Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History (Palgrave Studies in Nineteenth-Century Writing and Culture)

Palgrave Studies in Nineteenth-Century Writing and Culture Editorial Advisory Board: Hilary Fraser, Birkbeck College, ...

Author: Margot Finn | Michael Lobban | Jenny Bourne Taylor

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Palgrave Studies in Nineteenth-Century Writing and Culture

Editorial Advisory Board: Hilary Fraser, Birkbeck College, University of London; Josephine McDonagh, Kings College, London; Yopie Prins, University of Michigan; Lindsay Smith, University of Sussex; Margaret D. Stetz, University of Delaware; Jenny Bourne Taylor, University of Sussex Palgrave Studies in Nineteenth-Century Writing and Culture is a new monograph series that aims to represent the most innovative research on literary works that were produced in the Englishspeaking world from the time of the Napoleonic Wars to the fin de siècle. Attentive to the historical continuities between ‘Romantic’ and ‘Victorian’, the series will feature studies that help scholarship to reassess the meaning of these terms during a century marked by diverse cultural, literary, and political movements. The main aim of the series is to look at the increasing influence of types of historicism on our understanding of literary forms and genres. It reflects the shift from critical theory to cultural history that has affected not only the period 1800–1900 but also every field within the discipline of English literature. All titles in the series seek to offer fresh critical perspectives and challenging readings of both canonical and non-canonical writings of this era. Titles include: Eitan Bar-Yosef and Nadia Valman (editors) ‘THE JEW’ IN LATE-VICTORIAN AND EDWARDIAN CULTURE Between the East End and East Africa Heike Bauer ENGLISH LITERARY SEXOLOGY Translations of Inversions, 1860–1930 Laurel Brake and Julie F. Codell (editors) ENCOUNTERS IN THE VICTORIAN PRESS Editors, Authors, Readers Luisa Calè and Patrizia Di Bello (editors) ILLUSTRATIONS, OPTICSAND OBJECTS IN NINETEENTH-CENTURY LITERARY AND VISUAL CULTURES Colette Colligan THE TRAFFIC IN OBSCENITY FROM BYRON TO BEARDSLEY Sexuality and Exoticism in Nineteenth-Century Print Culture Dennis Denisoff SEXUAL VISUALITY FROM LITERATURE TO FILM, 1850–1950 Stefano Evangelista BRITISH AESTHETICISM AND ANCIENT GREECE Hellenism, Reception, Gods in Exile Margot Finn, Michael Lobban and Jenny Bourne Taylor (editors) LEGITIMACY AND ILLEGITIMACY IN NINETEENTH-CENTURY LAW, LITERATURE AND HISTORY Laura E. Franey VICTORIAN TRAVEL WRITING AND IMPERIAL VIOLENCE Lawrence Frank VICTORIAN DETECTIVE FICTION AND THE NATURE OF EVIDENCE The Scientific Investigations of Poe, Dickens and Doyle Yvonne Ivory THE HOMOSEXUAL REVIVAL OF RENAISSANCE STYLE, 1850–1930 Colette Colligan THE TRAFFIC IN OBSCENITY FROM BYRON TO BEARDSLEY Sexuality and Exoticism in Nineteenth-Century Print Culture 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor

Copyright material from www.palgraveconnect.com - licensed to Universitetsbiblioteket i Tromsoe - PalgraveConnect - 2011-03-05

General Editor: Joseph Bristow, Professor of English, UCLA

Jarlath Killeen THE FAITHS OF OSCAR WILDE Catholicism, Folklore and Ireland Stephanie Kuduk Weiner REPUBLICAN POLITICS AND ENGLISH POETRY, 1789–1874 Kirsten MacLeod FICTIONS OF BRITISH DECADENCE High Art, Popular Writing and the Fin de Siècle Diana Maltz BRITISH AESTHETICISM AND THE URBAN WORKING CLASSES, 1870–1900 Catherine Maxwell and Patricia Pulham (editors) VERNON LEE Decadence, Ethics, Aesthetics Muireann O’Cinneide ARISTOCRATIC WOMEN AND THE LITERARY NATION, 1832–1867 David Payne THE REENCHANTMENT OF NINETEENTH-CENTURY FICTION Dickens, Thackeray, George Eliot and Serialization Julia Reid ROBERT LOUIS STEVENSON, SCIENCE, AND THE FIN DE SIÈCLE Anne Stiles (editor) NEUROLOGY AND LITERATURE, 1860–1920 Caroline Sumpter THE VICTORIAN PRESS AND THE FAIRY TALE Sara Thornton ADVERTISING, SUBJECTIVITY AND THE NINETEENTH-CENTURY NOVEL Dickens, Balzac and the Language of the Walls Ana Parejo Vadillo WOMEN POETS AND URBAN AESTHETICISM Passengers of Modernity Phyllis Weliver THE MUSICAL CROWD IN ENGLISH FICTION, 1840–1910 Class, Culture and Nation Paul Young GLOBALIZATION AND THE GREAT EXHIBITION The Victorian New World Order

Palgrave Studies in Nineteenth-Century Writing and Culture Series Standing Order ISBN 978–0–333–97700–2 (hardback) (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG 21.6XS, England

10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Colin Jones, Josephine McDonagh and Jon Mee (editors) CHARLES DICKENS, A TALE OF TWO CITIES AND THE FRENCH REVOLUTION

Edited by

Margot Finn Michael Lobban and Jenny Bourne Taylor



Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History

Library of Congress Cataloging-in-Publication Data Legitimacy and illegitimacy in nineteenth-century law, literature and history / edited by Margot Finn, Michael Lobban, Jenny Bourne Taylor. p. cm. — (Palgrave studies in nineteenth-century writing and culture) ISBN 978–0–230–57652–0 (hardback) 1. English literature—18th century—History and criticism. 2. Illegitimacy in literature. 3. English literature—19th century— History and criticism. 4. Literature and society—England—History— 18th century. 5. Literature and society—England—History—19th century. 6. Law—Great Britain—History. I. Finn, Margot C. II. Lobban, Michael. III. Taylor, Jenny Bourne, 1949– PR448.I49L44 2010 820.9'3552—dc22 2010002683 10 9 8 7 6 5 4 3 2 1 19 18 17 16 15 14 13 12 11 10 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Introduction, selection and editorial matter © Margot Finn, Michael Lobban, Jenny Bourne Taylor, 2010. Individual chapters © contributors, 2010 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6 –10 Kirby Street, London EC1N 8TS. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2010 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–0–230–57652–0 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library.

Acknowledgements

vi

Notes on Contributors

vii

1

Introduction: Spurious Issues Margot Finn, Michael Lobban and Jenny Bourne Taylor

2

The Barlow Bastards: Romance Comes Home from the Empire Margot Finn

25

On Settling and Being Unsettled: Legitimacy and Settlement around 1850 Josephine McDonagh

48

3

4

5

6

7

Unauthorized Identities: The Impostor, the Fake and the Secret History in Nineteenth-Century Britain Rohan McWilliam The Fauntleroy Forgeries and the Making of White-Collar Crime Randall McGowen Commercial Morality and the Common Law: or, Paying the Price of Fraud in the Later Nineteenth Century Michael Lobban Dirty Laundry: Exposing Bad Behaviour in Life Insurance Trials, 1830–90 Timothy Alborn

1

67

93

119

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Afterword Margot Finn, Michael Lobban and Jenny Bourne Taylor

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Bibliography

175

Index

187 v



Contents

The editors are most grateful to the staff of the Huntington Library in San Marino, California, who in 2005 generously hosted the twoday conference on ‘Legitimacy and Illegitimacy: Law, Literature and History c. 1789–1914’, of which this volume is a distillation. Carolyn Powell and Susi Krasnoo provided first-rate organisational assistance from their base in the Huntington’s Research Division, encouraging us to imagine that the conference was in fact organising itself. Roy Ritchie, Director of Research at the Huntington, endorsed and supported our interdisciplinary analytical agenda and was an intelligent interlocutor throughout our visit. Both Roy and Louise Ritchie welcomed conference participants into their home for a delightful dinner with members of the southern Californian British studies community. Joe Bristow helped to galvanise the discussions that led to this volume, and was instrumental in ensuring that our papers would find a broader and collective audience through publication in this series. Finally, the editors thank the paper-givers, commentators and conference audience, not all of whom are represented here, but each of whom contributed to the production of this volume. Margot Finn, Warwick University Michael Lobban, Queen Mary, University of London Jenny Bourne Taylor, University of Sussex May 2009

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Acknowledgements

Timothy Alborn is Professor of History and Dean of the Division of Arts and Humanities at Lehman College, City University of New York. He has published extensively on British history, the history of science and business history, and is the author of Regulated Lives: Life Insurance and British Society, 1800–1914 (2009) and Conceiving Companies: Joint-Stock Politics in Victorian England (1998). He is presently researching a cultural history of gold in Britain from 1780 to 1850. Margot Finn is Professor of Modern British History at the University of Warwick. A former editor of the Journal of British Studies, she is the author of After Chartism: Class and Nation in English Radical Politics, 1848–1874 (1993) and The Character of Credit: Personal Debt in English Culture, 1740–1914 (2003). She is writing a monograph on British conceptions and strategies of family formation on the subcontinent under East India Company rule, c. 1760–1860. Michael Lobban is Professor of Legal History at Queen Mary, University of London. He has written a number of works on the history of legal thought and law reform in England, including The Common Law and English Jurisprudence, 1760–1850 (1991) and A History of the Philosophy of Law in the Common Law World, 1600–1900 (2007). He is currently one of the team of authors writing volumes XI–XIII of The Oxford History of the Laws of England. Randall McGowen is Professor of History at the University of Oregon. He is the author of numerous articles on legal and penal reform, which have appeared in journals such as Eighteenth-Century Studies, the Journal of British Studies, Law & History Review and Past & Present. With Donna Andrew, he is author of The Perreaus and Mrs Rudd: Forgery and Betrayal in Eighteenth-Century London (2001). Josephine McDonagh is Professor of English Literature at King’s College, University of London. A specialist in eighteenth- and nineteenth-century British literature and culture, McDonagh is currently researching a monograph on ‘Literature in a Time of vii 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor




Migration: Mobility and the Novel, 1815–1876’. Her books to date include De Quincey’s Disciplines (1994), George Eliot (1997) and Child Murder and British Culture, 1720–1900 (2003). She is co-editor of Charles Dickens, A Tale of Two Cities and the French Revolution (Palgrave Macmillan, 2009), also published in this series. Rohan McWilliam is Senior Lecturer in British and American History at Anglia Ruskin University. Reviews editor and editorial board member of the Journal of Victorian Culture, he has published extensively on nineteenth-century popular politics. Co-editor, with Kelly Boyd, of The Victorian Studies Reader (2007), he is the author of The Tichborne Claimant: Radicalism and Popular Culture in Victorian Britain (2007). Jenny Bourne Taylor is Professor of English at the University of Sussex. Her work on nineteenth-century literature and culture includes the interconnection between Victorian psychology and fiction, and shifting concepts of illegitimacy in the nineteenth century. Her publications include In the Secret Theatre of Home: Wilkie Collins, Sensation Narrative and Nineteenth-Century Psychology (1988); ed., (with Sally Shuttleworth) of Embodied Selves: An Anthology of Psychological Texts (1998), and ed., with Martin Ryle Goerge Gissing: Voices of the Unclassed. She has published articles on representations of the London Foundling Hospital, on legitimacy and nationality, and on bastardy in the works of Anthony Trollope, and is currently co-editing the nineteenth century volume of The Oxford History of the Novel in English.



viii

Introduction: Spurious Issues Margot Finn, Michael Lobban and Jenny Bourne Taylor

At the beginning of the Third Epoch of Wilkie Collins’s novel, The Woman in White (1859–60), the hero, Walter Hartright, writes of himself and his accomplice, Marian Halcombe: We are numbered no longer with the people whose lives are open and known … We two, in the estimation of others, are at once the dupes and the agents of a daring imposture. We are supposed to be the accomplices of mad Anne Catherick, who claims the name, the place, and the living personality of Lady Glyde…. In the eyes of reason and of law, in the estimate of relatives and friends, according to every received formality of civilised society, ‘Laura, Lady Glyde’ lay buried with her mother in Limmeridge churchyard. Torn in her own lifetime from the list of the living, the daughter of Philip Fairlie and the wife of Percival Glyde might still exist for her sister, might still exist for me, but for all the world besides, she was dead…. socially, morally legally – dead And yet alive!1 Wildly popular, The Woman in White is now generally considered to be the first, and in many ways the most successful, example of sensation fiction. Sensation novels were notorious for transposing the exotic settings of gothic fiction into the modern everyday world, generating extreme emotional and nervous responses by exploiting the tensions that lay at the heart of the upper-middle-class family – above all by playing on the fragile line that separates a ‘legitimate’ from an ‘illegitimate’ identity. In The Woman in White, Laura Fairlie, 1 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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the rich, privileged heiress cajoled into a dynastic marriage with her late father’s old friend Sir Percival Glyde, becomes the victim of her husband’s conspiracy to appropriate her wealth by substituting her with her uncanny double, the working-class Anne Catherick, and incarcerating her in Anne’s place in a lunatic asylum. The twist of the story hangs on the fact that even after Laura is rescued by her sister Marian and presented to her uncle, he is unable to recognise her. As Walter Hartright realises, once the social, economic and perceptual frameworks that distinguished Anne from Laura have broken down, ‘Strangers, acquaintances, friends even…might have doubted if she were the Laura Fairlie they had once seen, and doubted without blame’ (p. 443). Anne Catherick herself is doubly illegitimate: weak-minded, obsessive and paranoid, she is finally revealed to be Laura’s unacknowledged half-sister, while the ‘secret’ that she unwittingly held, and for which she was incarcerated, was that Sir Percival himself was not only a bastard, but had forged his parents’ name in the marriage register to gain his title and land. The Woman in White is a striking example of the uses of illegitimacy as a narrative device, and the power of the novel hinges on its success in bringing together apparently disparate understandings of the term. First, the two secrets of illegitimate origins at either end of the social scale imply distinct concepts of the legitimate family: Sir Percival’s concealed bastardy emphasises the centrality of formal legitimacy over blood ties alone for the transmission of wealth and property; while Anne’s hidden relationship with her sister plays on the moral as well as the biological bonds of kinship. Secondly, Laura’s loss of both legal identity and coherent subjectivity highlights what it means to be a social person, while the struggle to restore her to name and sanity is bound up with Walter Hartright’s own social transformation from lower middle-class drawing master to the father of a propertied heir. The powerful effects of The Woman in White relied on the directness of its multiple narrative voices, each witness giving evidence as in a court of law, but in ways which emphasised the unstable and provisional nature of evidence and truth. And beyond the text, the sensation novel more widely was regarded as a bastard genre, the product of an increasingly commercialised and globalised literary marketplace, which mingled elements of the Newgate novel, gothic fiction, realism and popular melodrama and promiscuously brought together very different audiences. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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The Woman in White thus placed bastardy at the centre of a nexus of concepts of identity, truth, deception and imposture, and throughout his career Collins both probed the legal construction of an ‘authorised’ identity and extended its boundaries. In No Name (1862), for example, Magdalen Vanstone attempts to steal back her place through performance and imposture when the Vanstone sisters are discovered to be bastards through the vagaries of English common law. Man and Wife (1870) was written in the immediate aftermath of the 1868 Royal Commission into the confusing and contradictory laws of marriage in England and Scotland and Ireland and plays on the slippery definitions of marriage and legitimacy that the Commission attempted to address. Collins’s early story, ‘Fauntleroy’ (1858), gives a sympathetic account of the last man to be hanged in England for forgery, while his last, uncompleted novel Blind Love (1889) hinges on the substitution of a living man with a corpse in the service of an audacious insurance fraud. The runaway success of sensation fiction, together with the wider preoccupation with the discovery of hidden kinship through illegitimate origins that pervades nineteenth-century literature, suggests that these connections would have resonated powerfully with the large and diverse novel-reading public of the mid nineteenth century. It implies, too, that the widespread preoccupation with the idea of legitimacy in the broadest sense, its enactment, its ideological underpinning and its ultimate fragility, spanned a wide range of social and legal practices, cultural forms and institutions. The word ‘illegitimate’ is initially defined in the Oxford English Dictionary as ‘not in accordance with or authorised by law; unauthorised, unwarranted, spurious’. This is then broken down into two further definitions – ‘not born in wedlock, bastard’, and ‘not in accordance with rule of reason; not correctly induced or inferred’. This interdisciplinary collection of essays takes this slipperiness of meaning as its starting point. Animated by scandals, scoundrels and impostors, it explores questions of identity, trust and deception in nineteenth-century Britain, probing how illegitimacy throws open definitions and concepts of what is ‘legitimate’ itself. The essays range between social history, legal history and fiction, and while they raise different questions they are linked by a set of common themes. How is a legal identity created and maintained? What does it mean legitimately to belong – in a family, and in a place? What 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Spurious Issues

social and cultural tensions exist between different legal codes, between formal and informal, contractual and affective, concepts of legitimate relationships and identity, and how do these contribute to our understanding of the family? What are the cultural reactions to fraud and imposture, whether used for economic gain or social advantage? How might self-consciously illegitimate behaviour operate as a form of opposition to the dominant codes of legitimate society and what kinds of political agendas does this open up? Above all, what are the tensions among what contemporaries considered morally legitimate, what they considered as legally legitimate, and what they considered as legitimate in social practice? This introduction will tease out some of these underlying questions and set out a historical context for the essays by briefly investigating how this flexible concept expanded its public and private meanings during the nineteenth century.

