Northumbria Research Link Citation: McDonnell, Danielle (2016) 'by force and against her will': Rape in law and literature, 1700-1765. Doctoral thesis, Northumbria University. This version was downloaded from Northumbria Research Link: http://nrl.northumbria.ac.uk/id/eprint/36207/ Northumbria University has developed Northumbria Research Link (NRL) to enable users to access the University’s research output. Copyright © and moral rights for items on NRL are retained by the individual author(s) and/or other copyright owners. Single copies of full items can be reproduced, displayed or performed, and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided the authors, title and full bibliographic details are given, as well as a hyperlink and/or URL to the original metadata page. The content must not be changed in any way. 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The full policy is available online: http://nrl.northumbria.ac.uk/policies.html ‘by force and against her will’: Rape in Law and Literature, 1700-1765 D R MCDONNELL PhD 2016 ‘by force and against her will’: Rape in Law and Literature, 1700-1765 DANIELLE REBECCA MCDONNELL A thesis submitted in partial fulfillment of the requirements of the University of Northumbria at Newcastle for the degree of Doctor of Philosophy Research undertaken in the Faculty of Arts, Design & Social Sciences October 2016 2 ABSTRACT Danielle McDonnell, ‘by force and against her will’: Rape in Law and Literature, 1700- 1765 Under the supervision of Richard Terry and Claudine van Hensbergen This thesis examines the relationship between fictional depictions of rape and legal and social realities between 1700 and 1765, and argues that these contexts are essential to reconstruct contemporary understandings of rape in this period. Rape was presented differently in legislation, legal texts, trials and literature, reflecting the varied ideas of what constituted a rape. The research begins by asking why the statutory definition of rape was inconsistent with legal practice, and how clear the legal conventions of rape were in contemporary society. This leads to a series of case studies investigating why Alexander Pope, Daniel Defoe, Henry Fielding, Tobias Smollett and Samuel Richardson were interested in rape, how their depictions of rape relate to legal realities and were informed by their own legal knowledge, and what form of interpretation the authors invite. The geographical focus on London is occasioned by the selection of trials, largely heard at the Old Bailey, and texts published in London, but acknowledges the wider national readership for the texts and trials, which were often reported in the press and/or published. The historical parameters reflect the decline in standardized legal education and increased reliance on legal texts from 1700, and the lack of a significant contemporary legal treatise to guide interpretations of statutory and common law until the publication of William Blackstone’s Commentaries on the Laws of England (1765-1769). This study contributes to existing scholarship on rape in the eighteenth century. Criticism in this area has begun to adopt an interdisciplinary approach to this subject. This thesis combines legal and non-legal sources to inform its analysis, suggesting that critical approaches need to use a wider range of sources to reconstruct the context in which contemporary portrayals of rape were situated. Part two of this thesis offers new readings of canonical works, showing how Pope, Defoe, Richardson, Smollett and Fielding engaged with wider contextual legal discourse in their works, and explores their reasons for doing so. These case studies assert the importance of legal and social contexts, offer new ways of interpreting rape in literature, and show that literary authors negotiated and presented ideas of rape in a variety of ways in their texts, influencing public perceptions of the nature and illegality of such acts. 3 Declaration I declare that the work contained in this thesis has not been submitted for any other award and that it is all my own work. I also confirm that this work fully acknowledges opinions, ideas and contributions from the work of others. Any ethical clearance for the research presented in this thesis has been approved. Approval has been sought and granted by the Faculty Ethics Committee on 6.10.2015, reference RE12-12-121558. I declare that the Word Count of this Thesis is 70,355 words. Name: Danielle Rebecca McDonnell Signature: Date: 26.10.2016 4 Contents Page number Acknowledgements 7 Conventions 8 List of Abbreviations 8 List of Illustrations 9 Introduction 10-38 I. Literature review II. Thesis structure Part I: Rape in the Law, Legal Rhetoric and Trial Reports, 39-116 1700- 1765 Preface 39-42 