvern’, Berrow’s Worcester Journal, 18 August 1855; ‘Visitors at Malvern’, Berrow’s Worcester Journal, 13 October 1855; ‘Visitors At Malvern’, Berrow’s Worcester Journal, 3 November 1855, but there is no mention of the family being there in December 1855 and they settled in London’s Upper Norwood (because it was cheap to rent) in January 1856. 42 Wood, ‘In Memoriam’, II, p. 337. Ainsworth seems to have been reluctant but the popularity of Wood’s stories helped to keep his titles afloat. 43 Mrs Henry Wood (Ellen Price), Oswald Cray (London: Richard Bentley and Son, 1864), pp. 97–99. 44 Oswald Cray, p. 228. 45 Oswald Cray, p. 293. 46 Mrs H. Wood, Mrs. Halliburton’s Troubles (1862; London: T. Nelson, 1908), p. 344. 47 Mrs H. Wood, Lord Oakburn’s Daughters (London: Richard Bentley and Son, 1864), where the police are particularly positively presented. 48 Winifred Hughes, The Maniac in the Cellar. Sensation Novels of the 1860s (Princeton: Princeton University Press, 1980), for instance. 49 Mrs H. Wood, Within the Maze (London: Palgrave Macmillan, 1880), pp. 43, 51. 50 Within the Maze, p. 35. 51 Within the Maze, p. 49. 52 Within the Maze, p. 34. 53 Mrs H. Wood, Dene Hollow (London: Richard Bentley and Son, 1872). 54 Wood, Dene Hollow, pp. 52–55.

Bibliography Ankler, E.R. and B. Myers. New Directions in Law and Literature (Oxford: Oxford University Press, 2017).

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Brenda. Froggy’s Little Brother (London: Religious Tract Society, 1875). Brooks, J.N., ed. The Happy Couple: Law and Literature (Sydney: Federation Press, 1994). Challacombe, J. The Brothers’ Promise (London: Religious Tract Society, 1890). Chapple, J.A.V. Documentary and Imaginative Literature 1880–1920 (London: Blandford Press, 1970). Clements, M.E. The Chords of Love (London: T. Nelson, 1895). Collins, P. Dickens and Crime (Basingstoke: Palgrave Macmillan, 1962). Dickens, C. David Copperfield, 3 vols (London: Richard Bentley and Son, 1839), vol. 3. Flegel, M. Conceptualising Cruelty to Children in Nineteenth Century England (Abingdon: Routledge, 2016). Fumerton, P., A. Guerrini and K. MacAbee, eds. Ballads and Broadsides in Britain, 1500– 1800 (Aldershot: Ashgate, 2010). Hart, J. Fictional and Historical Worlds (Basingstoke: Palgrave Macmillan, 2012). Hocking, S. Her Benny (London: Warne, 1879). Hocking, S. Our Joe (London: Warne, 1888). Holdsworth, W.S. Charles Dickens as a Legal Historian (New Haven: Yale University Press, 1928). Hopkins, E. Childhood Transformed: Working Class Children in Nineteenth Century England (Manchester: Manchester University Press, 1994). Hughes, W. The Maniac in the Cellar: Sensation Novels of the 1860s (Princeton: Princeton University Press, 1980). Lacey, N. Women, Crime and Character: From Moll Flanders to Tess of the D’Urbervilles (Oxford: Oxford University Press, 2008). Lomax, E. The Writings of Hesba Stretton: Reclaiming the Outcast (Abingdon: Routledge, 2016). Mount, A. Dorothy’s Trust (London: S.W. Partridge, 1888). Peterson, B. History, Fiction and Germany: Writing the Nineteenth Century Nation (Detroit: Wayne State University Press, 2005). Price, E. [Mrs Henry Wood]. Dene Hollow (London: Richard Bentley and Son, 1872). Price, E. [Mrs Henry Wood]. Lord Oakburn’s Daughters (London: Richard Bentley and Son, 1864). Price, E. [Mrs Henry Wood]. Mrs. Halliburton’s Troubles (1862; London: T. Nelson, 1908). Price, E. [Mrs Henry Wood]. Oswald Cray (London: Richard Bentley and Son, 1864). Price, E. [Mrs Henry Wood]. Within the Maze (London: Palgrave Macmillan, 1880). Quéma, A. Power and Legitimacy: Law, Culture and Literature (Toronto: University of Toronto Press, 2015). Rowbotham, J. Good Girls Make Good Wives: Guidance for Girls in Victorian Fiction (Oxford: Basil Blackwell, 1989). Rowbotham, J. ‘Innocent Recidivists? Contested Presentations of Women and Girls c.1850– 1900’, in Recidivism: A European Perspective, ed. by M. Porrot (Geneva: Librairie Droz, 2005). Rowbotham, J. and K. Stevenson. ‘“For Today in This Arena . . .”: Legal Performativity and Dramatic Convention in the Victorian Criminal Justice System’, Journal of Criminal Justice and Popular Culture 14 (2007), pp. 113–141. Rowbotham, J., K. Stevenson and S. Pegg. Crime News in Modern Britain: Press Reporting and Responsibility (Basingstoke: Palgrave Macmillan, 2013). ‘S.M.C.’, ‘Mrs. Henry Wood and Worcestershire’, The Argosy, June 1892, p. 464. [Stephen, J.F.] ‘The License of Modern Novelists’, Edinburgh Review 106 (July 1857), pp. 124–156.

The matter of judgment 197 Stretton, H. Cobwebs and Cables (London: Religious Tract Society, 1881). Stretton, H. In Prison and Out (London: Religious Tract Society, 1887). Stretton, H. Jessica’s First Prayer (London: Religious Tract Society, 1867). Stretton, H. Nelly’s Dark Days (London: Houlston, 1870). Stretton, H. The Storm of Life (London: Religious Tract Society, 1876). Swann, H. Who’s Who in Fiction? A Dictionary of Noted Names in Novels, Tales, Romances, Poetry, and Drama (1974; Charleston: BiblioLife, 2016). ‘Visitors at Malvern’, Berrow’s Worcester Journal, 18 August 1855, 13 October 1855, 3 November 1855. Walton, O. A Peep Behind the Scenes (London: Religious Tract Society, 1877). Waugh, B. The Gaol Cradle – Who Rocks It? (London: Strahan, 1873). Wood, C. ‘In Memoriam’, in 2 parts, The Argosy (1877), I: March 1877. Yonge, C. The Trial: Or More Links of the Daisy Chain (London: Palgrave Macmillan, 1884).

9

The operation and representation of art judgment James Gregory

Introduction Nineteenth-century British encyclopaedias and dictionaries identified three main categories of judgment: legal, logical and aesthetic. This chapter is interested in the third type: how acts or verdicts of art criticism, and the faculty (the ability to judge) in the fine arts in Britain were conceived and represented.1 The texts studied include essays in newspapers or periodicals for a general middle-class readership and in the specialist press which developed (the Magazine of the Fine Arts, Art-Journal and Fine Arts Quarterly); research on female art-criticism emphasizes other locations for criticism in published works of fiction, private diaries and letters.2 The context for this examination of judgment in the fine arts is the trajectory from early and mid-Victorian moral didacticism in art and in art-writing (the era of John Ruskin and the Pre-Raphaelites), to a late-century l’art pour l’art of Aestheticism, with self-consciously elitist critics privileging ‘purely artistic’ technique and form and espousing a ‘notion of independent aesthetic value’. The search for a moral and a narrative with human interest or emotional pull remained in popular art-writing well beyond the emergence of ‘formalist’ criticism in the 1860s.3 I begin by briefly exposing the unsatisfactory definition of ‘judgment’ in relation to that key eighteenth-century aesthetic, ‘taste’; before turning to the institutions, press organs and public figures involved with art-judgment. I outline some important aspects to the discourse on judgment and the artist’s judgment in nineteenth-century art criticism and then consider particular debates such as whose was the best judgment (artists’ or the public’s) and whether it could be made to conform to scientific models of judgment. In the final section judgment’s gendered nature is discussed.

Taste and judgment Judgment’s confused relationship to ‘taste’, which in the previous century through the work of Francis Hutcheson, David Hume, Edmund Burke, Immanuel Kant and others, had become a key philosophical idea, rarely received helpful analysis in the nineteenth-century texts which I am interested in.4 Despite assured pronouncements by artists and eminent critics, essayists’ obiter dicta in

Operation and representation of art judgment 199 middle-class periodicals, uplifting ‘fillers’ in mass-media newspapers, reflections by phrenologists interested in defining the location and nature of mental faculties, there seemed no definite distinction between taste and judgment. Thus Richard Chenevix asserted that taste and judgment as a ‘mode of quality’ were the same in his phrenological essay in 1830.5 The author of Truth, What Is It? And Opinion, What Is It Not? (1840) glossed taste as ‘that power of discriminating in the fine arts, which, when exercised upon morals, we call judgment; and when acting upon ordinary life, is called good sense’.6 The critic John Ruskin, in Modern Painters (1843), whilst identifying judgments of congruity, truth, justice, difficulty and excellence, stated that ‘all these exertions of the intellect are totally distinct from taste, properly so called, which is the instinctive and instant preferring of one material object to another without any obvious reason, except that it is proper to human nature in its perfection so to do’.7 While the Art-Journal described taste as a ‘species of judgment’ in 1851, a writer in The Athenaeum in 1865 referred to ‘that power of judgment which is called good taste’.8 Artistic judgment was ‘delicacy’ and correctness of taste in William Minto’s Manual of English Prose Literature (1872).9 Short paragraphs offered the distinction between judgment and taste in such lower-middle-class and middle-class magazines as La Belle Assemblée, Reynolds’s Miscellany and Bow Bells between the 1830s and 1860s.10 The Fine Arts’ Journal’s comment in 1847 on uneducated criticism (characterized as ‘assertion of mere individuality in perception’) suggested subtle distinctions between aesthetic responses even as it emphasized heterogeneity. The ‘vast sum of conflicting assertion’, might be described modestly under the ‘unassuming appellation of opinion’, or ‘challenges dispute under the arrogant title of judgment’, or ‘successfully appeals against analysis under the incomprehensible denomination of taste’.11 But early nineteenth-century discussion of art privileged the operation of one’s own taste and judgment as educated men in art-making, art criticism and in the connoisseur’s collection. The assumptions about women’s capacity for aesthetic judgment are discussed in the final section of this chapter.

The institutions, organs and public figures in art judgment Like those judgments and judges in the legal sphere, judgment in art required recognized institutions, in this case private bodies such as the Royal Academy (established in 1768, see Figure 9.1) or the British Institution for Promoting the Fine Arts in the United Kingdom, in Pall Mall (established 1805), existing for the ‘improvement of national judgment’.12 The Royal Academy was ‘the publicly recognised body to give judgment on all matters relating to Art that may be referred to it’ – though its preeminence would be challenged, and was certainly reduced by the late-Victorian period.13 Other bodies in the provinces and constituent nations of the United Kingdom accorded a similar role included the Liverpool Society for the Fine Arts (formed in 1858) designed to ‘promote sound judgment in Art, by lectures and otherwise’.14 It also required regular public events such as exhibitions, critical reviews in specialist journals for the arts and general press reports. Contemporaries identified

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Figure 9.1 ‘The Great Room of the Royal Academy’, Illustrated London News, 20 May 1843, p. 8. Source: Image courtesy of the University of Plymouth.

an ‘age of criticism’ in literary and artistic affairs as professional critics appeared in general, highbrow and specialist periodicals for the middle class.15 With notices of exhibitions or artworks in the monthlies, dailies and weeklies, by the 1820s it was observed, ‘there is now scarcely a paper or magazine that is not teeming with strictures on art and artists’.16 By the end of the century, a minority of writers could earn a living as critics and had adopted a language of criticism which excluded the general public.17 Judgment was needed because of the increasing volume of British and continental European art produced (and exhibited and reproduced). As Teukolsky notes, ‘the British were some of the leading Western art consumers, especially as the influx of industrial cash created a new class of purchasers eager to build up cultural capital’ and in this free market for modern works the critics’ assessments provided a measure of worth.18 Judgment was identified as important for the health of British art. Connoisseurs, so the theory went, raised artists’ status through exercising their taste and judgment and passing verdicts on schools of art.19 Criticism was central to art judgment. Professional critics pronounced on art by pointing out amongst other things, artists’ errors of judgment or achievements, but their own competency as critics was judged, and not only when they resisted judgment and offered mere description (although before photographic reproduction ekphrasis was an important critical function).20

Operation and representation of art judgment 201 The Victorian art critic whose fame, if not judgment, has most endured, is John Ruskin. Famously, the trial for libel brought by James Abbott McNeill Whistler in November 1878 involved Ruskin’s judgment on Whistler’s impressionism being judged by the law (see Figure 9.2).21 ‘But the Bench of honourable Criticism is as truly a Seat of Judgment as that of Law itself’, Ruskin commented, in response.22 Dowling suggests the idea that haunted Ruskin all his life was ‘the idea of the law’. Ruskin argued he was right, not that it was fair comment that could be shared by other competent judges. Adam Parkes, in his essay on Whistler and Ruskin, offers a telling quotation from Henry James’s ‘Italian Hours’ (1878) that, instead of a ‘garden of delight’, Ruskin finds a ‘sort of assize court in perpetual session. Rather than a place in which human responsibilities are lightened and suspended, he finds a region governed by a kind of Draconic legislation’. Parkes argues for a connection between Ruskin’s earlier ‘attempts to explicate the laws of perception and interpretation’ and his later social criticism.23

Figure 9.2 Linley Sambourne, ‘An Appeal to the Law’, Punch, 7 December 1878, p. 253. Source: Image courtesy of the University of Plymouth.

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Judgment appears in many forms in Ruskin’s writings. Prefacing the second edition (1844) of the first volume of his early work of art theory, Modern Painters, he described as ‘infant’ judgment an interest in finish and ‘specific character’; identified concern with effect and impetuosity in execution as the next stage, and becoming ‘perfected in judgment’ as a return to interest in detail. In the second volume of The Stones of Venice (1853) he spoke of the ‘law’ of human judgment being ‘mercy’ and in volume one (1851; in appendix 15) referred to rapid or instinctive judgments, ‘We ought to be able to tell a good painting by a side glance as we pass along a gallery’. Until this was possible, ‘we are not fit to pronounce judgment at all’. Not that this ‘easily visible excellence of painting’, he added, was to be classed with the ‘great expressional qualities which time and watchfulness only unfold’.24 Ruskin called the ability to determine value ‘art-capacity’ or ‘art-judgment’.25 He believed that the upper and middle classes lacked ‘enlightened judgment’ but, a superb draughtsman himself, argued that this critical ability only came with the ‘discipline of the hand: no man ever was a thorough judge of painting who could not draw’.26 To judge the works of a great artist, experimentally one should know ‘many and abstruse facts’ as an observer. An ‘approving judgment’ was the recognition of these facts.27 ‘We are not to approach them to be pleased’, he wrote of the works of his hero J.M.W. Turner, ‘but to be taught: not to form a judgment but to receive a lesson’.28 Ruskin’s status as chief art censor of the mid-Victorian age (‘our great PreRaphaelite Instructor’)29 was not attained without controversy. The Athenaeum’s splenetic review of 1859 declared that he could never become the ‘real Justinian or even Blackstone of English Art’.30 But elsewhere we see him described as the Luther of an artistic Reformation, ‘asserter of that individualism which is to art what private judgment is in theology’.31 That religious sectarian allusion can be pursued further back in British discourse by noting the comment of 1719 by Jonathan Richardson that ‘we are all Connoisseurs as we are Protestants’.32 But stimuli to individualism might be found elsewhere. Teukolsky also relates late eighteenth-century public discourse of art to a ‘growing emphasis on private values and personal judgment associated with the practice of “virtuous” capitalism’, whilst Dowling associates individual judgment with a ‘Whig aesthetic tradition’.33 Ruskin’s reputation as art theorist was unrivalled in nineteenth-century Britain but those interested in theories of artistic judgment could study, as Ruskin did not, continental theorists such as Immanuel Kant (Kritik der Urteilskraft, Critique of Judgment, 1790), Max Schasler (whose Aesthetik als Philosophie des Schönen und der Kunst was published in Berlin in 1872, and which presented categories of judgment in feelings, intellect and reason), and Hippolyte Taine (professor of aesthetics and art history at the École des Beaux Arts in Paris), whose lectures were translated as Philosophy of Art (1865). In Taine’s work, according to the Art-Journal in 1866, a ‘scientific’ or experimental method was attempted in art judgment, to free the art student from mere sentiment and metaphysical criteria, ‘as it dictates no standard of judgment, so it promotes a spirit of charity, a kind of cosmopolitan regard, for works of every class and school’. ‘This will’,

Operation and representation of art judgment 203 commented the reviewer, touching on a central problem for aesthetic judgment, ‘in all probability, be considered to evince more liberality of feeling than soundness of judgment or arguing for truth, if there is really any truth in Art’.34 There were other ways in which to conceive of art judgment beyond modern institutions and critics, such as the patron or purchaser’s judgment. If British art was depressed or debased, an assessment often delivered through the century, it was because of such factors as the buyer’s ‘want of sound taste and judgment’.35 Ancient art also acted as a ‘judgment upon the living’ in museums.36 Education would improve judgment. Early nineteenth-century commentators (inheritors of an aristocratic art-writing tradition) argued for taste matured by travel, alongside education, study and experience. Victorian reformers of fine arts and applied arts sought a more socially extensive ‘sound’ judgment through classes, journalism and exhibitions. Thus the International Exhibition of 1862 was described as a school where manufacturer, artisan and workman would increase their skill, mature their judgment and improve their taste. But reformers disagreed on the form of education required.37

Art judgment and the artist’s judgment in nineteenth-century art criticism Search through the pages of Magazine of the Fine Arts in the 1820s, The ArtJournal from the 1840s to the 1870s, The Fine Arts Quarterly in the 1860s, and other highbrow periodicals, and one finds judgment qualified through adjectives as artistic, intuitive, correcting, professional, critical, sound, accurate, discriminating, refined, consummate, matured, best, cultivated, enlightened, elevated, independent, sober, impartial and unprejudiced; or negatively as hasty, partial, erroneous, severe and hostile (and neutrally, perhaps, as silent, deferred or suspended).38 Commentary on art criticism turned to courts of law for metaphors and similes.39 The Magazine of the Fine Arts in 1821 suggested ‘the duty of a judge is not merely to pass sentence, but to decide agreeably to the merits of the case’. Those ‘invested with judicial authority, usually deliver with their decrees a statement of the reasons on which they are founded; a practice which generally serves to prove that they have, at least, endeavoured to comprehend the matter in question’. When decisions were just, ‘the grounds of them furnish maxims for the regulation of future determinations’. When they were erroneous, ‘there is commonly some defect in their reasoning, which being thus disclosed to the party injured and to the world, leads to appeal and ultimate redress’.40 The art critic, according to this commentator, was more philosophical than judicial: not (at least before the work of John Ruskin) the deliverer of ‘absolute sentence pronounced’ or dogmatic opinions.41 For the weekly Somerset House Gazette in 1824, reviewing works in the gallery of the British Institution, the important task was to notice the ‘promising and meritorious’ in the works of rising artists and ‘lead the attention of those who have yet to learn how to judge of a picture, to appreciate what is good’. Exposing bad art was a public duty which would curb abuse of patronage, ‘and the general

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interests of taste can only be ultimately promoted by those who assume the censor’s chair, expounding the established law, to the best of their judgment, in truth and justice’.42 Indeed ‘criticism being in short a process of trial and judgment, [is] applied to everything belonging to artistic effort’, according to one authority on architecture at the Royal Institute of British Architects in 1869.43 Judgment was exercised in producing art. The periodicals of the art press expressed commonplace assumptions about worthy art: it required judgment combined with care, skill, feeling and enterprise.44 Judgment (and taste) in the artist might be ‘tantamount’ to inventive genius.45 Artists were judged according to whether they did ‘justice’ to themselves, their subjects and the public.46 The supposed sensitivity of artists was linked to their dependence on the ‘public judgment’ (see Figure 9.3).47 The Academy’s judgment through the selection of paintings for annual summer exhibition was the most widely reviewed site for art judgment in the general press. As Richard Redgrave RA commented in 1866, ‘the first endeavour of the hanging committee is to do justice according to their best judgment’.48 But what if the judgment expressed was partial? The judgments of a clique were deplored by the Gentleman’s Magazine in 1869 using a historic example of executive tyranny: ‘There should be no Star Chamber in the realm of art – the hanging committee should not be so many masked inquisitors sitting in secret judgment upon their brother artists’.49 Mechanisms to ensure justice during this important annual judgment were frequently discussed. The Whig government’s interest in art and design education for the people, and the constitution of the Royal Academy, and the hostility of critics such as Benjamin Haydon towards the ‘aristocratic’ institution led to parliamentary inquiries in 1835–1836, with the following exchange reported: ‘But the persons who hang the pictures, and the persons who criticise the hanging of the pictures, and the persons who judge finally of the correct decision of the hanging committee, are all academicians? – To be sure it is impossible it should be otherwise’.50 In 1863, stimulated by the problem of its shared space with the National Gallery and renewed criticism of the private institution by parliamentary radicals, a Royal Commission investigated the Academy, and inquired about academicians’ views on the ‘infusion of lay element’ or ‘non-professional observer’, sitting in judgment or in ‘tribunal’ on their work. The Irish artist Daniel Maclise was asked by the Scottish peer Lord Elcho, ‘is it not to the cultivated taste of the public that the artist addresses himself and not to the judgment of his brother artists’?51 The Commission’s report included comments from eminent figures such as Sir Charles Eastlake (president of the Academy), who admitted, ‘It sometimes happens that men of very good judgment do not even practice their particular art, they may have retired from the art and have never cared to belong to a body like the Academy’.52 And after retirement, there was that ‘judgment of posterity’ on British artists (offering ‘belated’, ‘delayed’ or ‘posthumous’ judgment – as reputation, estimation or critical consensus), with that development of art history as a discipline in Britain which I have no space to study here.53

Figure 9.3 H.G. Hine, ‘Punch’s Pencillings. – No. XLVII. Social Miseries. – No.10’, Punch, July–December 1842, p. 35. Source: Image courtesy of the University of Plymouth.