The boundaries of belonging: family, place and nation The first three essays included in this collection focus on the question of legitimacy and illegitimacy in the context of personal identity. They explore the question of how far a person’s identity and standing in her family, her locality and in the wider world was determined by legal rules, and how far ideas of identity and legitimacy transcended law, and were determined by ties of emotion. Our starting point is therefore with the concept of bastardy, looking at the position of those whose claims challenged the security or identity of the family. 2 As social historians have frequently stressed, the distinction between legitimate and illegitimate birth marks the intersection of a range of economic, social and cultural practices, including the codes surrounding inheritance and property transmission; customs governing naming, genealogy and kinship; concepts of reproduction and the control of sexuality, and religious and moral systems.3 These practices and meanings were underpinned by different kinds of legal rules and structures, as well as distinct wider concepts of legitimacy. As David Beetham has argued, legitimacy in the wide sense always depends on the ability of dominant political and social systems to underscore formal legal conventions with the dual authority of ideal normative principles and broad social consent; but it is extremely seldom that these elements are unproblematically aligned. 4 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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The unsettled status of bastardy illustrates these tensions forcefully. The legal system had long attempted to set down clear rules which would ensure that patrimonial property would descend to legitimate heirs. ‘All well-regulated Governments have laid down and settled certain Rules of Propagation as necessary to the very Being of Human society’, noted Matthew Bacon in 1736. ‘Hence the Solemnity of Marriage was established, not only to prevent Lewdness, but as a Regulation, without which there could be no distinction of families, and consequently no Encouragement for Industry, or Foundation for Acquiring Riches.’5 The child born outside marriage was therefore defined as fillius nullius – nobody’s child – under common law. He or she had no legal next of kin, and could not succeed to titles or to any hereditary position as a member of family. The rule that illegitimate children could not inherit was modified in practice by testamentary freedom, under which bastards could acquire property through family settlements or personal gifts. Peter Featherstone’s illegitimate son Joshua Rigg in George Eliot’s Middlemarch (1870), who is left the property promised Fred Vincy, is a striking fictional example of this practice.6 In contrast, canon law, which defined the family as an affective and social unit underpinned by natural law principles, regarded it as a moral duty for parents to support their children regardless of their legitimacy, and early modern ecclesiastical courts heard suits brought against fathers of illegitimate children for payments.7 English law did recognise the duty of a father to maintain his illegitimate child, under the poor law statutes dating back to Elizabeth’s reign, though the intention behind this legislation was to minimise costs to the parish rather than to cement the bond of parent and child. But the notorious bastardy clauses of the 1834 Poor Law Amendment Act removed any obligation of support from the father, placing the entire burden on the mother.8 Children born outside wedlock were unambiguously illegitimate at common law. Whereas both European civil law and canon law (which remained the basis of Scottish laws of marriage and legitimacy after the Act of Union in 1601) allowed children whose parents married after their birth (provided no impediments existed) to be retrospectively legitimised, English common law staunchly forbade this, ruling that a person born illegitimate remained so for life.9 This rule of indelible bastardy (which had been famously upheld by the 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Spurious Issues

barons at the Statute of Merton in 1236 and was only repealed by the Legitimacy Act of 1921) was seen, like the common law notion of coverture, as an anachronistic hangover of feudalism by some writers by the mid nineteenth century. The liberal lawyer J.S. Wharton for example described it in 1853 as ‘denying to parents an opportunity of redressing a wrong, and thus visiting, in spite of everything, the sins of the fathers upon the children’, and his view is directly echoed by the Vanstone’s lawyer in Wilkie Collins’s No Name in 1862.10 The common law’s insistence on indelible bastardy also highlighted discrepancies within the United Kingdom, in particular between England and Scotland, over who was and was not legitimate: ‘Nothing could be more absurd than for a person to be a bastard in one country and lawful in another, merely by crossing a river or passing a mountain, the boundary of their respective territories’, argued counsel in the case of Shedden v. Patrick in 1803 (a legitimacy dispute which ran until 1869).11 The situation was more complex when it came to the position of ‘adulterine bastards’, or children born within marriage as a result of the wife’s adultery – the subject of Margot Finn’s essay on the Barlow divorce case. English law famously had a double standard, according to which a husband could seek a divorce on the grounds of his wife’s adultery, while a wife could not complain at law of her husband’s infidelity.12 This double standard may be explained by a desire to secure stable patrilineal inheritance through continuous blood lines: wifely infidelity was regarded as ‘the highest invasion of property’, for it introduced spurious issue into the heart of the family. Nonetheless, both English and European law followed the Roman law principle that pater est quem nuptiae demonstrant – ‘he is the father, whom wedlock declareth’. There was a presumption that the child born to a married woman was the legitimate offspring of her husband; and the desire for social stability and continuity made this presumption a very difficult one to overturn.13 Shakespeare’s King John for example, opens with an investigation into Philip Falconbridge’s legitimacy, and while the trial results in Philip ‘the Bastard’ actively choosing noble illegitimate status by claiming Richard Coeur de Lyon as his natural father, King John still emphasises the common law status quo: ‘Sirrah, your brother is legitimate; /Your father’s wife did after wedlock bear him, /And if she did play false, the fault was her’s; /Which fault lies on the hazards of all husbands which marry wives’ 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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(1.i. 116–20). Indeed under common law the legitimacy of a child born within wedlock could only be rebutted – even if the wife had clearly had a lover – if there was proof of the husband’s impotence, his separation for his wife by a judicial decree or his absence from the realm at the time of the child’s conception. 14 While this legal presumption of legitimacy was aimed to provide clear rules to determine the status of children born to a married woman, it caused much disquiet to numerous aristocratic families, who feared that their fortunes would fall into the hands of spurious issue. The rule was successfully challenged in the Banbury peerage case, a case which had begun in 1661 and was only settled in 1813. By deciding that the presumption was a factual one, rather than a legal one, and one which could be dislodged by evidence, the House of Lords smudged the bright lines which the common law had sought to draw for adulterine bastardy. The Banbury case was notorious both for its longevity and for the fact that it involved the bastardisation of children without an accompanying Parliamentary divorce. Sir William Knowles, Earl of Banbury, had died apparently childless, aged 85, in 1632. His widow, the Catholic Lady Jane Howard, over thirty years his junior, had quickly married Edward Lord Vaux, also a Catholic, and soon after produced two young children who had undoubtedly been born during her first husband’s lifetime and who, she claimed, were Sir William’s lawful issue. The case fell into abeyance during the Civil Wars and the Commonwealth, but when Lady Jane’s son Nicholas attempted to take his seat in the Convention Parliament leading up to the Restoration, his legitimacy was successfully challenged by his peers. There followed the presentation and scrutiny of at least eight petitions by Nicholas and his descendents, before their claim of his legitimacy was finally defeated in 1813. Yet although Nicholas’s descendants finally lost, and the case rang the death-knell on the common law’s presumption of legitimacy in cases where circumstantial or medical evidence suggested otherwise, a strong rearguard action was launched in the final debates on the Banbury case in the Lords. Thomas, Lord Erskine, arguing for the claimant, resolutely defended the law under which the presumption of legitimacy applied, ‘whatever moral probability may exist of the adulterer being the father’. ‘Women are not shut up here, as in the eastern world, and the presumption of their virtue is inseparable from their liberty’, he insisted. ‘If the presumption were once overthrown, 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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the field would be laid open to unlimited inquiries into the privacy of domestic life: no man’s legitimacy would be secure, and the law would be accessory to every species of imposture and iniquity.’15 ‘We must not overlook the dangers of trusting too implicitly on circumstantial evidence’ argued Sir Samuel Romilly, also defending the Banbury claim. ‘If the connection between cause and effect in the material world has so long baffled every philosophical enquirer, surely we ought to approach with similar diffidence an investigation into the moral world?’16 The arguments surrounding the Banbury claim in the early nineteenth century demonstrate that Lawrence Stone’s description of the increase in Parliamentary divorce as symptomatic of the rise of affective individualism is in many ways far too simplistic. Both the defendants and opponents of Nicholas Knowles’s claim laid more emphasis on the social and affective definition of paternity over biological bonds. The counsel for the claimant warned of the hornet’s nest that might be opened up by denying the liberty of English women; the Crown’s counsel, Lords Ellenborough, Eldon and Redesdale argued that Sir William had never publicly acknowledged his son – indeed had apparently been unaware of his existence. This is not to say that biological paternity was considered unimportant, only that other definitions of the family were equally in play. A few years after the Banbury case was resolved, the public was excited by the Gardner peerage case in 1825. Here two claims were made to a barony: the first by the son of Captain Gardner’s first wife, whose legitimacy was disputed; the second by the son of his second spouse. The first Mrs Gardner had left her husband’s ship at the end of January 1802, and was delivered of a child on 8 December that year. Could a pregnancy really last 311 days? After much medical evidence was heard on the length of gestation, the title passed to the second son.17 Margot Finn’s discussion of the scandal that surrounded the family of Sir George Barlow two years after the conclusion of the Banbury case also reveals the complex relationship between law and feeling in shaping family identity. Her account of this imperial family culminates in Sir George Barlow’s suit against his young ward and relation, Major George Edward Pratt Barlow, for criminal conversation with his wife Eliza, in an action which culminated in a statutory divorce. Young George admitted the charge, but the proceedings (to determine damages) allowed the jury to hear two stories about the 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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adulterous relationship. On the one hand, there was a story of the romantic love of two individuals to each other and their natural son. On the other, there was a tale of trust betrayed, and the wider betrayal of a larger family network, held together by an intricate network of relationships across the empire, which did not rest on the foundations of simple affective individualism. As Finn shows, neither the law nor the Barlow family was won over by the lovers’ appeals to the heart. Eliza was expelled, along with her lover, and their child. The bonds of love were not to be permitted to unsettle the norms of conduct needed to hold together an imperial family. It was this imperial structure which had at once created the confusing ties and roles within the extended legitimate family and which determined the illegitimacy of Eliza Barlow’s excessive romantic affection for her husband’s ward. In the event, it was the morality of the imperial family, and its demand of loyalty and trust, which determined the illegitimacy of the couple’s conduct, and their son’s status, as much as the law did. For the child of the affair, Frederick, remained at law – if not in the world – a legitimate heir of Sir George Barlow, since the cuckolded Indian civil servant was not permitted by law to give evidence in any suit to bastardise the boy. Josephine McDonagh’s study of Bleak House (1852–3) shows that mid-nineteenth-century novelists like Dickens offered a very different view of the rival demands of dynastic lineage and romantic affections, and of the role of law in their determination, than was favoured by the Barlow family. Law itself, in the form of the Court of Chancery, stands famously condemned in the novel: a symbol of Old Corruption, fleecing all who come to it, it seemed to encapsulate the very illegitimacy of the unreformed legal system. In this world, true authenticity is found in the heart of Esther Summerson, the illegitimate child. Literary representations of illegitimacy in this era frequently highlight the natural child as the source of ‘true legitimacy’. The privileging of natural affection and romantic love over the repressive codes of formal law and the worn out claims of hereditary privilege is one of the key strategies for consolidating the cultural and emotional authority of the novel itself. While Esther’s excessively self-effacing narrative dramatises her internalisation of her marginality, her higher legitimacy is also borne out by her performance of feminine virtue, and her standing outside the framework of an anachronistic and soul-destroying legal system. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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The contrast between the virtuous bastard son and the corrupt or incontinent heir (reversing the kind of legitimate/illegitimate opposition that is found in the Edmund/Edgar pairing the Shakespeare’s King Lear) is a significant thread running though the mid-century novel. It is perhaps most starkly portrayed in Dickens’s Oliver Twist (1837–9), in which the orphaned and abandoned love-child resists the criminalisation that his legitimate half-brother, the degenerate product of a loveless marriage, sets up for him. It can be found in the contrast between the two Allan Armadales in Collins’s novel of 1866, and it re-emerges in the doubling of the two Ralph Newtons, the profligate and directionless legitimate heir under the entail and the idealised and much loved natural son, in Anthony Trollope’s Ralph the Heir (1870).18 McDonagh’s essay also explores the ties between identity and place. As she shows, it is not only the Chancery which manifests the illegitimacy of the existing system of law in Bleak House, for Dickens uses the novel to present a critique of the settlement requirements of the Poor Law. While the Poor Law gave a basic entitlement to support for the pauper – albeit an increasingly harsh one in the age of the new Poor Law of 1834 – a parish faced with the claims of a pauper could remove her to her place of ‘settlement’, which was the parish legally liable for that pauper. The laws relating to settlement was complex, and provided much fodder for lawyers. They were also – as McDonagh argues – ‘unsettling’ for the pauper, who could be removed to a place where she had not resided for years, if at all. In addition, their persistence was seen by critics as manifesting the stranglehold which the past held on the present, tying both individuals and the nation to past identities which had nothing to do with their present lives. In place of the false identities imposed by the ties of ancient settlement, or the strictures of the law of bastardy which left the blood relatives unsettled in the legal family, the novel offered a vision of bonds of sentiment, which could create ties of affiliation both in the affective family, and in the wider nation. Where in Bleak House the law and the patriarchal family determined by rules of law both stand condemned, in Rohan McWilliam’s study of later nineteenth-century impostors, we encounter rogues seeking to exploit the uncertainties of the law of marriage to claim a new identity. Claims about secret marriages in the distant past could be unsettling for established families, including (as McWilliam’s discussion of Olivia Serres’s claim shows) the royal family itself. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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A secret history could reveal that the world was not as one had thought it was. This could be unsettling for those whose identity was challenged, and alluring for those who could imagine themselves finding their ‘true’ identity to be one of grandeur and fortune. Claimants, imitating the truly noble, long lost heir found in literature, could attract large popular followings. In this way, they could both undermine the enduring authority of hereditary privilege, acting as a focus for radical impulses, and reinforce the status quo in his or her aspirations for advancement. The legitimising narratives impostors used drew on literary conventions which pervade both sensation fiction and the realist novel. In George Eliot’s Felix Holt (1866), for example, the discovery of the hidden origins of Esther Lyon, and with it her claim to Transome Court, is set alongside the revelation of Harold Transome’s secret biological illegitimacy. Harold’s spuriousness reinforces both the emptiness of his political Radicalism and the essential fictiveness of the Transome’s claim to the estate. But Esther’s claim, like Harold’s, is equally tenuous: both highlight the problem of how to ‘find a clue of principle amid the labyrinthine confusions of right and possession’.19 Finally the Transomes retain their dubious possession of the estate while Esther chooses the ‘higher legitimacy’ of marriage to the working-class hero Felix Holt. Trollope’s Lady Anna (1874) reworks this theme. Josephine Murray’s obsessive quest to prove her daughter’s claim to be the legitimate daughter of Earl Lovel (her profligate husband who had pronounced their marriage invalid) is both supported as a cause celebre by the political radical Thomas Thwaite, and is finally abandoned when Anna refuses to give up her betrothal to Thomas’s son Daniel. As McWilliam argues, impostor narratives have a timeless quality; but they are shaped by their historical context and dramatise contemporary anxieties and fantasies. Imposters are often charismatic, fascinating figures, who refuse to accept their legitimate roles; who both violate fundamental forms of social trust, and demonstrate (as Collins does) that social identity itself is unstable and labile, loosely held together by performance and the manipulation of perception. Sir Percival Glyde, the villain of Wilkie Collins’s The Woman in White, inextricably links the illegitimacy of the spurious heir, the impostor and the forger; but the hero Walter Hartright is also the victim of a conspiracy to dismiss his claims on Laura’s behalf as the work 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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of a mentally unstable fraud. No Name attacks the common law’s treatment of prenuptial children, yet Magdalen Vanstone’s attempts to steal back the inheritance she has lost by taking on a range of false personas ultimately lead to her breakdown – to the loss of self. Assumed, disguised and altered identities were the staple fare of sensation fiction. In Elizabeth Braddon’s Lady Audley’s Secret (1862) the arch manipulator, the blonde, fascinating Helen Talboys, successfully impersonates a penniless governess to marry bigamously into the aristocracy, attempting to murder her first husband when he returns from colonial speculation.

