Law, Literature, and the Transmission of Culture in England, 1837–1925

Cathrine O. Frank

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351922630
• Edition: 1
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

Focusing on the last will and testament as a legal, literary, and cultural document, Cathrine O. Frank examines fiction of the Victorian and Edwardian eras alongside actual wills, legal manuals relating to their creation, case law regarding their administration, and contemporary accounts of curious wills in periodicals. Her study begins with the Wills Act of 1837 and poses two basic questions: What picture of Victorian culture and personal subjectivity emerges from competing legal and literary narratives about the will, and how does the shift from realist to modernist representations of the will accentuate a growing divergence between law and literature? Frank's examination of works by Emily Brontë, George Eliot, Charles Dickens, Wilkie Collins, Anthony Trollope, Samuel Butler, Arnold Bennett, John Galsworthy, and E.M. Forster reveals the shared rhetorical and cultural significance of the will in law and literature while also highlighting the competition between these discourses to structure a social order that emphasized self-determinism yet viewed individuals in relationship to the broader community. Her study contributes to our knowledge of the cultural significance of Victorian wills and creates intellectual bridges between the Victorian and Edwardian periods that will interest scholars from a variety of disciplines who are concerned with the laws, literature, and history of the nineteenth and early twentieth centuries.

PART 1
Writing the Will

Introduction Novel Bequests

The ownership of a thing cannot be looked upon as complete without the power of bestowing it, at death or during life, at the owner’s pleasure; and all the reasons, which recommend that private property should exist, recommend pro tanto, this extension of it.

J.S. Mill, Principles of Political Economy 1848

Goodness only knows what novelists and dramatists would do without wills.

L.S. Lewis, “Some Peculiar Wills” 1897

Victoria began her 64-year reign as Queen of England in 1837. In the same year, a new statute was enacted that gave the last will and testament the shape it essentially still bears in England and in the United States today. The Wills Act of 1837 repealed hundreds of years of testamentary law and made the will a distinctly modern document. Bringing together the older forms of devise and testament (forms used for the disposal of real and personal property, respectively), it created a single legal will to serve as the mechanism for expressing and enacting the testator’s newly expanded power (Ritchie 21). As a specifically written document, one whose authenticity was declared in writing by testator and witnesses alike, the will provided a permanent, visible record of the writer’s worldly goods, and of the writer.

The will’s new documentary status brought with it a new rhetorical function. Like the birth and marriage certificate, the written will is a legal register of identity. It comes into existence through the would-be testator’s interaction with legal codes governing the inheritance of property—and with the lawyers who understand them. This professional intervention in private will implies that the individual’s social self does not exist prior to such engagement with the law, yet the will is generally understood, after all, to be an expression of the individual’s personal volition, an imperative originating with the private property-owner and delivered to future generations via the law. These opposing functions suggest a paradox of the will: it is at once a testament to private, autonomous character and a bureaucratic tool of legal identity. In this sense, the legal document has a metaphysical counterpart— the will in will—which raises the important questions, first, of how much control any individual has in the construction of his own subjectivity, and, second, how much pressure such a legally sanctioned identity must exert on his beneficiaries’ own powers of self-definition.

These conflicting attitudes towards subjectivity were a consequence and expression of the transformation of “character” into a distinctly modern, capitalist “identity.”¹ The last will and testament acknowledges, even creates, the desire to control one’s own property, but the legal regulation of individual will through laws of inheritance, and the rise of legal professionals to mediate the individual’s relationship to the law, emphasize the turn towards bureaucracy. So the self-possessed testator—full of plans, confident in his powers, and certain he has character—comes to the law for the services it provides. The documentary registration of persons, however, is a mechanism of social order, which, if not divorced from ideas of the individual’s human personality or agency, nevertheless seeks to reframe, redirect, or curb and control it. Subjectivity understood in these terms as identity is inseparable from the legal structures that enable it, and so the testator’s disposal of property becomes a convenient way for the State temporarily to delegate a power that finally supports its own social organization, values, and authority. Looking at the will, the overlaps and the conflict between these ideas of personhood become clear. Though the dominance of either model shifts over the course of the nineteenth century, both models also co-exist throughout it as different concepts for the same physical person. The private individual and the public subject are different ways of looking at the same figure, that is: as one’s self-image versus the image as refracted through a legal lens, and, as we will see, through literary ones as well.

The written will became a means of making people legible as legal subjects and in this sense participated in a shift towards identity, yet by emphasizing conscious volition, it appealed to ideas more properly associated with character.² Intention assumes moral agency, desire, and an ability to act upon both that defines character, and testamentary rights express a legal and cultural endorsement of this idea of subjectivity. However, the formalization of intention through the 1837 Act, and the solicitor’s similar transformation of the testator’s instructions into his will, together participated in what Ronald Thomas in his study of forensic sciences has so usefully described as the “institutionalization of the textual construction of identity” (60).