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Debates in art judgment One of the key questions in art criticism, as we have just seen, was: who was best placed to judge art? Should it be painters, the public or those who had made it their specialism to study art (modern art, historical art and art theory)? This was debated in the pages of periodicals devoted to the fine arts, in the leading middle-class periodicals, in books and pamphlets on art education and in the evidence presented to the Royal Commission which investigated the Academy in 1863. The sense of art judgment as limited to the expert practitioner is expressed by various commentators. Discussing the sixteenth-century Italian artist Giorgio Vasari, the seventeenth-century French artist Charles Alphonse Du Fresnoy and Sir Joshua Reynolds as critics, the Oxford don Henry Kett argued in a work designed for undergraduates and schoolboys in 1802, for critics with ‘the singular merit of teaching that art in which they were themselves distinguished’ and whose works exemplified and illustrated the rules they spoke of. Knowing from experience the difficulties to achieve excellence their criticism was ‘considerate, generous, and candid’. Kett used judicial metaphor when he asserted that ‘they deserve the earnest attention of the public, when they preside at the tribunal of taste, and pass sentence upon the works of literature and the arts’.54 The public’s power of artistic judgment was, unsurprisingly, discussed by artist-writers openly and anonymously when contributing to art journals. For the Irish artist Martin Archer Shee (president of the Royal Academy from 1830) in 1809, it was ‘the final and impartial tribunal of Taste’ (and Shee also used the legal metaphor of the ‘awful bar’).55 Kett and Shee’s art-appreciating public greatly expanded in the course of the century, through the creation of national institutions, art education and reproductions; commentators were fascinated with the way this public viewed art.56 An imaginary dialogue between artists in the Fine Arts Quarterly in 1866, on the value of the ‘direct judgment of the people’ – was it advantageous or conceited and careless – indicated that the public’s role in art judgment remained problematic.57 ‘Indeed’, W.F. Rae decided in 1867, ‘there is no escape from the conclusion that to the judgment of the general public the artist must ultimately appeal’.58 In the field of applied arts, the designer Christopher Dresser maintained in 1872 that the public lacked competence to judge whether a design was good or bad. Just as he would trust to the better judgment of a lawyer or physician, ‘so he believed artists ought to demand of the public the same deference, having devoted their whole life-time to the study of a particular matter’.59 Whistler would ridicule Ruskin as the ‘Peter Parley of painting’ and condemn the garrulous but accomplished littérateurs in his pamphlet Whistler v. Ruskin: Art and Art Critics (1878).60 One critique of public art criticism in the newspapers was that this was the glibness of the literary man: ‘able, versatile, brilliant, enchanting writers but writers only’ (in the words of one commentator on criticism in ‘art architecture’).61 But if art judgment was to become more penetrating, what sort of education was required? One aspect to the problem was environmental:

Operation and representation of art judgment 207 surrounded by bad art (whether fine arts or the design of ‘art manufactures’) one’s judgment was impaired. The Art-Journal in 1849 was concerned about impressions made ‘before the judgment is sufficiently ripened’.62 If those privileged enough to be brought up amid good art were advantaged, then the class dimension to what counted for critics as ‘sound’ judgment is obvious. Hugh Blair, professor of rhetoric and belles lettres at Edinburgh, had commented in 1783: ‘When we refer to the concurring sentiments of men as the ultimate standard of taste, or of what is to be accounted beautiful in the arts, this is to be always understood of men placed in such situations as are favorable to exertions of taste’.63 One writer in the Somerset House Gazette in 1824 gestured to ‘that knowledge which every well-educated gentleman is expected in some degree to possess; namely, some of the leading principles on which to found a judgment on works of art’.64 Until the 1840s the opportunities for the British public to view (and judge) high art without the payment of an entrance fee were limited. Henry Matthews (an acquaintance of Lord Byron, and later advocate fiscal of Ceylon) argued in 1817 that a ‘cant of criticism and the dogmatism of assumed knowledge’ would confine judgment on art only to those ‘duly initiated in the mysteries of vertu; whereas it seems to me, that it is with painting and sculpture – as Johnson has pronounced it be with poetry – it is by the common sense of mankind, after all, that the claims to excellence must finally be decided’.65 A qualified approval of public judgment, at one remove as it were, was expressed by the Fine Arts Journal in 1847. After asserting that of all subjects it was in art that the ‘true knower’ was least able to ‘communicate the reason for his judgment’, and that the ‘multitude’ were not yet prepared to judge correctly (‘at the best of periods, true criticism was only the endowment of a few’), the journal suggested there was ‘a considerable number in a condition to judge of judgments, and to recognise excellence when it is pointed out to them’.66 Another debate was over certainty and unanimity in art judgment. This was a hopeless ambition according to a writer in the Fortnightly Review, studying the differing verdicts of John Ruskin and the artist Charles Robert Leslie on the painter John Constable, in 1866.67 The critic Sidney Colvin, elected Slade Professor of Fine Arts at Cambridge in January 1873, shared his thoughts with an audience at the Royal Institution (devoted to science) in Albermarle Street in May 1873 on ‘the limits of certainty in taste, or in artistic judgment’. He contrasted art judgment with the exactness, certainty and agreement in judgment of the physical sciences.68 Whistler scorned the public view on art judgment in 1878, ‘that it should be based upon laws as rigid and defined as those of the known sciences, is a supposition no longer to be tolerated by modern cultivation’.69 Lady Eastlake’s comment that artworks ‘must be treated as organic remains, subservient to some prevailing law, which it is the critic’s task to find out and classify by a life of observation and comparison’ in 1854 had been prefaced by the assertion that ‘education of the professed critic in art is essentially the same as that of the student in the exact sciences. Nothing is left to feeling, predilection, or wish – his stand must be taken upon a slowly gathered accumulation of facts, each one resting securely on that beneath it’.70

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Women’s art judgment Justice and judgment were personified in feminine form in European art from classical and mediaeval times. But what was the gendered nature of art judgment, as opposed to the representation of judgment in art, in our period? Briefly, I turn now to the feminine capacity to judge art, as debated in Victorian commentary on art criticism. The critics and artists who have so far been discussed were men: women’s cultural role had been defined in the eighteenth century in terms of ‘beauty’ rather than their ability to engage in aesthetic judgment.71 Historians of art criticism have restored to the canon of art history the work of such figures as Anna Jameson (1794–1860), Elizabeth Rigby (1809–1893, Lady Eastlake) and Emilia Pattison (1840–1904, Lady Dilke). They established reputations as authorities in a society which saw female intellect in general as second rate. Pamela Nunn has emphasized the benefits of their class status but also their ‘undeniable’ achievement.72 Jameson’s writings on art galleries have been characterized as presenting these places as ‘potential havens of . . . independent judgment for women’.73 Her Handbook to the Public Galleries of Art, included lines from Alexander Pope, ‘You then, whose judgment the right course would steer, | Know well each artist’s proper character, | His fable, subject, scope, – | Religion, country, genius of his age: | Without all these at once before your eyes, | Cavil you may, but never criticise’.74 Jameson reflected on critics’ contrasting opinions, such differences, ‘however embarrassing, are intelligible: but is it not astonishing when candid men differ from each other about a visible fact, such as the attitude of a figure, or the expression of a face? The educated eye and judgment must here look out and decide for themselves’.75 In The Diary of an Ennuyée (1836) Jameson declaring herself ‘no connaisseur [sic]’, had claimed it would have been a misfortune not to have fixed principles of taste and criticism to guide her judgment, ‘some nomenclature by which to express certain effects, peculiarities and excellencies which I felt, rather than understood’, if her own ignorance ‘had not afforded considerable amusement to myself, and perhaps to others’. She compared her ‘own unassisted judgment and natural feelings’ with ‘profound critics and connaisseurs’: the comparison could be pleasing as well as ‘mortifying’.76 To be a ‘ready-made connaisseur’, was to reduce the possibilities ‘as if the circle of enjoyment contracted round us, in proportion as our sense of beauty became more intense and exquisite’. We have the view of women guided too much by ‘sensibilities’ in Jameson’s observation that they ‘exercise their feelings when they fancy they are exercising their judgment’.77 Her Romance of Biography (1837) quoted Jonathan Swift’s Cadenus and Vanessa, ‘For manly bosoms chiefly fit, – | The seeds of knowledge, judgment, wit’.78 Yet she advocated knowledge of the fine arts as part of the education of young women.79 Lady Eastlake’s diary of 1840 included the reflection: ‘Esteem or contempt is involuntary: judgment is controllable – and that is why the Scriptures, which prescribe nothing against the system of Nature, say “Judge not”’. Elsewhere she commented, ‘Why do men invariably judge better than women? Simply because

Operation and representation of art judgment 209 their feelings have less interference. With us, our feelings too often make the worse appear the better cause’. Yet Eastlake presented her art criticism as more objective than Ruskin’s.80 Judgment in art was not seen as exclusively a male attribute. A review of English Women of Letters, in the Art-Journal in 1862, spoke of Julia Kavanagh possessing ‘much of the judgment supposed to belong exclusively to man’. Jameson’s ‘clear judgment’ was praised by the Fine Arts Quarterly in 1866.81 But men often derided women’s opinions on the pretext that they lacked the mental qualities of reasoning, and the objectivity, to form judgments.82 After rejecting the notion that women lacked innate powers of judgment, ‘F.C.’, in The Ladies’ Companion in 1850 emphasized the importance of women possessing art judgment, as they mediated between the feeling artist and the judging patron, as the ‘being framed by nature to feel with the Artist’. It was strange ‘that a decided and original judgment on the part of Woman, in all that relates to the fine Arts, should be considered a thing almost out of the question’, yet ‘a superior susceptibility of being affected by the touching and beautiful is a quality engrafted into her very nature, one that more particularly fits her to appreciate the highest intellectual truth of Art’. Indeed, why look elsewhere for ‘the source of a move for the regeneration of Art-feeling?’83 For this author, the ‘electric influence of [female] sympathies’ operated on those whose ‘lot is to judge and act’. In the final two decades of the nineteenth century there were more opportunities for women to make careers in journalism, as studied by Meaghan Clarke.84 In 1881 the ‘London correspondent’ of the Morpeth Herald commented that ‘lady art critics . . . may be seen on the press day at the Royal academy every year in increasing force’, and the ‘London correspondent’ of the Sheffield Daily Telegraph informed readers of the ‘great increase in the number of lady art critics. Seemingly the pictures are criticized in half of the papers in the country by matrons or young girls’.85 The American art critic Elizabeth Pennell commented in 1890 on the ‘many’ women who were art critics at London exhibitions.86 Emily Crawford’s Contemporary Review essay on journalism as a female profession in 1893 asserted that despite faults in taste and judgment by second-rate and thirdrate writers, women could be better at this work then men (though art journalism was not specified).87 The Art-Journal in 1892 accepted the ‘critical instinct’ in women and conceded ‘several of the most admirable writers on Art during recent years have been, and are, highly cultivated women’.88 Whether they were seeing more works by women is a moot point: the Pall Mall Gazette claimed in 1894 that ‘The Academy receives, judges, and hangs their work with no different or more indulgent judgment and hanging than is given to the works of men’.89

Conclusion Although the nineteenth-century art critic sat in judgment and pronounced his or her ‘verdict’, and, as this vocabulary suggests, took figurative language from the judicial world, ‘art judgment’ followed no laws. Efforts had been made in Western

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culture to establish the principles or criteria for excellence, what Coleridge in 1817 had called ‘fixed canons of criticism, previously established and deduced from the nature of man’.90 But despite the ‘jurisdiction’ and law-making offered by the specialist, professional or otherwise ‘expert’ critics (communicating using an increasingly esoteric vocabulary of art criticism),91 the critics of British art criticism might see the whole enterprise – as one passing comment phrased it in 1862 – as a ‘labyrinth of wild guesses’.92 How ironic that this anonymous writer’s metaphor for the failure of aesthetic judgment referred to a form that came to fascinate that most famous of Victorian judges on art, Ruskin.93

Notes 1 The ‘faculty of selecting that which is most suitable to the purpose’, W.T. Brande and G.W. Cox, A Dictionary of Science, Literature, & Art, 3 vols (London: Longmans, Green, 1872), vol. 2, p. 269. Modern ideas about art and judgment include M. O’Brian and J. Kohnsary, eds., Judgment and Contemporary Art Criticism (Vancouver: Fillip, 2010); J. Nowak, ‘Judgment, Justice and Art Criticism’, Contemporary Aesthetics 10 (2012), https://digitalcommons.risd.edu/liberalarts_contempaesthetics/vol10/iss1/5/ [Accessed 5 June 2016]. 2 For essays in the non-art press, see ‘H’, ‘On Judgment in the Fine Arts’, Hibernia Magazine and Dublin Monthly Panorama 3 (May 1811), pp. 269–272; ‘W.S.K.’, ‘On the Method of Forming a Correct Judgment of Productions in the Fine Arts’, Newcastle Magazine 3:7 (July 1824), pp. 337–339. For alternative sites for criticism such as private letters, see P.G. Nunn, ‘Critically Speaking’, in Women in the Victorian Art World, ed. by C.C. Orr (Manchester: Manchester University Press, 1995), p. 110. 3 E. Prettejohn, ‘Aesthetic Value and the Professionalization of Victorian Art Criticism 1837–78’, Journal of Victorian Culture 2:1 (1997), pp. 71–94, from which the quotation, p. 71; E. Prettejohn, ‘Morality Versus Aesthetics in Critical Interpretations of Frederic Leighton, 1855–75’, Burlington Magazine 138:115 (February 1996), pp. 79–86. Rachel Teukolsky argues for the emergence at mid-century of a ‘detached looking [which] made formalism a mainstream interpretative mode of the art establishment at mid-century’ following the Crystal Palace and scientific classification and display, The Literate Eye: Victorian Art Writing and Modernist Aesthetics (Oxford: Oxford University Press, 2009), pp. 66–67, but denies this was necessarily avant garde. 4 See R.W. Jones, Gender and the Formation of Taste in Eighteenth-Century Britain: The Analysis of Beauty (Cambridge: Cambridge University Press, 1998); G. Dickie, The Century of Taste: The Philosophical Odyssey of Taste in the Eighteenth Century (New York: Oxford University Press, 1996), for example, the Scottish philosopher Alexander Gerard on judgment as precondition for taste, p. 49. 5 R. Chenevix, Phrenology: Article of the Foreign Quarterly Review (London: Treuttel, Würtz, Richter, 1830). 6 Anonymous, Truth, What Is It? And Opinion, What Is It Not? (Edinburgh: Fletcher, 1840), p. 31. 7 J. Ruskin, Modern Painters: Their Superiority in the Art of Landscape Painting to All the Ancient Masters Proved by Examples of the True, the Beautiful, and the Intellectual From the Works of Modern Artists, Especially From Those of J. M. W. Turner Esq., R.A. (1843; 2nd edition; London: Smith, Elder, 1844), p. 32. 8 Art-Journal, 1851, p. xvi; The Athenaeum, 15 July 1865, p. 88. 9 W. Minto, A Manual of English Prose Literature (London: Blackwood, 1872), p. 29. 10 La Belle Assemblée 15:85 (January 1832), p. 2; Reynolds’s Miscellany, 21 April 1866, p. 277; Bow Bells, 8 July 1868, p. 556. 11 Fine Arts’ Journal, 2 January 1847, p. 129.

Operation and representation of art judgment 211 12 Somerset House Gazette and Literary Museum, of the British Institution, 24 January 1824, p. 242. On these cultural institutions, C. Trodd, ‘Nineteenth-Century Art Institutions and Academies’, in A Companion to British Art: 1600 to the Present, ed. by D. Arnold and D.P. Corbett (Chichester: Wiley-Blackwell, 2013). 13 Art-Journal, 1 October 1853, p. 265, in an article on the report of the parliamentary committee on the National Gallery, and in reference to the National Gallery. 14 Art-Journal, 1 August 1858, p. 244. 15 The age of criticism is linked to the growth of serious periodical reviewing and the reputation of reviewers such as Thomas Carlyle. As an age of criticism where the ‘unquestioned arbiters of all cotemporary fame’ were critics (in literature) see ‘Alpha’, on Bulwer Lytton, Bell’s Weekly Messenger, 17 May 1835. 16 ‘Remarks on Contemporary Criticism’, Magazine of the Fine Arts 1:3 (1821), p. 166. 17 See Prettejohn, ‘Aesthetic Value’. On the status of art critics, in an era of anonymity, a point noted as one of the reasons for lack of research on British art critics in K.M. Jones, Elizabeth Robins Pennell, Nineteenth-Century Pioneer of Modern Art Criticism (London: Ashgate, 2015), p. 5, see ‘Rossetti’s Art-Criticisms’, Saturday Review, 16 May 1868, p. 663. 18 Teukolsky, The Literate Eye, p. 14. 19 See the famous critique of deferring to connoisseurs rather than expert practitioners, B.R. Haydon, ‘On the Judgment of Connoisseurs Being Preferred to that of Professional Men, – Elgin Marbles, &c’, Examiner 429 (17 March 1816), pp. 162–164. 20 ‘C.J.’, ‘Musical Criticism’, The Fine Arts Journal 1847, p. 116; on incompetence or partiality in artistic judgment, see ‘Pictures and Picture Criticism’, National Review 3 (July 1856), p. 102. 21 Ruskin’s comments on Whistler’s ‘Cockney Impudence’, Fors Clavigera, vol. 7, letter 79, 2 July 1877; is reprinted in The Library Edition of the Works of John Ruskin, eds. E.T. Cook and A. Wedderburn (London: Allen & Unwin, 1907), vol. 29, p. 160. 22 J. Ruskin, ‘My Own Article on Whistler’, MS reprinted in Library Edition of the Works of John Ruskin, vol. 29, p. 586. 23 L.C. Dowling, The Vulgarization of Art: The Victorians and Aesthetic Democracy (Charlottesville: University Press of Virginia, 1996), p. 46. A. Parkes, ‘A Sense of Justice: Whistler, Ruskin, James, Impressionism’, Victorian Studies 42:4 (Summer 1999/2000), pp. 593–629 [p. 604] for James from ‘Italian Hours’, Atlantic Monthly 41 (1878), p. 591, on connections between Ruskin on ‘laws of perception and interpretation’ and social criticism, p. 624, note 10. See also C. Douzinas, ‘Whistler v Ruskin: Law’s Fear of Images’, Art History 19 (1996), pp. 353–369. 24 Ruskin, Modern Painters, vol. 1, preface to 2nd edition, p. xliii; The Stones of Venice. Volume the First. The Foundations (London: Smith, Elder, 1851), appendix 15, p. 384; The Stones of Venice: Volume the Second. The Sea-Stories (London: Smith, Elder, 1853), vol. 2, ch. 6, p. 171 (on mercy); The Stones of Venice, vol. 2, appendix 15, p. 43. 25 T.D. Acland, Some Account of the Origin and Objects of the New Oxford Examinations for the Title of Associate in Arts and Certificates, for 1858 (2nd edition; London: Ridgway, 1858), p. 56. 26 J. Ruskin, Cambridge School of Art. Mr. Ruskin’s Inaugural Address Delivered at Cambridge Oct. 29, 1858 (London: Bell and Daldy, 1858), p. 11. He believed modern education brought fastidiousness of choice without judgment, see Modern Painters. Volume III. Containing Part IV. Of Many Things (London: Smith, Elder, 1856), chapter 5, p. 67. On public judgment, see Modern Painters, vol. 1, part 1, chapter 1. 27 See William Dyce’s letter to Acland, Some Account of the Origin and Objects of the New Oxford Examinations, p. 47 (Dyce) and p. 56 (Ruskin). 28 See the comment on this (Modern Painters, 2nd edition of vol. 1, section 6, chapter 3, p. 423), in a review, Monthly Magazine 97 (January–June 1843), p. 480: ‘If this may sound idolatrous, it is only that noble homage which a pure and lofty spirit pays to the truly great both in Nature and Art, knowing that each are emanations of the Eternal’.

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29 The description in The Royal Academy Review, A Guide to the Exhibition of the Royal Academy of Arts, By the Council of Four (London: Day, 1858), p. iv – the periodical was highly critical of the Academy as ‘a despotic clique’. 30 The Athenaeum, 28 May 1859, p. 704. 31 [George Richmond] ‘Pictures and Picture Criticism’, The National Review, July 1856, pp. 80–106 [p. 93]. Ruskin’s reputation as immoderate and lacking judgment may be seen through reviews, for example, Edinburgh Monthly, June 1854, p. 753, reviewing Ruskin’s Lectures on Architecture and Painting, Delivered at Edinburgh in November 1853; for a sense of impartiality, yet acknowledged prejudice, D.C. Thomson, ‘Mr Ruskin as Art Critics’, Art-Journal, November 1879, pp. 225–228 [p. 228]. 32 Jones, Gender and the Formation of Taste, p. 40, quoting Richardson’s second discourse in Two Discourses: I. An Essay on the Whole Art of Criticism, as it Relates to Painting Shewing how to judge 1. Of the Goodness of a Pictire; II. Of the Hand of the Master; and III. Whether ’tis an Original, or a Copy. II. An Argument in Behalf of the Science of a Connoisseur; Wherein is Shewn the Dignity, Certainty, Pleasure, and Advantage of It (London: Churchill, 1719), p.231; critical judgment being related to the ‘ideal of Protestant independence’, in Jones’s words. 33 Teukolsky, The Literate Eye, p. 12; Dowling, The Vulgarization of Art, p. 14, and the ‘common judgment of ordinary people and its optimistic faith that such judgment communicated at some level with a realm of transcendental value’ (p. 46). 34 On Kant’s nineteenth-century reception see ‘Retrospect of German Literature’, Monthly Magazine, 28 July 1804, pp. 669–670, on Kantian texts popularizing or extracting Kritik der Urtheilskraft; and Victor Cousin’s The Philosophy of Kant: Lectures (London: Chapman and Hall, 1854). As Dickie notes, The Century of Taste, p. 85, on Kant writing about taste, this is ‘notoriously difficult to understand’. On reception of European ideas about art judgment before Kant, see ‘On the Importance of the Public Judgment. From Count Algarotti’s Essay on Painting’, The Town and Country Magazine 11 (July 1779), p. 352. On Shasler, Art-Journal, 1 July 1872, p. 211. On Taine, Art-Journal, 1 April 1866, p. 127. See H. Taine, The Philosophy of Art, transl. by J. Durand (London: Baillière, 1865); and M.G. Morton, ‘Art History on the Academic Fringe. Taine’s Philosophy of Art’, in Art History and Its Institutions: Foundations of a Discipline, ed. by E. Mansfield (London: Routledge, 2002), ch.13. 35 Art-Journal, December 1873, p. 380. 36 Art-Journal, 1 February 1862, p. 36. 37 ‘Notabilia of the International Exhibition’, Art-Journal, 1 August 1862, p. 161. 38 For ‘correcting’ judgment, see the Slade Professor, M.D. Wyatt, Fine Art: A Sketch of Its Theory, Practice and Application (London: Palgrave Macmillan, 1870), p. 2. 39 On the relationship between legal and aesthetic pronouncement, see introduction in C. Douzinas and L. Nead, eds., Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago: University of Chicago Press, 1999). 40 ‘Remarks on Contemporary Criticism’, Magazine of the Fine Arts 1:3 (1821), p. 161. 41 On legal and art critical judgment, in the context of the Whistler v Ruskin trial, see Linda Merrill’s observation, ‘the popular press is as inappropriate a place for transmitting aesthetic theory as the courtroom is for expounding it’, quoted in Parkes, ‘A Sense of Justice’, p. 594. 42 Somerset House Gazette, and Literary Museum, 21 (28 February 1824), p. 329. 43 Professor Kerr, responding to E.I. Bell, ‘On the Criticism of Architecture’, Sessional Papers of the RIBA, 1869, pp. 157–158. It would be interesting to see how many art critics trained in the law: Joseph Comyns Carr did in the 1870s, see Prettejohn, ‘Aesthetic Value and the Professionalization of Victorian Art Criticism’, p. 79. 44 On ‘feeling’ and judgment, see Jones, Gender and the Formation of Taste, p. 97. 45 Art-Journal, 1 February 1858, p. 57. 46 J. Carnegie, Britain’s Art Paradise; Or, Notes on Some Pictures in the Royal Academy (Edinburgh: Edmonston and Douglas, 1871), p. 231.

Operation and representation of art judgment 213 47 ‘The Royal Pictures’, Art-Journal, 1 March 1858, p. 92. 48 R. Redgrave, A Century of Painters of the English School; With Critical Notices of Their Works and an Account of the Progress of Art in England, 2 vols (London: Smith, Elder, 1866), vol. 2, p. 267, cited in Fine Arts Quarterly, January–June 1867, p. 85. 49 W. Maynard, ‘At the Academy’, Gentleman’s Magazine, June 1869, p. 70. Another aspect of the council of selection’s judgment was the taste in display, see ‘A Lover of Arts’, Morning Post, 28 May 1857. For judgment under pressure or by coterie, see Pall Mall Gazette, 27 November 1878 during the Ruskin libel trial in November 1878: ‘But for the few critics who still retain their independence of judgment the public would be at the mercy of the “mutual admiration societies”’. 50 M.A. Shee, The Life of Sir Martin Archer Shee: President of the Royal Academy, F.R.S., D.C.L., 2 vols (London: Longmans, Green, Longmans and Roberts, 1860), vol. 2, appendix B, p. 364. See H. Hoock, The King’s Artists: The Royal Academy of Arts and the Politics of British Culture 1760–1840 (Oxford: Clarendon Press, 2003); M. Stevens, ‘The Royal Academy in the Age of Queen Victoria’, in Art in the Age of Queen Victoria: Treasures From the Royal Academy of Arts Permanent Collection, ed. by H. Valentine (New Haven: Yale University Press, 1999). 51 Report of the Commissioners Appointed to Inquire Into the Present Position of the Royal Academy in Relation to the Fine Arts; Together With the Minutes of Evidence (London: Eyre and Spottiswoode, 1863), 6 March 1863, p. 158. On this Commission, see G. Fyfe, Art, Power and Modernity: English Art Institutions, 1750–1950 (London: Leicester University Press, 2000), pp. 92–93. 52 Report of the Commissioners Appointed to Inquire Into the Present Position of the Royal Academy, 13 February 1863, p. 23. 53 See Mansfield, ed., Art History and Its Institutions which asserts (introduction, p. 2) the discipline’s ‘formation as a distinct professional or academic discipline’, during the century; H. Fraser, Women Writing Art History in the Nineteenth Century: Looking Like a Woman (Cambridge: Cambridge University Press, 2014). 54 H. Kett, Elements of General Knowledge: Introductory to Useful Books in the Principal Branches of Literature and Science. With Lists of the Most Approved Authors; Including the Best Editions of the Classics. Designed Chiefly for the Junior Students in the Universities, and the Higher Classes in Schools, 2 vols (4th edn.; London: Rivington, 1803), vol. 2, p. 113. 55 M.A. Shee, Elements of Art: A Poem; in Six Cantos; With Notes and a Preface; Including Strictures on the State of the Arts, Criticism, Patronage, and Public Taste (London: W. Miller, 1809), p. 13. On the ‘awful bar’, p. 329. 56 See J. Stoddart, ‘Tracking the Sentimental Eye’, ch.9 in Knowing the Past: Victorian Literature and Culture, ed. by S. Anger (Ithaca: Cornell University Press, 2001), pp. 197–199. 57 ‘Studio-Talk’, Fine Arts Quarterly 1 (July–October 1866), p. 182. 58 W.F. Rae, Fine Arts Quarterly 2 (January–June 1867), p. 80. 59 C. Dresser, ‘Hindrances to the Progress of Applied Art’, Journal of the Society of Arts, 12 April 1872, p. 443. 60 J.A.M. Whistler, Whistler v. Ruskin. Art & Art Critics (London: Chatto and Windus, 1878), p. 17. For his denial (shared with Ruskin) of ‘aesthetic judgment [as] a universally shared capacity’, see Dowling, The Vulgarization of Art, pp. 42–43. 61 E.I. Bell, ‘On the Criticism of Architecture’, Sessional Papers of the Royal Institute of British Architects, p. 150. 62 Art-Journal, 1 December 1849, p. 373. 63 H. Blair, Lectures on Rhetoric and Belles Lettres, 3 vols (Dublin: Whitestone, Colles, Burnet, Moncrieffe, Gilbert, 1783), vol. 1, p. 39. For reflections on class, see Teukeolsky, The Literate Eye, p. 10, on art-writing as a ‘definitive sign of class and character’ and for an earlier period, C. Haynes, Pictures and Popery: Art and Religion in England, 1660–1760 (Aldershot: Ashgate, 2006), p. 136.