The boundaries of behaviour: fraud, forgery and fecklessness In the second three essays in this collection, our attention turns away from questions of legitimacy and illegitimacy in the context of personal identity, to those of legitimate and illegitimate conduct in the world at large, and particularly the world of commerce. As Anthony Trollope noted in his Autobiography (1883), both he and sensation novelists like his friend Collins brought together question of legitimacy, trust and deception within the family and connected them to the wider social and economic sphere. Despite the ideological sanctity of the Victorian home, the boundaries between public and private were as slippery and unstable as those between legitimacy and illegitimacy. As Rebecca Stern has recently argued, the home was a site of employment, exchange and purchase, and like the wider marketplace, was vulnerable to various kinds of speculation, false dealing and fraud.20 While the challenge posed by interlopers, was that landed estates and titles might fall into the wrong hands, it was not just ‘old wealth’ which was concerned with legitimacy anxieties. As increasingly large amounts of middle class and aristocratic wealth and income took the form of paper investments, such as government securities, shares in joint stock companies, and insurance policies, new questions about the legitimacy both of paper wealth and of those who made their fortunes through it came to the fore. By 1800, the entire British state rested on a complex system of paper credit. The eighteenth-century growth of the ‘fiscal – military state’ had led to a massive expansion of the national debt, to pay for wars.21 This debt – which had already caused concern in the 1780s – grew 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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further still as a result of the revolutionary and Napoleonic wars, and led to increasing anxiety. The suspension of cash payments in 1797, and the increase in the circulation of paper money, appeared to many to reveal a society living dangerously on false credit. This system of paper money and high debt came in for trenchant attacks, notably from William Cobbett, who saw it as insubstantial and unstable. For if the fiscal system appeared to threaten financial bankruptcy for a nation whose debt seemed too large ever to be paid off, it also opened up space for the illegitimate acquisition of wealth. This was not a new concern, for there had long been suspicion of those who had suddenly acquired new wealth through commercial activity, which they then used to buy their way into landed society. Virtue had long been associated with landed wealth, while moneyed interests were associated with corruption.22 While even traders and manufacturers came in for ‘prolific literary attack’,23 the greatest anxiety centred on the activities of speculators, who used paper money to get rich quickly, at the cost of the prudent landholder and fundholder, whose assets were being eroded by inflation. It seemed to many that a nation built on paper could not stand. By 1822, parliament had pledged itself to the return of the gold standard, but debates continued to rage over whether ‘sound money’ needed to be backed by gold.24 While paper money remained essential to the working of the economy, its vulnerability created anxiety. It was clearly evident that every trader and every family had to make use of forms of credit, such as bills and notes; yet there was much debate over what constituted secure, legitimate paper. There had been much debate at the end of the eighteenth century over the use of bills of exchange which were made payable to fictitious persons, and indorsed in their names. The use of ‘accommodation bills’, which were instruments drawn simply to raise money on the market, rather than representing a real transaction, also generated much disquiet.25 Many urged the Bank of England to distinguish between ‘real bills’ – those representing proper mercantile transactions – and speculative, unsound paper.26 But in practice, the distinction proved very difficult to make, and by the 1830s, lawyers had given up the attempt to avoid giving recognition to accommodation bills.27 This meant that the same instrument might be used in a way that was regarded as economically legitimate, and in a way which was not; and that the law would not help 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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resolve the difference. The prevailing commercial morality would determine what was legitimate in the world of business. A trader or investor who took too big a risk with paper wealth would be seen as a speculator or gambler, jeopardising his own wealth and that of the wider society, while a trader who used the same instruments for the purposes of sound trade would be regarded as legitimate. It was not such instruments themselves which were dangerous, but the use which was made of them. Vital as they were to the economy, they offered the temptation to illegitimate actions, which in turn might threaten everyone. The greatest threat came from forgery. As Randall McGowen has shown, draconian legislation was passed in 1729, in the aftermath of a particularly notorious case of forgery, which imposed the death penalty for this offence.28 In passing this legislation, it was acknowledged that paper credit was so vital, that ‘the utmost care ought to be taken to preserve that credit’.29 Eighteenth-century thinkers had no doubt of the need for forgery to be punished severely, on the gallows. As Adam Smith put it, ‘nobody complains that this punishment is too severe, because when contracts sustain action property can never be secure unless the forging of false ones be restrained’.30 The security of property became deeply entwined with notions of identity and authenticity during the second half of the eighteenth century. Real life trials – such as those of the Perreau brothers and Mrs Rudd – captured the public imagination, as the press fed a hungry public with a story which both worked on their fears for the financial stability of the kingdom, and invited them to condemn the forgers’ attempts to refashion their identities by conspicuous consumption.31 It was not merely the forger’s actions which posed a threat, but his motives. In the words of the Town and Country Magazine in 1790, it was the duty of a man ‘to live within his fortune, that he may not give encouragement to general waste, and become a means of introducing universal poverty and misery’.32 The forger went one step further – not merely living beyond his means, but firing an arrow into the very heart of credit. By the early nineteenth century – in the era when all payments were made in paper, rather than gold – there was increasing concern to root out forgers and punish them in the most exemplary way.33 The forger was in many ways the archetype of the man corrupted by the desire for the luxuries of commerce, acquired in the most illegitimate of ways. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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In his contribution to this collection, Randall McGowen examines the 1824 trial of Henry Fauntleroy, the last in a line of notorious high-stakes forgers, who met their end on the gallows, and a man whose trial caused a sensation in an era of economic instability. As he shows, the public reaction to the case was ambiguous – an ambiguity echoed in Wilkie Collins’s original title of his story about the man, ‘A Paradoxical Experience’.34 On the one hand, Fauntleroy’s general character and behaviour bore the hallmarks of what was thought illegitimate – a mistress, a taste for luxury, and a cold, calculating nerve when defrauding wealthy families of their investments. There were even rumours of his ‘having sprung at no very remote degree from foreign extraction,’ though in fact his lineage could be traced back to Richard II.35 On the other hand – and this is what Collins lays greatest stress on – his frauds were designed more to keep an ailing bank afloat, than to make personal gain. Fauntleroy’s story was a melancholic one; but even in an age when the Bloody Code of criminal law had come in for questioning, it was one which could only end in the ultimate punishment. In an age when evangelicals stressed that the sinner had to pay for his sins, judicial and political policymakers were hardly likely to wish to spare a man who had fallen as far as Fauntleroy, however sympathetic his fallen character might appear. As McGowen suggests, it was the sight of a middle-class offender on the gallows which made the offence of forgery so sensational in Georgian England. Reforms to the Bloody Code at the start of Victoria’s reign ensured that no forger would again lose his life at the hands of justice. Nonetheless, if the mid-century criminal law was to prove relatively weak in rooting out ‘white collar crime’ broadly defined, commercial forgers and thieves continued to be prosecuted.36 Leopold Redpath, who had defrauded the Great Northern Railway of £240,000 by forging numerous deeds, was sentenced in 1857 to transportation for life. When, in the previous year, John Sadleir’s forgeries and frauds, relating to the Tipperary Joint Stock Bank, were discovered, he killed himself by swallowing poison on Hampstead Heath, giving Dickens his model for Mr Merdle in Little Dorrit (1855–7).37 The stories of these men were rehearsed in detail by David Morier Evans’s Facts, Failures and Frauds in 1859, appealing to a reading public whose appetite had been whetted by a growing literature of trial anthologies – which in turn were a rich source for sensation novelists. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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If the execution of Fauntleroy and the suicide of Sadleir provided exemplary moral lessons as to the price to be paid by forgers and thieves, the late Georgian and early Victorian public also had to confront the issue of what moral blame attached to financial failure caused by less obviously blameworthy conduct. As Boyd Hilton has shown, the early nineteenth century was an age of evangelical pessimism, in which political economists such as Thomas Chalmers held that, if commercial society overstretched itself, by over speculation or by attempting to break through the natural bounds of the economy, then providence would provide the economic equivalent of the Malthusian check, through bankruptcy and business failure.38 Even in the era of mid-Victorian prosperity, the middle-class family remained financially vulnerable, and the stigma of bankruptcy remained a severe one. The theme of economic insecurity runs through much of the culture of the age. In art, literature and on stage, the very system of modern commercial society was often portrayed as unstable and threatening, with potential economic catastrophe around every corner, suggesting that corruption infected the very moneyed system. At the same time, bankruptcy was often portrayed as a kind of moral failure, suffered by the greedy, profligate and vain, while moral success was seen to come from thrift, hard work, and sobriety.39 By the mid-nineteenth century the speculating, deceitful promoter had become an increasingly familiar figure. The ‘isolated, guiltwracked’ Mr Merdle, commits suicide, as John Sadleir had done, after swindling thousands out of their deposits, and while Dickens had planned Arthur Clennam’s bankruptcy before the Sadleir scandal, he drew heavily on Sadleir’s exposure and fall. ‘I had the general idea about the Society business before the Sadleir affair’, he wrote to John Forster, ‘but I shaped Mr Merdle himself out of that precious rascality.’40 The brazenly self confident and overbearing Augustus Melmotte in Trollope’s The Way We Live Now (1875) also seduces the gullible into coveting money attained by a form of gambling, and both promoters are portrayed as impostors who are not what they seem, and whose conspicuous wealth is shown to be insubstantial, based on credit acquired from the unsuspecting public. What made such figures doubly dangerous, both in fact and in fiction, was the circumstance that they were often beyond the reach of the law in a way that the criminal forger was not. This echoes the wider suspicion of 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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the law that pervades nineteenth-century fiction: if ‘the machinery of the Law could be depended on to fathom every case of suspicion, and to conduct every process of inquiry’, Collins wrote in The Woman in White, ‘the events which fill these pages might have claimed their share of public attention in a Court of Justice’.41 Bleak House is of course the clearest indictment of the corruption of the English legal system, but other novelists concurred. Mr Tulliver in George Eliot’s The Mill on the Floss (1860) regards the law as a ‘sort of cock-fight’ in which ‘the ends of justice could only be achieved by employing a stronger knave to frustrate a weaker’.42 And while Trollope is more sympathetic towards the English legal system than many of his contemporaries, he too, often portrays barristers as expert in concealing the truths revealed to the reader. In Orley Farm (1862), for example, the sympathetically-portrayed perjurer and forger, Lady Mason, is acquitted of her crimes in the courtroom, though she has privately confessed them.43 Similarly, the reading public was thus often presented with a legal system portrayed as ineffective at rooting out injustices. The cost and complication of the law was shown to be such that it gave opportunities to rogues, while denying purer victims their vindication.44 The truth had to be rooted out by other means. As Michael Lobban’s essay shows, the law was indeed often ineffective at punishing the speculator who had not committed forgery or theft. The law was expensive, it was unpredictable, and the judges often had difficulty in laying down rules to distinguish legitimate from illegitimate business practices. But if the law was slow to lay down clear rules, it was because commercial morality itself was ambiguous and hard to define. Just as the use of bills and notes was natural and necessary in the growing capitalist economy, so was company promotion and investment. Investment and promotion were not themselves illegitimate activities, though they could be pursued in an illegitimate manner. Moreover, the criminality of a company promoter who merely persuaded a gullible and greedy investor to part with his money was not self-evident. In the decades when limited liability companies were novel, and share speculation risky, courts therefore did not seek to punish the speculative promoter, but rather sought to make him repay money obtained in a way they began to define as illegitimate. Yet, as Lobban’s discussion of the career of Edward Hartmont demonstrates, the cunning speculator was often able use the complexities 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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of the law to his own advantage, to avoid repaying those investors who had invested in his schemes. The novelists’ perception that the law was complex and weak was often accurate, but the moralistic denouement which saw the speculator cast out and suicidal was not replicated in the real world of commerce. If the morality preached in literature was that the honourable man should renounce speculation, and repay all his debts, the morality of the commercial world was more complex. For mid-Victorian businessmen, bankruptcy was not regarded as a social failure, leading to disgrace. In a volatile economic climate, creditors were often happy to come to arrangements out of court, to avoid the adverse publicity of being associated with insolvent debtors. The laissez-faire insolvency regime introduced in 1861 left it largely to a bankrupt’s creditors to deal with his failure, and they were often happy to allow a man to relaunch his career with minimal recriminations. In the literary responses to speculation, moral censure attached not only to the prime mover in fraud, but also to those seduced by fraudsters. In Trollope’s The Three Clerks (1858), it is Alaric Tudor who ends up in prison for using trust money to fund his gambling speculations, rather than Undy Scott, who inveigles him into his schemes. Nineteenth-century literature is replete with honourable characters who stumble into financial ruin by becoming enmeshed in dishonourable speculations, such as Thackeray’s Colonel Newcome and Dickens’s Arthur Clennam. For such characters, financial bankruptcy is taken as a sign of their moral failure, but it is also an opportunity for moral redemption.45 Nor is it only those who are tempted to depart from the path of honesty who end up bankrupt. In Tom Taylor’s drama The Settling Day (1865), the hero Markland, is an honourable banker who turns down a directorship in a bubble company. But he is threatened with bankruptcy when it turns out that his partner used the funds of the bank’s clients to speculate. By the mid-Victorian era, even the law was less harsh on those associated with fraudsters. Although (as Lobban shows) directors in joint stock companies continued to be forbidden from making undisclosed private profits from the firm, in the 1860s it was settled in litigation arising from the spectacular crash of Overend, Gurney & Co that directors were not to be held liable for losses they had played no part in incurring.46 A careless director who had lent his name to a firm, but closed his eyes to its manner of management, would not be 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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held blameable by the law for losses attributable to the active men. Unlike Col. Newcome or Arthur Clennam, the duped director would not feel duty bound to repay all the shareholders who had lost out from the dishonesty of others. The fact that the law did not take a tougher stance is partly explained by the view that those members of the public seduced by the promises held out of riches to be gained by buying shares on the stock market were as much to blame if they lost money as the men who seduced them. Moreover, since, in an age of limited liability, any investor was capable of managing his own risk, he could only hold himself to blame in case of insolvency. Besides investing in securities on the Stock Exchange, nineteenthcentury middle- class families put increasingly large amounts of their money into life assurance. Since the premature death of a breadwinner could be catastrophic for the financially vulnerable middle classes, such policies were an essential means of securing the family’s future. But they were also a form of investment in themselves, which could be sold on, or used as a security when raising credit. The very practice of life assurance, which was once associated with illegitimate gambling, thus came to acquire a central role in prudent middleclass saving.47 The fear that an insurance company might become an insubstantial bubble therefore created just as much anxiety as any other joint stock company. The failure of the West Middlesex Fire and Life Assurance Company in 1839 found its fictional equivalent in the Anglo-Bengalee Disinterested Loan and Life Assurance Company in Dickens’s Martin Chuzzlewit (1844). The spectre of life assurance company failures continued to loom large in the Victorian mind, notably after the failure of the Albert Life Office in 1869, and the European Assurance Society in 1871, which (as one victim put it) struck ‘like cold steel, into the very hearts of our English homes’.48 Timothy Alborn however shows that life assurance companies were themselves vulnerable to being defrauded by their policyholders, and raised questions about what it was to made a legitimate claim. In common law, insurance policies were contracts ‘of the utmost good faith’, requiring a complete disclosure by the policyholder of information relevant to the insurance. Those whose lives were insured were routinely asked by the company to answer questions relating to their lifestyle and health. But as Alborn discusses, those who took out policies were often less than frank about their habits, claiming to lead sober and salubrious lifestyles, when in fact they drank heavily 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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and suffered ill- health. When claims were brought by their heirs – or those (such as creditors) who had acquired the benefits of the policy – companies continued to contest the payment, where they suspected the person whose life was assured of intemperance. Such cases became trials of the nature of the claimant’s lifestyle, with juries being asked to determine the level of the policyholder’s sobriety. In repeated cases, juries decided that no breach of good faith had been committed by an applicant who had failed to mention the amount of liquor he consumed. Juries helped out widows who both needed the money and who wanted to defend their family’s reputation by taking the view that quite high levels of alcohol consumption were perfectly normal, particularly for aristocratic gentlemen. If financial failure threatened to spell the loss of position in respectable society for the financially vulnerable middle classes, a jury’s affirmation that the deceased man’s habits did not transgress the level of respectability demanded by the insurance company, could serve to ensure the family’s financial future. Life assurance companies also contested making payments where the policy holder had committed suicide up until mid-century. Was suicide in effect a fraud on the company – an illegitimate means of obtaining a nest-egg for one’s family? Or was it instead a sign of a mental illness, rather than an immoral act? Judges debated these questions while the public soon came question the legitimacy of assurance companies’ refusal to give payment to a grieving family, on the grounds of suicide. Alborn’s paper shows a developing divergence between legal attitudes to what counted as a fraudulent claim and business attitudes. Where the lawyers continued to regard suicide as vitiating a policy, and sought clear lines to protect the companies, the firms themselves modified their policies to accommodate the moral expectations of their customers. By exploring the resonances between and among legal interpretations, literary depictions and historical experiences of legitimacy and illegitimacy, the essays in this volume illuminate in new ways changes in both property regimes and human relations in eighteenthand nineteenth-century Britain. Conceptions and representations in this period of personal identity, risk and entitlement all hinged fundamentally upon distinctions between the spurious and the genuine, yet these conceptions were themselves not only inherently fragile but also subject to substantial change as commercial society developed 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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apace. Fraudsters, imposters, bastards and writers of literary fictions all sought to exploit the fluidity of legitimacy as a concept and a definition to gain access to new audiences, kin networks and capital resources; at the same time, courts, insurance companies and poor law unions all struggled to limit access to social groups and economic gain by distinguishing sharply between illegitimate persons and their claims to inclusion. Yet, as the chapters that follow clearly demonstrate, legitimacy and illegitimacy were mutually constitutive – rather than invariably antipathetic – categories of analysis in eighteenthand nineteenth-century law, literature and history. Spurious issues were not marginal by-blows of English law, society and culture, but rather lay at the heart of contemporary understandings of what it was to be a legitimate character, litigant or person in Georgian and Victorian society.

Notes 1. Wilkie Collins, The Woman in White (Oxford: Oxford University Press, 1996), pp. 420–1. 2. This collection does not attempt to make a substantial contribution to the social and demographic history of illegitimacy as an aspect of the history of the family – our stress here is on the ways in which different forms of illegitimate identity intersected or contrasted during the nineteenth century. 3. See, for example, Richard Adair, Courtship, Illegitimacy and Marriage in Early Modern England (Manchester: Manchester University Press, 1996), p. 3. 4. David Beetham, The Legitimation of Power (London: Macmillan, 1991), pp. 207–9. 5. Matthew Bacon, A New Abridgement of the Law, vol. 1 (London: E.&R. Nutt and R. Gosling, 1736), p. 309. 6. A bastard could inherit property under his parents’ wills, even when the parent devised property to his unnamed ‘children’, provided that the court was convinced, on a proper construction of the will, that there had been an intention to benefit illegitimate as well as legitimate children. 7. R.H. Helmholz, The Oxford History of the Laws of England, vol. 1: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford: Oxford University Press, 2004), p. 560. 8. See Ursula Henriques, ‘Bastardy and the New Poor Law’, Past and Present, 37 (1967) pp. 103–29, and Lisa Cody ‘The Politics of Illegitimacy in an Age of Reform: Women, Reproduction and Political Economy in England's New Poor Law of 1834’, Journal of Women’s History 11 (4) (2000), pp. 131–58. 9. Although treatise writers did admit that, in theory, a bastard could be legitimized by statute: see for example William Blackstone, Commentaries 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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10.