Chapter One: ‘the King prohibiteth that none do ravish’: Rape in 43-66 Legislation, Judicial Practice and Legal Texts I. Rape trial procedure II. Stare decisis, legal training and legal texts III. Transformations in judicial practice Chapter Two: ‘The Rape-Master-General of Great Britain’: 67-116 Published Records of the Charteris Trial in the 1730s I. Events of the trial in the press II. Reading the trial III. Pardoning ‘the devil’ IV. Charteris’ ‘sapless carcass’ V. The ‘hapless Maid’? Part II: Rape and the Law in Fiction, 1712-1751 117-242 Preface 117-119 5 Chapter Three: ‘painted fragments’: Sexual Imagery, Rape Myths 120-151 and Transformations in Alexander Pope’s The Rape of the Lock (1712) I. The ‘Rape’ of Belinda II. Belinda and rape myths III. Belinda’s reputation and classical myths IV. Transformations V. Callisto’s and Belinda’s legacies Chapter Four: ‘put[ting] her Handmaid to-Bed’: 152 -176 Aiding and Abetting Rape in Daniel Defoe’s Roxana (1724) I. ‘Amy’s Disaster’: Defining rape in the common law II. Reading Roxana as an aider and abettor to rape III. Roxana’s guilt Chapter Five: ‘the scene of a rape in good earnest’: Rape and 177-206 Public Spaces in Henry Fielding’s Rape upon Rape (1730) and Joseph Andrews (1742), and Tobias Smollett’s Roderick Random (1748) and Peregrine Pickle (1751) I. Rape in the streets II. Rape and the highway III. Rape at the inn Chapter Six: Clarissa’s Rape ‘-vulgarly so called’: Women, 207-242 Language and Voice in Samuel Richardson’s Clarissa (1748) I. Legal knowledge and women in Clarissa II. Classifying the crime: seduction, rape or ravishment? III. Clarissa’s voice and viva voce IV. Rape in Letters and the Collection V. Pollution, death, and Richardson’s justice Conclusion 243-251 Bibliography 252-273 6 Acknowledgments My interest in the relationship between the law, legal texts and literature has evolved from my previous research interests in how and why the crime of obscene libel was legally prosecuted in the mid-eighteenth century, and the legal suppression of seditious libel in the late seventeenth century. These studies have developed my interest in, and understanding of, eighteenth-century laws, judiciary and trial procedure, which has supported my research for this thesis. First and foremost, I wish to thank my supervisor, Professor Richard Terry, without whom none of this would have been possible. He has supported me to develop my interest in law and literature in the eighteenth century since my undergraduate studies, and during this research has been an unfailing source of expertise and encouragement. Similarly, Dr. Claudine van Hensbergen has been a fabulous member of my supervision team, who has provided a new insight into, and welcome challenges to, my ideas, whilst always encouraging me to progress. My profound gratitude also goes to Northumbria University who provided the financial support to enable me to pursue this thesis through a studentship, and the research culture which has influenced my work. Many members of the student body and lecturers within the English and Law departments have contributed to this research through discussion and resources, and I would like to extend my thanks to them all. Finally, but by no means least, a special thanks go to my mum and son for their unfailing support and encouragement: I dedicate this thesis to them. 7 Conventions Whilst the primary sources cited have been accurately transcribed, the texts have occasionally been adjusted to allow for the quotations to be embedded and the long ‘s’ of eighteenth-century typography has been replaced with the modern conventional ‘s’. List of Abbreviations d. pence s. shilling JP Justice of the Peace TNA The National Archives NAS The National Archives Scotland PRO Public Records Office C Court of Chancery KB Court of King’s (or Queen’s) Bench 8 List of Illustrations Figure. Content. Thesis page number. Figure 1. Giles Jacob, A Treatise of Laws (London: T. 56 Woodward and J. Peele, 1721) p.172. Figure 2. John Breval, The Lure of Venus: Or, A 111 Harlot’s Progress (London: s.n., 1733) p.1. Figure 3. John Breval, The Lure of Venus: Or, A 112 Harlot’s Progress (London: s.n., 1733) p.10. Figure 4. John Breval, The Lure of Venus: Or, A 113 Harlot’s Progress (London: s.n., 1733) p.16. Figure 5. John Breval, The Lure of Venus: Or, A 113 Harlot’s Progress (London: s.n., 1733) p.22. Figure 6. John Breval, The Lure of Venus: Or, A 114 Harlot’s Progress (London: s.n., 1733) p.23. 9 Introduction ‘The Nature of a Rape is so very perplex’d’, comments the anonymous author of The case of the Ld. John Drummond (1715) in reporting the 1715 trials of Lord John Drummond and Captain Hugh Lesson for rape.1 The lack of clarity in the period about the ‘Nature’ of the act is striking.