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64 Somerset House Gazette, 10 January 1824, p. 218. 65 H. Matthews, Diary of an Invalid: Being the Journal of a Tour in Pursuit of Health in Portugal, Italy, Switzerland and France (1817–1818–1819) (London: J. Murray, 1820), p. 51. 66 ‘H.C.M.’, ‘The Education of an Artist Painter’, Fine Arts Journal, 27 March 1847, p. 321. On Ruskin’s change from ‘generous, Shaftesburian account of aesthetic judgment’ of Modern Painters, vol. 1, to narrower view by vol. 5, see Dowling, The Vulgarization of Art, p. 39. 67 [P.G. Hamerton], ‘Leslie’, Fortnightly Review 3:17 (15 January 1866), pp. 589–606 [p. 598]. On Ruskin compared with Constable, see Art-Journal, 1858, vol. 4, p. 199. 68 The Journal of the Royal Institution of Great Britain 7 (1873–75), pp. 144–153 (16 May 1873). 69 Whistler, Whistler v. Ruskin, p. 14. 70 ‘Treasures of Art in Britain’, Quarterly Review 94 (April 1854), p. 467, quoted in Trodd, ‘Nineteenth-Century Art Institutions and Academies’, p. 124. 71 See Jones, Gender and the Formation of Taste, p. 80 (in chapter ‘“The Art of being Pretty”: Polite taste and the judgement of women’). 72 Nunn, ‘Critically Speaking’, p. 112. 73 J. Bailkin, The Culture of Property: The Crisis of Liberalism in Modern Britain (Chicago: University of Chicago Press, 2004), p. 122. 74 A. Jameson, A Handbook to the Public Galleries of Art in and Near London: With Catalogues of the Pictures, Accompanied by Critical, Historical, and Biographical Notices, and Copious Indexes to Facilitate Preference: In Two Parts (London: J. Murray, 1842), I., p. 1. 75 Jameson, Handbook to the Public Galleries of Art, p. 25. 76 A. Jameson, The Diary of an Ennuyée (Paris: Baudry, 1836), p. 141. 77 Jameson, Diary of an Ennuyée, p. 9. 78 A. Jameson, The Romance of Biography or Memoirs of Women Loved and Celebrated by Poets (3rd edn.; London: Saunders and Otley, 1837), vol. 2, p. 256. 79 A. Jameson, ‘Some Thoughts on Art. Addressed to the Uninitiated’, Art-Journal, 1 March 1849, pp. 69–71 (p. 69). 80 Eastlake’s diary of 1840–42 (C. Eastlake Smith, ed., Journals and Correspondence of Lady Eastlake, 2 vols (London: J. Murray, 1895), vol. 1, p. 18), cited in A. Millim, The Victorian Diary: Authorship and Emotional Labour (Farnham: Ashgate, 2013), p. 61; Journals and Correspondence, vol. 1, p. 20, for her comment on women’s judgment. 81 Review of J. Kavanagh, English Women of Letters, 2 vols (London: Hurst and Blackett), Art-Journal 1862, p. 243; review of Jameson’s ‘The History of our Lord’, Fine Arts Quarterly 1 (July–October 1866), p. 134. 82 See Jones, Elizabeth Robins Pennell, p. 6 (citing Pamela Nunn). See F.T. Palgrave, ‘Women and the Fine Arts’, Macmillan’s Magazine 12 (1865), pp. 118–127 (part 1). 83 ‘F.C.’, ‘On the Appreciation of Truth in Art’, The Ladies’ Companion, 3 August 1850, ch.2: ‘Advantages of Female Influence’, p. 85. 84 M. Clarke, Critical Voices: Women and Art Criticism in Britain 1880–1905 (Aldershot: Ashgate, 2005). 85 ‘Our London Correspondent’, Morpeth Herald, 21 December 1881. 86 H. Fraser, Women Writing Art History in the Nineteenth Century: Looking Like a Woman (Cambridge: Cambridge University Press, 2014), p. 136. 87 E. Crawford, ‘Journalism as a Profession for Women’, Contemporary Review 64 (June 1893), cited by Wendelin Guentner in Guentner, ed., Women Art Critics in Nineteenthcentury France: Vanishing Acts (Lanham: University of Delaware Press, 2013), p. 259. 88 ‘Aliquis’, ‘Art-Critics of To-day’, Art-Journal, July 1892, pp. 193–197 (p. 193) with Alfred Bryan’s sketch of Lady Colin Campbell: Other women figure in his drawing ‘Press Day at the Royal Academy’, p. 195. 89 ‘The Wares of Autolycus’, Pall Mall Gazette, 12 January 1894, p. 4.

Operation and representation of art judgment 215 90 S.T. Coleridge, Biographia Literaria; Or, Biographical Sketches of My Literary Life and Opinions (London: R. Fenner, 1817), vol. 1, p. 63. 91 For complaint on opaque language see ‘The Writings of John Ruskin’, North British Review, February 1862, p. 3, on ‘popular notices of pictures in our best papers expressed in a mysterious jargon’. 92 ‘Earnest Writing’, Saturday Review, 24 May 1862, p. 584. 93 J. Hayman, ‘Towards the Labyrinth: Ruskin’s Lectures as Slade Professor of Art’, in New Approaches to Ruskin: Thirteen Essays, ed. by R. Hewison (London: Routledge and Kegan Paul, 1981), ch.7, on his evolving preoccupation with labyrinths (pp. 120–122); and J. Fellows, Ruskin’s Maze: Mastery and Madness in His Art (Princeton: Princeton University Press, 1981).

Bibliography Acland, T.D. Some Account of the Origin and Objects of the New Oxford examinations for the Title of Associate in Arts and Certificates, for 1858 (2nd edition; London: Ridgway, 1858). ‘Aliquis’, ‘Art-Critics of To-day’, Art-Journal, July 1892, pp. 193–197. ‘Alpha’, on ‘Bulwer Lytton’, Bell’s Weekly Messenger, 17 May 1835. Anonymous. ‘A Lover of Arts’, Morning Post, 28 May 1857. Anonymous. ‘Earnest Writing’, Saturday Review, 24 May 1862, p. 584. Anonymous. Edinburgh Monthly, June 1854, p. 753, reviewing Ruskin’s Lectures on Architecture and Painting, delivered at Edinburgh in November 1853. Anonymous. ‘Notabilia of the International Exhibition’, Art-Journal, 1 August 1862, p. 161. Anonymous. ‘On the Importance of the Public Judgment. From Count Algarotti’s Essay on Painting’, The Town and Country Magazine 11 (July 1779), p. 352. Anonymous. ‘Our London Correspondent’, Morpeth Herald, 21 December 1881. Anonymous. Pall Mall Gazette, 27 November 1878. Anonymous. ‘Pictures and Picture Criticism’, National Review 3 (July 1856), p. 102. Anonymous. ‘Remarks on Cotemporary Criticism’, Magazine of the Fine Arts 1:3 (1821), pp. 161–166. Anonymous. ‘Retrospect of German Literature’, Monthly Magazine, 28 July 1804, pp. 669–670. Anonymous. ‘Rossetti’s Art-Criticisms’, Saturday Review, 16 May 1868, p. 663. Anonymous. ‘Studio-Talk’, Fine Arts Quarterly 1 (July–October 1866), p. 182. Anonymous. ‘The Wares of Autolycus’, Pall Mall Gazette, 12 January 1894, p. 4. Anonymous. Review of A. Jameson’s ‘The History of Our Lord’, Fine Arts Quarterly 1 (July–October 1866), p. 134. Anonymous. Review of J. Kavanagh. English Women of Letters, 2 vols (London: Hurst and Blackett), Art-Journal, 1862, p. 243. Anonymous. Review, Monthly Magazine 97 (January–June 1843), p. 480. Anonymous, The Royal Academy Review, A Guide to the Exhibition of the Royal Academy of Arts, By the Council of Four (London: Day, 1858). Anonymous. Truth, What Is It? And Opinion, What Is It Not? (Edinburgh: Fletcher, 1840), p. 31. Anonymous. ‘The Writings of John Ruskin’, North British Review, February 1862, p. 3. Art-Journal, 1 December 1849, p. 373; 1851, p. xvi, 1 October 1853, p. 265; 1 February 1858, p. 57; 1 March 1858, p. 92;1 August 1858, p. 244; 1 February 1862, p. 36; 1 April 1866, p. 127; 1 July 1872, p. 211; December 1873, p. 380.

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The Athenaeum, 28 May 1859, p. 704; 15 July 1865, p. 88. Bailkin, J. The Culture of Property: The Crisis of Liberalism in Modern Britain (Chicago: University of Chicago Press, 2004). Bell, E.I. ‘On the Criticism of Architecture’, Sessional Papers of the RIBA, 1869, pp. 157–158. Blair, H. Lectures on Rhetoric and Belles Lettres, 3 vols (Dublin: Whitestone, Colles, Burnet, Moncrieffe, Gilbert, 1783), vol. 1. Bow Bells, 8 July 1868, p. 556. Brande, W.T. and G.W. Cox. A Dictionary of Science, Literature, & Art, 3 vols (London: Longmans, Green, 1872), vol. 2. Carnegie, J. Britain’s Art Paradise; Or, Notes on Some Pictures in the Royal Academy (Edinburgh: Edmonston and Douglas, 1871). Chenevix, R. Phrenology: Article of the Foreign Quarterly Review (London: Treuttel, Würtz, Richter, 1830). ‘C.J.’, ‘Musical Criticism’, The Fine Arts Journal, 1847, p. 116. Clarke, M. Critical Voices: Women and Art Criticism in Britain 1880–1905 (Aldershot: Ashgate, 2005). Coleridge, S.T. Biographia Literaria; Or, Biographical Sketches of My Literary Life and Opinions (London: R. Fenner, 1817), vol. 1. Cousin, V. The Philosophy of Kant: Lectures (London: Chapman and Hall, 1854). Crawford, E. ‘Journalism as a Profession for Women’, Contemporary Review 64 (June 1893). Dickie, G. The Century of Taste: The Philosophical Odyssey of Taste in the Eighteenth Century (New York: Oxford University Press, 1996). Douzinas, C. and L. Nead, eds. Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago: University of Chicago Press, 1999). Douzinas, C. ‘Whistler v. Ruskin: Law’s Fear of Images’, Art History 19 (1996), pp. 353–369. Dowling, L.C. The Vulgarization of Art: The Victorians and Aesthetic Democracy (Charlottesville: University Press of Virginia, 1996). Dresser, C. ‘Hindrances to the Progress of Applied Art’, Journal of the Society of Arts, 12 April 1872, p. 443. Eastlake Smith, C. ed. Journals and Correspondence of Lady Eastlake, 2 vols (London: J. Murray, 1895), vol. 1. ‘F.C.’ ‘On the Appreciation of Truth in Art’ (The Ladies’ Companion, 3 August 1850, ch.2: ‘Advantages of Female Influence’). Fellows, J. Ruskin’s Maze: Mastery and Madness in His Art (Princeton: Princeton University Press, 1981). Fine Arts’ Journal, 2 January 1847, p. 129. Fine Arts Quarterly, January–June 1867, p. 85. Fraser, H. Women Writing Art History in the Nineteenth Century: Looking Like a Woman (Cambridge: Cambridge University Press, 2014). Fyfe, G. Art, Power and Modernity: English Art Institutions, 1750–1950 (London: Leicester University Press, 2000). Guentner, W., ed. Women Art Critics in Nineteenth-century France: Vanishing Acts (Lanham: University of Delaware Press, 2013). ‘H’, ‘On Judgment in the Fine Arts’, Hibernia Magazine and Dublin Monthly Panorama 3 (May 1811), pp. 269–272. [Hamerton, P.G.]. ‘Leslie’, Fortnightly Review 3:17 (15 January 1866), pp. 589–606.

Operation and representation of art judgment 217 Haydon, B.R. ‘On the Judgment of Connoisseurs Being Preferred to that of Professional Men, – Elgin Marbles, &c’, Examiner 429 (17 March 1816), pp. 162–164. Hayman, J. ‘Towards the Labyrinth: Ruskin’s Lectures as Slade Professor of Art’, in New Approaches to Ruskin: Thirteen Essays, ed. by R. Hewison (London: Routledge and Kegan Paul, 1981). Haynes, C. Pictures and Popery: Art and Religion in England, 1660–1760 (Aldershot: Ashgate, 2006), p. 136. ‘H.C.M.’ ‘The Education of an Artist Painter’, Fine Arts Journal, 27 March 1847, p. 321. Hewison, R., ed. New Approaches to Ruskin: Thirteen Essays (London: Routledge and Kegan Paul, 1981). Hoock, H. The King’s Artists: The Royal Academy of Arts and the Politics of British Culture 1760–1840 (Oxford: Clarendon Press, 2003). Jameson, A. The Diary of an Ennuyée (Paris: Baudry, 1836). Jameson, A. A Handbook to the Public Galleries of Art in and Near London: With Catalogues of the Pictures, Accompanied by Critical, Historical, and Biographical Notices, and Copious Indexes to Facilitate Preference. In Two Parts (London: J. Murray, 1842), vol. I, p. 1. Jameson, A. The Romance of Biography or Memoirs of Women Loved and Celebrated By Poets (3rd edition; London: Saunders and Otley, 1837), vol. 2. Jameson, A. ‘Some Thoughts on Art. Addressed to the Uninitiated’, Art-Journal, 1 March 1849, pp. 69–71. Jones, K.M. Elizabeth Robins Pennell, Nineteenth-Century Pioneer of Modern Art Criticism (London: Ashgate, 2015). Jones, R.W. Gender and the Formation of Taste in Eighteenth-Century Britain: The Analysis of Beauty (Cambridge: Cambridge University Press, 1998). The Journal of the Royal Institution of Great Britain 7 (1873–75), pp. 144–153. Kett, H. Elements of General Knowledge: Introductory to Useful Books in the Principal Branches of Literature and Science: With Lists of the Most Approved Authors; Including the Best Editions of the Classics. Designed Chiefly for the Junior Students in the Universities, and the Higher Classes in Schools, 2 vols (4th edition; London: Rivington, 1803), vol. 2. La Belle Assemblée 15:85 (January 1832), p. 2.Matthews, H. Diary of an Invalid: Being the Journal of a Tour in Pursuit of Health in Portugal, Italy, Switzerland and France (1817–1818–1819) (London: J. Murray, 1820), p. 51. Maynard, W. ‘At the Academy’, Gentleman’s Magazine, June 1869, p. 70. Millim, A. The Victorian Diary: Authorship and Emotional Labour (Farnham: Ashgate, 2013). Minto, W. A Manual of English Prose Literature (London: Blackwood, 1872). Morton, M.G. ‘Art History on the Academic Fringe. Taine’s Philosophy of Art’, in Art History and Its Institutions: Foundations of a Discipline, ed. by E. Mansfield (London: Routledge, 2002), ch.13. Nowak, J. ‘Judgment, Justice and Art Criticism’, Contemporary Aesthetics 10 (2012), https://digitalcommons.risd.edu/liberalarts_contempaesthetics/vol10/iss1/5/ [Accessed 5 June 2016]. Nunn, P.G. ‘Critically Speaking’, in Women in the Victorian Art World, ed. by C.C. Orr (Manchester: Manchester University Press, 1995). O’Brian, M. and J. Kohnsary, eds. Judgment and Contemporary Art Criticism (Vancouver: Fillip, 2010).

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Palgrave, F.T. ‘Women and the Fine Arts’, Macmillan’s Magazine 12 (1865), pp. 118–127 (part 1). Parkes, A. ‘A Sense of Justice: Whistler, Ruskin, James, Impressionism’, Victorian Studies 42:4 (Summer 1999/2000), pp. 593–629. Prettejohn, E. ‘Aesthetic Value and the Professionalization of Victorian Art Criticism 1837–78’, Journal of Victorian Culture 2:1 (1997), pp. 71–94. Prettejohn, E. ‘Morality Versus Aesthetics in Critical Interpretations of Frederic Leighton, 1855–75’, Burlington Magazine 138:115 (February 1996), pp. 79–86. Rae, W.F. Fine Arts Quarterly 2 (January–June 1867), p. 80. Redgrave, R. A Century of Painters of the English School; with Critical Notices of Their Works and an Account of the Progress of Art in England, 2 vols (London: Smith, Elder, 1866), vol.2. Report of the Commissioners Appointed to Inquire Into the Present Position of the Royal Academy in Relation to the Fine Arts; Together With the Minutes of Evidence (London: Eyre and Spottiswoode, 1863). Reynolds’s Miscellany, 21 April 1866, p. 277. Richardson, J. Two Discourses: I. An Essay on the Whole Art of Criticism, as it Relates to Painting Shewing how to judge 1. Of the Goodness of a Pictire; II. Of the Hand of the Master; and III. Whether ’tis an Original, or a Copy. II. An Argument in Behalf of the Science of a Connoisseur; Wherein is Shewn the Dignity, Certainty, Pleasure, and Advantage of it (London: Churchill, 1719). [Richmond, G.] ‘Pictures and Picture Criticism’, The National Review, July 1856, pp. 80–106. Ruskin, J. The Stones of Venice. Volume the First: The Foundations (London: Smith, Elder, 1851). Ruskin, J. The Stones of Venice. Volume the Second: The Sea-Stories (London: Smith, Elder, 1853), vol. 2. Ruskin, J. Cambridge School of Art. Mr. Ruskin’s Inaugural Address Delivered at Cambridge Oct. 29, 1858 (London: Bell and Daldy, 1858). Ruskin, J. The Library Edition of the Works of John Ruskin, ed. by E.T. Cook and A. Wedderburn (London: Allen & Unwin, 1907), vol. 29. Ruskin, J. Modern Painters: Their Superiority in the Art of Landscape Painting to All the Ancient Masters Proved By Examples of the True, the Beautiful, and the Intellectual From the Works of Modern Artists, Especially From Those of J. M. W. Turner Esq., R.A. (1843; 2nd edition: London: Smith, Elder, 1844), p. 32. Ruskin, J. Modern Painters. Volume III. Containing Part IV. Of Many Things (London: Smith, Elder, 1856). Shee, M.A. Elements of Art: A Poem; in Six Cantos; With Notes and a Preface; Including Strictures on the State of the Arts, Criticism, Patronage, and Public Taste (London: W. Miller, 1809). Shee, M.A. The Life of Sir Martin Archer Shee: President of the Royal Academy, F.R.S., D.C.L., 2 vols (London: Longmans, Green, Longmans and Roberts, 1860), vol. 2. Somerset House Gazette, 10 January 1824, p. 218; 24 January 1824, p. 242; 28 February 1824, p. 329. Stevens, H. ‘The Royal Academy in the Age of Queen Victoria’, in Art in the Age of Queen Victoria: Treasures From the Royal Academy of Arts Permanent Collection, ed. by H. Valentine (Yale University Press, 1999). Stoddart, J. ‘Tracking the Sentimental Eye’, ch.9 in Knowing the Past: Victorian Literature and Culture, ed. by S. Anger (Ithaca: Cornell University Press, 2001).

Operation and representation of art judgment 219 Taine, H. The Philosophy of Art, transl. by J. Durand (London: Baillière, 1865). Teukolsky, R. The Literate Eye: Victorian Art Writing and Modernist Aesthetics (Oxford: Oxford University Press, 2009). Thomson, D.C. ‘Mr Ruskin as Art Critics’, Art-Journal, November 1879, pp. 225–228. Trodd, C. ‘Nineteenth-Century Art Institutions and Academies’, in A Companion to British Art: 1600 to the Present, ed. by D. Arnold and D.P. Corbett (Chichester: WileyBlackwell, 2013). Whistler, J.A.M. Whistler v. Ruskin. Art & Art Critics (London: Chatto and Windus, 1878). ‘W.S.K’., ‘On The Method of Forming A Correct Judgment of Productions in the Fine Arts’, Newcastle Magazine 3:7 (July 1824), pp. 337–339. Wyatt, M.D. Fine Art: A Sketch of Its Theory, Practice and Application (London: Palgrave Macmillan, 1870).

10 Judging by the hand Handwriting and character in Victorian literary culture Karin Koehler

In Charlotte Brontë’s Villette (1853), Paulina Home offers a description of a love letter from her suitor. She tells Lucy Snowe, the novel’s narrator: Graham’s hand is like himself, Lucy [. . .] no pointed turns harshly pricking the optic nerve, but a clean, mellow, pleasant manuscript, that soothes you as you read. It is like his face – just like the chiselling of his features: do you know his autograph?1 Paulina’s words bear witness to the tendency of physical surfaces to reveal inner meanings in Brontë’s works. Brontë’s novels reflect a continual engagement with phrenology and physiognomy, (pseudo-)sciences which claimed that a person’s mental constitution and moral character were visible in, respectively, their cranial shape and facial expression.2 Whereas phrenology and physiognomy read the head and face, the quotation from Villette signals that, in nineteenth-century culture, their premises and methods were also adapted to handwriting, a detachable product rather than part of the body.3 Considered together, Graham’s handwriting and face convey a meaning consistent with Paulina’s judgment of his character: he is ‘clean’, ‘mellow’, ‘pleasant’, ‘soothing’ – and, an ungenerous reader might add, somewhat bland. The passage illustrates that, as Francis Jacox notes in an 1865 article in The New Monthly Magazine: ‘Currer Bell has more than once given proof of her observant habit in matters of penmanship. She, too, read character by it’.4 Many Victorian writers and readers appear to have shared Brontë’s implicit assumption that, in Daniel Hack’s words, ‘much can be “reasonably derived” from the appearance of writing’.5 Furthermore, given the volume of publications on the topic, they were evidently eager to study or amuse themselves with, graphology, ‘the art of judging the character by the handwriting’.6 This essay has two aims: first, it traces popular Victorian conceptions of the relationship between identity, character and handwriting, by examining their formulations in periodicals and manuals and their resonances in literary texts. Second, it contemplates the significance of tensions between the judgment of handwriting as, on the one hand, an external manifestation of inner character and, on the other hand, a marker of social, cultural, national and gender identity. Victorian discussions as to whether,

Judging by the hand 221 in Jacox’s words, ‘handwriting affords a trustworthy exposition of character, and, if so, then to what extent’, I argue, also illuminate related debates about the elements that make up a person’s ‘self’.7 They can contribute to our understanding of the multiple, and often conflicting, ways in which Victorians conceptualized the relationship between nature, culture and selfhood.