11.

12.

13. 14.

15.

16. 17. 18.

19. 20. 21.

upon the Laws of England, 4 vols (Oxford, Clarendon Press, 1765–9), vol. 1, p. 447. J.S. Wharton, An Exposition of the Laws Relating to the Women of England (London, 1853), p. 40. In No Name the solicitor Mr Pendril describes ‘the law of England as it affects illegitimate offspring’ as ‘a disgrace to the nation. It visits the sins of the parents upon the children; it encourages vice by depriving mothers and fathers of the strongest of all possible motives for making the atonement of marriages…’ Wilkie Collins, No Name (1862; Oxford: Oxford University Press, 1986), p. 98. In John Frazer McQueen, Reports of Scotch Appeals and Writs of Error, Together with Peerage, Divorce and Practice Cases in the House of Lords, 4 vols (Edinburgh, 1855–66); vol. 1, p. 539. On the case, and the complex conflicts of law on the nationality of an illegitimate child, see Jenny Bourne Taylor, ‘Bastardy and Nationality: The Curious Case of William Shedden and the 1858 Legitimacy Declaration Act’, Cultural and Social History, 4:2 (2007), pp. 171–92. The 1857 Matrimonial Causes Act allowed women to petition for divorce for adultery, but only if aggravated by cruelty or desertion. See Keith Thomas, ‘The Double Standard’, Journal of the History of Ideas, 20, 2 (1959), pp. 195–216, Mary Lyndon Shanley Feminism, Marriage and the Law in Victorian England (Princeton, NJ: Princeton University Press, 1989). Lawence Stone, Road to Divorce: England, 1530–1987 (Oxford: Oxford University Press, 1990), p. 242. Sir Edward Coke, The First Part of the Institutes of the Laws of England, 10th edn (London: William Rawlins and Samuel Roycroft, 1703), p. 244. By the early eighteenth century, courts had rejected the idea that the husband had to be outside the king’s dominions for the presumption to be rebutted: Pendrell v. Pendrell (1733) 2 Strange’s Reports 925, reprinted in The English Reports, 93, p. 945. Sir Harris Nicolas, A Treatise on the Law of Adulterine Bastardy, with a Report of the Banbury case, and of all other Cases bearing upon the Subject (London: William Pickering, 1836), p. 502. Nicolas, Treatise, p. 448. See Denis Le Marchant, Report on the Proceedings of the House of Lords on the Claims to the Barony of Gardner (London, Henry Butterworth, 1828). See Jenny Bourne Taylor, ‘Bastards to the Time: Legitimacy as Legal Fiction in Trollope’s Novels of the 1870s’ in Margaret Markwick, Deborah Denenholz Morse and Regenia Gagnier (eds), The Politics of Gender in Anthony Trollope’s Novels (Aldershot: Ashgate, 2009), pp.45–60. Felix Holt (Harmondsworth: Penguin, 1979) p. 524. Rebecca Stern, Home Economics: Domestic Fraud in Victorian England (Colombus: The Ohio State University Press, 2008), pp. 4–6. John Brewer, The Sinews of Power: War, Money and the British State, 1688–1783 (London: Unwin Hyman 1989); Philip Harling and Peter Mandler, ‘From “Fiscal–Military” State to Laissez-Faire State, 1760–1850’, Journal of British Studies, 32 (1993), pp.44–7.




23

22. See J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, 2nd edn (Princeton: Princeton University Press, 2003). 23. James Raven, Judging New Wealth: Popular Publishing and Responses to Commerce in England 1750–1800 (Cambridge: Cambridge University Press, 1992), p. 5. 24. See Boyd Hilton, Corn, Cash, Commerce: the Economic Policies of the Tory Governments 1815–1830 (Oxford: Oxford University Press, 1977); id., A Mad, Bad and Dangerous People? England 1783–1846 (Oxford: Oxford University Press, 2006), pp 251ff; Nicholas Shrimpton, ‘Even these metallic problems have their melodramatic side: Money in Victorian Literature’, in Francis O’Gorman (ed.), Victorian Literature and Finance (Oxford: Oxford University Press, 2007), pp. 17–38. 25. See J.S. Rogers, The Early History of the Law of Bills and Notes: a Study in the Origins of Anglo-American Commercial Law (Cambridge: Cambridge University Press, 1995), pp. 226ff. 26. Ian P.H. Duffy, ‘The Discount Policy of the Bank of England during the Suspension of Cash Payments, 1797–1821’, Economic History Review n.s. 35 (1982), pp. 67–82, 73. 27. E.g., Report from the Committee on the Circulating Paper, the Specie and the Current Coin of Ireland, PP 1810 (28) III 385, p. 64. see also Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 2nd edn, 2 vols, (London: W. Strahan and T. Cadell, 1778), p. 378; Henry Thornton, An Enquiry into the Nature and Effects of the Paper Credit of Great Britain (London: J. Hatchard, 1802), p. 32. 28. Randall McGowen, ‘From Pillory to Gallows: the Punishment of Forgery in the Age of the Financial Revolution’, Past and Present, 164 (1999), pp. 107–40. 29. Justice Page, quoted in McGowen, ‘Punishment of Forgery’, p. 130. 30. Adam Smith, Lectures on Justice, Police, Revenue and Arms, ed. Edwin Cannan (Oxford: Clarendon Press, 1896), p. 150. 31. Donna T. Andrew and Randall McGowen, The Perreaus and Mrs Rudd: Forgery and Betrayal in Eighteenth-Century London (Berkeley and Los Angeles: University of California Press, 2001). 32. Quoted in Raven, Judging New Wealth, p. 193. 33. See Randall McGowen’s articles, ‘The Bank of England and the Policing of Forgery, 1797–1821’, Past and Present, 186 (2005), pp. 81–116, and ‘Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821’, Law and History Review, 25 (2007), pp. 241–82. 34. The story was initially published in Household Words on 13 November 1858, and was included in the short story collection The Queen of Hearts the following year as ‘Brother Morgan’s Story of Fauntleroy’. 35. The Times, 25 October 1824, 2f. 36. George Robb, White-Collar Crime in Modern England: Financial Fraud and Business Morality, 1845–1929 (Cambridge: Cambridge University Press, 1992), pp. 162–6; Stern, Home Economics, Introduction.



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37. Norman Russell, The Novelist and Mammon: Literary Responses to the World of Commerce in the Nineteenth Century (Oxford: Clarendon Press, 1986) ch. 6. 38. Boyd Hilton, The Age of Atonement: the Influence of Evangelicalism on Social and Economic Thought, 1795–1865 (Oxford: Clarendon Press, 1988). 39. Barbara Weiss, The Hell of the English: Bankruptcy and the Victorian Novel (Lewisburg: Bucknell University Press, 1986), p. 72. 40. John Forster, The Life of Charles Dickens 3 vols (Philadelphia: Lippincourt, 1874), vol. 3, p. 159; Stern, Home Economics, p. 11. 41. Wilkie Collins, The Woman in White, p. 5. 42. Quoted in Weiss, The Hell of the English, p. 68. 43. See R.D. McMaster, Trollope and the Law (London: Macmillan, 1986). 44. See, e.g., [Frederick Liardet], Tales by a Barrister (London: Chapman and Hall, 1844), discussed in Kieran Dolin, Fiction and the Law: Legal Discourse in Victorian and Modernist Literature (Cambridge,: Cambridge University Press, 1999), p. 74. 45. Weiss, Hell of the English, ch. 4. 46. The Overend and Gurney Company v. Gibb (1872) LR 5 HL 480. 47. Geoffrey Clark, Betting on Lives: the Culture of Life Assurance in England, 1695–1775 (Manchester: Manchester University Press, 1999). 48. The Times, 18 January 1872, 6b.




