Notes and References 1 TROLLOPE AND THE LAW: A PROSPECT 1. Michael Sadleir, Trollope: A Commentary (London: Constable, 1927; revised 1945) pp.52-3. 2. Coral Lansbury, The Reasonable Man: Trollope's Legal Fiction (Princeton: Princeton University Press, 1981) p. 13. 3. Ibid., p.21. 4. Ibid. 5. Witt, Life in the Law (London: Laurie, 1906) p.44. 6. Maria Edgeworth, Castle Rackrent, ed. George Watson, (Oxford: Oxford University Press World's Classics paperback, 1980) pp. 108- 11. To equip himself for his Irish novels, Trollope read novels and tales of Irish life, including Maria Edgeworth and William Carleton (see Sadleir, pp. 143-4). 7. 'Mr. Trollope and the Lawyers', London Review, 8 Nov. 1862, p.405. 8. See John Halperin, 'Trollope's Phineas Finn and History', English Studies, 59 (April 1978) pp. 121-3. 9. Jonathan Swift, Gulliver's Travels, Part IV, ch. v. 10. Thomas Macaulay, 'Francis Bacon' (1837), in Critical and Historical Essays, 2 vols (London: Dent Everyman edition, 1907), vol. II, p. 317. 11. James Boswell, The Journal of a Tour to the Hebrides, G. B. Hill and L. F. Powell (eds) (Oxford: Clarendon Press, 1950) 15 August 1773, pp. 26-7. 12. 'From the moment that any advocate can be permitted to say, that he will or will not stand between the crown and the subject arraigned in the court where he daily sits to practise, from that moment the lib­ erties of England are at an end. If the advocate refuses to defend, from what he may think of the charge, or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judge­ ment; and, in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.' R. v. Paine (1792), State Trials, vol. XXII, 357 at 412. 13. Cornhill Magazine, 3 (April, 1861) p.447. 14. Ibid., pp.456-7. 15. Ibid., pp.458-9. 16. William Blackstone, Commentaries on the Laws ofEngland, 4 vols (Oxford: 1745-9), vol. II, p. 116. 155 156 Trollope and the Law 17. For an authoritative account of how entails were barred by common recoveries and fines, see R. Megarryand Wade, The Law ofReal Property, 3rd edn (London: Stevens, 1966) pp.87-9. 'These', they say, 'were products oflegal ingenuity, contrived and perfected in a period notable for formalism and fictitious processes.' In essence, in a common recov­ ery, the tenant conspired with a friend or buyer who laid claim to the land of the tenant (in accordance with their collusion, the friend had covertly bought it or agreed to reconvey it in fee simple to the tenant). But what about the prospective heirs? Well, a fictitious character was named who had warranted the tenant's title on penalty of providing lands of equal value if it were unsound. The court was not inconven­ iently curious about the identity of this warrantor. In common practice, the court crier acted the part for a small fee. The friend or buyer then took the matter up with the warrantor. They asked the court for a recess to talk it over, whereupon the warrantor would default by failing to reappear. The court would render judgement against this fictitious rascal, who was considered in contempt of court, confirm the friend's title, and the entail would go into limbo, or perhaps, considering Blackstone's language on the legal beauty of this abstract nonsense, into a state of divine translation: 'it hath been said', says Blackstone, that, though the estate-tail is gone from the recoveree, yet it is not destroyed, but only transferred; and still subsists, and will ever continue to subsist (by construction of law) in the recoverer, his heirs, and assigns: and, as the estate-tail so continues to subsist for ever, the remainders or reversions expectant on the determination of such estate-tail can never take place (Commentaries, II, p.360). One thinks: And little town, thy streets for evermore Will silent be; and not a soul to tell Why thou art desolate, can e'er return. Bentham, naturally, despised all this: 'fiction', he says, 'is a wart which here and there deforms the face of justice: in English law, fution is a syphilis, which runs in every vein and carries into every part of the system the principle of rottenness'. (The Art of Packing Special Juries [1821], in The Works ofJeremy Bentham, ed.John Bowring, 11 vols [1838- 43; reprinted New York: Russell and Russell, 1962] vol. v, p. 28). The Fines and Recoveries Act of 1833 put an end to fines and recoveries and substituted a straightforward way of barring entails. 18. R. Megarryand H. W. R. Wade, The Law ofReal Property, p. 289. See also Sir Frederick Pollock, The Land Laws, 3rd edn (London: Macmillan, 1896) pp. 111-14. 