Handwriting, identity, individuality Articles and books that seek to teach the correct judgment of handwriting, and to prove ‘the reasonableness and consequent utility, of this mode of TESTING INDIVIDUAL CHARACTER’, regularly begin with assertions of the ‘strange individuality attached to a number of strokes’.8 To support the claim that handwriting can ‘give a very clear insight into a person’s true character, his tendencies, temper, disposition, virtues, and vices’, advocates of graphology first had to establish that there are as many different varieties of handwritings as configurations of personal character, and that each person’s handwriting is, indeed, unique.9 In How to Read Character from Handwriting (1890), Mrs John White describes how ‘a few insignificant strokes in ink’ can evoke a specific writer. ‘[T]he hand that penned the words may now be lying stiff and cold in the old churchyard’, White notes, but ‘as our eyes rest on those once familiar strokes, old feelings rise’.10 The words not only signal a manuscript’s uncanny ability to preserve a trace of the deceased author’s living presence, they also confidently assert the possibility of recognising – and judging – the author in the script. Both Henry Frith’s The Grammar of Graphology (1890) and Rosa Baughan’s Character Indicated by Handwriting (1880) are equally assured in their claims about the identifiability of handwriting. Moreover, both dismiss the assertion that the appearance of a handwriting might be more indicative of training than uniquely individual characteristics. For Baughan, the idea is ‘almost too absurd to treat’, whereas Frith cites the diversity of ‘the penmanship of a number of lads who are taught by the same writing-master’ as evidence of the ‘influence of the mind on the handwriting’.11 Similarly, while Baughan acknowledges that the choice of ‘writing materials’ affects handwriting, she also notes that they can only modify but never erase the visible traces of individuality, adding that, in itself, ‘the choice of a pen to a certain degree indicates character’.12 The notion that handwriting is uniquely individual reverberates in the plots of popular Victorian fiction, which, as Peter J. Capuano demonstrates, evince an increased narrative attention to the ‘material properties of penmanship’.13 In Charles Dickens’s Bleak House (1853), Captain Hawdon relinquishes every aspect of his former self to become ‘nobody’, but his ‘peculiar’ handwriting reveals him to be Lady Dedlock’s lover and Esther Summerson’s father.14 In Mary Elizabeth Braddon’s Lady Audley’s Secret (1862), Helen Talboy (née Maldon) does not shy away from bigamy and attempted murder in her endeavour to transform herself into Lady Lucy Audley, yet failure to transform her ‘charming and uncommon hand’ furnishes the first piece of ‘evidence of the conspiracy’.15 Arthur Conan Doyle’s The Sign of the Four (1890) makes a yet more impressive case for the

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identifiability of autographs. Sherlock Holmes traces three letters in seemingly different ‘hands’ to the same ‘hand’. Holmes readily declares that ‘there can be no question as to the authorship’ and asks his interlocutors to ‘See how the irrepressible Greek e will break out, and see the turn of the final s’, before concluding that the three writers ‘are undoubtedly the same person’.16 Finally, in Robert Louis Stevenson’s Strange Case of Dr Jekyll and Mr Hyde (1886), a similarity in handwriting signals that the source of Mr Hyde’s being lies in Dr Jekyll’s own self. As Mr Guest, a clerk and ‘a great student and critic of handwriting’, observes when he compares Hyde’s manuscript to Jekyll’s, ‘the two hands are in many points identical: only differently sloped’.17 Given his expertise, Guest must also hold an opinion about the meaning of the slope with regard to character – but I shall return to this point below.18 In these fictions, changed circumstances, names and appearances – even the creation of an actual alter ego – are insufficient to contradict the evidence of a handwriting that retains traces, however faint, of the writer’s identity. As Capuano argues, ‘Victorian novels continually align hands with unique individual identity as a reaction to industrializing processes and evolutionary theories that were rendering them less and less exceptional’.19 Significantly, though, unlike graphologists, many novelists did not – at least not with the same ease and explicitness – make the step from identity to character. In Detective Fiction and the Rise of Forensic Science (1999), Ronald Thomas explores how nineteenth-century detective fiction presents ‘the human body’ as a ‘mechanism always already writing itself in its absolute uniqueness’, foregrounding the significance of handwriting as both a means of identification and, sometimes, criminal evidence.20 Furthermore, Thomas argues that, during the nineteenth century identity and character came to be conceptualized as distinct categories, evaluated and judged in different ways. The emergence of a modern state apparatus, he explains, ‘involved the systematic transformation of the notion of the individual citizen’s essential reality from something we call “character” to something we came to call “identity”’.21 According to Thomas: We may think of these two categories of persons as representing, respectively, the romantic-autonomous individual of a revolutionary period (the ‘character’ who generated and expressed the romantic spirit of the nation), and the alienated bourgeois agent of the state in the industrial and post-industrial age of capital (the ‘identity’ of which was defined and policed by the forces of the newly-established state).22 In Dickens’s and Braddon’s plots, handwritings are primarily – though not quite exclusively – tokens of ‘identity’ rather than ‘character’; they prove that individuals are not who they claim to be and help restore them to their proper places within the narrative and social order. The fact that handwriting could serve as proof of legal ‘identity’ was not lost on advocates of graphology. Edward Lumley’s translation of Edouard Hocquart’s The Art of Judging the Character by the Handwriting, for instance, stressed that ‘all

Judging by the hand 223 nations have united in attributing more importance in law to a man’s signature in evidence than to the testimony of any number of witnesses’.23 Yet, while graphologists, like contemporary novelists, insisted that ‘the deepest seat of individuality resides in one’s handwriting’, they treat the function of handwriting as a guarantor of legal identity as subsidiary to its utility as an indicator of ‘character’.24 Graphology privileged the complex, fluid model of ‘character’, with its connotations of ‘individual merit, autonomy, and self-determination’, over the fixed, externally validated concept of ‘identity’, with its official, legal overtones.25 This privileging of character over identity likely contributed to graphology’s popular appeal. It allowed people to perceive themselves as unique and complex rather than unique but also readily identifiable and classifiable. However, in its emphasis on a learnt skill, and one which, despite the growth of functional literacy, was by no means universal, graphological discourse persistently betrays quite how intricately judgments of supposedly individual character were (and still are) bound up with considerations about identity markers such as nationality, gender and class.

Character in handwriting Throughout the nineteenth century, graphologists reworked Isaac D’Israeli’s formula that ‘the vital principle must be true that the handwriting bears an analogy to the character of the writer, as all voluntary actions are characteristic of the individual’.26 They claimed scientific validity for their method by contending that ‘physiological movement [. . .] is the real basis of graphology’.27 J.H. Schooling, relaying the work of French graphologist Jules Crépieux-Jamin, explains in his article ‘Written Gesture’ (1895) that ‘The pen-tracings on a piece of white paper record in black outline the results of movement – of movement which is a physical sign of mental action’.28 This action, he continues, ‘is, moreover, influenced by all past and present sensations carried to the brain, including, of course, such tendencies and mental conditions as may have been acquired by heredity’.29 It followed, for advocates of graphology, that one could detect specific mental attributes in the particularities of a person’s handwriting and thereby form a reliable judgment of character. We see the method at work in Doyle’s The Sign of Four.30 Once Holmes has resolved the ‘case of identity’, he asks Watson to speculate what kind of person has produced the ‘scribble’ in front of them. He finds Watson’s assessment – ‘It is legible and regular’ and suggests ‘A man of business habits and some force of character’ – thoroughly wanting. ‘Look at his long letters’, he contends: They hardly rise above the common herd. That d might be an a, and that l an e. Men of character always differentiate their long letters, however illegibly they may write. There is vacillation in his k’s and self-esteem in his capitals.31 Conan Doyle’s narrative seamlessly incorporates, and thus validates, both the confident discourse and pseudo-scientific methods of late-Victorian graphology, borrowing from the contemporary manuals in a manner that mirrors the nonchalance

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with which their authors, in turn, plagiarized from one another and from their late eighteenth- and early nineteenth-century predecessors. Regularity, the height of letters, legibility and the ‘leaning’ of handwriting were considered as key clues to character. As Baughan’s manual outlines, clear and well-connected letters suggest ‘judgment by the sequence of ideas’, while ‘Where letters in the same word are constantly divided, it is a sure sign of judgment intuitive, rather than reasoning’.32 Moreover, virtually all graphologists reiterate the commonplace that ‘Writing that has a tendency to ascend at the end of each line, announces success and prosperity’, whereas ‘descending handwriting’ betokens ‘ill health, or profound melancholy, and therefore a troubled disappointed life’ (see Figure 10.1).33 Individual letters, too, were revealing. In Elizabeth Barrett Browning’s Aurora Leigh (1856), the eponymous protagonist not only identifies the author of a letter based on the manuscript’s appearance, she also detects traces of his personality: ‘I know your writing, Romney, – recognise | The open-hearted A, the liberal sweep | Of the G’.34 Graphology manuals not only reveal how an ‘open-hearted A’ or a ‘liberal [. . .] G’ may look, but, aided by copious illustrations, they provide instructions for judging the whole alphabet. From Henry Frith, for example,

Figure 10.1 Henry Frith, How to Read Character in Handwriting, Or, the Grammar of Graphology Described and Illustrated, 3rd ed. (London: Ward, Lock, 1896), p. 90. Source: Author’s collection.

Judging by the hand 225 readers can learn that ‘The person who puts a high flourish to the terminal of the M is cursed with an imagination to which his judgment will eventually succumb’, that ‘a dyspeptic person will cross the t’s high and firmly’, and that ‘the large and far-extending C tells us of great ardour and imagination’ (see Figures 10.2, 10.3 and 10.4).35 Graphologists also insisted that ‘There is much common sense in the rules of graphology, nothing fanciful or far-fetched’.36 If a handwriting conveys mixed signals, this does not undermine the methodology’s validity but illustrates ‘the fact that natures are complex’.37 Likewise, the fact that a person’s handwriting undergoes regular transformations – due to age, illness or changing circumstances – does not contradict its usefulness as an ‘outward index of character’, but reflects the mutability of human nature over time and the reciprocal relationship between physical and mental changes.38 Regardless of temporary or lasting changes, though, a ‘spontaneous’ and ‘unstudied’ handwriting will never fail to reveal both the identity and, more important, the complex personal character of its author.39 For all their confidence in handwriting as an index of individual character, however, graphologists appear less certain as to what, precisely, makes up human character. Based on Johann Kaspar Lavater’s conjecture that ‘each of us has his own handwriting, individual and inimitable’, graphology presents itself as a scientific

Figure 10.2 Henry Frith, How to Read Character in Handwriting, p. 26. Source: Author’s collection

Figure 10.3 Henry Frith, How to Read Character in Handwriting, p. 25. Source: Author’s collection.

Figure 10.4 Henry Frith, How to Read Character in Handwriting, p. 22. Source: Author’s collection.

Judging by the hand 227 method with universal applicability.40 Any handwriting, graphology postulates, should unfold its meaning under trained eyes, revealing a unique constellation of characteristics, shaped but never overshadowed by external circumstances. Things were never quite that simple.

Identity versus character in handwriting Victorian fiction and graphology alike persistently betray the fact that handwriting always functions, and is understood, as more than just an expression of individual personality. As Hack points out, ‘Handwriting [. . .] acquires immense importance in the novel, as at various moments it comes to indicate the gender, moral character, physical and psychological condition, or identity of a writer’.41 To this list, we might add nationality, class, socio-economic status, and education. Graphologists make no secret of their belief that national character intersects with personal character. German handwriting, for Baughan, evinces ‘hardness, practicality, and argumentativeness’, whereas, according to Lumley’s translation of Hocquart, ‘That of the Italians is remarkable for a peculiar delicacy and pliability’.42 Yet, alongside manifestations of nationality in handwriting, individual character is clearly legible – though the graphologist may require additional training to analyse the handwriting of foreigners.43 The relationship between sex, character and handwriting was more contested. A comparison of early and late nineteenthcentury writings reflects evolving understandings of sex difference and gender identity. In Jane Austen’s Emma (1815), Mr Knightley declares that, unlike the eponymous heroine, he does ‘not admire’ Frank Churchill’s ‘hand’ because ‘It is too small – wants strength. It is like a woman’s writing’.44 Contemporary handwriting analysists shared the assumption underlying this statement: that sex is manifest in handwriting and that, by implication, specific character traits are innately linked to sex. In 1812, Hocquart notes that ‘It is in general easy to distinguish between the writing of the sexes’.45 The words might allude to the effects of education, but Hocquart goes on to articulate his essentialist stance more clearly. ‘There may be a deficiency of practice and of care in the writing of men’, Lumley’s 1875 translation continues, but we can always trace a something masculine in the hand which traces it. When woman writes well and easily, are there not some peculiarities by which she may be discovered? [. . .] Do we not see less strength, less firmness, less boldness in the writing of a woman?46 By the end of the century, views about the relationship between sex and handwriting had undergone an almost complete reversal. Late-Victorian graphologists demonstrate a – perhaps surprisingly – fluid understanding of sex and gender. In 1890, Frith writes that ‘no particular style of handwriting is peculiar to either sex’, since ‘There are many ladies who write like men, and men who write a “ladylike” hand’.47 Similarly, Baughan explains that ‘there are men with feminine characters (intellects sometimes of a very high

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order – as we shall show), and women who are essentially masculine in mind’, so that identifying sex from handwriting becomes impossible.48 In commenting on the historic development of women’s handwriting, though, graphologists also destabilize one of their central premises, reigniting questions about the extent to which cultural conditioning and training shape handwriting. White, for instance, notes that ‘Till within the last ten years’, sex was ‘unmistakable’ in handwriting, but the ‘mannish’ pursuits that women have entered into have had a decided effect on their handwriting; and, whilst our mothers wrote the flowing, graceful Italian hand, we now strive to emulate the square, hurried and frequently unintelligible writing of our brothers and husbands, with the curious result that many a woman gets addressed as Esquire.49 Here, handwriting, like dress, is presented as subject to changing fashions, social developments, and cultural trends: ‘about the year of Waterloo it was considered the fashion for women to write a slanting small hand with attenuated capitals’, ‘about thirty years ago’ women favoured ‘the upright, large, pointed style’, while, at present, ‘women mostly go in for eccentricity’.50 Men’s handwriting has deteriorated since the ‘era of round-hand writing’, which was ‘the highest point ever reached in this country’.51 According to the premises of graphology, changes in handwriting correspond to changes in the writer. Graphology manuals do not, however, clarify whether fashions and conventions alter handwriting because they – and the ideologies that underpin them – transform human character or because they distort and suppress people’s real ‘natures’. Indeed, the fact that handwriting always conveyed more than just moral character raises several challenging questions: is it possible to separate out the uniquely personal traits of a person’s handwriting from those which reveal external identity markers, including class, gender and nationality? Does the term character refer to an unalterable inner essence or a complex combination of internal and external factors? And how do prescriptive accounts and normative understandings of, for instance, gender and class complicate and undermine attempts to judge character from handwriting? A scene in Thomas Hardy’s 1886 novel The Mayor of Casterbridge, set approximately in the mid-1840s, examines how sexual conventions and gendered assumptions about handwriting might interfere with the judgment – and, hence, the development – of individual character. During a business meeting, Michael Henchard, a self-made man who has risen to economic and political prominence, asks his adopted daughter to ‘write down [. . .] a few words of an agreement for me and this gentleman to sign’. Elizabeth-Jane, largely self-taught, willingly complies: She brought forward blotting-book, paper, and ink, and sat down [. . .]. She started the pen in an elephantine march across the sheet. It was a splendid round bold hand of her own conception, a style that would have stamped a woman as Minerva’s own in more recent days. But other ideas reigned then:

Judging by the hand 229 Henchard’s creed was that proper young girls wrote ladies’-hand – nay, he believed that bristling characters were as innate and inseparable a part of refined womanhood as sex itself. The narrator’s emphasis on the distinct individuality of Elizabeth-Jane’s handwriting evokes the tenets of late-Victorian graphology. A trained reader, the quotation hints, would look beyond conventionalities and detect in Elizabeth-Jane’s handwriting the signs of ‘strength’, ‘firmness’, and ‘boldness’ – characteristics that, according to Hocquart’s earlier, prescriptive account, are naturally less pronounced in the scripts of even the most privileged women. Henchard, by contrast, can only perceive the contrast between his daughter’s handwriting and an ideal of penmanship that, he believes, embodies ‘refined womanhood’. As the narrative progresses, Elizabeth-Jane internalizes the ‘angry shame’ with which Henchard judges her ‘line of chain-shot and sandbags’.52 She strives to conform to her new social circumstances, suppressing her individuality to become a vessel for Victorian middle-class norms, ‘almost vicious’ in ‘her craving for correctness of procedure’.53 An early glimpse of her handwriting indicates that it might have been otherwise. By the end of the narrative, after a painful social and personal decline, Henchard goes into self-imposed exile, while Elizabeth-Jane marries the new ‘mayor of Casterbridge’. On leaving Casterbridge, Henchard takes ‘among his tools a few of Elizabeth-Jane’s cast-off belongings, in the shape of gloves, shoes, a scrap of her handwriting’.54 Henchard treasures the handwriting because, like the lock of hair, it functions as a lingering trace of Elizabeth-Jane’s presence – a presence on which he has become deeply reliant. In this instance, though, Hardy makes no reference to the appearance of the handwriting, despite its importance in the earlier development of the relationship between Henchard and Elizabeth-Jane. Thus, readers are left to wonder whether, alongside a husband and an increasingly secure sense of middle-class belonging, Elizabeth-Jane has, at last, acquired appropriately ‘bristling characters’ – which necessitate no specific description – or whether her handwriting has retained its distinctive ‘character’. It seems doubtful whether, if she had learnt to write ‘ladies’-hand’, analysts would still draw the same conclusions from her handwriting as from that which ‘would have stamped a woman as Minerva’s own’. In using a description of handwriting to accentuate an individuality that is eroded under the pressure of social expectations and sexual conventions, the scene from Hardy’s The Mayor of Casterbridge explores, while also problematizing, the potential of handwriting analysis to look beyond externally imposed roles and reveal the true core of person’s self. It clearly resonates with the questioning of sexual essentialism that emerged in contemporary graphology. However, as Henchard’s phrase ‘refined womanhood’ suggests, his judgment of Elizabeth-Jane’s handwriting is as concerned with class as with sex. And while late-Victorian graphology claimed to decouple the judgment of character from prescriptive beliefs about sexual nature (a claim to which it did not always live up), it retained a pronounced class essentialism. In their comments about the

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handwriting of working-class writers, and writers without or with little formal education, graphologists replicate Hardy’s protagonist’s inability to look beyond the social meanings of handwriting.

‘All of it very much the same’: graphology, class and education In nineteenth-century Britain, more people read and wrote than ever before. Notwithstanding the historic uncertainty as to how much, how effectively and how eloquently the individuals behind literacy statistics could in fact communicate in writing, literacy rates were on the rise and the ‘spread of literacy’ triggered a ‘growth in the market for alphabets, grammars, spelling books and school manuals’.55 The increasingly diverse body of writers was by no means met with universal enthusiasm, and it presented new challenges for graphology.56 Capuano observes that early to mid-nineteenth-century discussions of handwriting reflect acute anxieties about the prospect that economic industrialization, professionalization and mass education might render human character more and more uniform. Responding to ‘major changes in how the handwritten word was taught, read, and executed’, Capuano argues, ‘even commentators who believed in the somatic connections between handwriting and human character [. . .] expressed doubts about the possibility of doing so in an increasingly industrial future’.57 Capuano’s compelling discussion of Dickens’s Bleak House reads the novel as a response to such fears of mechanization and concerns about the erasure of individuality, expressed through the narrative ‘tensions between mechanized and individualized handwriting’. The novel’s plot, it argues, ‘turns on the uniqueness of a single handwriting sample’, Nemo’s legal hand, which functions as ‘a trace of individuality in a written format that is supposed to eradicate uniqueness’.58 Thus, much like the advertisements for the services of graphologists and popular graphology manuals, Dickens’s text offers reassurance about the integrity of individual character. It is crucial, however, to recall to whom the unique handwriting sample in Bleak House belongs. Captain Hawdon has died in penury and received a pauper’s burial, but his handwriting and demeanour retain traces of more genteel origins and upbringing. Thus, Dickens’s narrative points towards another key aspect of graphology: it was as preoccupied with upholding supposedly natural class divisions and hierarchies as with reclaiming human individuality in the face of evolutionary theory and industrial processes. In fact, the two motivations were inextricably linked. Despite claims of universal applicability, the methods of handwriting analysis were designed by middle-class writers for a middle-class audience, designed to ring-fence access to the privilege of individual character. According to White, ‘social standing is indicated very clearly’ in handwriting.59 Other literary and graphological texts corroborate the notion that economic status, educational attainments, and, most important, cultural capital can be discerned readily from the appearance of a manuscript, even for those without graphological training.60 ‘Almost all people do’, W.A. Spooner observes, ‘in a more or less conscious way, draw some conclusions as to the education and position of the various writers from the handwritings which come before them’.61 More significantly,

Judging by the hand 231 Spooner goes on to suggest that, once a writer has been identified as belonging to the ‘lower classes’ and ‘uneducated’, the graphologist can do no more. When faced with the writing of ‘the uneducated’, he claims, ‘we are apt to find ourselves separated from it by too wide an interval for us to be adequate judges. The writing of the uneducated looks all of it very much the same’.62 Such statements about the (im)possibility of judging character from working-class handwriting signal resistance to the cultural implications of spreading literacy. In 1896, Richard Dimsdale Stocker, ostensibly defending graphology against the charge that some scripts defy analysis, writes: I have heard it objected that, ‘although some people’s writing may exhibit some traces of character, many other persons’ handwritings are so bad and illegible that no traits of the writer’s individuality can possibly be gleaned from them’ (!) Wrong again! It would be, in the first place, the graphologists’ duty to find out from the handwritings so positively set down as meaningless, whether the ‘bad writing’ were due to the effect of imagination or dissimilation, or if it proceeded from a lack of education (all of which will be hereafter alluded to), and then, unless the writing were really that of an uneducated individual, or of an utterly undeveloped personality, there would certainly be found much character in it.63 The caveats in the final part of the passage are crucial. Bad – which means, in this instance, illegible – handwriting is not, as such, an obstacle to graphological analysis, nor is it causally linked to lack of practice or education.64 In fact, contemporary writers, more or less critically, associate illegible handwriting with the privileged classes, reading it as a token of ‘imagination’ or the related trait of ‘deceitfulness’.65 In 1868, a controversial Saturday Review article stated that ‘Legibility, in fine, is a humble, excellent, clerkly, working-man’s sort of virtue; it is just the thing to inculcate on the lower middle-classes and on feminine correspondents’, but, for men of importance, ‘a minimum and not a maximum of perfection is what is most calculated to serve his purpose’.66 The problem with the handwriting of the ‘uneducated’, then, is not illegibility, but lack of distinctive individuality. In other words, it can be read, but not read as an index of character. ‘Much character’, says Dimsdale Stocker, can be found in any handwriting, excepting that of an ‘uneducated individual’ and that of an ‘undeveloped personality’. Thus, the two categories are placed in uncomfortable proximity and become jointly associated with lack ‘character’. Kevin Swafford notes that, in late-Victorian culture, a growing awareness ‘of the contingent and performative nature of class’ prompted a ‘variety of discourses and cultural productions’ that sought to reinforce belief in ‘innate and natural distinctions’.67 Statements like Spooner’s and Dimsdale Stocker’s show that graphology was one such discourse. Sally Shuttleworth’s explanation of the ideological differences between phrenology and physiognomy helps illuminate the contradictions inherent in graphological discourse. While phrenology and physiognomy were equally preoccupied with ‘the decoding of physical form’, they proceeded from ‘very different roots’,

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and hence conveyed different assumptions about human character.68 Physiognomy posited a direct connection between outward appearance and inner quality, leaving ‘no space for division between sign and signified, nor for any psychological multiplicity of internal contradiction’. Phrenology, by contrast, ‘treated the external only as a system of signs to be decoded to determine what lay below: the sign itself was not directly expressive of inner quality, but was only an indicator of quantity’.69 Phrenology did not, then, promise straightforward or complete self-knowledge, but it suggested that one could gain insight into ‘one’s good properties and how to make the most of them’ as well as one’s ‘defects, and how to guard against the evils growing out of them’.70 It was, unlike physiognomy, more concerned with potentials than with actualities, and held considerable appeal for working-class audiences.71 As Shuttleworth emphasizes, phrenology became closely aligned with the ideology of self-improvement and the possibility of ‘redrawing the map of social hierarchy’.72 The discourse of graphology does not map on neatly to the premises of either phrenology or physiognomy. On the one hand, graphology took its cue from Lavater’s Essay on Physiognomy, postulating a relatively direct (at least for those with the requisite training) relationship between external features of handwriting and internal traits of character. On the other hand, graphology embraced a complex model of character, which, like phrenology, allowed for ‘internal contradiction’.73 Furthermore, it took for its basis not a part of the body, but a product of physical activity that might change for better or worse. The potential synergies between graphology and self-improvement ideology seem evident, since both were concerned with how ‘character(s)’ are shaped and how they should be shaped. However, although graphologists acknowledge that handwriting changes over time, on account of external and internal factors, their treatises and manuals do not admit of the possibility that people might actively work to transform their handwriting, in order to strengthen such qualities as ‘truthfulness, integrity, and goodness’, considered central for self-improvement.74 Popular graphology was less interested in a ‘redrawing of the social map’ than in naturalizing existing social distinctions. Hence, it needed to deny that, in Samuel Smiles’s influential words, character ‘constitut[es] a rank in itself’, and could be traced in equal measure in any handwriting.75 In fact, graphological discourse went further, denying that the ‘uneducated’ and the ‘lowest’ classes possess the same kind of ‘individual character’ as their superiors. In Work in Hand: Script, Print, and Writing, 1690–1840 (2017), Aileen Douglas examines the work of preacher, printer and author Joseph Barker (1806–1875), tracing the ‘radical understanding of the role of writing in the formation of personal identity and in daily life’ that underpinned his early Victorian campaigns for Sunday School handwriting instruction.76 Barker’s activism was grounded in an ‘enthusiastic endorsement of upward social mobility’ and the ‘minority’ argument ‘that the poor should be taught to write so that they could better themselves materially and socially’.77 Even more radical than this ‘promotion of social mobility’, however, was Barker’s suggestion that the ‘higher situation’ that a child could reach by learning how to write was ‘not necessarily a social one’.78 Having