The Barlow Bastards: Romance Comes Home from the Empire Margot Finn

The centrality and longevity of the nuclear family unit are persistent, but problematic truisms of English social history. As quantitative research by historians such as Peter Laslett and E.A. Wrigley established decades ago, small households – composed chiefly of parents and their children and typically containing five or fewer individuals – were normative in early modern as in modern England.1 Such nuclear families, Alan Macfarlane and Jack Goody have argued, developed in response to the dominant pattern of inheritance in England, a system characterised by the direct descent of absolute property through the male line.2 Notions of legitimacy and illegitimacy were central to this patrilineal system of inheritance, which placed a high premium upon wives’ sexual fidelity. ‘Anxiety about the legitimacy of heirs, and the consequent enshrinement in English custom and law of the double sexual standard, was a by-product of the system of direct patrilineal descent to male heirs of the body’, Lawrence Stone argued in 1992. ‘These fears of inheritance by spurious children were only very slowly undermined in middling and elite circles during the late eighteenth and early nineteenth centuries by the countervailing ideologies of affective individualism and legal equality between the sexes’, he concluded.3 Although both the numerical predominance and the chronological persistence of the patrilineal nuclear family in England are well established, the analytical limitations that attach to scholars’ reliance upon this simplistic model of social relations are also increasingly obvious. As Stone himself, with characteristic trenchancy, argued in his study of the English Road to Divorce, ‘the bare fact that the mean 25 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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household size over time and class was about 4.75 persons is one of those statistics thrown up by the computer which is almost entirely devoid of meaning’.4 Naomi Tadmor’s analysis of the multiple meanings that the term ‘family’ held for eighteenth-century English men and women lends further substance to Stone’s critique. For if historical demographers trumpet the near-ubiquity in England of small nuclear families, contemporaries themselves instead insisted upon employing the term ‘family’ to describe a shifting constellation of servants, friends and relations, a capacious cohort of connections that extended well beyond the confines of the conjugal unit. In this contemporary usage, English ‘families could consist of various types of extension, consanguinity or solitariness – and indeed could evolve very rapidly through these types – without fundamentally changing their social definition as families or their householders’ status as heads of families’. Viewed from this perspective, the overwhelming cultural dominance of the nuclear family in English history is cast into question. ‘If nuclear households could absorb and shed extended family members such as siblings, nephews, and nieces without apparently changing their contemporary definition as families’, Tadmor observes, ‘then perhaps the structural boundaries between the “nuclear family” and the “extended family” were less clear than is commonly assumed.’ Tadmor suggests that historians substitute the concept of the ‘household family’ for the more limited ‘nuclear family’ in an effort to address the shifting and hybrid constituencies from which Georgian family units typically drew their component parts over the course of the life cycle.5 In this essay, I wish to extend the geographical range of the concept of the household family from England to British India, and in doing so to explore the significance of imperial household structures for the linked issues of adultery, illegitimacy and divorce within governing-class Georgian families. To this end, I focus on the formation, dissolution and reformation of the household family of Sir George Hilaro Barlow (1763–1846). A civil servant in the East India Company service from 1778 to 1813, Barlow presided over an imperial household family that extended from London and the Home Counties to the Indian subcontinent. Stretching from the era of the French revolution through the Napoleonic wars, Barlow’s marital life was framed both by political events that saw the legitimacy of authoritarian power and private property questioned, and by developments in 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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British emotional life that countered the received claims of the wider kin network with the more particularistic demands of the affective individual. At once personal and political, this clash of cultures was thrown into sharp relief by the incidence of adulterine bastardy within Barlow’s imperial household family. Enabled to maintain his position as a domestic patriarch only by entrusting his nuclear family to the care of an extended reticulation of kin that spanned two continents, Barlow was subject to public and private humiliation by the tensions between individual and collective interests that marked the social life of the legitimate and illegitimate imperial household family during the Romantic era. *** The son of a successful Covent Garden mercer, George Hilaro Barlow was appointed to a writership in the Bengal civil service in 1788. In India, his facility for Oriental languages, administrative skill and extraordinary capacity for hard work led to successive promotions, substantial financial gain and new social aspirations. Impressing first governor-general Cornwallis and then the Marquis Wellesley with his firm grasp of judicial and revenue matters, Barlow was noted for ‘his total commitment to the principles embodied in the [Bengal] permanent settlement: security of property and government accountable to law’.6 In 1803, the government rewarded his contributions to British rule in India with a baronetcy. As Sir George, Barlow served as acting governor of Bengal (1805–07) and as governor of Madras (1807–13), where in 1809 he adopted stern measures to suppress a mutiny of East India Company army officers. Like his eldest brother, Robert – who was knighted for his service to the Royal Navy – Barlow exemplified the authoritarian, militaristic governing elite that came to dominate British politics at home and in the colonies in the later eighteenth and early nineteenth century.7 Sir George’s rapid professional ascent on the subcontinent was both fostered and necessitated by his extended family household. In Calcutta in 1789, at the age of twenty-seven, he married one Elizabeth (or Eliza) Smith, the nineteen-year old niece of a captain in the East India Company service. The future Lady Barlow appears to have brought little to the marriage in terms of rank or fortune, but she played a vital role in propagating the Barlow family interest. Within two decades of her marriage, she had borne her husband 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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fifteen children, fourteen of whom survived to adulthood – no mean feat in Georgian England, and an astonishing accomplishment in India, where the European mortality rate was notoriously high.8 First in Calcutta and then in Madras, Eliza presided over one segment of the Barlows’ complex family household. Gregarious to a fault, she participated actively in the concerts, balls, masquerades and political gossip that enlivened Anglo-Indian expatriate life, despite her seemingly perpetual state of pregnancy or lactation.9 Scholars of the English family have identified the Romantic era as a key stage in the consolidation and enclosure of the marital unit, describing the later eighteenth and early nineteenth centuries as decades that saw a ‘redefinition of kin relations from a consanguineal to a conjugal basis’. In this interpretation, new market opportunities – spawned in part by imperial expansion – combined with increasingly individualised emotional regimes to privilege allegiances within the nuclear family over ties to siblings, in-laws and wider networks of kin. ‘Cut loose from the rigid responsibilities of lineage descent groups, men began to make their way economically’, Ruth Perry thus argues. ‘The state provided many avenues for them to make their fortunes, such as the East India Company.’10 The Barlows’ marital history problematises this neat line of analysis. To be sure, the high incidence of adultery and illegitimacy within the Barlow circle – and among the broader Anglo-Indian elite – attests to the great appeal exerted by individualistic conceptions of love in this period. But the primacy of the extended household family nonetheless emerges clearly from the Barlows’ extensive family correspondence. Their history suggests that, far from nurturing romantic love within the confines of the nuclear family, Company service in the Romantic era promoted the marital unit’s continued submersion within dense, consanguineal reticulations of kin. The care and education of the ever-expanding Barlow brood demanded a large-scale, long-term mobilisation and integration of familial resources that extended far beyond the nuclear unit. As infants, the children lived with their parents and a small army of Indian servants on the subcontinent, but their increasing number, considerations of health and the demands of elite socialisation all dictated their relocation ‘home’ to England prior to adolescence. Sent in groups of two or three, six of the Barlows’ children were resident in Britain by 1804, and a total of nine by 1806. Upon arrival, 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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the successive waves of Barlow progeny were farmed out to their parents’ kin, with periodic re-distributions of the children occurring as their needs and those of their host families changed. Lady Barlow’s mother, Mrs Smith, undertook the care of various of the infants in Bath, while the Reverend and Mrs Butcher – Sir George Barlow’s uncle and aunt on his mother’s side – took charge of others in London. But it was Sir George’s three brothers and their wives who bore the brunt of these domestic duties. In Devon, the Reverend Thomas Barlow and his spouse assumed responsibility for a gaggle of Barlow daughters, who resided with Thomas’s children in the increasingly cramped quarters of the parsonage, when not away at expensive boarding schools. When his naval duties permitted, Robert Barlow took his brother’s boys under his wing in first Plymouth and then London, and his wife incorporated a succession of Barlow nieces into the circle of her own daughters as they arrived from India. William Barlow, a London wine merchant, took two of his brother Robert’s sons into his care during their father’s absence on duty in Malta, and opened the doors of his home to each of Sir George Barlow’s children at some stage of their residence in England.11 William Barlow’s extended care for Sir George’s sons and daughters is densely-documented in extant family correspondence. Denominated ‘familiar letters’ by contemporaries, these missives circulated among the extended kin network but were forwarded or excerpted when expedient to political patrons and clients, and thus existed at once in the public and the private sphere.12 The Barlows’ familiar letters illustrate the characteristic lineaments of the English household family in its colonial iteration. Whereas historians conventionally associate the notion of domesticity with the conjugal, nuclear family unit, the copious private correspondence of Sir George’s brother William demonstrates that – even as a bachelor – he occupied a key position in the multi-headed Hydra that was the Barlows’ complex household family. Writing to his brother in 1803, William underscored the ways in which the collective needs of Sir George’s family had come to supersede his individual desires and interests, requiring him to jettison his previous habits of fiscal prudence and to embrace conspicuous consumption on behalf of his brother’s lineage. ‘It is not my intention to continue a simple life … the respectability of your friends who visit me & notice your children, the rank & consequence of 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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[your son] Georges [sic] schoolfellows who visit him during the holidays, & the increased consequence of our family have I find unavoidably induced me to enter on a more expensive plan of living than would be required for my own individual comfort or convenience’, William observed in 1803. ‘I must maintain my rank in that society into which I am thrown.’13 Consanguinity was the predominant leitmotif of William’s familiar letters. Announcing his decision to marry in 1804, William again sought to justify his individual choice not by adducing his own emotional needs but rather by referencing the demands of his brother’s extended household family. ‘I trust you and my sister [Lady Barlow] will consider my house a more eligible situation for your children than when I was single’, he ventured, ‘your new sister [that is, William’s wife] has known them from their arrival in England & is desirous to render them any assistance in her power of which she is very capable having herself been very well brought up.’14 His brother’s ascent to positions of increasing authority and status within the East India Company encouraged William to interpret his own care for the Barlow children as a familial form of patriotism. In 1805, he counselled Sir George against dispatching Lady Barlow to England to take charge of her repatriated children. ‘I have for some years past devoted so much of my time and thought to your service that it has become habitual to me, & the reflection affords me much satisfaction as I know not how I can render myself more useful in this world and servicable [sic] to my country than by assisting so good & great a man as you are in bringing up a numerous family & contributing to your happiness & comfort.’15 So successful were William and his brothers Robert and Thomas in convincing Sir George that the collective Barlow family interest was best served by his children’s separation from their parents, that Eliza Barlow returned only once to England to visit her progeny before she and Sir George retired permanently to England in 1814. Pregnant with the couple’s thirteenth child, Lady Barlow set sail for England in 1806, and upon arrival was ensconced by her brotherin-law William in a rented house at Streatham. Here for several months Lady Barlow resided with many of her children, sharing responsibility for their conduct and education with in-laws and servants in a complex household – specifically denominated a ‘family’ by William in his letters to Sir George – that numbered between 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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twenty and thirty members at any time.16 Within a few months of her arrival, Lady Barlow – now safely delivered of a son, whom her brother-in-law (the Reverend Thomas Barlow) christened Edward – informed William that Sir George desired her to return to Madras, ‘leaving the Infants behind’ with the bulk of their elder siblings.17 She duly returned to India, taking her two eldest daughters with her to test their chances on the Madras marriage market. William Barlow resumed oversight for the ten children who remained in England. He clearly suspected that the shock occasioned by domestic life with her children had contributed to the alacrity with which Lady Barlow assented to her husband’s request for her return. ‘The Boys perhaps are not exactly what Lady Barlow’s imagination might have led her to expect but allowances must be made’, William commented in a letter to Sir George. ‘She has never before seen boys at their riotous age, I [in contrast] am well acquainted with their high spirits & it will be my endeavor [sic] to control & direct it. [My wife] Mrs Barlow feels a motherly affection for them, & her kindness & uniform treatment has [sic] won their esteem.’18 In William Barlow’s conception of the family, the fecund Lady Barlow’s legitimate maternal role was biological and political – her duty resided primarily in the production of children (a task that necessarily required co-residence with Sir George), in the administration of her husband’s Indian household – a home that was simultaneously a domestic and a political space – and in the chaperoning of her marriageable daughters, whose strategic unions into the Anglo-Indian governing elite would extend the broader family’s wealth, status and patronage. Themselves childless, William Barlow and his wife Harriet assumed the day-to-day oversight of Sir George and Lady Barlow’s children, a duty that William conceived as ‘maternal’, ‘paternal’, ‘parental’ and ‘familial’. His siblings, in-laws and cousins entered wholeheartedly into this expansive conceptualisation of the family, as their own children, nieces, nephews and cousins circulated within the capacious confines of the Barlow household family and its surrounding web of patrons and connections. Robert Barlow, who took charge of Sir George’s son William upon William’s expulsion from school, rehearsed these familial sentiments in 1805. Placing the errant nephew under his friend Captain Blackwood, Robert Barlow praised the captain as ‘a perfect Gentleman & excellent officer’, adding that ‘he has a good schoolmaster [on board the frigate] & several 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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very genteel Boys about him of whom he takes great care & he is so good as to take William into his [own] Cabin for a short time till he gets his Sea Legs & begins to feel himself at home’.19 Parentage in this imperial context had a pronounced tendency to drift within the extended family network. When posted in Malta, Robert Barlow wrote to Sir George lamenting his distance from his own children, and noting that both their brother William and Sir George himself loomed large in his sons’ image of parental authority. ‘On the score of children both you & myself are much indebted to William. I dont [sic] know what we would have done without him’, he commented. Having drawn Sir George’s attention to their mutual dependence upon William, Robert moved swiftly to remind his younger brother that he in turn could affirm his familiar affections through service to his nephews. ‘My Boys hearing so many fine things of their Uncle George & being such strangers to me are mad to go to India’, Robert observed, touching on a vital pragmatic purpose of the imperial family household. ‘Robert the elder has my consent [to go to India] … allow me to ask if your influence can procure him a Writership in Bengal.’20 Sir George Barlow’s subsequent placement of two of his brother Robert’s sons in the Company service represented only the tip of the iceberg of consanguineal patronage that he wielded in India in the service of family members who helped to maintain the English outposts of his imperial household. The case of Sir George’s patronage of George Edward Pratt Barlow is emblematic of the lineage family’s persistence among colonial governing elites, albeit it also illustrates the perils posed to legitimacy by undue confidence in the sanctity of familial bonds among blood-kin. George Edward Pratt Barlow was doubly related to his patron: both his father and his mother were Sir George’s first cousins.21 In 1802, William Barlow wrote to recommend George Edward Pratt Barlow to Sir George’s attention, noting that the youth would sail to India under the protection of their brother Robert’s family friend, Captain Thomas.22 Sent to the subcontinent at eighteen without so much as the promise of a civil or military appointment, George Edward Pratt Barlow was entirely reliant upon Sir George’s good will and political interest for advancement. Supported by his parents’ cousin, he rapidly gained an army appointment as first ensign and then lieutenant. He purchased his captaincy with two thousand pounds borrowed from Sir George, 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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and was subsequently promoted to major. These appointments were supplemented by lucrative emoluments within the Barlows’ Indian household: Major Barlow successively served as Sir George’s aide-decamp and his private military secretary.23 In India, Major Barlow was integrated into both the residential life and the emotional economy of Sir George and Lady Barlow’s extended household family. When not posted upcountry, he lived with the Barlows in Calcutta or Madras, and sought, from the outset, to incorporate himself rhetorically into the household unit with familial language and familiar letters. ‘[Sir] George Barlow is in every respect an Honor [sic] to his Family And [sic] an Ornament to his Country’, the grateful youth wrote to William Barlow upon reaching Calcutta in 1803. ‘His Conduct towards me ever since I have been in the Country has been that of a tender Parent.’24 Robert Pratt Barlow, George Edward Pratt Barlow’s father and the Barlow brothers’ cousin, likewise deployed displaced parental idioms in thanking Sir George for his fond oversight. ‘[My] dear Son … has had the good fortune to be the object of your kind & parental Patronage & protection’, he enthused, ‘& you can well imagine the Happiness we feel in his good conduct not more on our account than [that] of his family in general to whom you are pleased to say he is an honor [sic].’25 Accepted as a virtual son, Major Barlow was Sir George’s natural choice as a chaperone for Lady Barlow in 1806, when she made her fleeting journey home to visit her children. During her sojourn in England, Major Barlow’s parents – who had four further sons to provide for, and fond hopes for Sir George’s continued patronage – sought to bolster their ties to the family by contributing to the oversight of the Barlow children. It was, thus, upon the Pratt Barlows’ recommendation that William and Lady Barlow employed Miss Elizabeth Page as governess to the children established at their Streatham household. Taking responsibility for the Barlow daughters, the younger sons and later for the elder children’s repatriated progeny, Miss Page was to remain resident in Sir George’s English household for decades after his children had reached adulthood. She was also to play a crucial role in exposing Lady Barlow’s adultery and in engineering her expulsion from the Barlow family circle. George Edward Pratt Barlow’s integration into the family household in India and Miss Page’s incorporation into the Barlow’s English home illustrate the constant traffic in family members that 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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maintained the imperial household families of the Anglo-Indian governing elite as a social and political formation. Divided by continents, oceans and extended lapses of time, the family’s sense of family was sustained both by social processes of incorporation located within the household unit and by rhetorical constructions of kinship mediated by voluminous personal correspondence. The stuff of family relations derived not from co-residence in nuclear marital units, but rather from the export and import of near and distant kin into porous household units and from the constant repetition of epistolary claims to parental care and filial duty exerted by uncles, aunts, cousins and domestic servants. Legitimated less by invocations of conjugal ties than by social constructions of lineage, the Barlows’ conceptions of family readily substituted present uncles for absent fathers, maiden aunts for biological mothers and ubiquitous cousins and nephews for legitimate sons. Slippage between and among these categories of relationship was essential to the smooth functioning of the family household in India and in England, and played an instrumental part in the Barlows’ ability to rise within a single generation from their modest roots to the upper reaches of the imperial governing elite. Although it was vital to the success of their kin network, this constant interchange of family personae and personnel ultimately proved fatal to the survival of Sir George and Lady Barlow’s conjugal unit. For Major Barlow – Sir George’s virtual son – was also Lady Barlow’s lover, and was the biological father of Sir George’s fifteenth child, Frederick. The timing of the onset of this adulterous affair is unclear, and was to become a matter of hot legal dispute: claims that as many as three of Sir George’s progeny had in fact been sired by the Major were made by the Pratt Barlows for tactical reasons when the case entered the law courts.26 Regardless of the precise chronology of this illicit relationship, its discovery was clearly precipitated by Sir George and Lady Barlow’s return to England in 1814. For two decades, reliance on a web of consanguine and marital kin that bore the burden of raising their children had allowed the couple to invest in Sir George’s Indian career – remitting an estimated £100,000 to England – while they in turn incorporated the adult offspring of siblings, in-laws and cousins into their Indian household and lucrative East India Company service. Fully domesticating the Barlows’ imperial household family at home in England, however, proved 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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to be problematic. Here observant English-speaking servants who formed an integral part of the family circle replaced Indian domestic staff who remained excluded from its ambit; here too, Lady Barlow, having lost her public status as the wife of a senior government official, embraced in its stead the private pleasures of the romantic individual. The intervention of the extended household family was crucial in exposing the nuclear family’s illegitimacy. Miss Page, who had been introduced by Major Barlow’s parents into Sir George’s English household in 1807 (when Lady Barlow’s brief visit to the Streatham household came to an end), organised a concerted campaign of conspiracy to expose her mistress’s sexual misconduct upon Lady Barlow’s return to the family fold in England. A brief synopsis of events provides a background for analysis of the role played by the competing claims of legitimacy and illegitimacy in the management of Lady Barlow’s adultery and divorce by Sir George’s extended family. When a change of government in England forced his recall from the governorship of Madras in 1813, Sir George sailed for England with Lady Barlow, their two youngest children and the Major. In Streatham, Sir George and Lady Barlow at long last assumed care of their own nuclear family, allowing William Barlow and his exhausted wife to retire to the countryside, but leaving Miss Page in her trusted position as governess. Major Barlow now took up residence with his biological parents in nearby London. He was, however, a frequent visitor to the Streatham household, where Lady Barlow’s extravagant conduct toward him rapidly piqued Miss Page’s interest. Becoming increasingly suspicious, the governess feigned illness at church one Sunday and returned to the family home, where she discovered the adulterous pair in compromising circumstances in Lady Barlow’s bedroom. Initially content merely to exhort the couple to repent and reform, she was shocked by their continued intimacy under Sir George’s roof, and connived with the butler to intercept their love letters. Since the 1780s, familiar letters sent between household members in England and on the subcontinent had been the lifeblood of the Barlows’ family identity, fostering relations of trust, interest and affinity in the face of extended physical separation. With the family relocated to Streatham, however, lengthy missives that recounted political and domestic news in great detail to distant relatives were replaced by shorter letters that reflected the correspondents’ ability to converse in person. In this context, 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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Lady Barlow’s frequent and extensive correspondence with the Major became suspicious. Intercepted by servants, her correspondence revealed Lady Barlow to be pregnant with a further child sired by the Major, and desperate to induce a miscarriage.27 Sir George, initially incredulous but ultimately convinced by Miss Page, wrote urgently to his brother William for assistance in this case of ‘profligacy & domestic treason’.28 Together, the brothers orchestrated the expulsion of Lady Barlow (with the hapless bastard infant, Frederick) to her mother’s home in Bath. Sir George promptly filed a writ against the Major for criminal conversation (adultery), and was awarded damages of £2,000 in 1815. A year later, he obtained a parliamentary act of divorce from Lady Barlow, who was thus reincarnated as Miss Smith, and allotted a meagre annuity of £100 for life.29 In assessing the significance of the Barlow adultery, bastardy and divorce, I wish to focus attention on issues of evidence and affect, and on the ways in which the overlapping identities and functions of the imperial family household complicated determinations of legitimacy and illegitimacy. Evidence of adultery in England, as Lawrence Stone has amply demonstrated, was often exposed to (or concealed from) the cuckolded husband by domestic servants.30 In this respect, the intervention of the Barlow family’s governess and butler was unexceptional: integral members of the household, these domestics played an active and articulate part in determining who among the Barlows could remain within the family fold.31 Competing conceptions of family were integral to all parties’ efforts to distinguish between legitimate and illegitimate forms of affection in this affair. Sir George’s supporters and the Major’s champions alike sought to interpret and apportion blame for the illicit union by deploying contrasting variations of the familial idiom. Lacking concrete physical evidence of the adultery – the lovers were never in fact caught fully in flagrante – Sir George’s case against his wife rested chiefly upon verbal assertions and textual interpretations. His successive suits for criminal conversation and divorce were heard in the London Sheriffs’ Court, Doctors Commons and the House of Lords. In the courtroom, the legitimacy of competing conceptions of the family repeatedly came to the fore as Sir George’s supporters vied with Major Barlow’s adherents to distinguish between and champion the disparate claims of the affective individual, the nuclear family, and the imperial household. For Sir George and his 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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allies, the adulterous couple’s perfidy was rendered doubly heinous by the Major’s full incorporation into the Barlow family household in India: his identity as Sir George’s ‘son’ effectively elevated his adultery with Lady Barlow into incest. Seeking to maximise the damages awarded by the court once their action against the Major for criminal conversation had succeeded, the Barlow brothers and their witnesses laboured to underline the depravity inherent in the young man’s violation of his own status as close kin.32 Because the voyage to and from India was notoriously fraught with illicit sexual potential, they were especially keen to demonstrate that, in his capacity as Sir George’s virtual son, the Major had been an entirely appropriate, indeed natural, chaperone for Lady Barlow on her return to England in 1806.33 ‘Was not Sir George Barlow justified in intrusting the care of his Lady to one whom he had received as a son in his family, and whom he had treated like his own child?’, William Barlow thus asked the court rhetorically.34 Sir George likewise emphasised the legitimacy of the trust he had placed in an expansive, lineage-based family formation, seeking to undermine his rival’s identity as a potential lover of Lady Barlow by underscoring instead the Major’s legitimate relation to him as fictive progeny. ‘I received him into my family as my son, loaded him with kindness & favors [sic], and at the moment of his embarking on the ship in 1806, he pretended, as you have seen from his letter to me on the occasion, to feel a filial affection for me, as well he might’, Sir George lamented. ‘What person could be so proper (considering his near relation to me) to attend my wife to England (for to attend her was the duty he was called on to perform).’35 Dispersed widely among lateral lines of sons, nephews and cousins, Sir George’s paternal affections contrasted starkly with the illicit lovers’ romantic attachment to each other and their particularistic expressions of love for the bastard Frederick. Sir George’s witnesses depicted these forms of affection as unduly individualistic emotions that violated the collective identities of the imperial household family. Miss Page’s testimony in court thus drew attention to Lady Barlow’s habit of reading ‘romances’ alone in her sitting room rather than spending time with her family, a domestic transgression that she compounded further by consorting with Major Barlow on Sundays in lieu of attending church.36 Both personal pride and a desire to maximise the court’s award of damages prompted 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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Sir George’s champions to adduce evidence that the adultery was a relatively recent development – rather than, as the Pratt Barlow camp claimed, a relationship that had originated on shipboard in 1806.37 Lacking definitive evidence of the date at which the couple had become lovers, Sir George’s partisans sought instead to construct a chronology based on the adulterers’ deviation from the affective norms of the imperial household family. In their formulation, the lovers’ exclusive affection for Lady Barlow’s fifteenth child provided compelling evidence of Frederick’s bastardy (and, correspondingly, of his fourteen siblings’ legitimacy). In her testimony for the Court of Arches, Miss Page thus observed that her mistress ‘used to say speaking of her children, [that] with the exception of one other person [Major Barlow], Frederick was the only comfort of her life’.38 Rejecting this expansive, imperial definition of the family as a functional socio-economic unit that knitted affines and lineage groups together into a seamless garment, the Pratt Barlow interest sought to legitimate the Major’s errant behaviour by distancing the key agents of the adultery from kinship relations, and casting them instead as individualised affective men and women caught up in the raging tide of romantic sentiment. Their defence of the Major stripped the family of non-nuclear household members such as servants, disregarded prevalent depictions of in-laws as siblings and denied the legitimacy of extended kin networks. When the Pratt Barlows’ barrister, Mr Scarlett, argued the case for damages in the Sheriffs’ Court, he underscored Sir George’s negligence in allowing the youthful Major to chaperone Lady Barlow on her return to England in 1806. Despite having elicited evidence from one of Sir George’s witnesses in cross-examination that a ‘native woman attended Lady Barlow on her voyage’, Scarlett asserted baldly that Lady Barlow had travelled home ‘having no female with her’.39 In arguing against Sir George’s swingeing claim for damages of £5,000, the Pratt Barlow’s barrister described Lady Barlow as a sexualised individual, ‘a woman full of attraction … possessed [of] a most agreeable person’, ‘a woman of … fascinating talents’. The Major figured in this defence as an innocent youth, linked to Lady Barlow by ‘the passions of any young man at such an age’. Scarlett was at pains to discount the culprit’s kinship with Lady Barlow, who emerged from his oration as neither a mother nor a cousin. At most, the barrister conceded, Pratt Barlow ‘was connected with her, in a 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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certain degree, by the ties of relationship’. Despite unambiguous documentary evidence that the Major’s brother and mother had connived to conceal the affair from Sir George and his household, the barrister asserted baldly that ‘neither the father or the mother, or any branch of the defendant’s family, had the least knowledge or suspicion of the intercourse that was taking place’. Crowning this defence was his claim that the damages must be reduced to protect the Pratt Barlow family from the necessity of paying for their impecunious son’s errors. ‘[Will] juries, in giving damages, visit the father with the sins of the son?’, he asked incredulously.40 Where Sir George and his brothers sought to underline the Pratt Barlows’ integration into an extended family network that comprised in-laws as well as blood kin – and thus sought to underscore the horrific perfidy of the Major’s illegitimate relations with Lady Barlow – the defendant’s barrister sought to diminish both Pratt Barlow’s personal moral responsibility and his family’s financial liability by segmenting the kin group into independent, self-interested individuals.41 Lady Barlow’s sentiments can be gleaned only obliquely from the court proceedings, which excluded her testimony and focused attention instead upon the two key male protagonists. But she too appears to have relied upon the strategic potential and the emotional ambiguity that marked contemporary understandings of legitimate family affection. Significantly, Lady Barlow’s reported efforts to explain her adulterous behaviour highlighted her location at the vexed interface between the claims of the passionate affective individual, on the one hand, and the interests of the imperial family household, on the other. Evidence produced by Miss Page in Doctors Commons suggested that Sir George had harboured suspicions of his wife’s infidelities as early as the couple’s return voyage to England in 1813. Staying briefly at St Helena en route home, Sir George had allegedly observed to his wife, ‘in the most delicate manner’, that her frequent walks and rides with the Major ‘might give rise to unpleasant observations’. Her response ‘was very indignant’, and she ‘stated by way of extenuation of her conduct that if she could not be on terms of intimacy with Major Barlow, who was considered and treated as one of the family, with whom could she be on terms of Intimacy?’42 Few more eloquent expressions of the necessary overlap between familiar identities within the imperial household can be found than Lady Barlow’s subsequent confession to Miss Page of her irrepressible 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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passion for the Major. ‘ “Why grieve for that, you have your Husband and your Children to comfort you” ’, Miss Page reported telling Lady Barlow when she complained of the Major’s temporary absence from the Streatham household. ‘ “Oh Miss Page he is much more than a Husband, Child or Brother to me, and with those sentiments I shall go to the grave” ’, Lady Barlow supposedly responded.43 *** Lovers who were ‘much more than a Husband, Child or Brother’, children who were the fictive or factual progeny of more than one father, and unmarried brothers who were fathers to their distant siblings’ sons were at once the legitimate and the illegitimate members of the imperial family household in Georgian Britain. Although the expulsion and divorce of Lady Barlow from the Streatham household demonstrate that there were finite limits to contemporaries’ willingness to accept the constant hybridization of the familial roles and identities that maintained the imperial household’s socio-economic and political function, these limits appear from the evidence of the Barlow family to have been surprisingly elastic. The highly dispersed and constantly shifting pattern of residence that characterised AngloIndian family life no doubt contributed to this elasticity: it was only when Lady Barlow was at last confined at home within an English domestic household with her husband and her biological children that her adulterous liaison with her fictive son, Major Barlow, was discovered. As the marital history of the Barlows and their kin repeatedly demonstrates, illegitimate sexual relations and the birth of bastard progeny were basic facts of life among the Anglo-Indian governing elite. Lady Barlow’s cuckolding of Sir George was shocking, but not unprecedented within her family. Her adultery had been presaged in the Bengal Presidency already in 1799 by that of her sister, Caroline Munro, whose affair had provoked a duel, destroyed Caroline’s marriage and hastened her husband Daniel’s premature death. After her liaison was discovered, the couple’s son, John, had – at Sir George’s insistence – resided for several months in the Barlow’s Indian household family, before being sent to Scotland to be raised by his Munro relations.44 Closer to home for Sir George was the decision of his eldest daughter – named Eliza, after her mother – to separate from




