Criminality and the Common Law Imagination (1700-1900)

Criminality and the Common Law Imagination (1700-1900) by Erin Leigh Sheley A.B. in English, June 2002, Harvard University J.D., June 2006, Harvard University A Dissertation submitted to The Faculty of The Columbian College of Arts and Sciences of The George Washington University in partial fulfillment of the requirements for the degree of Doctor of Philosophy May 17, 2015 Dissertation directed by Tara Ghoshal Wallace Professor of English The Columbian College of Arts and Sciences of The George Washington University certifies that Erin Leigh Sheley has passed the Final Examination for the degree of Doctor of Philosophy as of March 27, 2015. This is the final and approved form of the dissertation. Criminality and the Common Law Imagination (1700-1900) Erin Leigh Sheley Dissertation Research Committee: Tara Ghoshal Wallace, Professor of English, Dissertation Director Daniel DeWispelare, Assistant Professor of English, Committee Member Maria Frawley, Professor of English, Committee Member ii Dedication The author wishes to dedicate this dissertation to her parents, Janet and G. Michael Sheley. iii Acknowledgements The author wishes to thank Maria Frawley, Daniel DeWispelare, Kathryn Temple, Judith Plotz, Robert McRuer, David Mitchell, Constance Kibler and Jonathan Gil Harris for their support and guidance throughout the process of writing this dissertation. Above all she wishes to thank Tara Ghoshal Wallace for many years of mentorship, inspiration, encouragement, and friendship. iv Abstract of Dissertation Criminality and the Common Law Imagination (1700-1900) This dissertation explores the relationship between the legal account of criminality and the cultural narratives sustaining it during the eighteenth and nineteenth centuries. It considers how the singular importance of precedent to Anglo-American law resulted in an imagery of historical legitimacy that came to shape the cultural construction of criminality. At a theoretical level, the dissertation moves towards a model for how the cultural memory of crime and punishment contribute to the development and legitimizing of formal legal institutions. The dissertation takes up three case studies in which the common law understanding of some aspect of criminality was in flux during this period and examines how the cultural imagination may have interacted with individual representations to shape the official penological discourse. The first chapter takes up the construction of the criminal person, by examining how the nineteenth century cultural “construction” of childhood as a period of existence theoretically and morally distinct from adulthood impacted the development of a juvenile justice system. The second chapter turns to the question of how the relationship between adultery and English sovereignty in the historical imagination created a quasi-criminal legal discourse surrounding the act of adultery. Finally, the third chapter considers the development of the rules of evidence sufficient to establish criminality by examining literary “proofs” of rape and their relationship to actual trials. v Table of Contents Dedication iv Acknowledgements v Abstract of Dissertation vi Introduction 1 Chapter One: “The Faerie Court”: Origins, Evolution and Intent in Fantasies of Child Punishment 25 Chapter Two: “The Slowly-Fading Mistress of the World”: Adultery, Criminality, and the Myth of English Sovereignty 110 Chapter Three: The Moving Needle: the Rape Novel and Subjective Consent 202 Bibliography 300 vi Introduction This ill-omened apparition was of great height, with a scaffold surrounding it, and a double ladder placed against it, for the ascent of the unhappy criminal and executioner. As this apparatus was always arranged before dawn, it seemed as if the gallows had grown out of the earth in the course of one night, like the production of some foul demon; and I well remember the fright with which the schoolboys, when I was one of their number, used to regard these ominous signs of deadly preparation. On the night after the execution the gallows again disappeared, and was conveyed in silence and darkness to the place where it was usually deposited, which was one of the vaults under the Parliament House, or courts of justice. —Sir Walter Scott, The Heart of Midlothian The narrator in The Heart of Midlothian (1818), as in so many of Scott’s historical novels, approaches his subject through an immediate sensory perception of the relics left behind by the narrated event. In describing his boyhood memory of the gallows in front of the Tolbooth Prison, the site of the 1736 lynching of Captain Porteus with which the text begins, Scott’s narrator underscores the interactions between the criminal law and its representations circulating in the cultural memory, and the potentially discursive relationship between the two across historical time. Scott’s literary representation of this phenomenon came at a time during which the relationship between history and law had become a significant cultural tension. With the ascendance of a newly liberalized legal order complicated by an increasing cultural preoccupation with the archaic and the medieval, legal discourse in the late eighteenth and nineteenth centuries was characterized by a particularly fraught relationship with the past. This dissertation will examine the representations of legal evolution in the literary texts of this period to argue that the singular importance of precedent in Anglo-American common law resulted in a discourse of historical legitimacy that came to shape the cultural construction of criminality. At a theoretical level, I move towards a model for how the 1 cultural memory of crime and punishment contribute to the development and legitimizing of formal legal institutions. Around the time of upheaval and discontinuity in sovereignty occasioned by the English Revolution, Interregnum, and Restoration, with their accompanying revisions to English law, the great legal commentators of the seventeenth and eighteenth centuries argued explicitly about the importance of temporality and history to the legitimacy of the English common law system. These writers also played a crucial role in constructing a stable version of legal “truth” in their widely-respected legal treatises. The essence of the common law is extreme fragmentation: under a common law regime cases are decided one at a time and the task of a judge is to look back upon all relevant prior precedent to determine the outcome in a particular case. Despite the aspirational commitment to historical continuity, however, the decisions of hundreds of jurists presiding over geographically varied tribunals cannot be easily captured by any single judge reviewing a particular case at bar. Thus, the task of treatise writers such as Edward Coke (1552- 1634), Matthew Hale (1609-1676) and later—and most famously—William Blackstone (1721-1780) is more than simply summary. In attempting to encapsulate the historical trajectories of scattered judicial precedents, these highly influential writers produced cumulative, yet eventually monolithic, legal truths of their own. Furthermore, editors in subsequent generations would amend earlier treatises with new cases and examples, creating a historical pastiche of authority in which—like the common law itself—new examples are narrated in the context of a long temporal framework. While some writers, such as Coke, claimed their treatises embodied the static common law as it existed from time immemorial, others were straightforward about the 2 possibility of evolution. Hale, a Royalist jurist whose work became the basis for much Restoration- era legal reform, developed a philosophy of more active evolution of the laws, in which the action of historical experience forms a central part. In his essay “Considerations Touching the Amendment or Alteration of Lawes” (1787), Hale claims that “Antient lawes…are not the issues of the prudence of this or that council or senate” but rather of “time, which as it discovers day after day new inconveniences, so it doth successively apply new remedies….a kind of aggregation of the discoveries results and applications of ages and events” (254). According to James Boyd White, Hale thus “conceives of the law not as a series of particular rules or decisions but as a cultural process, with its own modes and standards of transformation” (White 129). White says that by “time” Hale means “the community and culture over time” and that it is “Hale’s word for our collective experience, the test of a rule or practice in many contexts, from many points of view” (135). Hale’s use of common law “time” underscores how the common law in general can be understood as a particular self-conscious form of cultural memory. The tension between textual stability and cultural evolution as sources of legal meaning continues to animate the constitutional debates of the current day and age. Moreover, this particular relationship between law and culture suggests that Foucault’s formulation of penal authority as flowing primarily from society, rather than the state, might be most easily applicable to the Anglo-American common law tradition. It also indicates that a study of cultural representations of penological change might illuminate this relationship. Writing a century after Hale and Coke, in his 1769 Commentaries on the Laws of England , William Blackstone too describes legal change as a temporally-inflected 3 process, in which English cultural essentialism and teleological progress play equally important roles. English criminal law is,

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