As a document whose most obvious legal purpose is the orderly transmission of goods, the will aligns this social identity with materialism. In the early modern period, the consolidation of land was the principal determinant of one’s social identity, security, and power. When Lear, for example, divvies up his demesnes before his death, he relinquishes the foundation of his identity as ruler of both a kingdom and a family, which is most forcibly signaled by his loss of sanity (a king’s public figure being the essential part of his private character). The shift from feudalism to more modern, capitalist economies certainly did not eliminate the importance of landed property, but the proliferation of goods came to provide additional means for assessing one’s self and worth. The mass of goods that litters Belinda’s dressing table, for instance, and her horror of the forfex that cuts her lock, her principal asset, links what in Pope’s poem is the commodification of the body with the idea that the measure of one’s self is one’s property. Similarly, Hareton Earnshaw is dismayed to find that the beggar-boy his father brings home has broken a coveted violin, thereby signifying for him the orphan’s threat to the material integrity of his possessions and, consequently, of his identity as future master of Wuthering Heights.

The altered sense of public and private spheres and the related concepts of personhood adumbrated in these examples were among the many changes worked by the revolutions of the eighteenth and early nineteenth centuries. Instead of their separate but equal relationship in the eighteenth century, the private became qualitatively superior to the public in the nineteenth century with industrial capitalism and the reformulation of secularism. Capitalism created private selves and outward signs. It created a chaotic public world from which people needed protection and which redirected their energy inward towards control of the domestic sphere where, as Allan Sennett explains it, “order and authority were unchallenged, security of material existence could be a concomitant of real marital love, and the transactions between members of families would brook no outside scrutiny” (20).³ Its methods of mass production also emphasized material goods and contributed to the fetishization of commodities that endowed them with human characteristics and made them signs of their owner’s personality as well.

Commodity fetishism is but one expression of nineteenth-century secularism. In place of sacred mysteries, things were endowed with meaning. They were no longer defined by their place in an overarching natural order, but carried their meaning inside them. This principle of “immanence” became the basis of knowledge in secular society, which rendered all external appearances intrinsically significant, or at least assumed that they might be (Sennett 21). To speak of personal possessions documented in the will is, in this sense, to speak of goods in which more than material value inheres. Secularization also mystified the human subject by replacing his will to believe in God with a will to believe in himself (Sennett 150). Personality can thus be understood as the principle of immanence applied to individuals in parallel to the similar fetishization of commodities. How can we know the strangers among us? If phenomena must be apprehended in terms of one’s sensory experience of them, then one answer is that people too must be equated with the “immediate impressions” they make, or their personality (Sennett 151). Citing Carlyle’s focus on costume in Sartor Resartus, Sennett notes that “appearances in the world are not veils but guides to the authentic self of the wearer” (153). In the legal world, the will was not merely a list of property but a “speaking likeness,” as one solicitor of the time put it, of the testator (B.B. West 33).

In the burgeoning capitalism of the nineteenth century, then, the will—that catalog of one’s possessions and expression of a right in things—became synonymous with a sense of personal agency and selfhood. As J.S. Mill clearly states in the passage that opens this study, the capitalist institution of private property logically demands that ownership include, first, the right to dispose of property, and, second, that individual “pleasure” be the guide of that disposal. In the epistemological context of empiricism, the will that expressed these rights itself became the empirical register of identity, a legalistic fetish in which intention and personality were immanent. It was (and is) a document that survived the testator, one that preserved the goods with which he identified, whose resonance for Victorian culture especially rested in the uncertainty of what lay beyond the material world. Anny Sadrin makes the point specifically for Charles Dickens’s work that “if essence and existence are to be reconciled in a worldly society, man must have in order to be” (4). If one was what one had, then the individual could in a sense outlive himself as long as his pleasure continued to govern the goods comprising that identity; the will sought to provide just such a mechanism of control.

This desire for a concrete index of identity was particularly acute in the nineteenth century for a variety of reasons but notably because of the uneven value for empirical ways of knowing. The material world was expanding: through the mass production of goods at home, but also through means as various as scientific discovery and imperial conquest abroad. Charles Lyell’s Principles of Geology (1830–33), for example, announced the astonishing discovery of pre-historic remains, which proved, he argued, that although human history was brief, the world was old, and the Victorians were consequently so far removed from its real origins as to make it nearly impossible to trace the human connection to them or, worse, to imagine themselves as being exempt from its cataclysms. In response to this specter of oblivion, the Victorians “reconstituted themselves as origin,” writes Gillian Beer, and busily set about documenting themselves both for their own psychic relief and for posterity (85). In this climate, the written will provided just such a traceable origin for individual identity because it was literally a physical document—a legal fossil— that provided evidence of the testator’s possessions, those observable markers of his social existence over which even the dead hand could arguably maintain control.