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her husband, Pownoll Pellew. Eliza’s marriage to Pellew, who was a son of the first Viscount Exmouth, had been used in court by her father’s lawyers as evidence of the Barlow family’s secure and respectable status, prior to the Major’s perfidious adultery.45 Within a year of her mother’s disgrace, however, Eliza Pellew had left her husband. In 1818, she eloped to Ireland with an army officer. Discovered by her in-laws to be heavily pregnant with her lover’s daughter, she was expeditiously divorced, and her three legitimate children consigned to the care of their paternal kin.46 The language deployed by the family members who struggled to raise the children left behind in the wake of the adulterous Caroline Munro and Eliza Pellew illustrates the persistent privileging by Anglo-Indian families of marital relationships based on lineages and households, rather than on nuclear families comprised of romantic individuals. When Daniel Munro informed his brother Thomas of his wedding to Caroline in 1795, he was careful to itemise her affiliations with an array of high-raking Company officials – including George Barlow – and boasted that he could now move ‘in the first Circles in Calcutta indeed in India’. While acknowledging the affective dimensions of his union, Munro embedded such sentiments securely within the functionalist framework that shaped the publicprivate household families of the ruling elite. He concluded his list of his wife’s powerful connections by noting that he had ‘been this particular to shew you that with the Girl I love and by whom I am beloved I have formed a Connection honorable & flattering to myself and I hope also to you & our family’.47 From Scotland, Daniel’s father wrote to endorse this utilitarian analysis of the marriage as a means for promoting the interests of Daniel’s siblings. ‘I should think Mrs Munro’s Connections, from the important Offices they hold, will have it in their power to be of use to your Brother, provided he keeps well with them … & who knows but Daniel’s influence with these Gentlemen may … be productive of advantage to you’, he advised his son Thomas.48 Thomas Munro himself, when the marriage went horribly wrong, claimed to have read Caroline’s unfitness to be Daniel’s wife from her reluctance, as a newly-wed, to welcome his offer to make inquires about a brother stationed in Madras. ‘I gave her up, for I was convinced that there was nothing good or estimable in her because a woman that could be so indifferent about



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the Letters of the brother of her husband giving her the most satisfactory accounts of her own brother … could have very little regard for any of the three’, he commented dourly.49 Although the Munro clan clearly blamed Daniel’s untimely death in India upon Caroline’s disgraceful conduct, this conviction did not diminish their desire to maintain ties to her influential in-laws. Having been sheltered within George and Eliza Barlow’s family household after Daniel’s death, Daniel’s infant son John was dispatched by the couple to Britain, where the indefatigable William Barlow undertook to arrange his safe conduct to the Munros in Scotland. ‘I think, for the sake of the Boy we should keep well with Mr Barlow in Calcutta, he may be of service to him’, John’s paternal grandfather wrote to his son Thomas, mindful of the difficulty of securing appointments in the Company service without powerful patronage networks.50 Like the Munros, the Pellews were eager to retain Sir George as a kinsman despite the two Elizas’ adulteries and their introduction of spurious issue into the family line. Their familiar letters attest that relations between the Barlows and the Pellews remained intimate in the decades after Pownoll divorced the adulterous Eliza and remarried. The needs and interests of the union’s legitimate children trumped the stigma of adultery and illegitimacy that attached to their mother, encouraging both families to continue to operate as imperial households linked by kin. Correspondence between Pellew and Sir George as late as the 1830s attests to these enduring ties. Their subject was Pellew and Eliza’s son Percy, whose behaviour bore an unsettling resemblance to that of his Romantic namesake, and his maternal line. ‘He has been guilty of every vice & every folly, and displays a total want of all principle or feelings’, Pownoll Pellew commented darkly to Sir George. ‘My old mother with whom he spent his early days took as much pains with him and was as fond of him as if he had been her own child’, he lamented, gesturing to the reiterated pattern of substitution – uncles for fathers, cousins for sons, grandmothers for mothers – that prevailed in the extended families of the imperial governing classes.51 Desperate to dispatch the boy to India, Pellew – like so many of Sir George’s own kin before him – begged Barlow to extend the family interest to his grandson. ‘Can you, Sir George, suggest any thing to us that we can do to save this boy from eternal perdition’, he pleaded.52 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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In his recent analysis of The Making of the Modern Self, Dror Wahrman has argued that the era of the American and French revolutions witnessed the overthrow of an ‘ancien régime of identity’ by a new regime of the individual. This ‘cultural revolution’, he asserts, made it ‘much harder for people to imagine identities as mutable, assumable, divisible, or actively malleable’, and produced a conception of personal identity ‘as an innate, fixed, determined core’.53 Scholars of the family in the Romantic era have likewise identified the concurrent rise of the economic and the emotional individual as a defining feature of this period, a development that focused fathers’ attention more sharply than before on legitimate progeny and the nuclear family unit. ‘More men in this period began to exercise domestic power as husbands and fathers of immature children than as members of lineage descent groups sharing responsibility for more extended kin groups’, Ruth Perry thus argues.54 The evidence from familiar letters, in contrast to that in the novels explored by Perry and the printed sources examined by Wahrman, suggests instead that Anglo-Indian patriarchs assiduously cultivated extended family networks. Encompassing in-laws, cousins, nephews, nieces and servants, these households tended to diffuse familial identities, even as they secured the fathers’ children access to both domesticity and professional employment. Without obliterating the claims of legitimate biological descent, these complex reticulations of kin often worked to attenuate them. The bastard Frederick Barlow was the unhappy outcome of this convoluted system of family relations, but so too – quite legitimately – were the succession of imagined progeny conceived in familiar letters as Anglo-Indians sought to secure the social status and economic prospects of their sons, daughters, siblings and cousins by affiliating them with influential fictive fathers. In this social, economic and cultural context, lineage – far from fading – acquired new salience, and legitimacy gained new and surprising meanings in the social lives of the imperial governing elite.

Notes 1. See, for example, Peter Laslett and Richard Wall, eds, Household and Family in Past Time (Cambridge: Cambridge University Press, 1972), and E.A. Wrigley and R.S. Schofield, The Population History of England, 1541–1871: A Reconstruction (Cambridge, MA: Harvard University 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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2.

3.

4. 5. 6.

7.

8.

9.

10.

11. 12.

13.

Press, 1981). Research for this chapter was supported by the UK Economic and Social Research Council (ESRC), research grant number RES-000-22-0790, within a wider project entitled ‘Colonial Possessions: Personal Property and Social Identity in British India’. Alan Macfarlane, Marriage and Love in England 1300–1840 (Oxford: Blackwell, 1986); Jack Goody, The Development of the Family and Marriage in Europe (Cambridge: Cambridge University Press, 1983). Lawrence Stone, Road to Divorce: England 1530–1987 (Oxford: Oxford University Press, 1992), pp. 242–3. See similarly Randolph Trumbach, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century England (New York: Academic Press, 1978). Stone, Road to Divorce, p. 9. Naomi Tadmor, Family and Friends in Eighteenth-Century England: Household, Kinship and Patronage (Cambridge: Cambridge University Press, 2001), p. 37. P.J. Marshall, ‘Barlow, Sir George Hilaro, first baronet (1763–1846)’, Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004; online edn, 2008), [http://www.oxforddnb.com/view/article/ 1433, accessed 19 August 2008]. For the broader development of a militaristic governing elite in this period, see C.A. Bayly, Imperial Meridian: The British Empire and the World 1780–1830 (London: Longman, 1989). British mortality rates in colonial India are detailed in Philip D. Curtain, Death by Migration: Encounters with the Tropical World in the Nineteenth Century (Cambridge: Cambridge University Press, 1989). Mr Oakes, a former member of the Madras Supreme Council, testified thus in London when Sir George sought to divorce his wife for adultery: ‘He speaks of Lady Barlow’s Tiffins or Lunches at noon as a Table of Gaiety in which Lady Barlow was fond of indulging and did hear that she had rather too much Wine upon these occasions’. Writ of Inquiry for Barlow v. Barlow, in Oriental and India Office Collections (henceforth OIOC), British Library, London, MSS Eur F176/36/90-1. For the rakish sociability of the Anglo-Indian governing elite in this period, see especially Peter Marshall, ‘British Society in India under the East India Company’, Modern Asian Studies, 31, 1 (1997), pp. 89–108 and idem., ‘The White Town of Calcutta under the Rule of the East India Company’, Modern Asian Studies, 34, 2 (2000), pp. 307–32. Ruth Perry, Novel Relations: The Transformation of Kinship in English Literature and Culture, 1748–1818 (Cambridge: Cambridge University Press, 2004), pp. 33–4. The children’s peregrinations are detailed in the extensive Barlow family papers, OIOC, F176. For the familiar letter and the wider context of epistolary expression in this period, see Clare Brant, Eighteenth-Century Letters and British Culture (Basingstoke: Palgrave, 2006). William Barlow to Sir George Barlow, 23 June 1803, OIOC, MSS Eur F176/7/26 verso.




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14. William Barlow to Sir George Barlow, [1804], OIOC, MSS Eur F176/7/32. 15. William Barlow to Sir George Barlow, 25 March 1805, OIOC, MSS Eur F176/7/98. 16. William Barlow to Sir George Barlow, 12 August 1807, OIOC, MSS Eur F176/7/175. 17. William Barlow to Sir George Barlow, 17 September 1807, OIOC, MSS Eur F176/7/195. 18. Ibid., fol. 196. 19. Robert Barlow to Sir George Barlow, 20 December 1804, OIOC, MSS Eur F176/3/13-13 verso. 20. Robert Barlow to Sir George Barlow, 26 March 1803, OIOC, MSS Eur F176/3/4. The writership was, characteristically, negotiated in London by their brother William. See William Barlow to Sir George Barlow, 17 February 1806, OIOC, MSS Eur F176/7/110v. 21. Cousin marriage, although disparaged by the middling ranks in the eighteenth century, was approved within upper-class English circles. The marriage of first cousins became increasingly acceptable among the propertied classes as a whole in nineteenth-century England, and appears to have been especially favoured by colonial elites. See Adam Kuper, ‘Incest, Cousin Marriage, and the Origin of the Human Sciences in NineteenthCentury England’, Past & Present, 174 (2002), pp. 165–6, 178. At least one of Barlow’s sons married a first cousin. 22. William Barlow to Sir George Barlow, 22 June 1802, OIOC, MSS Eur F176/7/1-2. 23. The Times, 2 December 1815, p. 3. 24. George Edward Pratt Barlow to William Barlow, 20 April 1803, OIOC, MSS Eur F176/21/1. 25. Robert Pratt Barlow to Sir George Barlow, 15 November 1805, OIOC, MSS F176/22/2. 26. The Times, 2 December 1815, p. 3. 27. See for example George Edward Pratt Barlow to Lady Barlow, 9 August [1815], OIOC, MSS Eur F176/36/2-3 verso. The Major relied upon his brother Frederick to help conceal this illicit correspondence with his lover, just as Sir George depended upon his brother William to help orchestrate his divorce from Lady Barlow. 28. Sir George Barlow to William Barlow, 9 August 1815, OIOC, MSS Eur F176/36/1. 29. Sir George’s lawyers also drew up a bill in which Lady Barlow received no allowance at all, but this extraordinarily punitive measure was not enacted. 30. Stone, Road to Divorce, p. 30. 31. The illicit couple’s ability to conceal the affair in India, and their corresponding inability to prevent its exposure in Britain, likely reflects the different places within ‘the family’ of domestic servants in England and on the subcontinent. Whereas Collingham has argued that servants’ physical access to their employers was much greater in India than in England,



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32.

33.

34. 35. 36.

37.

38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50.

the social distance between master and servant – as suggested by Anglo Indians’ failure to number servants among their ‘family’ members – was considerably greater on the subcontinent. E.M. Collingham, Imperial Bodies: The Physical Experience of the Raj, c. 1800–1947 (Cambridge: Polity, 2001), pp. 103–13. The social and cultural meanings that attached to damages in adultery cases are detailed in Susan Staves, ‘Money for Honour: Damages for Criminal Conversation’, Studies in Eighteenth-Century Culture, 11 (1982), pp. 279–97. For the passage to and from India as a site of illicit romance, see Percival Spear, The Nabobs at Home: A Study of the Social Life of the English in Eighteenth Century India (1932; Delhi: Oxford University Press, 1998), p. 42; Tillman Nechtman, ‘Nabobinas: Luxury, Gender, and the Sexual Politics of British Imperialism in India in the Late Eighteenth Century’, Journal of Women’s History, 18, 4 (2006), esp. pp. 15–16. The Times, 2 December 1815, p. 3. Sir George Barlow to Alexander Hoskins, 7 December 1815, OIOC, MSS Eur F176/36/6 verso-7. Writ of Inquiry, Barlow v. Barlow, OIOC, MSS Eur 176/36/98. For novelreading’s association with female sexual misconduct, see Jackie Pearson, Women’s Reading in Britain 1750–1835: A Dangerous Recreation (Cambridge: Cambridge University Press, 1999). Miss Page averred that ‘Lady Barlow admitted to her “that she had carried on an adulterous or criminal intercourse with Major Barlow for the last six years, unknown to her husband”’. Report of Barlow v. Barlow, in OIOC, MSS Eur F176/36/17 verso. Sir George Hilaro Barlow v. Dame Eliza Barlow, before the Rt Hon. Sir John Nicholl, 13 February 1816, OIOC, MSS Eur F176/36/12-12 verso. The Times, 2 December 1815, p. 3. Ibid. In the event, damages were reduced to £2,000. Barlow v. Barlow, OIOC, MSS Eur F176/36/74 verso-75. Barlow v. Barlow, OIOC, MSS Eur F176/36/13. Alexander Munro to Thomas Munro, 30 July 1800, OIOC, MSS Eur F151/149/8. The Times, 2 December 1815, p. 3. Correspondence chronicling her marriage, separation and divorce is found in OIOC, MSS Eur F176/47. Daniel Munro to Thomas Munro, 22 December 1785, OIOC, MSS Eur F151/148/69-69v. Alexander Munro to Thomas Munro, 21 February 1787, OIOC, MSS Eur F151/148/134. Thomas Munro to Erskine Munro, 15 March 1800, OIOC, MSS Eur F151/143/7. Alexander Munro to Thomas Munro, 25 November 1800, OIOC, MSS Eur F151/149/16.