Judging by the hand 233 acquired written literacy, Douglas explains, ‘Barker’s child writer exists beyond his social functions and his visible productivity; he is a subject, an individual’.79 As discussed above, graphologists, too, located ‘the deepest seat of individuality’ in handwriting.80 Unlike Barker, however, they present such individuality as a privilege that, by nature, belongs to some, not as a state to which every single person can and should attain. Thus, graphology works to resist the threat of social levelling inherent in Barker’s claim that ‘writing raises men [. . .] and enables them to obtain their proper share of all the advantages of civil life’, that it makes people more fully human, and ‘that its denial is a form of cruelty’.81 More often than not, discourses of and about graphology remain suspiciously silent about class. Where class is discussed, it is discussed in essentialist and deterministic terms. White offers the most explicitly essentialist social taxonomy of handwritings. She suggests that ‘A certain form and style [. . .] clings to the writing of the higher classes’ and that ‘it generally, I do not say always, bears the impress of refinement and culture’.82 While upper-class handwriting confirms natural refinement, there is also, White says, ‘a middle-class style of handwriting’, in which ‘The evidence of trying to write well is extremely evident’.83 Like speech, then, handwriting is part of a person’s habitus, embodying the relative presence or lack of cultural capital.84 Correspondingly, graphological works regularly proclaim their ability to distinguish between true refinement and aspirational imitations in handwriting, pointing out signs of ‘vulgarity, pretension, exaggeration, and vanity’, especially the much-maligned ‘vulgar flourish, aimless and ostentatious’ (Figures 10.5 and 10.6).85 On ‘the writing of the lowest class’ White simply comments that it ‘is not only peculiar but extremely amusing’, a suitable subject for mockery but not for analysis, since, for ‘the very uneducated’, handwriting is an alien activity.86 All of these remarks feed into the same central message: mass literacy may be inevitable, and the acquisition of literacy may even enhance both the material wellbeing and the economic usefulness of the ‘lowest classes’. Yet, although everybody can learn how to write, they will not write like their superiors. Moreover, the handwriting of the ‘lower classes’ will be less expressive of individual character, because they are essentially different and less fully individuated. In The Reading Lesson (1998), Patrick Brantlinger notes that one of the especially troubling aspects of Stevenson’s Strange Case of Dr Jekyll and Mr Hyde, is ‘the motif of identical penmanship’, which suggests that ‘Though their values are several worlds, or at least social classes, apart, Jekyll and Hyde share the same ability to express those values, and they do so even in the same “hand” or with the same “signature”’.87 As Brantlinger’s analysis indicates, Stevenson presents a scenario that challenges the naturalization of social and racial divisions implicit in late-Victorian graphological discourse. What is more, he presents it as a scenario of Gothic horror. Graphologists, by contrast, offer reassuring ‘facts’ to counter Stevenson’s unsettling fiction (and equally unsettling political arguments such as Barker’s), claiming that their method is scientific, empirical, and ‘common sense’. In their embrace of physiognomy’s confident mapping of outward appearances onto inward realities, they eschew the possibility that the acquisition of

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Figures 10.5 and 10.6 Henry Frith, How to Read Character in Handwriting, pp. 117–118. Source: Author’s collection.

handwriting might, in Walter J. Ong’s words, lead to ‘the realization of fuller, interior, human potentials’.88

Conclusion Then as now, graphology met with scepticism. It is, therefore, unsurprising that graphological works are defensive in tone, preempting challenges against their legitimacy. ‘Caligraphy, Character, and Crime, or Graphology Gone Mad’, a humorous piece published in Judy in 1891, ridicules handwriting analysis, and its reductively deterministic account of character. In the first act, parents inspect the ‘copy books of their eldest son, aged seven’. The mother delights in ‘how bee-aautifully our darling son writes’, but the father prophesizes that, based on ‘his vague pothooks and unconvincing hangers’, he ‘will ere he reaches the age of eight, become a hardened criminal’. The second act describes a young woman’s realization that she cannot marry the ‘very life of my life’, for, although his epistolary proposal is ‘couched in most sincere and affectionate terms’, the ‘furtive

Judging by the hand 235 manner in which he crosses his “t”s’ and the ‘malignant little dots he puts on his “i”s’ reveal him to be ‘no good’. Even worse, in the final act, a husband’s first encounter with his wife’s handwriting – which, ‘according to this book on Graphology, which I have just started reading, [. . .] indicates inconstancy, lying, falsehood, crime’ – leads him to rush to the divorce lawyers.89 These sketches lampoon the notion that the look of handwriting might be more important than its content and that the study of a scrap manuscript might yield more reliable insight into character than extended contact and interaction. Here, graphology not only leads to absurdly rash and implausibly extreme judgments of character, these judgments also undermine meaningful interpersonal relationships and, in so doing, seem to cause varying degrees of emotional pain. The scenarios are absurdly hyperbolic, of course, but they suggest that anybody’s character might be misjudged on the basis of arbitrary visual criteria – with more or less serious consequences. Yet, since the short narratives operate within a firmly middle-class frame of reference, they pay no heed to the fact that, while the risk of being misjudged on account of one’s handwriting existed for anyone, graphology could, and was, also instrumentalized to reinforce artificial social, racial and sexual distinctions. For working-class writers, graphology not only implied the threat of having one’s personal character misjudged, but of being judged as possessing a character that is inherently and inalterably inferior. On the one hand, ‘Graphology Gone Mad’ indicates the tremendous popularity of graphology in the 1880s and 1890s. On the other hand, it reminds us that, whereas people with access to contemporary periodical culture were likely to come into contact with the principles and practice of graphology, they did not necessarily take this ‘science’ seriously. Regardless of whether handwriting analysis was perceived predominantly as serious science, frivolous fun or contemptible nonsense, Victorian graphological writings, and the responses they provoked, deserve more sustained scholarly attention than they have thus received. They will not make us more competent judges of characters, but they can enhance our understanding of the popular dissemination of cultural ideology in the Victorian period.

Notes 1 C. Brontë, Villette, ed. by H.M. Cooper (London: Penguin, 2004), pp. 414–415. 2 S. Shuttleworth, Charlotte Brontë and Victorian Psychology (Oxford: Oxford University Press, 1996). 3 The writers of nineteenth-century graphological manuals usually acknowledge their debt to Johann Kaspar Lavater’s Essays on Physiognomy (1775–1778), first translated into English in 1789, as a key source for the notion that, handwriting, like facial expression, may reveal individual character. 4 F. Jacox, ‘A Mere Question of Handwriting’, The New Monthly Magazine, January 1865, pp. 35–53 (p. 53). 5 D. Hack, The Material Interests of the Victorian Novel (Charlottesville: University of Virginia Press, 2005), p. 39. 6 E. Hocquart, ‘Art of Judging the Character by the Handwriting, Now First Translated From the French’, in The Art of Judging the Character of Individuals From Their

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Handwriting and Style, With Thirty-Five Places, Containing One Hundred and Twenty Specimen of the Handwriting of Various Characters, to Illustrate the Above Theories, ed. and transl. by Edward Lumley (London: John Russell Smith, 1875), pp. [1–64] (p. [1]). Jacox, ‘Mere Question’, p. 40. E. Lumley, ‘Preface’, in Art of Judging, p. 1; J. White, How to Read Character From Handwriting. Illustrated With Thirty-Four Autographs of the Most Celebrated Men and Women of the Day (3rd edition; London: Simpkin, Marshall), p. 7. H. Frith, How to Read Character in Handwriting, Or, the Grammar of Graphology Described and Illustrated (3rd edition; London: Ward, Lock, 1896), p. 8. White, Read Character, p. 7. Baughan, Character Indicated by Handwriting, p. 5; Frith, Grammar of Graphology, p. 13. Baughan, Character Indicated by Handwriting, p. 7. P.J. Capuano, Changing Hands: Industry, Evolution, and the Reconfiguration of the Victorian Body (Ann Arbor: Michigan University Press, 2015), p. 8. C. Dickens, Bleak House, ed. by S. Gill (Oxford: Oxford University Press, 2008), p. 148. M.E. Braddon, Lady Audley’s Secret, ed. by L. Pykett (Oxford: Oxford University Press, 2012), pp. 124, 217. A.C. Doyle, Sherlock Holmes. Selected Stories, ed. by B. McCrea (2nd edition; Oxford: Oxford University Press, 2014), p. 13. R.L. Stevenson, Strange Case of Dr Jekyll and Mr Hyde and Other Tales, ed. by R.Luckhurst (Oxford: Oxford University Press, 2008), p. 27. See Capuano, Changing Hands, pp. 234–235. Capuano, Changing Hands, p. 186. R.R. Thomas, Detective Fiction and the Rise of Forensic Science (Cambridge: Cambridge University Press, 1999), p. 203. Handwriting was commonly used as evidence in legal courts, and the complexities of the use of handwriting as proof of identity are treated, for example, in S.M. Phillipps and A. Amos, A Treatise on the Law of Evidence. Part the Second. On Written Evidence (London: Saunders and Benning, 1838). Thomas, Detective Fiction, p. 11. Thomas, Detective Fiction, p. 11. Hocquart, ‘Art of Judging’, p. [19]. Capuano, Changing Hands, p. 235. Y. Batsaki, S. Mukherji and J.-M. Schramm, Fictions of Knowledge: Fact, Evidence, Doubt (New York: Palgrave Macmillan, 2011), p. 199. I. D’Israeli, ‘Autographs’, in A Second Series: Curiosities of Literature, 3 vols (London: John Murray, 1824), Vol. 2, p. 210. J. Crépieux-Jamin, Handwriting and Expression, transl. by J. H. Schooling (London: K. Paul, Trench, Trübner, 1892), p. 14. J.H. Schooling, ‘Written Gesture’, The Nineteenth Century, March 1895, pp. 477–490 (p. 479). Schooling, ‘Written Gesture’, p. 480. On the use of graphology in Conan Doyle’s Sherlock Holmes stories, see J.F. O’Brien, The Scientific Sherlock Holmes: Cracking the Case With Science and Forensics (Oxford: Oxford University Press, 2013), pp. 68–69. Doyle, Selected Stories, p. 14. Baughan, Character Indicated by Handwriting, pp. 56, 26. Baughan, Character Indicated by Handwriting, p. 5; see Frith, Grammar of Graphology, p. 61. E.B. Browning, Aurora Leigh, ed. by Kerry McSweeney (Oxford: Oxford University Press, 2008), p. 71. Frith, Grammar of Graphology, pp. 25, 26, 22. M. Boynton, ‘Character from Handwriting’, Longman’s Magazine, May 1893, pp. 69–86 (p. 70). See Frith, Grammar of Graphology, p. 9 and Hocquart, ‘Art of Judging’, p. [22].

Judging by the hand 237 37 Boynton, ‘Character From Handwriting’, p. 71. 38 W.A. Spooner, ‘Handwriting and Character’, Murray’s Magazine, November 1888, pp. 656–665 (p. 656). See White, Read Character, pp. 11–12; Baughan, Character Indicated by Handwriting, p. 5; Frith, Grammar of Graphology, p. 129. 39 Frith, Grammar of Graphology, p. 10; see Baughan, Character Indicated by Handwriting, p. 3. 40 J.C. Lavater, Essays on Physiognomy, Designed to Promote the Knowledge of and the Love of Mankind, engraved by Thomas Holloway, transl. by H. Hunter, 3 vols (London: John Murray, 1789), vol. 3, p. 256. 41 Hack, Material Interests, p. 38. 42 Baughan, Character Indicated by Handwriting, p. 4; Hocquart, ‘Art of Judging’, p. [16]. 43 Spooner, ‘Handwriting and Character’, p. 657. 44 J. Austen, Emma, ed. by J. Kinsley and A. Pinch (Oxford: Oxford University Press, 2008), p. 233. 45 Hocquart, ‘Art of Judging’, p. [13]. 46 Hocquart, ‘Art of Judging’, p. [13]. 47 Frith, Grammar of Graphologhy, p. 15. 48 Baughan, Character Indicated by Handwriting, p. 7. 49 White, Read Character, p. 12. Spooner makes a similar point when he argues that there has been ‘a considerable approximation between the handwriting of men and women. Thirty years since, a woman’s handwriting could hardly ever be mistaken for a man’s, the two were absolutely distinct; now, though there are always certain subtle differences, it is often difficult to tell them apart’ (‘Handwriting and Character’, p. 660). 50 White, Read Character, p. 12. 51 White, Read Character, p. 12. 52 T. Hardy, The Mayor of Casterbridge, ed. by Dale Kramer and Pamela Dalziel (Oxford: Oxford University Press, 2008), p. 122. 53 Hardy, Mayor, p. 190. As Pamela Dalziel has demonstrated, Elizabeth-Jane is a much less conventional character in the novel’s serialization in The Graphic. For the Smith, Elder volume edition, Dalziel argues, Hardy ‘effectively transform[s] her into the conventionally exemplary Elizabeth-Jane of [Robert] Barnes’s illustrations, [. . .] exchanging an interesting heroine for a rather dull one’. P. Dalziel, ‘Whatever Happened to Elizabeth Jane?: Revisioning Gender in The Mayor of Casterbridge’, in Thomas Hardy: Texts and Contexts, ed. by Phillip Mallett (Basingstoke: Palgrave Macmillan, 2002), pp. 64–86 (p. 79). 54 Hardy, Mayor, p. 295. 55 D. Vincent, Literacy and Popular Culture: England 1750–1914 (Cambridge: Cambridge University Press, 1989), pp. 1, 13. 56 P. Brantlinger, The Reading Lesson: The Threat of Mass Literacy in Nineteenth-Century British Fiction (Bloomington: Indiana University Press, 1998) remains one of the most compelling – and essential – studies of the anxieties with which British culture, especially literary culture, responded to education progress and the rise of literacy. On Victorian attitudes towards education, see also L.M. Goodlad, Victorian Literature and the Victorian State: Character and Governance in a Liberal Society (Baltimore: Johns Hopkins University Press, 2003). 57 Capuano, Changing Hands, pp. 194–195. 58 Capuano, Changing Hands, p. 196. 59 White, Read Character, p. 12. 60 See Hack, Material Interests. 61 Spooner, ‘Handwriting and Character’, p. 656. 62 Spooner, ‘Handwriting and Character’, p. 657. 63 Richard Dimsdale Stocker, A Concordance of Graphology and Physiognomy (London: Roxburghe, 1896), p. 48.

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64 Frith similarly notes that, when faced with a difficult hand, ‘All the Graphologist has to do is to study the form of the letters, the upward, the even, or the downward direction of the lines, the firmness of the crossings of the t’s, and he will tell you whether the writer is really frank or not, or whether his bad writing is the result of bodily infirmity, age, or the naturally rapid often almost unintelligible scrawl, of imaginative genius, the result of the brain hurrying off at score, and the tired hand’s endeavours to keep pace with it’ (Grammar of Graphology, p. 129). 65 See Baughan, Character Indicated by Handwriting, p. 50; Dimsdale Stocker, Concordance, p. 54. 66 Anonymous, ‘Bad Handwriting’, Saturday Review (London, 4 January 1868), pp. 11–12 (p. 12). See also White, Read Character, p. 12. 67 K. Swafford, Class in Late-Victorian Britain: The Narrative Concern With Social Hierarchy and Its Representation (Amherst: Cambria Press, 2007), p. 3. 68 Shuttleworth, Victorian Psychology, p. 59. 69 Shuttleworth, Victorian Psychology, p. 61. 70 O.S. Fowler, Fowler’s Practical Phrenology: Giving a Concise Elementary View of Phrenology (New York, 1840), p. 423. 71 See R. Cooter, The Cultural Meaning of Popular Science: Phrenology and the Organization of Consent in Nineteenth-Century Britain (Cambridge: Cambridge University Press, 1984). 72 Shuttleworth, Victorian Psychology, pp. 64, 58. 73 Shuttleworth, Victorian Psychology, p. 61. 74 Samuel Smiles, Self-Help, ed. by Peter W. Sinemma (Oxford: Oxford University Press), p. 318. 75 Smiles, Self-Help, p. 314. 76 A. Douglas, Work in Hand: Script, Print, and Writing, 1690–1840 (Oxford: Oxford University Press, 2017), p. 188. 77 Douglas, Work in Hand, p. 188. 78 Douglas, Work in Hand, p. 189. 79 Douglas, Work in Hand, p. 189. 80 Capuano, Changing Hands, p. 235. 81 J. Barker, Mercy Triumphant; or Teaching the Children of the Poor to Write on the Sabbath Day, Proved to be in Perfect Agreement With the Oracles of God (1840, London: R. Groombridge 1841), p. 2; Douglas, Work in Hand, p. 178. 82 White, Read Character From Handwriting, p. 12. 83 White, Read Character From Handwriting, p. 12. 84 White, Read Character From Handwriting, p. 12. 85 Baughan, Character Indicated by Handwriting, p. 11; Frith, Grammar of Graphology, p. 117. 86 White, Read Character, pp. 12–13. 87 Brantlinger, Reading Lesson, p. 178. 88 W.J. Ong, Orality and Literacy: The Technologizing of the World (London and New York: Methuen, 1982), p. 82. 89 Anonymous, ‘Caligraphy, Character, and Crime Or, Graphology Gone Mad’, Judy, or the London Serio-Comic Journal (London, August 1891), p. 80.

Bibliography Anonymous. ‘Bad Handwriting’, Saturday Review (London, 4 January 1868). Anonymous. ‘Caligraphy, Character, and Crime or, Graphology Gone Mad’, Judy, or the London Serio-Comic Journal (London, August 1891), p. 80. Austen, J. Emma, ed. by J. Kinsley and A. Pinch (Oxford: Oxford University Press, 2008).

Judging by the hand 239 Barker, J. Mercy Triumphant; or Teaching the Children of the Poor to Write on the Sabbath Day, Proved to be in Perfect Agreement With the Oracles of God (1840; London: R. Groombridge, 1841). Batsaki, Y., S. Mukherji and J.-M. Schramm. Fictions of Knowledge: Fact, Evidence, Doubt (New York: Palgrave Macmillan, 2011). Boynton, M. ‘Character From Handwriting’, Longman’s Magazine, May 1893, pp. 69–86. Braddon, M.E. Lady Audley’s Secret, ed. by L. Pykett (Oxford: Oxford University Press, 2012). Brantlinger, P. The Reading Lesson: The Threat of Mass Literacy in Nineteenth-Century British Fiction (Bloomington: Indiana University Press, 1998). Brontë, C. Villette, ed. by H.M. Cooper (London: Penguin, 2004). Browning, E.B. Aurora Leigh, ed. by K. McSweeney (Oxford: Oxford University Press, 2008). Capuano, P.J. Changing Hands: Industry, Evolution, and the Reconfiguration of the Victorian Body (Ann Arbor: Michigan University Press, 2015). Cooter, R. The Cultural Meaning of Popular Science: Phrenology and the Organization of Consent in Nineteenth-Century Britain (Cambridge: Cambridge University Press, 1984). Crépieux-Jamin, J. Handwriting and Expression, transl. by J.H. Schooling (London: K. Paul, Trench, Trübner, 1892). Dalziel, P. ‘Whatever Happened to Elizabeth Jane?: Revisioning Gender in the Mayor of Casterbridge’, in Thomas Hardy: Texts and Contexts, ed. by Phillip Mallett (Basingstoke: Palgrave Macmillan, 2002), pp. 64–86. Dickens, C. Bleak House, ed. by S. Gill (Oxford: Oxford University Press, 2008). D’Israeli, I. ‘Autographs’, in A Second Series: Curiosities of Literature, 3 vols (London: John Murray, 1824), vol. 2. Douglas, A. Work in Hand: Script, Print, and Writing, 1690–1840 (Oxford: Oxford University Press, 2017). Doyle, A.C. Sherlock Holmes: Selected Stories, ed. by B. McCrea (2nd edition; Oxford: Oxford University Press, 2014). Fowler, O.S. Fowler’s Practical Phrenology: Giving a Concise Elementary View of Phrenology (New York; Philadelphia: Fowler, 1840). Frith, H. How to Read Character in Handwriting, Or, the Grammar of Graphology Described and Illustrated (3rd edition; London: Ward, Lock, 1896). Goodlad, L.M. Victorian Literature and the Victorian State: Character and Governance in a Liberal Society (Baltimore: Johns Hopkins University Press, 2003). Hack, D. The Material Interests of the Victorian Novel (Charlottesville: University of Virginia Press, 2005). Hardy, T. The Mayor of Casterbridge, ed. by Dale Kramer and Pamela Dalziel (Oxford: Oxford University Press, 2008). Hocquart, E. The Art of Judging the Character of Individuals From Their Handwriting and Style, With Thirty-Five Places, Containing One Hundred and Twenty Specimen of the Handwriting of Various Characters, to Illustrate the Above Theories, ed. and transl. by Edward Lumley (London: John Russell Smith, 1875). Jacox, F. ‘A Mere Question of Handwriting’, The New Monthly Magazine, January 1865, pp. 35–53. Lavater, J.C. Essays on Physiognomy, Designed to Promote the Knowledge of and the Love of Mankind, engraved by Thomas Holloway, transl. by H. Hunter, 3 vols (London: John Murray, 1789), vol. 3.

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O’Brien, J.F. The Scientific Sherlock Holmes: Cracking the Case With Science and Forensics (Oxford: Oxford University Press, 2013). Ong, W.J. Orality and Literacy: The Technologizing of the World (London and New York: Methuen, 1982). Phillipps, S.M. and A. Amos. A Treatise on the Law of Evidence. Part the Second. On Written Evidence (London: Saunders and Benning, 1838). Schooling, J.H. ‘Written Gesture’, The Nineteenth Century, March 1895, pp. 477–490. Shuttleworth, S. Charlotte Brontë and Victorian Psychology (Oxford: Oxford University Press, 1996). Smiles, S. Self-Help, ed. by Peter W. Sinemma (Oxford: Oxford University Press). Spooner, W.A. ‘Handwriting and Character’, Murray’s Magazine, November 1888, pp. 656–665. Stevenson, R.L. Strange Case of Dr Jekyll and Mr Hyde and Other Tales, ed. by R. Luckhurst (Oxford: Oxford University Press, 2008). Stocker, R.D. A Concordance of Graphology and Physiognomy (London: Roxburghe, 1896). Swafford, K. Class in Late-Victorian Britain: The Narrative Concern With Social Hierarchy and Its Representation (Amherst: Cambria Press, 2007). Thomas, R.R. Detective Fiction and the Rise of Forensic Science (Cambridge: Cambridge University Press, 1999). Vincent, D. Literacy and Popular Culture: England 1750–1914 (Cambridge: Cambridge University Press, 1989). White, J. How to Read Character From Handwriting. Illustrated With Thirty-Four Autographs of the Most Celebrated Men and Women of the Day (3rd edition; London: Simpkin, Marshall).

