[A Review of] "Thomas Hardy's Legal Fictions"

[Thanks to James Heffernan, founder and editor-in-chief of Review 19 for sharing this review with readers of the Victorian Web. — DGJ ]

Cover of the book under review. [Click to enlarge it.]

Illuminated initial U niquely qualified to use the law in his fiction, Hardy did so frequently. Despite only one courtroom scene in all the novels — the furmity woman's appearance before Casterbridge magistrate Michael Henchard — most of Hardy's plots turn on legal issues or situations, especially as they represent the condition of women. Hardy also includes a host of court figures in his fiction, and though mostly minor in character — magistrate Henchard again the exception — they often alter plot developments. Typical is Mr. Beaucock, an "ex-lawyer's clerk" in The Woodlanders: he misinforms Mr. Melbury about new divorce laws that complicate married life for his daughter Grace, who has been deserted by her husband.

Significant, too, are Hardy's several legal friendships, such as that with Sir Francis Jeune, President of the Probate, Divorce, and Admiralty Division of the High Court from 1892 to 1905, whom Hardy consulted about legal situations in his fiction. Hardy himself served the law as a borough and then county magistrate beginning in 1884, and he owned several books on the law, including a selected edition of Blackstone's Commentaries on the Laws of England (1765-9), the classic representation of English common law "as a normative tradition, a crystallization of custom" that purports to protect the liberty of Britain (Dolin 22). Finally, the many summaries of court proceedings and law stories in Hardy's "Facts" Notebook, which he began to compile soon after his return to Dorchester in 1883, indicate his abiding interest in and intention to write about legal issues.

But did he aim to make his fiction serve the cause of legal reform? Ferguson argues not only that the law is "a pervasive preoccupation throughout [Hardy's] fiction" (2), but also that he shaped both the content and form of his fiction in response to several specific legal cases, as well as to the debates over legal reform that he followed in Parliament, the press, and the fiction of other writers. To support this claim, Ferguson reads Hardy's novels and a selection of short stories through the lens of four legal problems of the day: 1) the gender bias implicit in trial procedures; 2) the evolving definition of legal insanity; 3) the restrictions imposed on women under coverture; and 4) the laws governing property and inheritance. Driven by his interest in the debates over these complex legal issues, Ferguson argues, Hardy leaves them open for his readers, so as to question, with "aporetic non-resolution," the attempt to codify common law during the century by way of utilitarian standardization (11). Hardy believed — as he repeatedly said — that most law reform failed to account sufficiently for individual rights, and he used the resulting tension between the law and justice to challenge his readers: to "provoke his readership to examine legal questions which he leaves unanswered in a modernist form of training in judicial reasoning" (5). During a period of prolific legal reform, Ferguson writes, Hardy used his fiction to encourage debate of legal issues, to question the law and law reform, and in the process to expose the law "as a construct, subject to evaluation and revision" (2).

Ferguson sees Hardy as a reformer from the beginning of his novel writing career. According to her, he turned to the sensation novel in the 1870s precisely because of the genre's tendency to dramatize contemporary legal issues. Particularly useful here is Ferguson's exploration of Desperate Remedies, Hardy's second written but first published novel, which has been neglected by Hardy readers precisely because of its sensational aspects. The standard explanation for Hardy's turn to sensation fiction is that he took George Meredith's famous advice: in response to Hardy's manuscript The Poor Man and the Lady, Meredith counseled him to write a story with a plot and artistic design rather than social purpose (see Millgate 2006, 105-8). But Ferguson contends that he chose sensation in order to play off the divorce and civil trials of Caroline Norton, who was harangued in court by her husband and his lawyers earlier in the century and who came to represent, in part through her own efforts as a writer, women unfairly judged in the male-dominated courtroom.

While Desperate Remedies is fertile ground for all four legal issues Ferguson addresses in her book, her method is exemplified by her discussion of a specific altercation between the heroine, Cytherea Graye, and her mistress, Miss Aldclyffe. In this scene, Miss Aldclyffe launches a barrister-style interrogation of Cytherea in an attempt to intimidate the younger woman. It is the first of several "women on trial" scenes in Hardy's fiction: scenes in which, according to Ferguson, a dominant partner, almost always a husband or suitor, interrogates the woman of his desire in legal fashion — so as to force a confession or concessions from her.