47

51. Pownoll Pellew to Sir George Barlow, 10 November 1830 and 20 April 1831, OIOC, MSS Eur, F176/50. 52. Pownell Pellew to Sir George Barlow, 21 May 1832, OIOC, MSS Eur F176/50. 53. Dror Wahrman, The Making of the Modern Self: Identity and Culture in Eighteenth-Century England (New Haven, CT: Yale University Press, 2004), p. 275. 54. Perry, Novel Relations, p. 34.



The Barlow Bastards

On Settling and Being Unsettled: Legitimacy and Settlement around 1850 Josephine McDonagh

In Bleak House, Charles Dickens’ great anti-law novel of 1852–3, Esther Summerson, the heroine-narrator, inquires of the restless ‘ward of Chancery’, Richard Carstone, whether he feels ‘settled’ in his new profession of the law: ‘How do you mean, settled?’ returned Richard, with his gay laugh. ‘Settled in the law,’ said I.1 Throughout the novel, the two terms settlement and law are continually brought into conjunction. The term ‘to settle’ in its various forms, resonates widely: not just in relation to the settling of wills and legal cases (Jarndyce v. Jarndyce – the great unsettlable case at Chancery that is at the heart of the novel), or the settling of debts, or, more loosely, the settling of matters. It is also used in relation to domicile: colonial settlement – the reviled Mrs Jellyby’s ill-fated philanthropic scheme for a settler colony in Borrioboola-Gha in Africa; and domestic habitation, as in: ‘when we were settled at home again’ says Esther (BH, 681); ‘George, George,’ sighs Mrs Bagnet, ‘if you had only settled down and married Joe Pouch’s widow’ (BH, 405–6). More precisely, it is used in relation to the law of settlement, as in Mr Bucket, the detective’s, disingenuous question of the brick maker’s wife, Jenny, ‘I suppose you have some settled home. Is it far from here?’ (BH, 659). In addition the term ‘settled’ (or unsettled) also evokes a psychological state: Richard is one of many to be ‘unsettled’ by the case of Jarndyce v. Jarndyce, which itself takes on the qualities of the irrational mind: ‘unsettled, uncertain 48 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


3

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and confused’ (BH, 180). In general, we are to assume, the law is unsettling. Not all the uses of the term ‘settlement’ in the novel evoke ideas of place, but many of them do, and in these instances they reflect the intense interest in the relationship between land and belonging, both legal and in regard to feeling, that existed in England in the 1850s. Something of the range of debates on these themes can be gleaned from the contents of Dickens’ magazine, Household Words, over the same decade in which he produced Bleak House.2 Many of the contributions to the magazine in its early editions in the 1850s explore the ways in which people’s relationships to places, what it means to settle, are mediated by law. There are essays, for instance, on freehold, on building societies, and on emigration policy; and long accounts of emigration, views from settlers about landscape, climate, and opportunity. There are elegies too, often in verse, about the misery of leaving home, and memories of abandoned places steeped in familial love. In ‘The Settlers’, a poem by Adelaide Procter, in Household Words (21 May 1853), for example, settling, paradoxically, means breaking with the past, deracinating oneself from the affective landscape of home.3 The moral virtues of owning land are extolled: small plots for peasants might solve the economic problems of Ireland – as though Ireland could turn into Australia by injecting conscientiousness and hard work into a feckless work force.4 Among these discussions we find Henry Morley’s seemingly Swiftian piece, ‘How to kill labourers’ (2 April 1853), which concerns the case of the labourer who was forced by the laws of settlement to live at a distance from his place of work, producing the paradoxical situation that by the end of his life, he had walked ‘eighty-two thousand, three hundred, and sixty-eight miles’. ‘[I]f there had been a pavement laid down for him on the surface of the sea’, Morley goes on, giving geographical distance to the term surplus labour, ‘this man could have walked three times round the world, and made a trip to the North Pole and back, out of the waste exertion added to his daily work upon a farm with hand and foot and body.’5 The controversial laws of settlement to which Morley refers provoked the most important debates on place and habitation which were taking place at this time. These ancient laws, which had been codified as part of the English Poor Laws in the sixteenth century, laid down the basis on which paupers were entitled to relief, and on 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


On Settling and Being Unsettled

which local taxes were calculated. They were deeply embedded in the parish system and, by the 1850s were considered by many to be an anachronism, trapping people in locations that were no longer appropriate to the needs of a modern economy.6 Despite recent scholarly interest in questions of nation and identity in the Victorian novel, these laws and the discussion they provoked have received very little (if any) attention from literary scholars. In this essay, I suggest that they illuminate Dickens’ novel with its insistent coupling of law and settlement, and its production of a new kind of national space. In the critical field of law and literature, Bleak House holds a privileged place. It is the nineteenth-century text that more than any other constructs an opposition between the institutions of the law and the humane work of literature.7 The question of legitimacy is central to this text. It is figured in the critique of Chancery, its exposure of the latter’s excessive, self-serving procedures which blight the lives of the characters, and spread malign influence across the whole society. But it is also marked in the fact of Esther Summerson’s illegitimate birth.8 Over the course of the novel, Dickens demonstrates that the established institutions of the law (the courts, and also inheritance) have become emptied of moral authority, and, in the world of the novel, are displaced by what he refers to as the ‘true legitimacy’ of fellow feeling, or neighbourly love, as embodied by Esther. At the end of the novel, Esther, the illegitimate child, is pronounced (by her guardian, Jarndyce) to be ‘true legitimacy’; and for the mawkish solicitor, Guppy, she is the special legislator, whose ‘wishes [are] to him a law’ (BH, 788). Established institutions thus defer to the higher legitimacy of feeling, in an economy of emotion profusely oiled by tears. Female characters sob intermittently throughout, while men frequently turn their heads discretely to hide their free-flowing tears. As one early commentator noted, ‘Charles Dickens writes to the hearts, not to the heads of his readers.’9 Although the literary appetite for sentimentality faded over time, Dickens’s authority as a critic of social institutions did not. The novelist George Gissing, some fifty years after the first publication of the novel, hyperbolically claimed that ‘the noblest orator ever born, raising his voice in divine wrath against Chancery and all its vileness would not have touched the “great heart of the people” as did those pages which make gloriously ridiculous the whole legal world’.10 Not merely Chancery, then, but the ‘whole legal world’ is the target of literature’s lampoon. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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Given the reputation that the novel acquired as a powerful vector of social critique, it is important to note that from its first publication a penumbra of doubt surrounded the novel regarding its fidelity to historical and topographical fact. This is most famously the case in relation to its representation of Chancery reform. As many noted at the time (and have continued to note since), Dickens’ excoriating critique in many of its details attacked aspects of the court that had already been addressed in reforms prior to 1850. As retired Lord Chief Justice Denman put it, Dickens appeared like Falstaff, who, ‘seeing [the enemy] lie dead, inflicted a new wound upon his carcass’.11 Areas of doubt also exist in relation to its representation of places. Its description of London, celebrated, in part for its alleged verisimilitude, swiftly generated a tourist literature in which Dickens’ fictional places merged with ‘real’ London sites. But it also produced quibbles and controversies as to the precision of the topography. An antiquarian aspect to this literature soon emerged which invariably follows the topos: ‘the only place I recognise in Bleak House is …’.12 All these discussions tangle together aesthetic with moral and social concerns. Anachronistic and anatopic (out of place), the novel takes its legitimacy not precisely from the world it purports to represent, but rather from sentiment, or feeling, appealing to ‘the great heart of the people’ (as Gissing noted), rather than its reason. In this essay, I take up the term ‘legitimacy’ in relation to place as well as to feeling. Bleak House reflects a period during which the geography of Britain was under considerable pressure, as the gradual realignment of country and city interests and the formation of the bureaucratic state brought about new conceptualisations of national space and revised modes of belonging. As we shall see, one political concern of the time was to introduce into the administration of the nation greater degrees of labour mobility, to which the existing law of settlement was widely perceived as being antagonistic. In this context of increasing mobility, and in which received conceptions of locality were under review, I suggest that the novel stepped in as a new source from which readers drew a sense of place and belonging. The novel provided a new, powerful and highly mobile source of legitimacy, in which affiliation grounded in feeling, was freely mapped on to a newly imagined topography of England. The special conjunction of law, place and feeling in Bleak House thus makes it a particularly rich text for examining the work of the novel, as 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



a literary genre and a cultural force. Critics such as Newsom have written eloquently about Bleak House’s treatment of the theme of homelessness.13 Yet when we hold Bleak House against the backdrop of the national debates about settlement and population mobility we can recognise the particularly profound way in which it engaged with a nexus of topical concerns about the ways in which place, identity and belonging had been violently dissevered in the changing conditions of mid-nineteenth-century England.

The law of settlement and the production of national space When in the exchange referred to earlier, the detective, Bucket refers to Jenny, the brick maker’s wife’s ‘settled home’ he means the parish in which she has legal settlement, that is to say, entitlement to parochial poor relief. This would have been established under the ancient and complicated laws of settlement, recently revised under the 1834 Poor Law Amendment Act. The changes to the law introduced in 1834, however, were not extensive, and were restricted to the reduction from nine to six of the heads of settlement, that is, the criteria for entitlement. These now comprised: birth, parentage, and marriage, as well as renting a tenement, paying parochial rent, and owning an estate. Hiring and service were abolished as criteria for settlement. While one of the intentions of the New Poor Law was to increase mobility in the labour market, the persistence of the old law of settlement in a fairly intact way was generally perceived to have been a major impediment to that aim: as parishes retained the right to remove unsettled paupers, workers were unwilling to leave their place of settlement for employment in a new parish, only to be whipped homewards at the whim of the bailiffs of the parish. Moreover, as a law that always had been used by parishes to target unmarried mothers, the reforms to settlement law in 1834 did nothing to alleviate, and much to exacerbate, the difficulties that such women faced under the new, stringent provision for bastardy. Another effect of the new provisions was that reported by Henry Morley in the Household Words article already cited: the failure of employers to provide – and in some cases the active destruction of – workers’ accommodation, meant that labourers were often forced to walk long distances from neighbouring parishes to reach their 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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place of employment. Parliamentary committees on settlement and removal met regularly through the 1840s, yet despite various amendments, the laws continued to attract criticism. In 1848 the Poor Law Board commissioned a number of reports on the working of the laws in rural counties. Most of these reports (including that by Gilbert A Beckett, who was Dickens’ associate) published in 1850 followed the usual format of the parliamentary report, that is, a combination of interviews with officials and analysis of statistics. But one was rather different, and was not published until the following year, in August 1851. This was by a barrister named George Coode, secretary to Edwin Chadwick at the Poor Law Commission from 1839, and author of two other published studies, one of which on the very Dickensian topic of the need for plain speaking in the law.14 His report seems to have been buried in the parliamentary process, caught up in the changes of government in this turbulent period, but eventually provided the basis of an unsuccessful settlement and removal bill presented to parliament in 1854.15 The general tenor of the report, however, that the laws of settlement were an anachronism in modern Britain, and a scourge on the nation, reflects the opinion of all the reports and the general thrust of poor law reform in this period. And, moreover, it was published in the period during which Dickens prepared to write Bleak House. Coode’s report was substantially different in form from the other three commissioned at the same time. He decided against the usual form of government reporting on the poor law – the interrogation of witnesses and survey of statistics – in the counties for which he was responsible (three counties in the east midlands, including, we might note, Leicestershire – perhaps remembered in Bleak House’s character Sir Leicester Dedlock). Instead, Coode decided that only an historical analysis of the laws of settlement would be adequate to the task. ‘No local enquiry’, he claimed, ‘confined to personal experience of the witnesses, would touch on the main subject of consideration’. The law was of ‘too ancient a date and too universal an operation to allow a single case through which we might discover the manner in which a labouring man would avail himself of the common resources of the country if he were free from these laws, or how a parish would act in their absence’.16 Coode’s point is a methodological one about the impossibility of examples from individual experience yielding objective knowledge about the law’s effectiveness over time. But it is also 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



one about the particularities of the settlement laws themselves, the way in which they have become absorbed through habit into people’s sensibilities. ‘All that any man knows from his personal observation or experience is how it works on a pauper or on a labourer or employer already sophisticated by six generations of hereditary bondage’ (Coode, 2). When the laws were liberalized in 1795, he claims, it was to no effect, as people remained under habitual terror of its former tyrannies, which were implanted in their memories. The laws of settlement, he wrote, had shaped a sense of ‘normality’ in such a profound way that it would only be by looking into history – and specifically into the history of the law – that it would be possible to understand, and release, the grip that they held on the lives of people and the prosperity of the nation. The origins of settlement law lay in the Germanic invasions of ancient England, which had, to Dickens and his contemporaries, established the foundations of English identity: the invaders required a polity by which ‘a rude, turbulent, unsettled, and almost lawless people [would be] induced and compelled to adopt the habits of civil life, and to connect themselves with the profitable occupation of the soil in defined localities, practices’ he says, which were, ‘comparatively unknown to this people previously’ (Coode, 9). Settlement laws thus enabled invaders and migrants, people who had no former attachments to places, to become rooted in locations. As such, he claims, they were the origin of law and order, the very foundation of civilisation. And this ‘original Saxon law of domicile’, he writes, ‘was truly a law of national and popular settlement’ (Coode, 10). As laws that made possible settled domicile, Coode deems them good and necessary, but he argues that they soon outlived their purpose, and became instead an impediment to progress, and an obstacle to liberty. He charts their slow decline from the fourteenth century, as they were increasingly used as means of controlling people’s movement, until in 1662, in the second year of the Restoration, ‘the present system of settlement and removal was introduced’, which ‘destroyed the right of locomotion and free choice of domicile of the entire English people’ (Coode,15). This was because they introduced the right of removal before a pauper became chargeable; that is to say, a poor man and his family could be forcibly removed on the expectation that they might become a burden on the parish. Parishes assiduously acted on the right to remove the unsettled poor, 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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establishing a layer of officials – overseers, constables, and beadles – specifically for this purpose. Cases of removal swamped the sessions courts, and, Coode claims, ‘became one of the main avenues to legal fame and fortune’: ‘the best house in the village or town is the parish attorney’s’, he observes. ‘Settlement soon becomes the bulkiest title in the law books’ (Coode, 92). From 1662, Coode claims, the laws of settlement were in fact laws of removal: they no longer protected people’s organic relations to places, but in fact became a mechanism of eviction, profoundly alienating people from their places of habitation; they substituted wholesome relationships to the land with oppressive and expensive law. And despite minor ameliorations, they continued to wreak havoc on the national landscape. Coode holds the laws of settlement responsible for the accumulation of paupers in towns, and for the spread of disease and pestilence therein; for the burning of cottages by landowners worried about the escalation of parish expenses; and for forced emigration to the colonies. For Coode, the laws of settlement are in fact a barrier to settlement: they cast people out of the land, and allow no organic relationships to develop between migrant settlers and their places of habitation. The persistence of the laws of settlement is the stranglehold of the past on the present identity of the English nation. I have no positive evidence that Dickens read the Coode report, and I am not assuming that he did. The point of this essay is not to propose a connection of influence, but rather to say that coincidences between the two works, which are striking, reflect shared views on the subject of settlement and a similar response. Bleak House not only contains traces of a similar historical narrative to Coode, now intricately woven into the fabric of the plot. More tellingly, it presents a similar analysis to Coode on the plight of the poor, and the causes of that plight. Bucket’s wry question (referred to earlier) about Jenny’s ‘settled home’, which of course is far away, draws attention to the way in which poor, migrant workers were subject to the law of settlement. Tom-All-Alone’s, the disease-ridden and contagious urban slum in Bleak House, is where the unsettled poor – people like Jo, the crossing sweeper – accumulate, and is a vivid depiction of the social problems that Coode sees as emanating from the laws of settlement. The world of the novel is made up of restless people: people like George, the trooper who is ‘unsettled’ and ‘self-unmade’ (BH, 782), or Jo, the sweeper, always having to ‘move on’; or Guster the orphan maid 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