The correlation between the will and empiricism is sufficiently, even suspiciously, neat and thus raises the question of what happened to the document when the epistemological value of empiricism was challenged. Victorian constancy to the doctrine of “seeing is believing” was not uniform throughout the century. If reliance on the ability of appearances to convey an object’s essential meaning was challenged by a growing sense that the observable was not, in fact, one-dimensional (and that the viewer’s efforts to identify the True or the Real might therefore be inadequate), access to the unobservable posed still greater challenges. Material expansion was matched by growth in areas not of themselves available to sensory apprehension. The inner workings of the mind, for example, was a subject of intense interest to Victorians of all stamps, and, as Lisa Rodensky notes in her work on criminal intention, the “possibility of getting access to the interior self” (9) occupied psychologists and philosophers like Bentham to lawyers and writers of fiction. As James Fitzjames Stephen lamented, however, “Every word which describes the operation of the mind, is a metaphor, taken from some external objects” that therefore eludes the essential (qtd. in Rodensky 9).⁴ The only means outside of fiction of representing interiority and, indeed, of conceptualizing it in the first place was through inference from the physical world (Rodensky 11).

The effect of this shift in empiricism on the documentary will highlights the importance of the imperative will. One response to the challenge was a determined insistence that meaning could, or had to, be located on the surface of things because the alternative was too unsettling. Another was the open acknowledgment and investigation of this epistemological and ontological conflict that informs those Victorian novels that took the legal will as their subject. At issue here is the constructed nature of both meaning and identity, the role of desire and volition in that construction, and the extent to which identity and meaning (both individual and cultural) were negotiable. Victorian novels that self-consciously tackled these issues, acknowledging empiricism’s sway to the extent that it made a worthy subject of debate, presage the urgency of those issues at the turn of the century when empiricism’s viability as a mode of knowledge had become far more suspect.

The oblivion that empiricism sought to avoid erupted, virus-like, in invigorated form throughout the century and peaked, if not in fin de siècle attitudes of degeneration and decline, then certainly in August 1914 with the war that would obliterate a generation. A particularly striking example of the effort to repress the unknowable appears in The Times published immediately following the Queen’s death in 1901 (“Queen Victoria’s Descendants”). Victoria’s family tree is depicted and, while it identifies her many offshoots, it tellingly omits any record of her own descent. Victoria is posited as origin, an entirely self-evolved or fully formed queen from whom all Europe emanates. The significance of the representation lies both in its impulse to make of the Victorians a cultural Ursprung just as its chief symbol, Victoria herself, passed into the oblivion of death, and to highlight the degree to which such representations are clearly willed. (Obviously, the queen’s pedigree is easily, indeed, necessarily traceable.) The Edwardian novel offers a similar paradox. Notoriously concerned with inheritance, the early twentieth-century novel shows very little interest in the attested, written will, and one has to ask why, just when the usefulness of such a concrete marker of generational transition would seem to be highest, the document fell out of representational favor.

The answer lies in the connection between realism as an empirical mode of representation and the decline of faith in that mode of knowledge that led ultimately to more abstract, modernist attempts to represent the Real. Turning their attention away from the external markers privileged by their realist Victorian forbears, modernist writers opted for depictions of an internalized subjectivity or consciousness as the more authentic expression of real experience. Where the documentary will provided an eligible rhetorical strategy in realistic Victorian novels for discussing the formation and transmission of individual and cultural identity, it was because of empiricism’s indebtedness to materialism, which, in the new century, was supplanted by a more general interest in inheritance and the sometimes liberating, sometimes threatening dissolution of Victorian identity. Of course, the importance of goods in and of themselves did not wane with the century, as the “Forsytism” of Galsworthy’s Man of Property (1906) (the first novel of The Forsyte Saga) attests. However, their centrality as reliable indicators of the True or the Real was problematized in Edwardian novels in which the imperative will—the self-conscious, metaphysical attempt to define one’s self and embody and convey that concept—stepped forth in more meaningful ways. Put differently, the “end” of Victorianism and the rejection of empiricism required the development of a new subjectivity and, indeed, of alternative methods of defining one’s self and one’s culture. These methods are traceable in the novelistic bequests of the Victorian and Edwardian periods.

The nineteenth-century investment in empiricism and the birth of the modern legal will specifically as a document coincide with the rise of the realist novel as the literary vehicle that represents, even documents, culture. It seems less necessary now than it may have been 20 or even 15 years ago to defend the realist novel from those views which cast it as a hopelessly unreflective, mimetic representation of an uncontested reality, but at the risk of belaboring the point, evaluations of tha...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• Acknowledgements
• PART 1 Writing the Will
• Introduction: Novel Bequests
• PART 2 Proving the Will
• PART 3 Contesting the Will
• Conclusion
• Works Cited
• Index