Ferguson traces Hardy's use of the domestic trial scene — and indeed, the courtroom scene in Victorian fiction generally — back to the Prisoner's Counsel Act of 1836, which "reshaped trial procedure into an adversarial contest between opposing counsels" (19). After Dickens ridiculed this reform in The Pickwick Papers (1837), it found its way into novels such as Trollope's Orley Farm and Mary Elizabeth Braddon's Lady Audley's Secret, both published in 1862. By Hardy's day, then, the presence of courtroom procedures in English fiction was well established, and their notoriety was reinforced by several well-publicized divorce cases, such as that of Norton earlier in the century and Crawford v. Crawford and Dilke in 1886. Hardy read the law in light of what it did to women. In language reminiscent of early feminist approaches to his novels, Ferguson argues that he uses the domestic trial scene to show "that the law is a patriarchal tool enforcing stringent moral rules on women, a preoccupation that becomes a pervasive and controlling theme in his later fiction" (28). From the subjection of Elfride Swancourt in A Pair of Blue Eyes to a series of withering interrogations by both her suitors, Stephen Smith and Henry Knight (a barrister, no less), to Sue Bridehead's resistance and then "capitulation to a pseudo-legal extraction of sinfulness and guilt" in Jude the Obscure, Hardy dramatizes adversarial questioning in order to show that women could not testify on their own terms under the law. By staging courtroom-like scenes in a domestic context, Ferguson concludes, Hardy rejects the resolution generally offered by the realist novel, wherein a climactic trial or disclosure of evidence leads to the acquittal of the wrongfully accused. Much more troubling — and a good deal more interesting — is Hardy's importation of adversarial courtroom methods into private life, where no such resolution is possible.

Ferguson is likewise illuminating on what Hardy does with the legal defense of insanity, which through much of the century was debated in fiction as well as in Parliament and the press. Hardy's use of "limited third-person narration," she argues, "reflects the legal difficulty of establishing mens rea [guilt, literally a guilty mind], while exposing more generally the complexity of the relationship between intention and action" (52). In Victorian fiction, the classic representation of the insanity plea is Mary Elizabeth Braddon's Lady Audley's Secret (1862), where a guilty verdict for husband-murder is overturned as the result of a doctor's examination of the heroine. Though Lady Audley is found to have inherited insanity, her own testimony suggests that she lost her reasoning only temporarily. But as Ferguson points out, temporary insanity had not been usefully defined by the McNaughten Rules, which had been used since 1843 to determine whether a person accused of a crime was sane and, therefore, criminally responsible. The continuing need to interpret these rules and apply them confused the legal relationship between intention and action. According to Ferguson, their goal — determining how much a subject willed a crime — was nearly impossible to achieve.

Several notable characters in Hardy's fiction act rashly. In each case, Hardy limits access to the character's consciousness in order to represent the difficulty of determining intention. In his confession at the end of Desperate Remedies, for instance, Manston — Ferguson writes -- "invokes both provocation and temporary insanity" (63) as he recounts the killing of his first wife. Indeed, since Manston's letter of confession approximates Lady Audley's testimony of self-defense, Ferguson suggests that Manston's murder of his wife is Hardy's direct response to Lady Audley's killing of her husband. Elsewhere Hardy probes in different ways the inscrutability of intention. In Far from the Madding Crowd, he denies the reader full access to Boldwood's consciousness, providing only external evidence and character references to determine if he was "McNaughten mad" when he murders Troy and thereby prevents him from reclaiming Bathsheba. In The Mayor of Casterbridge, Henchard might be considered "McNaughten mad" because unlike Boldwood he is riddled with inconsistencies, so his impulsive behavior is deemed essential to his character rather than aberrational. But when Angel tells himself that Tess murdered Alex because "in the moment of mad grief ... her mind had lost its balance," Ferguson notes that such an explanation "would broaden the strict interpretation of insanity according to the McNaughten Rules" (82). According to Ferguson, Hardy intentionally leaves Tess's culpability ambiguous. Finally, in Jude the Obscure, she notes, the reader gets no help at all from the narrator in determining the motive for Father Time's murder/suicide beyond his over literal interpretation of Sue's comment that it may be better not to have been born. Father Time's "insane" act, Ferguson claims, reinforces the idea that intention is impossible to define.