11 ‘They will not read it, but their sons & daughters may’ Judging Percy Shelley’s Queen Mab (1813) in the nineteenth century Cian Duffy On 18 August 1812, the twenty-year-old Percy Bysshe Shelley (1792–1822) sent to the London bookseller Thomas Hookham (1739–1819) a ‘specimen’ of a ‘grand & comprehensive’ poem that he was writing about ‘the Past, the Present, & the Future’: ‘I have matter enough for 6 more cantos’, Shelley affirmed.1 By midMarch 1813, Shelley had finished the poem itself and was ‘preparing’ the ‘long philosophical, & Anti Christian’ notes which would accompany the main text.2 ‘I expect no success’, he told Hookham encouragingly: ‘let only 250 Copies be printed. A small neat Quarto, on fine paper & so as to catch the aristocrats: They will not read it, but their sons & daughters may’.3 The result was Queen Mab; A Philosophical Poem; With Notes (1813), Shelley’s first major poem, which more than one commentator has considered ‘the most revolutionary document of the age in England’.4 As Richard Holmes points out, ‘in the twenty-five years from its first printing, [Queen Mab] was undoubtedly the most widely read, the most notorious, and the most influential of all Shelley’s works [and] established itself as a basic text in the self-taught working-class culture’ of the 1820s and 1830s.5 Nor has it, as William St. Clair observes, since 1821, ever been out of print.6 And yet, despite this early prominence, Queen Mab is now perhaps the most neglected of Shelley’s major works, by professional Shelley scholars and by the general public alike. This essay traces the origins of that paradox to the various judgments that were passed on Shelley’s ‘early wilding flower’ during the nineteenth century and relates those judgments not only to the wider history of Shelley’s work and to the evolution of his status as a canonical poet, but also to the shaping by Victorian critics of the thing that we now call ‘Romanticism’.7 Hence, my argument here both complements and extends Neil Fraistat’s excellent discussion, in his essay ‘Illegitimate Shelley’, of Mary Shelley’s collected editions of her husband’s work, and of how, specifically: the etherealized, disembodied, and virtually depoliticized poet who emerged from her editions [. . .] was the corporate product of an entire cultural apparatus: sponsored by a nascent set of middle-class Victorian ideological positions, propagated by the publishing and reviewing institutions, mediated by

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Focusing on the case of Queen Mab, I show here how judgments passed on the poem in the nineteenth century were almost always inseparable from judgments passed on the poet, making the early reception history of Queen Mab a key indicator of the processes by which Victorian critics ‘de-clawed’ (for want of a better word) Shelley, transforming the politically engaged, Radical Shelley, the demon of the conservative reviews, into a canonical, Romantic lyricist, fit for consumption by genteel readers.9

‘Perfectly worthless in point of literary composition’: early judgments of Queen Mab Editorial projects now in progress on both sides of the Atlantic have finally rescued Shelley’s Queen Mab from the ‘Juvenilia’ to which it was definitively consigned by Thomas Hutchinson in the first Oxford edition of The Complete Poetical Works of Percy Bysshe Shelley (1917), and where it languished in all subsequent printings of that edition, including the revised text produced by Geoffrey Matthews in 1970.10 Some first-rate scholarly work has also been done on the poem, much of it concerned with documenting the relationship between Queen Mab and its sources in eighteenth- and early nineteenth-century radical thought or with clarifying the philosophical and political positions taken by Shelley. This said, Queen Mab still remains the most neglected of all Shelley’s major works, receiving less attention, from both scholars and general readers alike, than other comparably disregarded works such as Laon and Cythna (1817) and Hellas (1822). Of particular note is the relative paucity of critical engagements with Queen Mab as a work of literature, despite its comprising some nine cantos of varied verse forms, in total some 2,289 lines. In fact, this tendency to view Queen Mab as first and foremost a philosophical and political tract, which just happens to be a poem with notes, continues in many respects the judgments made on the poem by nineteenth-century commentators and, to a certain extent, by Shelley himself. It is to those nineteenth-century judgments of Queen Mab, and to their consequences, that I want, now, to turn. When Shelley first announced Queen Mab to Hookham in his letter of 18 August 1812, he gave forewarning of the poem’s strident politics: ‘you will perceive that I have not attempted to temper my constitutional enthusiasm’, he writes, punning no doubt both on ‘constitutional’ (referring simultaneously to his character and to his principles) and on ‘enthusiasm’ (a term then most often associated with religious fervour).11 Shelley felt confident, though, that as a poem, Queen Mab would be unlikely to attract a prosecution for blasphemy, libel or sedition: the holy trinity, in the early nineteenth century, for the British government’s crackdown on freedom of the press. ‘Indeed a Poem is safe’, Shelley assured Hookham, quoting Horace for good measure, ‘the iron-souled Attorney general would scarcely dare to attack “genus irratibile vatum”’.12 Responding to this remark, in The Young

‘They will not read it’ 243 Shelley, Cameron suggests that Shelley uses the dream vision framing device of Queen Mab ‘to ease his readers by degrees into the radical propaganda which forms the core of the poem’.13 That is undoubtedly the case. But as the phrasing of Shelley’s letter to Hookham also suggests, there is some reason to think that he viewed the poem, at least in part, as an instrument for getting those ‘long philosophical, & Anti Christian’ notes past government censorship and into the hands of impressionable and potentially influential readers, the ‘sons & daughters’ of ‘aristocrats’.14 In a letter to Hookham of 26 January 1813, Shelley repeats that ‘The notes to Q.M. will be long and philosophical’: ‘I shall take that opportunity’, he continues, ‘which I judge to be a safe one of propagating my principles, which I decline to do syllogistically in a poem’.15 In his Preface to Prometheus Unbound (1820), Shelley would later advise the reader that: it is a mistake to suppose that I dedicate my poetical compositions solely to the direct enforcement of reform, or that I consider them in any degree as containing a reasoned system on the theory of human life. Didactic poetry is my abhorrence; nothing can be equally well expressed in prose that is not tedious and supererogatory in verse.16 This had long been a cornerstone of Shelley’s poetics, and in his letter to Hookham about the notes to Queen Mab he makes the same point: ‘A poem very didactic is I think very stupid’.17 But the conclusion is unavoidable: the poetic text of Queen Mab is not just an attempt to ‘propagate’ progressive ‘principles’ through an appeal to the emotions (rather than to deductive reasoning), but also means of simultaneously putting a ‘reasoned system’ into the hands of the reader via the poem’s extensive editorial apparatus, which contains detailed reflections on, and copious extracts from, a wide range of eighteenth- and early nineteenth-century Radical thinkers, including the French idéologues D’Holbach (1723–1789) and Volney (1757–1820). In any case, it quickly became apparent that the finished product was far too inflammatory to publish in the ordinary way. ‘It must not be published under pain of death’, Harriet Shelley wrote to Catherine Nugent, an Irish friend, on 21 May 1813: ‘because it is too much against every existing establishment. It is to be privately distributed to his [i.e. Shelley’s] friends, and some copies sent over to America’.18 In the event, Shelley ‘privately distributed’ some 70 of the 250 copies printed by Hookham, indeed ‘a small neat Quarto, on fine paper’, often carefully removing the dedication, imprint and other identifying features.19 We do not know how many aristocratic families received ‘so dangerous a gift’.20 However, the political philosopher William Godwin (1756–1836), Shelley’s future fatherin-law, records reading a copy on 26 December 1813, and seems also to have seen the poem in MS the previous year: Godwin’s politics, as expressed in his Enquiry Concerning Political Justice (1793), had a significant influence on Shelley’s poem, and so it is unfortunate that he does not record his opinion of it.21 And as late as November 1817, Shelley sent one to a Mr Waller in London, ‘as Cardinal Wolsey was sent to Heaven, “with all his imperfections on his head”’,

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sounding the same diffident note which would characterize his later assessments of Queen Mab.22 Queen Mab received its first critical appraisal in the numbers for March, April, May and July 1815 of the short-lived Theological Inquirer, or Polemical Magazine, edited by the Radical lawyer and publisher George Cannon (1789–1854). All four notices are signed ‘F’, whom David Worrall has plausibly identified as the shoemaker poet Robert Charles Fair (dates unknown), who also published a panegyric ‘Ode to the Author of Queen Mab’ in the Theological Inquirer, and who was subsequently involved in the publication of a pirated edition of Shelley’s poem in 1821 (see discussion below).23 Shelley himself almost certainly had some connection with F’s reviews, which are, like the ‘Ode’, overwhelmingly – and on more than one occasion really quite ludicrously – positive, and no doubt tonguein-cheek.24 Take, just by way of one example, F’s deadpan remark, in the March number, that ‘Satan’s passage through chaos, in Milton [Paradise Lost, Book II], sublime as it is, sinks into comparative insignificance, when considered with the description of the fairy and the spirit’s course through the immensity of the universe’, in Queen Mab i, 222–77!25 F’s reviews – anticipating the later piracy – clearly aimed not just to praise but also to publish as much of Queen Mab as possible. Between them, they reproduce more than 600 well-chosen lines from the poetic text (a little more than a quarter of the total). F justifies such lengthy excerption by a desire, ironically formulated given the atheistic drift of Queen Mab, ‘like Mahomet and St. John, to give your readers [i.e. of the Theological Inquirer] a faint idea of the paradise to which I have been admitted’, and he closes with a wonderful apophasis, advising the reader that ‘the copious [surely punning on both length and originality] and elegant notes to the poem, it is not within my design to call your attention to’.26 But behind the wit, F has a serious purpose: both to circumvent the legal judgments which would prevent Queen Mab from reaching the public – a far wider public than those ‘sons & daughters’ of aristocrats whom Shelley initially hoped to address – and to highlight the repressive legislation which keeps works like Queen Mab from the public.27 F opens his review in March 1815 with the (patently unlikely) ruse that a copy of Queen Mab had been given to him ‘during an excursion on the continent’ by the ‘celebrated’ German writer and diplomat August von Kotzebue (1761–1819), whom, F claims, ‘spoke of it in the highest terms of admiration’, but as ‘too bold a production to issue from the British press’, which is ‘at present too much shackled to give vent to the many important truths it contains’.28 And F’s final review, in July 1815, finishes on this same note. Queen Mab, F assures us, is an example of the power of poetry to effect progressive political change, to ‘soar to other and to nobler objects than the domes of superstition and the heaven of priestly invention’.29 But Shelley’s poem is also, for that very reason, a compelling argument, F concludes, for ‘the complete freedom of the press in matters of public opinion’: ‘For the reflection must occur that this is only one of the numerous productions of genius which have perished in the bud, which have been destroyed in the womb by its oppressive restrictions’.30

‘They will not read it’ 245 The first critical appraisal Shelley’s Queen Mab, then, not only judges favourably the poem’s damning judgments on the social and political shortcomings of early nineteenth-century British society, but also uses the poem as an occasion to pass judgment on those same shortcomings, as exemplified specifically in the restrictions on freedom of the press.31 And Shelley himself, here, is judged as both ‘a philosopher of the first rank’ and a poet of ‘luxurious imagination’.32 If Shelley was hoping to make Queen Mab ‘safe’ from legal judgment through private distribution or excerpt-laden reviews, however, he soon had cause to regret it. After his first wife, Harriet Westbrook, drowned in the Serpentine in London in December 1816 (most probably a suicide), her family instituted a Chancery suit against Shelley to decide custody of his two children with Harriet, Ianthe and Charles.33 On 11 January 1817, Shelley wrote to Mary that the Westbrooks had ‘filed a bill, to say that I published Queen Mab, that I avow myself to be an atheist & a republican; with some other imputations of an infamous nature’.34 The relevant section of the bill reads: ‘And your orators shew that the said Percy Bysshe Shelley avows himself to be an Atheist and that since his said Marriage he has written and published a certain work called Queen Mab with notes and other works and that he has therein blasphemously derided the truth of the Christian Revelation and denied the existence of God as the Creator of the Universe’.35 These were, of course, extremely serious charges, and when the Lord Chancellor’s judgment deprived Shelley of custody of Charles and Ianthe on 17 March 1817, there was real concern that, bad as things already were, the matter might not end there. In his letter to Mary of 11 January, Shelley had expressed his fear that if Chancery judged in favour of the Westbrooks, they might then use that judgment as the ‘basis’ for a prosecution for ‘criminal information or common libel’, both of which carried substantial prison sentences and could lead further to the loss of custody over his children by Mary.36 On 30 January 1817, Shelley had written in a similar vein to Claire Clairmont, Mary’s stepsister, saying that he had ‘little doubt in my own mind but that [the Westbrooks] will finally succeed in the criminal part of the business’, and a letter to Byron of 23 April, over a month after the Chancery decision, reveals that the threat was still present: I wrote to you last under the impression of some horrible circumstances which had occurred to me; and in the midst of a legal persecution, the most material blow of which I need not inform you has taken effect, though another, viz. that of criminal information against ‘Queen Mab’, yet remains suspended.37 Shelley was fortunate that the Westbrooks never sought this additional judgment against him: had they (or presumably anyone else) done so, he would almost certainly have been convicted. Notwithstanding the heroic efforts of F in the Theological Inquirer and the limited press reporting of the Chancery proceedings against Shelley initiated by the Westbrooks, however, Queen Mab remained essentially unknown to the British reading public until May 1821, by which time the Shelleys were living in Italy, when the Radical London bookseller William Clark brought out a pirated

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edition, in effect publishing the poem for the first time.38 Immediately on hearing this from his friend Horace Smith (1779–1849) in London, Shelley wrote to his publisher Charles Ollier (1788–1859), also in London, on 11 June 1821. This letter was intended by Shelley as semi-public statement and should be read with that in mind. The terms of his response are instructive, though, and so the letter is worth quoting at length: I hear that a bookseller of the name of Clarke has published a poem which I wrote in early youth, called Queen Mab. I have not seen it for some years, but inasmuch as I recollect it is villainous trash; & I dare say much better fitted to injure than to serve the cause which it advocates. – In the name of poetry, & as you are a bookseller (you observe the strength of these conjurations) pray give all manner of publicity to my disapprobation of this publication; in fact protest for me in an advertisement in the strongest personal terms. – I ought to say however that I am obliged to this piratical fellow in one respect; that he has omitted, with a delicacy for which I thank him heartily, a foolish dedication to my late wife [i.e. Harriet], the publication of which would have annoyed me: & indeed it is the only part of the business that could seriously have annoyed me. – although it is my duty to protest against the whole. I have written to my attorney to do what he can to suppress it.39 Leaving aside, for the moment, the slightly whimsical tone of this letter, Shelley offers here two significant judgments on Queen Mab: that it is seriously flawed (‘villainous trash’) both as a work of poetry and as a political statement. A second, formally open letter, which Shelley sent to his friend Leigh Hunt (1784–1859), editor of the liberal, London-based magazine The Examiner, on 22 June 1821, and also to Ollier on the same day, makes similar observations. It, too, is worth quoting at length: A poem entitled, ‘Queen Mab’, was written by me at the age of eighteen, I dare say in a sufficiently intemperate spirit – but even then was not intended for publication, and a few copies only were struck off, to be distributed among my personal friends. I have not seen this production for several years; I doubt not but that it is perfectly worthless in point of literary composition; and that in all that concerns moral and political speculation, as well as in the subtler discriminations of metaphysical and religious doctrine, it is still more crude and immature. I am a devoted enemy to religious, political, and domestic oppression; and I regret this publication, not so much from literary vanity, as because I fear it is better fitted to injure than to serve the cause of freedom. I have directed my solicitor to apply to Chancery for an injunction to restrain the sale.40 This letter, which Hunt published in The Examiner on 15 July 1821, concludes, significantly, by attacking the restrictions placed by the British government on the freedom of the press through legal judgments. In a passage which very

‘They will not read it’ 247 much recalls F’s similar attacks in his reviews of Queen Mab for the Theological Inquirer, Shelley here condemns the ‘system of inculcating the truth of Christianity and the excellence of the Monarchy’ by ‘such equivocal arguments as confiscation, and imprisonment, and invective, and slander, and the insolent violation of the most sacred ties of nature and society’, the latter a clear allusion to the Chancery judgment given against him in the custody suit brought by the Westbrooks.41 As Jones observes, these two letters of June 1821 have ‘often been accepted as Shelley’s final evaluation of Queen Mab’ by scholars and editors of his work: an unequivocally negative judgment of the poem’s artistic and political merits.42 In her note on Queen Mab in The Poetical Works of Percy Bysshe Shelley (1839), for example, Shelley’s very first editor, and still one of his finest, Mary Shelley, strikes the same tone, emphasizing Shelley’s youth and good intentions whilst he wrote the poem but also concluding that ‘it is doubtful whether he would himself have admitted it into a collection of his works’.43 She judged the poem worthy of inclusion in her edition – acknowledging the many pirated editions which followed Clark’s – because it ‘has since been frequently reprinted; and it is too wellknown, and the poetry is too beautiful, to allow of its being omitted’.44 Shelley’s ‘long & philosophical’ notes, however, she omitted, along with ‘such portions [. . .] as support, in intemperate language, opinions to which at that age he was passionately attached’.45 When Mary Shelley did subsequently print an unexpurgated text of Queen Mab and the notes in her revised edition of 1847, she did so ‘not because they are models of reasoning or lessons of truth; but because Shelley wrote them’.46 Mary Shelley’s prima facie judgment of Queen Mab here, however, as a youthful work whose style and opinions Shelley had essentially outgrown, is not so categorical as it might first seem. Her earlier editions of Shelley’s poetry were produced under the superintendence not just of the law but also of Shelley’s family, and in her edition of 1847 she justifies her unwilling omission of ‘certain portions’ of Queen Mab from the 1839 edition of Poetical Works on the grounds that they would have been too ‘shocking’ for the ‘general reader’ – all of which makes it clear that even in 1847, the publication of the unexpurgated text of Queen Mab risked attracting various kinds of hostile judgment.47 And in point of fact, Mary’s explanation in 1847 of her omissions in 1839 is disingenuous: Edward Moxon (1801–1858), the publisher of the 1839 edition of Poetical Works, had been successfully prosecuted for blasphemy on account of the inclusion of Queen Mab and the expurgations were made in response to his conviction rather than out of any preemptive deference to the sensibilities of the ‘general reader’. Mary’s various editorial comments should therefore be seen less as a judgment on her husband’s poem, then, than as a reflection of the legal and reputational difficulties involved in publishing it, that is, less as a judgment on Queen Mab than as an attempt to deflect the various kinds of judgment which might still be made against it. In a similar vein, it needs to be remembered that Percy Shelley’s above-cited judgments on Queen Mab, in his letters to Ollier and Hunt in summer 1821, were made in public and are to a considerable extent therefore also performative documents. Shelley knew, for example, that there was virtually no chance of his

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securing an injunction against the book, nor is there any evidence to suggest that he actually sought one. Queen Mab was far too inflammatory to be protected by copyright laws: when Robert Southey (1774–1843) had sought in 1817 to gain an injunction against the sale of a pirated edition of his radical drama Wat Tyler (1794), the Lord Chancellor, John Scott, 1st Earl of Eldon (1751–183), ruled that the seditious content of the work denied it the protection of the law – and Shelley mentions this ‘precedent’ in his letters to Ollier and to Hunt.48 Shelley also realized the extent to which the pirated edition of Queen Mab was likely to damage his already-tarnished reputation – ‘I heard that the abuse against me exceeds all bounds’, he wrote to Ollier on 11 June – and to raise again the spectre of prosecution: in a letter to Claire Clairmont of 16 June 1821, he described the piracy as ‘a curious circumstance, which if I were in England would work me much annoyance’, concluding of the furore which it had caused in the conservative press that ‘it is well for me that the Alps & the Ocean are between us’.49 Shelley’s judgments of Queen Mab in his private responses to the Clark’s piracy are, however, somewhat more nuanced. He usually retains the whimsical tone of his first letter to Ollier on the subject, whilst softening his critique of the poem and making it apparent that his public protests were indeed performative. Take as representative Shelley’s letter to his friend John Gisborne (1773–1836) of 16 June 1821, in which he says (not, of course, without a touch of bravado) that ‘a droll circumstance has occurred’: Queen Mab, a poem written by me when very young, in the most furious style, with long notes against Jesus Christ, & God the Father and the King & the Bishops and & marriage & the Devil knows what, is just published by one of the low booksellers in the Strand, against my wish & consent, and all the people are at loggerheads about it [. . .] You may imagine how much I am amused. – For the sake of a dignified appearance however & really because I wish to protest against all the bad poetry in it, I have given orders to say that it is all done against my desire. – and I have directed an attorney to apply to Chancery for an injunction, which he will not get.50 Shelley was also, understandably, curious: a letter to Leigh Hunt of 6 October 1821 revealed that he was still trying to get ‘a copy of Clarke’s [sic] Queen Mab’ sent to him in Italy.51 Clark’s edition seems to have sold well and widely. Edward Trelawny (1792– 1831), the friend and early if not altogether reliable biographer of Shelley and Byron, claims to have come across a copy in Geneva while en route to Italy in 1821, and Shelley’s friend Edward Williams (1793–1822) records reading one (‘an astonishing work’) at Livorno on 30 June 1822, just eight days before he and Shelley drowned in the Golfo di Spezia.52 Even had Shelley sought an injunction against the sale of the volume, however, it would not have been necessary. The Society for the Suppression of Vice quickly brought a prosecution against Clark, who was convicted and sentenced in November 1822 to four months in prison.53

‘They will not read it’ 249 By then, however, it was too late: the floodgates had been opened. In the twenty years after Clark’s piracy, at least twelve further unauthorized editions of Queen Mab appeared, many of them issuing from the cheap Radical presses. These included a bogus ‘New York’ edition issued in 1821 by Cannon, Fair and William Benbow (1786–1864), and three very widely disseminated editions in 1822, 1823, and 1826, by the Radical publisher and activist Richard Carlile (1790–1843), in whose bookshop on Fleet Street William Clark also worked.54 In his Life of Shelley (1847), Thomas Medwin (1788–1869), Shelley’s cousin, claims that Queen Mab became ‘the gospel’ of the socialist movement begun by Robert Owen (1771–1858) in the 1820s and 1830s, and 1829, 1832, and 1833 did indeed see editions of the poem issued by John Brooks (dates unknown), the Oxford Street bookseller with close links to Robert Owen who is often described, to use Medwin’s phrase, as ‘the publisher if not the printer of the Owenites’; moreover, an American edition of 1831 bears the imprint ‘Frances Wright and R. D. Owen’, the latter being presumably Robert Dale Owen (1801–1877), son of Robert.55 In his essay ‘Shaming the Devil about Shelley’ (1892), George Bernard Shaw (1856–1950) recalls a lecture by Henry Stephens Salt (1851–1939), in which he ‘mentioned on the authority of Mrs Marx Aveling, who had it from her father Karl Marx, that Shelley had inspired a good deal of that huge but badly managed popular effort called the Chartist movement’.56 An ‘old Chartist’, Shaw says, confirmed this claim, and he cites as further ‘proof’, the ‘collection’ in the possession of Harry Buxton Forman (1842–1917), one of the founders of the Shelley Society and one of the great nineteenth-century editors of Shelley’s work, ‘of small, cheap copies [of Queen Mab], blackened with the finger-marks of many heavy-handed trades’.57 And alongside these various unauthorized editions, politically progressive extracts from Queen Mab began increasingly to appear in left-leaning newspapers. On 2 November 1839, for example, the Chartist newspaper Northern Star carried a slightly edited text of Queen Mab v 93–126, in which Shelley attacks the unjust distribution of wealth and property.58 As has often been remarked, then, illegitimate editions of Queen Mab aimed chiefly at ‘the mechanic and the labourer’ came to exert a profound influence over the development of working-class culture and politics in Britain in the decades following Shelley’s death, in ‘the growth of free thought in England and America, especially amongst the working classes’, as Forman put it.59 Moreover, as Jason Kolkey has shown: Pirate publishers drew Mab out of its tightly bound original discursive network, definitively breaking with its original form as a crown octavo [. . .] As the work takes on new forms, rendered increasingly affordable and comprehensible to readers of lower social class, it is also distanced from direct associations with its writer’s intentions and target audience.60 The irony here – that Shelley’s most widely read and influential work in the Victorian period was a poem which he never published and from which he (at least in public) distanced himself – has not then been lost on commentators. Forman,

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for example, in 1888, stated his conviction that Queen Mab is the work ‘by which [Shelley] is even now perhaps more widely known than by the supreme achievements of his manhood’: ‘to this day’, Forman concludes, ‘I believe, there are ten who know Shelley as the author of Queen Mab for one who knows that he wrote Prometheus Unbound’.61 But there is more at stake here than just the irony of literary and political history. The judgments passed on Queen Mab in the nineteenth century played a key role during the Victorian period not only in the ‘rehabilitation’, for want of a better word, of the scandalous Shelley as a culturally legitimate romantic poet, but also, by extension, in the shaping of the thing we call romanticism. It is to those judgments, and to their consequences, that I want now to turn.