19. First Report, Parliamentary Papers 1829, vol. x, pp. 6-7; and Sir William Holdsworth, A History of English Law, 17 vols (London: Methuen & Sweet and Maxwell, 1903-66) vol. XV, p.169. 20. Walter Bagehot, The English Constitution, (London: Oxford University Press World's Classics edition, 1928) p. 145. Notes and References 157 21. A. V. Dicey, The Paradox of the Land Law', Law Quarterly Review, (1905) pp.221-2. 22. See Richard D. Altick, Victorian Studies in Scarlet (New York: Norton, 1970). 23. This critical zeal has not died out. Popular capacity for considering the fine points of crime, legal procedure, and the actors in the legal drama, was demonstrated to me afresh when, to get the feel of the place for the writing of this book, I visited the Old Bailey. The trial was for murder. And my fellow spectators, as I found when the judge, after some caustic remarks to a badly prepared counsel, called a recess to let him repair his shortcomings, consisted, as it seemed, of a number of old lags, habitues of the Old Bailey, who fell to matching notes on the judge, the counsel, and the defendants (with whom they seemed to be on neighbourly terms) with a nicety of comparison, discrimination and accumulated knowledge that would have done credit to any scholarly enterprise. 24. See Philip Collins, ch. IX, The Police', in Dickens and Crime (London: Macmillan, 1962). 25. See Keith Hollingsworth, The Newgate Novel, 1830-1847 (Detroit: Wayne State University Press, 1963). 26. See Michael Timko, The Victorianism of Victorian Literature', New Literary History, 6 (1975) pp.607-27. 27. See my chapter, The Curse of Words in He Knew He Was Right', in Juliet and Rowland McMaster, The Novel from Sterne to James (London: Macmillan, 1981) pp.195-212. 28. Possibly Trollope had read another of James Fitzjames Stephen'S deflating articles on popular novelists, 'Detectives in Fiction and in Real Life', in Saturday Review, no. 17 (11 June 1864) pp.712-13, where Stephen scornfully remarks: That an atra cura, or rather a caerulea or dark-blue cura, sits behind every criminal, and hunts him down in a second-class railway carriage with the sagacity of a Red Indian, the scent of a bloodhound, and an unlimited command of all the resources of modern science, appears to be a cherished belief with a certain class of novelists ... The whole matter may be summed up very shortly. There is little scope for ingenuity in the detection of crimes, because, if there is evidence, it is almost always easy to produce it; and if there is none, it is altogether impossible to get it. The sphere of ingenuity is in making guesses, and the whole object of English courts of law and rules of evidence is to exclude guesswork. 29. In The Three Clerks Trollope as narrator admits, of the Old Bailey, 'I have never seen the place' (p. 475) and excuses himself from giving a circumstantial amount of a trial by saying he would only be copying 'the proceedings at some of those modern causes celebres with which all who love such matters are familiar' (p.483). 30. See Henry S. Drinker, The Lawyers of Anthony Trollope', in Two Addresses Delivered to Members ofthe GrolierClub (New York: Grolier Club, 1950). 31. Trollope, To ?, 4 April 1879, in The Letters ofAnthony TroUope, ed. John 158 Trollope and the Law Hall, 2 vols (Stanford: Stanford University Press, 1983) vol. II, p.821. 32. See particularly John Halperin, 'Trollope and Feminism', The South Atlantic Quarterly, 77 (1978) pp.179-88; Juliet McMaster, 'The Men and Women', in Trollope's Palliser Novels: Theme and Pattern (London: Macmillan, 1978) pp.155-79; Ruth apRoberts, 'Emily and Nora and Dorothy and Priscilla and Jemima and Cary', in The Victorian Experience: The Novelists, ed. Richard A. Levine (Athens Ohio: Ohio University Press, 1976) pp. 87-120; and R. D. McMaster, 'Women in The Way We Live Now', English Studies in Canada, 7 (1981), pp.66-80. 33. Tennyson, The Princess (1847); Ruskin, 'Of Queens' Gardens', in Sesame and Lilies (1865); Huxley, 'Emancipation - Black and White', in The Reader (1865), reprinted in Science and Education, Essays (1893); Taylor, 'Enfranchisement of Women', Westminster and Foreign Review (1851); John Stuart Mill, On the Subjection of Women (1869). 34. An excellent and concise discussion of the subject is Lee Holcombe's 'Victorian Wives and Property: Reform of the Married Women's Property Law, 1857-1882', in A Widening Sphere: Changing Roles of Victorian Women, ed. Martha Vicinus (Bloomington: Indiana University press, 1980) pp.3-28. 35.