With these cases, Hardy exposes the difficulty of establishing mens rea. Can the individual under extreme duress always be expected to control her actions? Is the increasing use of medical testimony beneficial, or does it exacerbate the tension between juries and judges? Which — jury or judge — should decide if the mens of the accused is rea, and on what grounds, using what evidence? Ferguson stresses Hardy's interest in "aberrant mental states that could limit criminal liability" (84). The test cases she finds in his fiction, she says, "suggest he favoured a re-evaluation of the insanity defence to encompass cases where emotional reasoning has been affected" (84) — that is, a state of temporary insanity under the law.

In turning to coverture, which made a wife's legal rights wholly subject to her husband, Ferguson enters territory more familiar to Hardy readers. Ferguson probes the link between marital abuse of women and economic domination of them in light of several legal reforms: the Divorce and Matrimonial Causes Bill of 1857, the Matrimonial Causes Acts of 1857 and 1878, and the Married Women's Property Acts of 1870 and 1882. Behind these reforms, of course, lurks Blackstone's famous argument that the principles of coverture were designed for the "protection and benefit" of the female sex. Citing the case of the unprotected Caroline Norton, who turned to writing to show how the law made her vulnerable, Ferguson finds her fictional counterpart in the heroine of Hardy's The Hand of Ethelberta, who tells her story for financial gain. Perhaps more compelling is Ferguson's analysis of Two on a Tower, driven by what she calls Hardy's most intricate legal plot. Though Viviette's husband is absent throughout the narrative, her actions depend on her legal relationship with him: his propensity for violence, his desertion, even his bigamy drive the plot forward. As Ferguson puts it, "Sir Constantine Blount flouts the law and suffers no legal sanctions while Viviette, who is ethically scrupulous throughout the narrative, makes one mistake and suffers drastically on that account" (105). In Two on a Tower, then, the law is clearly on the husband's side and actually protects a wife-abuser. Grace Melbury, Ferguson notes, is another notable victim of the law. Though she questions, if naively, the law's tolerance of a husband's adultery and desertion, she too must accept the indissolubility of her marriage because her husband has treated her not quite badly enough for her to divorce him. Even in Jude, where Sue rejects completely the idea of coverture, Ferguson reads Gillingham's argument — later echoed by Arabella — as a reflection of current law. In declaring that Sue should be "'smacked and brought to her senses,'" Ferguson writes, Gillinghan evokes the R. v. Jackson 1891 abduction case, in which a husband who had actually kidnapped his own wife was granted ownership of her body with a writ of habeas corpus (see also Mallett 1992).

Ferguson is least convincing, however, on Hardy's use of property law: that is, his purported use of the Tichborne trial of 1871-2 and the Settled Land Act, which a decade later granted tenants the right to sell, exchange, or partition their land. With Desperate Remedies and A Laodicean, Ferguson argues, Hardy tapped into the day's anxieties about imposture and inheritance. She also raises important questions about Hardy's relation to property in showing how the disruptive power of contracts is used to exploit the letter of the law in The Woodlanders. But since property issues had become staples of gothic fiction and the sensation novel by 1870, Hardy's story of an outsider bent on usurping family property could have been inspired as easily by Wuthering Heights, say, as by the Tichborne case. Ferguson not only fails to connect Hardy's fiction directly to Tichborne and the Settled Land Act; she also fails to note that Hardy was himself a landlord whose letters to his Dorchester solicitor, Lock, Reed & Lock, suggest that he did not find property ownership particularly rewarding (see Collected Letters VIII, 88-91).

Law and literature have different aims. As Richard Posner observes, "literature ostensibly about law often does not engage the lawyer's professional knowledge." Rather than depict "lawyer's law" in their fictions, he says, novelists focus on the "basic, timeless features of human existence," and while law is one of these features, it serves more often as a metaphor for some other primary concern -- justice, for instance, or vengeance -- than as a body of technical knowledge (15). Hardy himself denied knowing the law qua law. In 1897, he refused to publicize his own views on marriage and divorce in a newspaper article. Though he had closely examined the consequences of the laws controlling marriage, he wrote that he would leave to others "the consideration of how to right, remedy, or prevent the wrongs which some of them, undoubtedly are!" (Collected Letters II, 154). Years before, when interviewed in 1886 about his work as a magistrate, Hardy claimed that the "sterner facts of existence . . . are apt to be lost sight of in the dream-world of books" (qtd. Sampson, p. 264). In thus implicitly distinguishing between law and literature, and in refusing to claim that he wrote his novels to reform current law, Hardy complicates any argument that might be made about the legal features of his fiction.