‘Settling down’: judging Queen Mab and the making of the romantic Shelley On 14 April 1886, Harry Buxton Forman delivered to the Shelley Society a paper entitled ‘The Vicissitudes of Queen Mab. A Chapter in the History of Reform’. Forman chose his title well: his paper passes a damning judgment on Shelley’s poem, both as a poem and, moreover, on account of the deleterious effect which it has had, and continues to have, in Forman’s opinion, on Shelley’s reputation as a poet. Forman grants that Queen Mab ‘with all its faults, is an astonishing work for any one to have produced and put forth in bodily form in his twenty-first year’, and he judges the poem interesting on account of its being both ‘a receptacle wherein [Shelley] enshrined early poetical efforts’ and as ‘a mine wherein he dug for later poetical efforts’.62 But on the whole, Forman dismisses Queen Mab – stylistically and politically – as the product of an early and naive ‘passion for reforming the world’.63 In fact, Forman makes a sustained attempt entirely to decouple Shelley from Queen Mab, quoting liberally from the various repudiations of the poem by both the Shelleys, although, as we have seen, these were public, performative documents whose fidelity should not be over-estimated. Through its various, widely circulated illegitimate editions, Forman thinks, Queen Mab has had an afterlife against which Shelley has proved ‘powerless’, just as Frankenstein was pursued by his Creature (the simile, not entirely accurate, is Forman’s own). ‘The same Nemesis’, Forman concludes, ‘which found the author of Queen Mab in the Court of Chancery, and pursued his adherents when he was no longer assailable in the flesh, has pursued also his literary fame’.64 Issues of aesthetic and social judgment are intricately linked in Forman’s analysis of this situation. Granting (as we have seen) the importance of Queen Mab to working-class culture, Forman notes also that the: furiousness of its style and largeness of its circulation tended to set the better educated and more cultured of Englishmen against the author, whose other works, great and noble though they be, had for long and long no circulation

‘They will not read it’ 251 of any significance; and were often eschewed simply as works by the author of the notorious Queen Mab.65 In other words, in Forman’s judgment, it is the very significance of Queen Mab to movements like the Owenites and the Chartists, which has exerted such a negative influence over Shelley’s standing as a poet: Queen Mab drew together into an easy compass, and expressed [. . .] all the leading tenets and dogmas of the revolutionary writers; and this is why the book was drawn up to an eminence which it was not fitted to occupy, and spread abroad among an immense audience whom it was but partially fitted to enlighten.66 Forman is grateful to conclude, then, that ‘other things are now taking’ Queen Mab’s ‘place as an instrument of education’ and it is consequently ‘settling down to its final station among Shelley’s juvenilia’.67 The processes which we see at work here, in Forman’s critique – the separation of the political from the lyrical Shelley, the separation of the gentleman poet from the labouring classes – are indicative of the wider cultural dynamics involved in the construction of canonical romanticism during the Victorian period. In the specific case of Shelley (who stood, from this point of view, in even greater need of rehabilitation than Byron), these same processes would inform the sanitization of the Radical Shelley by Victorian critics like Matthew Arnold (1822–1888) and Algernon Charles Swinburne (1837–1909) into what Arnold, in an oft-cited expression, describes as an ‘ineffectual angel, beating in the void his luminous wings in vain’.68 Many factors, of course, were involved in this Victorian remediation of the notorious Shelley as a culturally acceptable, romantic poet. But early critical judgments of Queen Mab played a key role, and it is to those judgments that I will now, in closing, turn. A notable feature of the many critical responses to the illegitimate editions of Queen Mab which began to appear in the 1820s is that they often anticipate exactly those features which mark Forman’s assessment in ‘The Vicissitudes of Queen Mab’: an appreciation of the aesthetic beauty of the poem and a need to negotiate the relationship between the aristocratic Shelley and his Radical subject matter. Ad hominem judgment is significant in almost all the early reviews of Queen Mab, but the more sympathetic the reviewer, relatively speaking, the more the attempt is made to separate judgment of the poem from judgment of the author, i.e. to condemn the one without condemning the other.69 This, again, is that process of romanticizing Shelley which Forman would bring to its apex in ‘The Vicissitudes of Queen Mab’ by trying definitively to sever the link between Shelley and his ‘hideous progeny’, to continue Forman’s Frankenstein simile.70 One of the earliest extant notices of Clark’s illegitimate edition appeared on 11 March 1821 in John Bull’s British Journal. It is positive and almost certainly

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has some connection with Cannon and Fair since it largely reprints the latter’s review from the Theological Inquirer, prefacing it in similarly extravagant terms: [Queen Mab] contains thoughts and sentiments so bold, no bookseller has hitherto ventured to publish it; but that is no reason why some of its beauties should not be made known to our readers. The author has made fiction and suitable poetical imagery the vehicles of his moral and philosophic opinions. The attributes of Queen Mab form the machinery of a work in which the delightful creations of fancy, and the realities of truth, unite to produce an indelible impression on the mind.71 Most subsequent reviews would agree entirely about the ‘indelible impression’ made by Queen Mab although disagreeing altogether as to its nature. Significantly, though, even this positive notice of Queen Mab tends (albeit implicitly) to separate the ‘beauties’ of the poem from the ‘bold’ ‘opinions’ of its author. A similar, though less unequivocally positive notice in The London Magazine and Theatrical Inquisitor in March 1821 continues this trend, attempting to focus on ‘the poetical merits of the work’ and to separate those from ‘the sentiments contained in it’.72 ‘None but a man of genius could write this’, the reviewer concludes, with the ‘trust’ that Shelley ‘will soon completely emancipate himself’ from the ‘faults’, ‘affectations’ and restrictions – artistic and political – ‘of that school with which the author has been classed’, namely the so-called Cockney School of leftleaning writers gathered around Leigh Hunt, and which this reviewer evidently felt was beneath the dignity of Shelley the gentleman poet.73 Even much more hostile reviews, however, such as that in The Literary Gazette and Journal of Belle Lettres for 19 May 1821, also seek to walk the same tightrope between judgments of Queen Mab as a poem and judgments of the opinions which it contains, and between judgments of those opinions and judgments of the author. ‘Our desire’, The Literary Gazette affirms, ‘is to do justice to the writer’s genius, and upon his principles: not to deny his powers, while we deplore their perversion’.74 Hence this long review, which contains multiple extracts from the poem and the notes, grants that ‘Shelley’s genius’ is ‘doubtless of a high order’, but also condemns his ‘principles’, in the most explicitly ad hominem terms, as ‘principles, which in the balance of law and justice, happily deprived him of the superintendence of his infants, whilst they plunged an unfortunate wife and mother into ruin, prostitution, guilt, and suicide’.75 A footnote to this passage hammers home the point, explaining that: ordinary criticism has little or nothing to do with the personal conduct of authors; but when the most horrible doctrines are promulgated with appalling force it is the duty of every man to expose, in every way, the abominations to which they irresistibly drive their odious professors.76 Queen Mab itself is characterized as a paradoxical mix of ‘genuine poetry’ and ‘metaphysics of the worst kind [. . .] at once prosaic and unintelligible’, of the

‘They will not read it’ 253 ‘noblest [. . .] poetry’ and ‘raving atheism’.77 It is, finally, dismissed as ‘most infamous publication’ and with the suspicion, entirely unfounded, that some of the notes, which ‘are worthy of the poem’, were written by Lord Byron.78 Had we scope, we could go on like this through the reviews. The Literary Chronicle and Weekly Review for 2 June 1821, for example, acknowledges that Queen Mab ‘contains much powerful writing and many beautiful passages; but these make but a miserable atonement for the principles which it inculcates’, before consigning Shelley to what it assumes must be the ‘hell in his own conscience’.79 Most vicious, however, was the review by the Congregational Minister William Bengo Collyer (1782–1854) in The Investigator, or Quarterly Magazine in 1822 of ‘that most execrable publication’.80 ‘Compared to this’, Collyer opens his diatribe, ‘Don Juan is a moral poem and Cain a homily’; many paragraphs later, Collyer concludes with a gloating imagination of the scene of Shelley’s drowning, leaving him ‘to the judgment of his God. That judgment we presume not to pronounce’.81 Notwithstanding its vitriol, however, Collyer’s review is also notable for the fact that it is one of very few which do not attempt to exonerate if not altogether to redeem Shelley by marshalling the beauty of the verse against the perceived depravity of the political views expressed in Queen Mab and the personal principles presumed to inform them. The point to be made here, in other words, is that the creation of a romantic Shelley by Victorian critics such as Forman and Arnold can be seen to have had a significant prehistory in earlier critical judgments of Queen Mab and its author in the reviews of illegitimate editions of the poem. Or, to put it more precisely, the sanitization of Shelley as a Romantic author by Victorian critics went hand in hand, to a considerable extent, with the sanitization of Queen Mab from a political work to an example of ‘beautiful’ if naive and/or ill-informed politics. Undoubtedly, Shelley himself had a part to play in initiating this process. In Alastor; or The Spirit of Solitude, and Other Poems (1816), after all, he published revised excerpts from the less political parts of Queen Mab under the title ‘The Daemon of the World’, which John Gibson Lockhart (1794–1854), writing in Blackwood’s Edinburgh Magazine in November 1819, judged ‘a strange and unintelligible fragment of a poem’ which ‘is exceedingly beautiful’.82 Mary Shelley’s attempts to bring a legitimate edition of Queen Mab before the public sought, too, as we have seen, to avoid or reduce the various kinds of hostile judgment which the poem could still attract by emphasizing the beauty of the poetry whilst simultaneously distancing Shelley from its politics. Interestingly, however, in the years after Shelley’s death, the appearance of illegitimate, unexpurgated editions of Queen Mab aimed at labouring-class readers was increasingly paralleled, albeit never to the same extent, by illegitimate expurgated editions aimed at a more genteel readership. In 1830, for example, the publisher Stephen Hunt (dates unknown) issued what the title-page identified as a ‘revised edition, free from all the objectionable passages’ – cuts totalling some 800 lines of verse and all the notes – under the title Queen Mab, or the Destiny of the World.83 Later that same year, Hunt included the same text of Queen Mab in

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his anthology The Beauties of Percy Bysshe Shelley, where a note reassured the reader, drawing on the phrasing of Shelley’s own public disavowals of the Clark edition, that: the Poem of Queen Mab, contained in this volume, has been revised with considerable care; and all those passages omitted, which in the opinion of some sincere friends to the cause believed by Mr. Shelley to be the most sacred upon earth, are calculated to retard rather than assist the melioration of mankind. The Editor regrets their omission the less, upon reflecting that Mr. Shelley himself disapproved of them, as being crude and injudicious, some years after he had written the poem.84 Four years after Hunt’s edition, John Ascham (dates unknown) included another revised text of Queen Mab in his pirated The Works of Percy Bysshe Shelley, with His Life (1834) and Ascham reprinted this two years later in his own The Beauties of Percy Bysshe Shelley [. . .] and Queen Mab, free from the objectionable passages (1836). Already in the 1830s, then, unauthorized, politically and commercially motivated judgments by the editors and publishers of illegitimate, expurgated editions of Queen Mab were making it possible for genteel readers to consume a very different ‘Shelley’ from that made available through the illegitimate unexpurgated editions: a Shelley of lyrical beauty devoid of Radical politics. And this safe, genteel Shelley was the one whom Victorian critics would enshrine as the canonical, romantic figure (as depicted in Figure 11.1), a version of Shelley which would persist in both popular imagination and academic discourse well into the twentieth century. Indeed, the reintegration of Shelley the poet and Shelley the political thinker into something like a unified individual arguably only began in earnest with the work of Kenneth Neill Cameron in the 1970s and was continued and extended by the likes of Paul Dawson, Paul Foot, and Michael Henry Scrivener in the 1980s and 1990s – and has, of course, found its most recent popular expression in Jeremy Corbyn’s quotation at Glastonbury, in 2017, from Shelley’s response to the Peterloo Massacre in ‘The Mask of Anarchy’. This ‘reintegration’ (for want of a better word) of Shelley was both enabled by and helped to enable the broadening and deepening of our understanding of romanticism, and again, Queen Mab played a signal role here. It was still possible, in 1924, for Olwen Campbell, in his telling-titled book Shelley and the Unromantics, to write off Queen Mab as an incongruous ‘unromantic’ mixture of ‘revolutionary war cries’ and ‘mincing eighteenth-century verse’, a judgment which we might usefully contrast with David Duff’s more recent assertion that Shelley, in Queen Mab, consciously ‘recreates at the level of form the fusion of romance and revolution which existed in the imagery of the 1790s’.85 From the outset, then, judgments of Queen Mab and judgments of Percy Shelley have been inextricably linked, and the ‘vicissitudes’ of Queen Mab’s reception, to borrow Forman’s term, constitute a key indicator not just of the development of

‘They will not read it’ 255 Shelley’s status as a canonical poet but also of our understanding of the shaping, by critics and commentators, of English romanticism.

Figure 11.1 ‘Percy Bysshe Shelley’ (after E.W. Wyon), from A. Collas, The Authors of England: A series of medallion portraits of modern literary characters, engraved from the works of British artists (London: C. Tilt, 1838). Source: Image courtesy of the University of Plymouth.

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Notes 1 P.B. Shelley, The Letters of Percy Bysshe Shelley, ed. by Frederick L. Jones, 2 vols (Oxford: Clarendon Press, 1964), i, p. 324. 2 Shelley, Letters, i, p. 361. 3 Shelley, Letters, i, p. 361. 4 K.N. Cameron, The Young Shelley: Genesis of a Radical (London: Palgrave Macmillan, 1950), p. 273. 5 R. Holmes, Shelley: The Pursuit (London: HarperCollins, 1994), p. 208. Since much of Queen Mab’s circulation took place through pirated editions, extracts, pamphlets and other such unconventional and ephemeral media, it is impossible, now, to gain any real sense of the numbers of texts or readers involved. But at least fourteen illegitimate editions of Queen Mab were produced between 1821 and 1840. See N.I. White, Shelley, 2 vols (New York: Octagon, 1970), vol. 2, pp. 397–398. 6 W. St. Clair, The Godwins and the Shelleys: The Biography of a Family (London: Faber and Faber, 1989), p. 512. 7 The quotation is from Shelley’s dedication ‘To Harriet *****’ before Queen Mab (l. 11). Unless otherwise indicated, all quotations from Shelley’s work are from Percy Bysshe Shelley: Selected Poems and Prose, ed. by J. Donovan and C. Duffy (London: Penguin, 2017). For more on the shaping of ‘Romanticism’ by Victorian critics, see D. Perkins, ‘The Construction of “The Romantic Movement” as a Literary Classification’, Nineteenth-Century Literature 45.2 (1990), pp. 129–143. 8 N. Fraistat, ‘Illegitimate Shelley: Radical Piracy and the Textual Edition as Cultural Performance’, PMLA 109/3 (May 1994), pp. 409–423 (410). 9 In this respect, I also complement here Jason Kolkey’s fascinating recent exploration of how, in the context of early nineteenth-century debates about intellectual property, the many pirated editions of Queen Mab (which I discuss later) wrest control of the work from Shelley through ‘unique features, whether subtle modifications or blatant departures from the author’s expressed preferences, that alter its meaning and personal or political impact’. See J. Kolkey, ‘Venal Interchanges: Shelley’s Queen Mab and Literary Property’, European Romantic Review 25:5 (2014), pp. 533–550 (534). 10 See J. Donovan, K. Everest, M. Rossington, et al. (eds.), The Poems of Shelley, 4 vols to date (London: Routledge, 1988–present); and D. Reiman, N. Fraistat, et al. (eds.), The Complete Poetry of Percy Bysshe Shelley, 3 vols to date (Baltimore: Johns Hopkins University Press, 2000–present). The length of Queen Mab – nine cantos and seventeen notes, many of them indeed ‘long’ and containing additional verses and copious extracts from other sources – has always posed difficulties for the editors of selected editions, leading to the Hobson’s choice of omission or dismemberment of one sort or another. For the latest attempt to resolve that dilemma, see the text given in Donovan and Duffy, Selected Poems and Prose by Percy Bysshe Shelley. 11 Shelley, Letters, i, p. 324. For an account of the cultural significance of ‘enthusiasm’ in the eighteenth century and romantic period, see J. Mee, Romanticism, Enthusiasm, and Regulation (Oxford: Oxford University Press, 2005). 12 Shelley, Letters, i, p. 324. Shelley quotes Horace, Epistles 2.2.102 on ‘the sensitive race of poets’. As subsequent events would prove (and as we shall see later), Shelley was entirely mistaken about the poem’s safety from prosecution, and the ‘iron-souled’ judge whom he has in mind is probably not the Attorney General, then Thomas Plumer (1753–1824), but the Lord Chancellor, John Scott, Earl of Eldon (1751–1838), who five years later, in March 1817, would deny Shelley custody of his children by his first wife, Harriet, a decision in which Queen Mab was advanced as evidence. 13 Cameron, Young Shelley, p. 244. 14 In the 1813 printing of Queen Mab, the notes occupy only five pages less than the poem itself. 15 Shelley, Letters, i, p. 350. 16 Shelley, Poems and Prose by Percy Bysshe Shelley, p. 187.

‘They will not read it’ 257 17 Shelley, Letters, i, p. 350. 18 Shelley, Letters, i, p. 368n. 19 Queen Mab had a sixteen-line dedication ‘To Harriet *****’ and bore the imprint ‘Printed for P.B. Shelley, No. 23, Chapel Street, Grosvenor Square, London’. In The Republican, 27 December 1822, the Radical bookseller Richard Carlile (1790–1843) advertised 180 of the original printing of Queen Mab for sale alongside his own, pirated edition (see discussion below); hence Shelley must have already distributed around 70 of the 250 copies originally printed. See N.I. White, Shelley: The Unextinguished Hearth (New York: Octagon, 1966), p. 97; and H.B. Forman, The Shelley Library (London: Reeves and Turner, 1886), p. 49. 20 Shelley, Letters, i, p. 368n. 21 See D. O’Shaughnessy, M. Philp, V. Myers and J. Cummings et al. (eds.), William Godwin’s Diary, http://godwindiary.bodleian.ox.ac.uk/index2.html; entries for 31 October 1812 and 26 December 1813 [Accessed 12 July 2017]. As Reiman and Fraistat observe, Godwin’s journal entry for 26 December 1813 is ‘the first known reading of the printed’ text of Queen Mab; see Reiman and Fraistat (eds.), Shelley’s Poetry and Prose (2nd edition; New York: W.W. Norton, 2002), p. 15. 22 Shelley, Letters, i, pp. 368n., 566. Shelley quotes Hamlet i v 79. Mr. Waller is unidentified: it is possible that ‘Waller’ is a mis-transcription by Jones of ‘Walker’, for Adam Walker (1731–1829), the Radical natural philosopher and lecturer who had taught Shelley at Syon House Academy. Another possible candidate is Bryan Waller Proctor (1787–1874), the London-based lawyer who would later gain some reputation as a poet writing under the pseudonym ‘Barry Cornwall’. 23 See D. Worrall, ‘Mab and Mob: The Radical Press Community in Regency England’, in Romanticism, Radicalism, and the Press, ed. by S. Behrendt (Detroit: Wayne State University Press, 1997), p. 149 & n.57. 24 The exact nature of that connection has not yet been determined. As William St. Clair observes, entries in Mary Shelley’s journal for 29 January and 7 February 1815, record visits from Cannon, but neither Percy nor Mary seem much to have liked him (The Godwins and the Shelleys, p. 513). 25 Quoted from J. Barcus, ed., Percy Bysshe Shelley: The Critical Heritage (London: Routledge, 1975), pp. 65–66. 26 Barcus, Critical Heritage, pp. 69, 70. 27 Hence, again, the pertinence of Kolkey’s perception that illegitimate editions (of whatever form) ‘alter [the] meaning and personal or political impact’ of the work (‘Venal Interchanges’, p. 534). 28 Barcus, Critical Heritage, p. 63. As Kolkey suggests, ‘the imaginary German accolades provide Shelley with the aura of reputation that he had yet to acquire in reality, and defer culpability by concealing his direct involvement in the periodical publication’ (‘Venal Interchanges’, p. 540). 29 Barcus, Critical Heritage, p. 69. 30 Barcus, Critical Heritage, p. 69. 31 Kolkey reads both F’s reviews and Carlisle’s later pirated editions of Queen Mab as exemplary of a clash between Shelley’s ‘complex sense of the balance between classappropriate discourse and freedom of expression, and the pirate publishers’ opposition’ (‘Venal Interchanges’, p. 545). 32 Barcus, Critical Heritage, p. 69. 33 Shelley had eloped to mainland Europe with Mary Wollstonecraft Godwin on 28 July 1814; they were married, shortly after Harriet’s death, on 30 December 1816, by which time they had returned to England. The sleeping girl visited by Queen Mab in Shelley’s poem shares the name of Shelley’s daughter Ianthe (born 23 June 1813). 34 Shelley, Letters, i, p. 527. 35 Quoted from T. Medwin, The Life of Percy Bysshe Shelley. A New Edition, ed. by H.B. Forman (London, 1913), p. 464. Appendix III of Life (pp. 468–86) contains ‘Chancery Papers Relating to Shelley’s Children by Harriet’.

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36 Shelley, Letters, i, p. 527; original emphasis. 37 Shelley, Letters, i, pp. 531, 539. 38 For background to Clark’s edition, his acquisition of a source text, etc., see D. Reiman and N. Fraistat (gen. eds.), The Complete Poetry of Percy Bysshe Shelley, vol. 3 (Baltimore: Johns Hopkins University Press, 2013), pp. 509–510; and St. Clair, The Godwins and the Shelleys, pp. 514–515. 39 Shelley, Letters, ii, p. 298. 40 Shelley, Letters, ii, pp. 304–305. In a letter of 22 June 1821, Shelley asked Ollier ‘to be so good as to procure the insertion’ of the same letter in the Morning Chronicle (see Shelley, Letters, ii, p. 305). 41 Shelley, Letters, ii, p. 305. 42 See Shelley, Letters, ii, p. 298n.2. 43 M. Shelley, ed., The Poetical Works of Percy Bysshe Shelley, 4 vols (London: Moxon, 1839), i, p. 96. 44 M. Shelley, ed., Poetical Works, i, p. 96. 45 M. Shelley, ed., Poetical Works, i, p. 97. 46 M. Shelley, ed., The Works of Percy Bysshe Shelley. A New Edition (London: Moxon, 1847), p. 37. 47 M. Shelley, ed., Works, p. 37. As Fraistat points out, Shelley’s father, on whom Mary ‘depended for financial support, made her promise that during his lifetime she would not bring Shelley’s name before the public again’ (‘Illegitimate Shelley’, p. 412). 48 Shelley, Letters, ii, pp. 298, 305. A review of Clark’s edition in The Literary Gazette and Journal of Belles Lettres for 19 May 1821 affirmed that ‘this is a book of so blasphemous a nature, as to have no claim to the protection of copy-right’ and so ‘may be published by Scoundrels at all prices’ (quoted from Barcus, Critical Heritage, p. 74). On the relationship between copyright protection and the (assumed) legal status of the content of a work during the Romantic period, see Kolkey, ‘Venal Interchanges’, pp. 533–537; and Fraistat, ‘Illegitimate Shelley’, p. 413. 49 Shelley, Letters, ii, p. 302. 50 Shelley, Letters, ii, pp. 300–301. 51 Shelley, Letters, ii, p. 356. In a letter of 14 September 1821, Shelley had already asked Horace Smith to send a copy, noting ‘I should very well like to see it. – I really hardly know what this poem is about. I am afraid it is rather rough’ (Letters, ii, p. 350). 52 E. Trelawny, Recollections of the Last Days of Shelley and Byron, ed. by D. Crane (London: Robinson, 2000), p. 2; F.L. Jones, ed., Maria Gisborne & Edward E. Williams: Shelley’s Friends: Their Journals and Letters (Norman: University of Oklahoma Press, 1951), p. 156. 53 Details of Clark’s trial and defence are in Reiman and Fraistat (eds.), Complete Poetry, vol. 3, pp. 509–510. 54 For more on the ‘New York’ edition, see Reiman and Fraistat (eds.), Complete Poetry, vol. 3, pp. 511–512; see also W. St. Clair, The Godwins and the Shelleys, p. 515. St. Clair raises the possibility that Shelley might ‘have been involved’ in the ‘New York’ edition through his earlier connection with George Cannon, although, as he concedes, there is no real evidence to support this (The Godwins and the Shelleys, p. 515). 55 Medwin, Life, ed. by Forman, p. 100. For detailed bibliographical description and consideration of these various editions, see Forman, Shelley Library, pp. 48–56. 56 G.B. Shaw, ‘Shaming the Devil About Shelley’, in Pen Portraits and Reviews (London: Constable and Company, 1931), p. 244. Marx’s colleague Friedrich Engels (1820–95) seems also to have begun translating Queen Mab into German. See E. Rose, ‘Review of S. Liptzin, Shelley in Germany (New York: Columbia University Press, 1924)’, Journal of English and Germanic Philology 26.1 (January 1927), pp. 140–143 (p. 141); and S. Schmid and M. Rossington (eds.), The Reception of P. B. Shelley in Europe (London: Continuum, 2008), p. 150. 57 Shaw, ‘Shaming the Devil’, p. 244.

‘They will not read it’ 259 58 The Northern Star (2 November 1839), p. 7; the words ‘or religion/ Drives his wife raving mad’ are omitted from ll. 112–113. On 3 July 1841, The Northern Star reported the prosecution of Moxon for publishing the expurgated text of Queen Mab in Poetical Works (1839). 59 H.B. Forman, ‘The Vicissitudes of Queen Mab. A Chapter in the History of Reform’, in Shelley Society Papers, Part 1 (London: Shelley Society, 1888), pp. 19–35 (pp. 31, 32). 60 Kolkey, ‘Venal Interchanges’, p. 539. 61 Forman, ‘Vicissitudes’, pp. 22, 34. 62 Forman, ‘Vicissitudes’, p. 22. 63 Forman, ‘Vicissitudes’, p. 19. The phrase, though not attributed by Forman, is used by Shelley in his Preface to Prometheus Unbound, where he says that he has ‘what a Scotch philosopher characteristically terms, “a passion for reforming the world”’ (quoted from Shelley, Poems and Prose, p. 187). The ‘Scotch philosopher’ is Robert Forsyth, who makes the remark in his Principles of Moral Science (Edinburgh: Bell and Bradfute, 1805), i, pp. 291–292. 64 Forman, ‘Vicissitudes’, p. 34. 65 Forman, ‘Vicissitudes’, p. 34. 66 Forman, ‘Vicissitudes’, p. 34. 67 Forman, ‘Vicissitudes’, pp. 33–34; original emphasis. 68 Arnold uses the expression in his essays on ‘Byron’ and on ‘Shelley’; see Essays in Criticism (2nd series; London: Palgrave Macmillan, 1888), pp. 203–204, p. 252. 69 Had I scope, it would be possible to document similar dynamics at play in the early reception of other controversial works by Shelley, such as Laon and Cythna (1817) and its reissue as The Revolt of Islam (1818). 70 The phrase is used by Mary Shelley to describe Frankenstein in her Introduction to the edition of 1831. 71 Barcus, Critical Heritage, p. 71; emphasis added. 72 Barcus, Critical Heritage, p. 71. 73 Barcus, Critical Heritage, p. 73. 74 Barcus, Critical Heritage, p. 74; original emphasis. 75 Barcus, Critical Heritage, p. 75. 76 Barcus, Critical Heritage, p. 75. 77 Barcus, Critical Heritage, pp. 76, 79. 78 Barcus, Critical Heritage, p. 80. 79 Barcus, Critical Heritage, p. 82. 80 Barcus, Critical Heritage, p. 87. 81 Barcus, Critical Heritage, p. 92. 82 Barcus, Critical Heritage, p. 103. 83 S. Hunt, ed., The Beauties of Percy Bysshe Shelley: Consisting of Miscellaneous Selections from His Poetical Works. The Entire Poems of Adonais and Alastor, and a Revised Edition of Queen Mab, Free from All the Objectionable Passages. With a Biographical Preface (London: S. Hunt, 1830). 84 S. Hunt, ed., The Beauties of Percy Bysshe Shelley [. . .] and a Revised Edition of Queen Mab, Free From All the Objectionable Passages. With a Biographical Preface (London: S. Hunt, 1830), p. xviii. 85 O.W. Campbell, Shelley and the Unromantics (London: Methuen, 1924), p. 114; Duff, Romance and Revolution, p. 58.