In his earlier study of Hardy and the Law, William Davis claims that Hardy's distinction between fiction and the law was misleading and "does not hold up under examination" of the novels (44). Unlike Ferguson, who finds Hardy pervasively preoccupied with the law from the beginning of his career, Davis argues that Hardy chiefly aims to explore "failed human relationships," not the law itself. According to Davis, the law conditions "love relationships and resulting romance plots in Hardy's fiction from their beginnings to their ends" (182). Yet even Davis believes that Hardy used the law differently as he grew older. While the earlier novels draw their plots from legal issues, he writes, a "call for legal reform" can be heard in the later work, especially in the marriage trilogy of Woodlanders, Tess, and Jude (47). Davis concludes, then, that Hardy ends his career as a novelist with a purpose, as a reformer bent on debating some of the most pressing legal issues of the day.

Nevertheless, neither Ferguson nor Davis considers the possibility that Hardy was — as he claimed — not a legal reformer at all, but simply a novelist working conscientiously with the conventions established by the sensation genre. As Patrick Brantlinger points out, rather than "striking forthright blows in favor of divorce law reform and greater sexual freedom, sensation novels usually tend merely to exploit the public's interest in these issues" (6). Also, Brantlinger notes, sensation novels thrive on moral and narrative ambiguity (5, 11). While their plots reflect the subject matter to be found in periodicals and newspapers, sensation novelists rarely offer alternatives to the laws currently governing bigamy, adultery, divorce, insanity and property succession. Moreover, as Kieran Dolan observes, "the adoption of a critical tone with respect to official agencies of law" was simply standard practice for the novelist in the nineteenth and early twentieth centuries (2).

Despite the questions raised by her claims about Hardy and the law, Ferguson offers many fine readings of his fiction while enlarging the cultural context that a reader might bring to the study of it. How much the law shaped Hardy's aims as a novelist remains an open question. Indeed, we need not know much — or anything — about the laws of his century to appreciate the power of his fiction. Did the spirit of legal reform actually motivate Hardy to write stories meant to alter the law? Or was he, as Posner suggests of the novelist generally, using the law as a metaphor for more permanent concerns? Ferguson has made a strong case for Hardy's interest in the law, but as she notes herself in discussion of the McNaughten Rules, intention is nearly impossible to ascribe with certainty.

Links to Related Material


[Book under review] Ferguson, Trish. Thomas Hardy's Legal Fictions. Edinburgh: Edinburgh University Press, 2013.

Brantlinger, Patrick. "What is 'Sensational' about the 'Sensation Novel,'" Nineteenth-Century Fiction 37.1 (1982): 1-28.

Davis, William A. Hardy and the Law: Legal Presences in Hardy's Life and Fiction . Newark, Delaware: University of Delaware Press, 2003. 44).

Dolin, Kieran. Fiction and the Law: Legal Discourse in Victorian and Modernist Literature. Cambridge: Cambridge University Press, 1999.

Greenslade, William, ed. Thomas Hardy's "Facts" Notebook: A Critical Edition. Burlington, VT: Ashgate, 2004.

Hardy, Thomas. The Collected Letters, vols 1-7. Edited by Richard Little Purdy and Michael Millgate. Oxford: Clarendon, 1978-1988.

Hardy, Thomas. The Collected Letters: Further Letters, volume 8. Edited by Michael Millgate and Keith Wilson. Oxford: Oxford University Press, 2012.

Mallett, Phillip. "'Smacked, and Brought to Her Senses,'" Thomas Hardy Journal 8.2 (May 1992): 70-73.

Millgate, Michael. Thomas Hardy: A Biography Revisited New York: Oxford University Press, 2004.

Posner, Richard. Law and Literature: A Misunderstood Relation. Cambridge, MA: Harvard University Press, 1988.

Sampson, Edward C. "Thomas Hardy — Justice of the Peace." Colby Library Quarterly 13 (1977): 263-74.

Last modified 10 April 2024