Bibliography Arnold, M. Essays in Criticism (2nd series; London: Palgrave Macmillan, 1888). Barcus, J., ed. Percy Bysshe Shelley: The Critical Heritage (London: Routledge, 1975). Cameron, K.N. The Young Shelley: Genesis of a Radical (London: Palgrave Macmillan, 1950).

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Duff, D. Romance and Revolution: Shelley and the Politics of a Genre (Cambridge: Cambridge University Press, 1994). Forman, H.B. The Shelley Library (London: Reeves and Turner, 1886). Forman, H.B. ‘The Vicissitudes of Queen Mab’, in Shelley Society Papers, part 1 (London: for the Shelley Society, 1888), pp. 19–35. Forsyth, R. Principles of Moral Science (Edinburgh: Bell and Bradfute, 1805). Fraistat, N. ‘Illegitimate Shelley: Radical Piracy and the Textual Edition as Cultural Performance’, PMLA 109:3 (May 1994), pp. 409–423. Gisborne, M. and E. Williams. Maria Gisborne & Edward E. Williams: Shelley’s Friends: Their Journals and Letters, ed. by F.L. Jones (Norman: University of Oklahoma Press, 1951). Holmes, R. Shelley: The Pursuit (London: HarperCollins, 1994). Hunt, S., ed. The Beauties of Percy Bysshe Shelley: Consisting of Miscellaneous Selections from His Poetical Works. The Entire Poems of Adonais and Alastor, and a Revised Edition of Queen Mab, Free from All the Objectionable Passages. With a Biographical Preface (London: S. Hunt, 1830). Kolkey, J.I. ‘Venal Interchanges: Shelley’s Queen Mab and Literary Property’, European Romantic Review 25:5 (2014), pp. 533–550. Medwin, T. The Life of Percy Bysshe Shelley: A New Edition, ed. by H.B. Forman (London: Oxford University Press, 1913). Mee, J. Romanticism, Enthusiasm, and Regulation (Oxford: Oxford University Press, 2005). Perkins, D. ‘The Construction of “The Romantic Movement” as a Literary Classification’, Nineteenth-Century Literature 45:2 (1990), pp. 129–143. Schmid, S. and M. Rossington, eds. The Reception of P.B. Shelley in Europe (London: Continuum, 2008). Shaw, G.B. ‘Shaming the Devil about Shelley’, in Pen Portraits and Reviews (London: Constable, 1931). Shelley, M. Frankenstein, or the Modern Prometheus, 3 vols (1818; revised edition, London: Henry Colburn and Richard Bentley, 1831). Shelley, P.B. The Complete Poetry of Percy Bysshe Shelley, ed. by D. Reiman, N. Fraistat, et al., 3 vols to date (Baltimore: Johns Hopkins University Press, 2000 – present). Shelley, P.B. The Letters of Percy Bysshe Shelley, ed. by F.L. Jones, 2 vols (Oxford: Clarendon Press, 1964). Shelley, P.B. The Poems of Shelley, ed. by J. Donovan, K. Everest, M. Rossington et al., 4 vols to date (London: Routledge, 1988 – present). Shelley, P.B. The Poetical Works of Percy Bysshe Shelley, ed. by M. Shelley, 4 vols (London: Moxon, 1839). Shelley, P.B. Selected Poems and Prose, ed. by J. Donovan and C. Duffy (London: Penguin, 2017). Shelley, P.B. Shelley’s Poetry and Prose, ed. by D. Reiman and N. Fraistat (2nd edition; New York: W.W. Norton, 2002). Shelley, P.B. The Works of Percy Bysshe Shelley: A New Edition, ed. by M. Shelley (London: Moxon, 1847). St. Clair, W. The Godwins and the Shelleys (London: Faber and Faber, 1989). Trelawny, E. Recollections of the Last Days of Shelley and Byron, ed. by D. Crane (London: Robinson, 2000). Weinberg, A. and T. Webb, eds. The Neglected Shelley (Farnham: Ashgate, 2015). White, N.I. Shelley, 2 vols (New York: Octagon, 1970). White, N.I. Shelley: The Unextinguished Hearth (New York: Octagon, 1966). Worrall, D. ‘Mab and Mob: The Radical Press Community in Regency England’, in Romanticism, Radicalism, and the Press, ed. by S. Behrendt (Detroit: Wayne State University Press, 1997), pp. 137–156.

Index

A’ Beckett, William (Chief Justice of Supreme Court Victoria) 70 Abinger, Lord (Sir James Scarlett) 172, 173 Acton, Lord (John Emerich Edward Dalberg-Acton) 15 Aestheticism 198 affiliation trials 2, 119–132 Age, The 164 Ally Sloper’s Half-Holiday 168, 171 Altholz, Josef 3 Alverstone, Lord (Richard Webster) 167 Anglicanism 6, 139 Anglo-Irish, in Australia 72 Aquinas, St. Thomas 170 Armstrong, Mary 90 Arnold, Matthew 14, 20, 251 Arnold, Thomas 4, 12, 17, 19 art, purchasers 200, 203 art criticism: female 199, 208–209; ‘formalist’ 198; professional 198, 200, 206, 209 Art-Journal 17, 198–199, 202, 207, 209 Art of Judging the Character by the Handwriting, The (by Edouard Hocquart) 222, 227, 229 Ashore and Afloat 151 assizes 84, 86–87, 89, 91–92, 118, 120, 124–126, 162–163, 167, 171, 188–189, 192 assizes courts 83, 86, 90–91, 130, 132, 141, 162, 167, 172, 192, 201 Aurora Leigh (poem by E.B. Browning, 1856) 224 Austen, Jane 227 Australasian Sketcher with Pen and Pencil 65, 66 Babbage, Charles 14, 18 bad judge, figure of 1, 61, 67, 74–75, 163

Bagehot, Walter 4, 8–13, 19–21 Barclay, Hugh 121 Barker, Joseph 232–233 barristers 17, 49, 63, 74–75, 101, 104, 161, 163–165, 167, 170, 174 barristers as journalists 163 Barry, Sir Redmond 1, 61–65, 67–77 Basu, Laura 1, 61, 63 Bayley, Justice (Sir John Bayley) 171 Beerhouse Act (1830) 142 Bentham, Jeremy 10, 13, 15, 20 Bentley’s Miscellany 191 Berry, Elizabeth 89–90 Bethell, Richard (Baron Westbury) 101–102 Bethlem Royal Hospital 83 Biggs, J.M. 111 Biographica Juridica (by Edward Foss) 7 Blake, William 5, 15 Bleak House (by Charles Dickens, 1853) 4, 183, 221, 230 Bloomsbury group 3 Bradley, Agnes 87–88 Brantlinger, Patrick 233 British Institution for Promoting the Fine Arts in the United Kingdom 199, 203 Broadmoor Criminal Lunatic Asylum 83, 88, 90–91 Brougham, Henry (Lord Brougham) 21, 100, 102–105 Browning, Robert 15 Bruce, Sir Gainsford 84, 91 Burke, Edmund 20, 198 bushrangers 65, 66, 67, 73, 75 Butler, Samuel 8 Byron, Lord (George Gordon Byron) 13, 15, 207, 245, 248, 251, 253

262

Index

Cadenus and Vanessa (by Jonathan Swift) 208 capital punishment 62–63, 67, 72, 75, 87, 89, 167, 192 Capuano, Peter 221–222, 230 Carey, Peter 61 Carey, Rosa Nouchette 185 Carlile, Richard 249 Carrington, Thomas 67, 68 carte de visite 1, 44–45, 46–47, 48–56 carteomania 43, 48 Chancery, Court of 7, 171, 245–248, 250 Chapman, Mary Weston 10 Chapple, J.A.V. 184 character 1–3, 6, 9, 15, 21, 69, 85, 87, 93, 123–127, 129–131, 168, 172, 187–188, 208, 220–235, 242 Character Indicated by Handwriting (by Rosa Baughan, 1880) 221, 224, 227 Charter, Eliza 107 chartism 249, 251 cholera epidemic 6 Chords of Love (by M.E. Clement, 1895) 181, 188 Clairmont, Claire 245, 248 Clark, William 245, 248–249, 252, 254 Clarke, Meaghan 209 Clarke, Sir Edward 163 class, and handwriting 223, 227–233, 235 Cobbe, Frances Power 4, 11 Cockburn, Sir Alexander 44–45, 45–46, 49–56, 164, 171 Coleridge, Samuel Taylor 4, 11, 14, 86, 210 Coleridge, Sir John Taylor 89, 164, 172 Collins, Philip 183 Collins, Wilkie 183 Collyer, William Bengo 253 colonial judges 167–168; see also Barry, Sir Redmond Colvin, Sidney 207 conduct books 148 Conley, Carolyn 141 connoisseurs 16, 199–200, 202, 208 Contagious Diseases Acts 10, 143, 151 costume, judicial 44–45, 46, 48–50, 65, 69–70, 71, 72, 165, 168, 170 County Councils Act (1888) 141 Court of Criminal Appeal 119 court reports 53, 83–86, 88, 91, 93–94, 101, 104–106, 108, 131, 162–168, 170–172, 183, 190 courtroom sketches 54 Cranworth, Lord (Robert Rolfe, Lord Chancellor) 101–103, 105

Crépieux-Jamin, Jules 223 Cresswell, Sir Cresswell 100–112, 172 criminal justice, in fiction 14, 182–193 criminal justice system, and feminism 25n72 criminal law, reform 8, 10 Criminal Law Amendment Act (1885) 130, 145 criminal prosecutions, by citizens 182, 245 criticism, age of 3, 200 Darwin, Charles 18 David Copperfield (by Charles Dickens, 1850) 183 d’Cruze, Shani 85 Deane, Anne 106 defendants, women 84–85, 87, 89–94, 119, 121, 127–132 deference 9 Denson, Louisa 91 detective fiction 222 Devonport 2, 138–142, 144–144, 147–151 D’Eyncourt, Louis Charles Tennyson 171 Diary of an Ennuyée, The (by Anna Jameson, 1836) 208 Dickens, Charles 4, 86, 93, 103, 183–184, 186, 193, 221–222, 230 Dilke, Lady (Emilia Pattison) 208 Dimsdale Stocker, Richard 231 discretion, of JPs 144, 152 divorce 100–112, 235 Divorce Act (1857) 100 Divorce Court 2, 101–107, 111 divorce law reform 100, 104 Dixon, Thomas 87–88, 172 Doom of Gialto, The; or, the Vision of Judgment (by James Boaden, 1835) 15 Douglas, Aileen 232 Dowling, Linda 202 Dowling, Robert 70, 71 Dresser, Christopher 206 drunkenness 138–139, 142, 145–146, 148, 150, 152 Du Fresnoy, Charles Alphonse 206 Eastlake, Lady (Elizabeth Rigby) 207–209 Eastlake, Sir Charles 204 East Stonehouse 2, 138–139, 140, 141, 143–144, 148–149 eccentricity 9, 228 Edinburgh Review 14, 21 Education, and handwriting 227, 230–231 Eliot, George 4, 12, 14

Index Ellenborough, Lord (Sir Edward Law, Lord Chief Justice) 8 Emma (by Jane Austen, 1815) 227 exhibitions, art 16, 17, 199–200, 203–204, 209 Famous Trials (by John T. Morse Jr. 1874) 53 Faraday, Michael 18 Fine Arts’ Journal 207 Fine Arts Quarterly 198, 203, 206, 209 Forman, Harry Buxton 249–251, 253 Ganley, Francis 123 Gaskell, Elizabeth 14 Gaunson, Stephen 73 Gender: handwriting 220, 223, 227–228; judgment (see judgment); newspaper reports of trials 83; roles 2, 100, 123; values 85, 119–120, 123, 143 Gilbert and Sullivan 174, 183 Gladstone, William 6, 21, 105 Godwin, William 86, 244 Goldsmith, Oliver 11 Good, Ann 86–87 Gorham Judgment (1850) 6 Grammar of Graphology, The (by Henry Frith, 1890) 221, 224–226 graphology 2, 220–235 Green, Evelyn Everett 185 Greg, William Rathbone 14 Gregg, Maud 122 Grote, George 20 Grundy, Mrs 8–9 Gurney, Baron 84 Hall, Edward Marshall 163 Hammerton, A. James 111 handwriting 1, 3, 9, 220–235; see also graphology hanging committee 204 Hare, Francis Augustus 67 Harrison, Frederic 21 Hart, H.L.A. 170 Hawkins, Sir Harry (later Lord Brampton) 84, 89–91, 94, 165, 166 Haydon, Benjamin 204, 22n19 Hazlitt, William 3, 11–12, 86 Herbert, Auberon 21 Hewins, Emma 124 Himmelfarb, Gertrude 3 Hobsbawm, Eric 64, 74 Hocking, Silas 194n18 Holdsworth, Sir William 183

263

Holmes, Richard 241 Holmes, Sherlock 222–223 Home Office 83, 92, 118–119, 122, 128–132, 149 Hookham, Thomas 241–243 Houghton, Walter 3, 22n8 How to Read Character from Handwriting (by Mrs John White, 1890) 221 Hunt, Leigh 246, 248, 252 Hutton, Richard Holt 21 Huxley, Thomas 18 Illustrated Australian News 64, 69 Illustrated London News 52, 54, 167 Illustrated Police News 164–165 infanticide and child murder 83–94, 170 Inns of Court 43, 49 In Prison and Out (by Hesba Stretton, 1887) 187 Iolanthe (by Gilbert and Sullivan, 1882) 174 Israel, Julia 125 Jacox, Francis 220–221 James, Edwin 163 James, Henry 201 Jameson, Anna 208 Jerilderie Letter 62–63, 67, 73–75 Jervis Acts (1848) 141 Jessica’s First Prayer (by Hesba Stretton, 1867) 185–186 Johnny Ludlow (by Mrs Henry Wood, 1873–1899) 192–193 Johnson, Samuel 4, 7, 207 Jones, Ian 67, 73 Jones, Matilda 107 journalism, female 209 judges: advertisements 168; celebrities 165, 168, 174; chivalry 123; eighteenthcentury 8; emotionalism 84–85, 87–88, 90, 93–94, 171–172; ‘Fire Judges’ 70; ‘hanging’ 75, 84, 163; Indian 167; moral arbiters 161, 170–172, 174; official portraiture 49–50, 70, 72; private lives 70, 79n59; visual representation 55, 64–67, 69–75, 164–170; see also carte de visite judges, assize court 131–132 judgment: aesthetic 2–3, 9, 13–14, 17, 198–210, 250–253; age 12; appearance of judgment 11; appearances 9 (see also graphology; physiognomy); architectural 16–17, 204, 206; aristocratic 9, 20, 203; artists’ 204,

264

Index

206–207; biography 15; class 2, 5, 8–9, 21, 90, 93, 123–124, 130, 143, 150–151, 153, 162–164, 193, 199, 207–208 (see also class, and handwriting); communal and community 8, 18, 92, 120–121, 131, 142, 144–145, 153, 182, 184, 193; competition 17; coterie 204, 213n49; ‘crisis’ 4; ‘days of judgment’ (theological) 6; democracy 21; editors’ 3, 247; education 12, 14, 18, 20–21, 203–204, 206–207; faculty 198; fashion 9, 17, 228; feeling 4, 7, 90–91, 93–94, 171–172, 202–203 (see also judges, emotionalism); gender 10–11, 13, 186, 208–209; history 15; imagination 3, 13, 102n27, 245; individualism 21, 86, 202; interpretation (in literary criticism) 14; language of 4, 203; Last Judgment 4, 5, 15; legal 1–2, 7–8, 61–75, 83–94, 100–112, 118–132, 142–144, 161–164, 171–174, 182–183, 188–189, 201, 244–245; literary 13–15, 241–255; logical 199; medical 18; men of business 20; middle-class 85, 90, 92–93, 146, 154; moral 3, 7, 10–11, 14–15, 19, 100, 104–106, 111–112, 146, 150, 170, 172, 174, 189, 191; nationality 12; philosophy 1, 199; physiology 11–12; poetry 15, 241–255; political 19–21; pragmatic 2, 138–139, 142, 144, 150, 153; private 6, 9, 13, 15–17, 202; public 9, 12, 21, 164, 174, 204, 207; publishers’ 14, 254; religious 4–6, 9, 14, 17, 202; science 17–19, 198, 202, 207; social 9–10, 14, 120, 123, 128, 131, 188–192; ‘special’ (theological) 6; statesmen’s 20–21 Judgment, through libraries 14 judgmentalism 3, 138, 144, 151–152, 186, 190 judicium Dei (judgment in religion) 4 Judy 168, 234 jury trials 7, 13, 62, 65, 74–75, 86–92, 118–119, 123–128, 130–131, 171 Kant, Immanuel 198, 202, 212n34 Kavanagh, Julia 209 Kelly, Ellen 61–62 Kelly, Ned 1, 61–77 Kelly, Sir Fitzroy 93, 102 Kelly Gang, The (film, 1919) 72–73 Kelvin, William 18 Kenealy, Edward 163

Kenneally, James Jerome 74 Kent, Constance 88 Kett, Henry 206 Kingsley, Charles 6 Kotzebue, August von 244 Kritik der Urteilskraft (Critique of Judgment, by Immanuel Kant, 1790) 202 Lady Audley’s Secret (by M.E. Braddon, 1862) 221 Lane, Edward Wicksteed 13 Lavater, Johann Kaspar 225, 232 law in popular culture 161–162, 164–165, 168, 170, 174 Lectures on Education (by Michael Faraday, 1855) 18 Legal positivism 170 Leigh, Eleanor 106–107 Leighton, Frederic 17 On Liberty (by John Stuart Mill, 1859) 9 life course narratives 182, 188 Liverpool Society for the Fine Arts 199 Lockhart, John Gibson 253 London Stereoscopic Company 44–45, 46–47, 53 Lord Chief Justice 44–45, 47–48, 49–50, 163, 167, 170 Lush, Justice Robert 164–165 Lushington, Stephen 101–102, 111 Macaulay, Thomas Babington 13, 15 Mackonochie Judgment (1868) 6 Maclise, Daniel 204 Macqueen, John Fraser 104 Magazine of the Fine Arts 198, 203 magistrates 2, 107, 118, 120, 122, 124, 126, 128–131, 139, 141–142, 144–146, 151, 184–189, 192 Martin, John 4, 17 Martineau, Harriet 4, 10 masculinity 85, 90, 147 Matthews, Henry 207 Mayhew, Henry 8 Mayor of Casterbridge, The (by Thomas Hardy, 1886) 228–229 Medwin, Thomas 249 Melbourne 62, 65, 67, 77 Melbourne, Lord 21 Melbourne, University 69 Melbourne Punch 69 memory dispositif 63 Middlemarch (by George Eliot, 1871–1872) 13

Index Mill, James 15 Mill, John Stuart 8–12, 19–20 Modern Painters (by John Ruskin, 1843) 199, 202 Molesworth, Robert (Chief Justice, Victoria) 70, 72 Montgomery, James 15 Montgomery, Robert 15 Moral didacticism, in art 198 More, Hannah 11 Morley, John 12, 21 Mount, Adela (Mrs T. Bricknell Perry) 186 Moxon, Edward 247 Murfin, Edwin 129–130 National Portrait Gallery (London) 43–44, 49 National Social Purity Crusade (1901) 146 natural law 170 navy 139, 142 Newbolt, Sir Francis 121–122 Newman, Cardinal John 6 Nolan, Sidney 61, 74 Nonconformity (religious) 139, 142, 145–146, 148–151 offending, everyday 2, 138, 146, 152, 185 Ollier, Charles 246, 248 opinion, public 9, 15, 70, 161, 164, 244 Oswald Cray (by Mrs Henry Wood, 1864) 191 Owen, Robert 249 Palgrave, Sir Francis 13 Palmerston, Lord 87, 102 Parkes, Adam 201 Peel, Sir Robert 3, 20–21, 103 Peep Behind the Scenes, A (by O. Walton, 1877) 186 performativity, of law 182 perjury 2, 75, 118–132 philanthropy 1, 93, 138, 142, 146, 150, 184–186 Phillips, Charles 163, 172 Philosophy of Art (by Hippolyte Taine, 1865) 202 phrenology 62–63, 199, 220, 231–232 physiognomy 220, 231–233 Plymouth 138–139, 140, 141–153 Plymouth Total Abstinence Society 139 The Poetical Works of Percy Bysshe Shelley (1839) 247 police 61–63, 67, 73–75, 138, 141, 143–148, 151–153, 167, 184, 186–187, 192

265

police court 128, 143, 162, 171 Pollok, Robert 15 Pomfret: or, Public Opinion and Private Judgment (by Henry Chorley, 1845) 15 Poor Law Guardians 138, 143, 148–150 Prance, William 142 Privy Council 6 propriety 4, 9, 16 prostitution 110–111, 125, 127, 142–146, 252 Punch 9, 19, 103, 168, 169, 171, 201, 205 Purchas Judgment (1871) 6 Queen Mab; A Philosophical Poem; With Notes (by P.B. Shelley, 1813) 3, 241–254 Redgrave, Richard 204 Reform Act (1832) 20 Regina v Edward Kelly (play) 75 Reynolds, Joshua 206 Ridsdale Judgment (1877) 6 Rigney, Ann 62–63, 74 Robin Hood 64, 73, 75 Roman Catholicism 6, 63, 69, 72 Romance of Biography (by Anna Jameson, 1837) 208 romanticism, English 241, 250–251, 254–255 Royal Academy 16, 199, 200, 204, 209 Royal Commission appointed to Inquire into the Present Position of the Royal Academy in relation to the Fine Arts (1863) 204 Royal Courts of Justice 167 Royal Institute of British Architects 204 Ruskin, John 9, 198–199, 201, 203, 207, 210 Ryan, Peter 61, 77 Saintsbury, George 14 Satirist, The 164 Schasler, Max 202 Scott, Sir Walter 7, 13–14 Select Committee on Arts and Manufactures (1835–1836) 204 Selfhood 221 Shaw, George Bernard 249 Shee, Martin Archer 206 Shelley, Mary 241, 247, 253 Shelley, Percy Bysshe 3, 8, 13, 16, 241–255 Shuttleworth, Sally 231 Sign of the Four, The (by A.C. Doyle, 1890) 221

266

Index

Smiles, Samuel 232 Smith, Lord Justice (Archibald Levin Smith) 165 Smith, Mrs Georgina Castle (‘Brenda’) 186 social banditry 63–64, 74 social conformity 138 Social Democratic Federation 150 Somerset House Gazette 203, 207 Southey, Robert 15, 248 Sowerby, Joseph 145–148, 150–152 Spencer, Herbert 3, 8–9, 11, 16–17, 21 State in its Relations with the Church, The (by William Gladstone, 1839) 6 St. Aubyn family 141 St. Clair, William 241 Stephen, James Fitzjames 7, 184 Stones of Venice, The (by John Ruskin, 1853) 202 Storm of Life (by Hesba Stretton, 1876) 186 Stowell, Lord (William Scott) 108–109, 111 Strand Magazine 165, 166 Strange Case of Dr Jekyll and Mr Hyde (by R.L. Stephenson, 1886) 222, 233 Stretton, Hesba (Sarah Smith) 185–187 Subjection of Women, The (by John Stuart Mill, 1869) 11 Swinburne, Algernon Charles 251 Taine, Hippolyte 202 Talfourd, Thomas Noon 84, 86 taste 13–14, 16–17, 198–199, 203–204, 208–209 Taylor, Harriet 8 Tennyson, Alfred 14 Teukolsky, Rachel 200, 202 Thackeray, William Makepeace 14–15 Three Towns 138–141, 150, 152 Tichborne Claimant 12, 26n94, 53, 55, 163 Trelawny, Edward 248 Trial, The (by Charlotte Yonge, 1867) 188

Trial by Jury (by Gilbert and Sullivan, 1875) 174 Trial of Ned Kelly, The (teleplay, 1977) 74–75 Trollope, Anthony 183–184 Turner, J.M.W. 202 Tyndall, John 18 Vanity Fair 44, 84, 168 Vasari, Giorgio 206 Vasser, Maria 118–120, 123, 131 Vestiges of the Natural History of Creation (by Robert Chambers, 1844) 17 Victoria, Queen 43, 50–51 Villette (by Charlotte Brontë, 1853) 220 Vision of Judgment (by Lord Byron, 1822) 15 Waddington, Christiana 92–93 Walton, Mrs Octavius (Amy Catherine Deck) 185 watch committee 139, 144–148, 151 Waugh, Benjamin 194n18 Westbrook family 245, 247 Weston, Dame Aggie 139, 151 whig government 204 Whistler, James Abbott McNeill 201, 206–207 Wiener, Martin 83, 172 Willes, Sir James Shaw 84, 87–88, 93, 172 Wilson, Emily Harriet 91 Window, Frederick Richard 45, 47 Within the Maze (by Mrs Henry Wood, 1872) 192 Wood, Mrs Henry (Ellen Price) 190–192 Wordsworth, William 17 Wreford, Arthur 144–145, 147–148 Wright, Nicole 7 Yonge, Charlotte 185, 188–190, 192 Young, Edward 15