of the Snagsbys whose epileptic fits suspend her between life and death; or old Smallweed, always having to be ‘shaken up’; or Richard Carstone, ‘unsettled’ by the Chancery; or the flighty Miss Flite, with her caged birds, another ‘unsettled’ victim of Chancery. The law continually unsettles people in one way or another, and this is often represented in terms of a flight or a journey: witness, for instance, Lady Dedlock, the mother of an illegitimate child, and whose secret past forces her to go on the run. When she finally swaps identity with Jenny, the migrant worker and unsettled pauper, we are reminded that both are in a sense illegitimate, and both in different ways unsettled. Esther too, the illegitimate child, refers to her move from the school to Mr Jarndyce’s house (Bleak House) at the beginning of the novel, as a ‘removal’, for which she is served five days notice in legal hand, a ‘removal’ that precedes her eventual ‘settlement’.17 There are strong affinities between Coode’s 1851 report and Bleak House in both their analysis of poverty and their attitude towards the law. According to Coode, the laws of settlement are costly, make work and money only for lawyers, but affect everyone. These are all qualities ascribed by Dickens to Chancery. Both the laws of settlement and the court of Chancery are depicted as totalising systems that distort people’s sense of normality and even their rationality. And both authors hold that the principles of law embodied in both are necessary in the origins of society, but persist in their present institutional form only as fossilized remnants of a primitive stage. Coode sees the laws of settlement as having outlived the context of their utility, to become obstacles to progress; while in Bleak House, as James Buzard has noted, Chancery is represented as a primitive cult that impedes the route to civilisation.18 Coode’s radical re-conceptualisation of national geography in many ways mirrors that represented in Bleak House. For Coode, parishes, the much-lauded foundation of English identity, have become fortresses, ‘the real enemy of the people’. The laws of settlement imprison people in the parish, those anachronistic places of a past historical era. The modern geographical unit that must replace the parish is the nation: people must have the right to move freely within national, not parochial, boundaries; only within a national space so conceived will the ideal of easy labour mobility be realised. ‘Nothing will do short of national settlement’ (Coode, 157) he concludes. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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In modern England, every pauper’s rightful home is no longer the parish; now it is England itself. The report works towards the realization of its vision of a new national space, with neither internal boundaries nor local differences. Its final recommendations, for instance, include provisions for the gradual standardization of local rates, first within unions – the new bureaucratic unit of the 1834 Poor Law – and eventually nationally. Within this new national space, ties of affiliation will be established not through the parish, but rather through the much more limited unit of the family home. Coode answers the complaint that the total abolition of settlement laws will diminish people’s local ties and affections, by suggesting instead that higher, patriotic feelings will take their place: ‘tender and generous, and elevated sentiment, of moral and patriotic feelings,’ which are, ‘the capital and crown of our social order’ (Coode, 120). Such feelings will be nurtured with the home and the family. ‘Sentimentalists,’ he notes elsewhere, ‘confounding the sentiments of the free home with the bond of the parish, sometimes deprecate the destruction of this bond’, but they ‘wholly forget […] that the love of home of family, and friends is not the love of the parish, and that the parish is the real enemy of the people’ (Coode, 126). The report is steeped in high Victorian (and clearly very Dickensian) sentiments concerning the sacred nature of home and family, on which Coode places weight as the mechanisms of social cohesion in his empty national space. The overlap with Bleak House, I hope, will be immediately clear. That Bleak House is the novel of ‘national settlement’ – Dickens’ disquisition on the Condition of England question – has been evident since publication.19 To read it beside the Coode report, however, gives this insight a new precision, and reminds us of the topicality of its vision. In the novel, Dickens too creates an idea of a national space without internal boundaries or local differences, realised emblematically in the replication of Jarndyce’s home, Bleak House, in Yorkshire for Esther and her new husband: from St Albans to the provinces, the centre is copied across the land, implying an even terrain, lacking in regional difference. Home and family provide the fundamental micro-arena for identification and belonging within the large and empty national space. As the home is reconstructed in another place, Dickens finds a way of retaining ties to local places through the work of memory. It is important that the Yorkshire Bleak House is the same as the St Alban’s Bleak House, not for the purposes of eradicating 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



differences, but as a way of remembering somewhere else. Esther herself claims that the new Bleak House is an aide mémoire, a kind of archive of past attachments, which are stored in the dimensions and contents of the replicated home. Coode imagines a scheme in which people are suspended between the very local arena of the domestic, and the large abstract space of the nation, and in which the benefits of forming affective ties to particular places and environments are downplayed. Dickens’ novel replicates that scheme, but also conjures an effective way of retaining local ties through the circulation of moveable goods, in which memories of places that have been left are encrypted. Hence the novel’s emphasis on the sentimental memories attached to moveable goods which circulate within the novel. Esther’s handkerchief presents a prime example of this – the handkerchief she lays over Jenny’s dead newborn baby’s face, that is passed to Lady Dedlock as a token of Esther – her own child, presumed dead at birth; which then becomes the means through which Lady Dedlock’s own true identity is revealed. As the handkerchief circulates, it carries with it not only an array of cultural associations to do with sexual infidelity and jealousy derived from the handkerchief in Othello, but also a host of meanings that it has acquired through its various local associations within the novel itself, and is, like Bleak House, a portable archive of memories of particular places and times, of localities, that are imprinted on the object like photographic images and moved elsewhere.20 Through the circulation of objects, the novel provides a forum in which local space can move; paradoxically it is a way of mobilizing localities within the new, empty national space. This idea of moveable space to be found in Bleak House owes something to the broader culture of emigration which Dickens inhabited. We catch a glimpse of this in ‘A Bundle of Emigrants’ Letters’, an article which includes letters home from emigrants recently settled in Australia, co-authored by Dickens and the philanthropist Caroline Chisholm (1808–1877), and published in the inaugural edition of Household Words in 1850.21 ‘ “These simple annals of the poor”, written for no eyes but those to which they were addressed’, Dickens writes with no sense of irony, ‘are surely very pleasant to read and very affecting.’22 Nevertheless, the letters follow the conventions of the by-now well-established genre of the ‘emigrant’s letter’, private correspondence from emigrants to their family and friends at home, but 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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which was often commissioned for publication by the organizers of emigration schemes. Emigrants’ letters typically told tales of suffering superseded, new prosperity, and hopes for family reunifications; but they also rehearse shared memories of places and times that have been left behind, and partake in the work of symbolic mourning for a homeland at once missed and disavowed.23 Although not in those published in this instance, other letters of emigrants published by Mrs Chisholm also contained a ‘token.’ This was sometimes an object – such as a ring, or a lock of hair – that held mutual associations between the correspondents, but sometimes merely a shared memory. The token had a double function, serving as a guarantee of authenticity, but also as a sign of love in the exchange of sentiment and family feeling that will be the basis of the new community. There are many examples of the token in letters in an earlier pamphlet by Caroline Chisholm, on her scheme for family emigration to Australia.24 One woman (Ellen W. of London) writes: ‘As a token I send [by Mrs Chisholm] a dress for my sister just to show my feeling’; or Henry L., ‘As a token they know something regarding my little finger, that occurred at – brace manufactory, Belgrave Gate, Leicester; William and Samuel Kelly will remember the first joint of my little finger, right hand’; or William C’s wife, ‘my sister Mathilda cannot mistake the token I send her. Ask her if she remembers the beating father gave her.’ The token encapsulates a memory of the past and of another place, and presents a highly orchestrated moment of nostalgia in which the relinquished past obtrudes into the new topography, a prism of affect and family feeling refracting the functional and productive landscape of the place of settlement. Dickens is particularly attuned to the function of memory in the establishing of new, settler communities, expressing his hope that ‘from little communities established, other and larger communities will rise in time, bound together in a love of the old country, still fondly spoken of as Home in the remembrance of many old struggles shared together, of many new ties, formed since, and in the salutary influence of restraint of a kind of social opinion, even amid the wild solitudes of Australia’.25 My suggestion is that the vision of England presented in Bleak House mirrors the image of the settler colony as imagined in the literature of emigration. This idea may be counterintuitive, given the vituperative representation of characters involved in emigration 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



schemes in the novel, and the charges of ‘Little Englandism’ and even racism that the novel provoked among some contemporary readers.26 Caroline Chisholm is the model for the much mocked Mrs Jellyby, whose ill-fated scheme for a settler colony in Africa causes much criticism throughout the novel.27 On the whole the novel would seem clearly to disavow the work of Chisholm and her emigration scheme – a point suggested, I think in the fact that Mrs Jellyby’s putupon daughter, Caddy, swaps the maternal home for marriage with Prince Turveydrop, and his regal father, the ‘Model of Deportment’, thus passing from a life immured in the intricacies of emigration, to another form of symbolic expulsion. But while Mrs Jellyby’s Barraboola-Gha scheme implies dangerous and promiscuous mixing with native people (implied again through Mrs Jellyby’s large antiMalthusian tribe of nomadic children), aspects of Chisholm’s work, and especially the notion of moveable space drawn from the idea of the emigrant’s letter, are worked into the vision of the nation itself, as an expanding and mobile terrain. In a short yet revealing episode Esther writes a letter on behalf of an old lady in the village of Chesney Wold to the lady’s grandson, who is a sailor. Esther ‘drew at the top of it the chimney corner in which she [the grandmother] had brought him up …’. Esther goes on: this was considered by the whole village the most wonderful achievement in the world; but when an answer came back all the way from Plymouth, in which he mentioned that he was going to take the picture all the way to America, and from America would write again, I got all the credit that ought to have been given to the Post Office. (BH, 530) Through its depiction in the letter, then, the grandmother’s domestic haven can be transported across the globe. Like the token in the emigrant’s letter, the picture of the hearth is a form of condensed memory that allows the place of the sailor’s childhood and all its affective associations to be moved elsewhere. In that way, the novel, as a form, and Bleak House as a particularly effective example of the form, manages what George Coode imagines in his report but has difficulty in achieving. While Coode works towards establishing the grounds for mobility within the nation, his vision always stumbles on the loss of local ties, and the difficult 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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consequences of this for people’s sense of identity and belonging. Dickens on the other hand, develops through the novel a way of not only retaining but also moving localities through their mnemonic encryption in circulating objects, like the handkerchief, or represented in writing, as in the grandmother’s letter. The fact that the novel itself, as a material object, is highly movable, makes it the cultural form par excellence of the new, mobile nation.

Locality In a short article published in Dickens’ Household Words, in January 1851, the journalist Charles Knight provides what he calls, with lavish irony, a ‘happy illustration of the certainty, cheapness, and expedition of the English law’. The anecdote concerns ‘the most litigious fellow I ever knew’, a Welshman named Bones, who entered into dispute with his parish over a very small piece of land in Hogwash Street (sic). A wall built around parish land (Bones claimed) encroached on his property by about ten inches. So after knocking down the wall four times, and knocking down the bricklayers too, Bones was convicted and imprisoned for assault. In response, Bones served writs for trespass against the parish trustees, beginning a stream of legal actions that progressed through the various courts until, after some years, reaching the House of Lords. The costs had escalated, and Bones, who had lost each suit in succession, was condemned to pay costs – more than five hundred pounds. But Bones of course was broke, and so petitioned the insolvency court, which accordingly required that the parish pay its own legal expenses. Never one to miss an opportunity in law, Bones promptly filed a suit, this time in Chancery, against the Trustees of the parish, for the ‘misapplication of Parish money’. And here the story ends, at least for Knight who claims to be ‘unwilling, as well perhaps as unqualified, to follow the case into the labyrinthine vaults of the Courts of Chancery’.28 But perhaps Bones’ story continues in Bleak House, as a source for the border dispute between Sir Leicester Dedlock and the irascible Boythorn, whose claims and counterclaims of trespass involve the knocking down of walls, and recourse to the law. Standing under the plain title, ‘The Law,’ Knight’s story of Bones highlights the excesses and blindness of the English law as perceived by many midcentury reformers, including Dickens. A dispute over a tiny piece of 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



rough ground – ‘the whole fee-simple of which would not sell for a shilling’ – generates years of legal work, mobilizes the weighty machinery of the legal establishment, and incurs heavy costs. We recognise the very same motif at work Bleak House, – self-generating legal procedures that eclipse all sense of reason and proportion. That Bones’s small piece of ‘dirty land literally not so big as a door-step’ should generate so much law is an idea that is absorbed into the major figurative scheme of the Dickens’ novel: in the opening paragraph, ‘new deposits’ are added to the ‘crust upon crust of mud, sticking … to the pavement, and accumulating at compound interest’ (BH, 1). This figure in which the debris of the law is heaped in layers on the piece of pavement becomes a recurrent motif in the novel. In the course of the novel, though, these pieces of pavement transmute into privileged places of love and family feeling: the step on which Lady Dedlock dies, for instance, (perhaps reminiscent of Bones’s land, ‘not so big as a door step’), is at once a place of the evicted outcast, but equally a spot of fellow feeling – no longer buried by useless law, but adorned with the loving ties of ‘true legitimacy’. Likewise, we might think about the way in which the dispute between Sir Leicester and Boythorn, over the equally small piece of land – a right of access on Boythorn’s property – is not resolved at the end of the novel, but absorbed into love and fellow feeling. Boythorn, we are told, was prepared to give up his claims on the land, but Sir Leicester, perceiving this to be a concession to his age and ill health, ‘took high dudgeon’, and the warm-hearted Boythorn ‘found himself under the necessity of committing a flagrant trespass to restore his neighbour to himself.’ In this case, the law is proved, as ever, to be superfluous, but now it has another function as a means of maintaining social ties. An ironical jeu d’esprit on the Jarndyce and Jarndyce case, for sure; but the episode also is suggestive for thinking about the way in which, within the novel, law is to be superseded by love, and love rather than law to set the foundations of true legitimacy. And, in each of these cases, we should remember that the piece of land is a thoroughfare – a piece of pavement, a step, a passage of access. It is the necessity of mobility that requires that the law be displaced by love. And the novel, the genre of love and fellow feeling, is also the genre of moving. The novel acknowledges this in its insistent pun on that other term of mobility – not settling – but moving. In the newly mobile nation-space, it is 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor




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Notes 1. Bleak House, ed. Stephen Gill (Oxford: Oxford University Press, 1996), p. 341. Subsequent references to Bleak House will be to this edition and given parenthetically in the main body of the text in the form BH, and page number. 2. For the range, see Anne Lohrli, Household Words: A Weekly Journal 1850–1859 Conducted by Charles Dickens (Toronto: University of Toronto Press, 1973). 3. The poem was published under the pseudonym ‘Miss Berwick’. See Household Words, 7, 165 (1853), p. 277. 4. Henry Morley, ‘The Irish Use of the Globe, in One Lesson’, Household Words, 2, 29 (October 12 1850), pp. 51–6. 5. Household Words, 7, 158 (2 April 1853), p. 97. 6. On the laws of settlement and their revision under the New Poor Law, see David Feldman, ‘Migrants, Immigrants, and Welfare Reform from the Old Poor Law to the Welfare State’, Transactions of the Royal Historical Society, 13 (2003), pp. 79–104. See also Michael E. Rose, The English Poor Law 1780–1930 (Newton Abbot: David and Charles, 1971), pp. 191–213; idem, ‘Settlement, Removal and the New Poor Law’, in Derek Fraser, (ed), The New Poor Law in the Nineteenth Century (London: Macmillan, 1976), pp. 25–43; and A. Redford, Labour Migration in England, 1800–1850, 2nd edn, rev. by W.H. Chaloner (Manchester: Manchester University Press, 1964), pp. 32–43. 7. There is a long tradition of reading Bleak House as a representation and critique of the law. See, e.g. W.S. Holdsworth, Charles Dickens as a Legal Historian (1929, repr. New York: Haskell House Publishers, 1972). More recent studies include Richard A. Posner, Law and Literature: A Misunderstood Relation (Cambridge, MA and London: Harvard University Press, 1988), pp. 128–31; Jan-Melissa Schramm, Testimony and Advocacy in Victorian Law, Literature and Theology (Cambridge: Cambridge University Press, 2000), ch. 3; Dieter Paul Polloczek, ‘The Marginal, the Equitable and the Unparalleled: Lady Dedlock’s Case’, New Literary History 30, no. 2 (1999), pp. 453–78; and Kieran Dolan, ‘Law, Literature and Symbolic Revolution in Bleak House’, Australasian Victorian Studies Journal 12 no. 1 (2007), pp. 10–18. 8. There is an expansive literature on legitimacy and birth in Bleak House. See, e.g. Michele S. Ware, ‘“True Legitimacy”: The Myth of the Foundling in Bleak House’, Studies in the Novel, 22, 1 (1990), pp. 1–9; and on Esther’s ‘lawlessness’, see Hilary Schor, Dickens and the Daughter of the House (Cambridge: Cambridge University Press, 1999), ch. 4, p. 105; See also Naomi Segal, The Adulteress’s Child: Authorship and Desire in the Nineteenth-Century Novel (Cambridge: Polity, 1992). On the illegitimate 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


people’s capacity to be moved that is as important as the ability to move.

9. 10.

11.

12.

13.

child, see Jenny Bourne Taylor, ‘Representing Illegitimacy in Victorian Culture’, in Ruth Robbins and Julian Wolfreys (eds), Victorian Identities: Social and Cultural Formations in Nineteenth-Century Literature (Basingstoke: Macmillan, 1996), pp. 119–42, and ‘”Received, a Blank Child”: John Brownlow, Charles Dickens, and the London Foundling Hospital – Archives and Fictions’, in Nineteenth-Century Literature, 56, 3 (2001), pp. 293–363. Bentley’s Miscellany XXXIV (1853), reprinted in Dickens’ Bleak House: A Casebook, ed. A. E. Dyson (London: Macmillan, 1969), p. 74. From Gissing’s introduction to the ‘Rochester’ edition of Bleak House (London: Methuen, 1900), reprinted in The Immortal Dickens (London: Cecil Palmer, 1925), pp. 227–8. Thomas Denman, Uncle Tom’s cabin, Bleak house, slavery and slave trade: six articles by Lord Denman, reprinted from the “Standard” (London: Longman, Brown, Green, and Longmans, 1853), p. 4. On Dickens’ use of contemporary sources regarding the reform of Chancery, see John Butt and Kathleen Tillotson, Dickens at Work (London: Methuen, 1957), pp. 182–7. On Chancery reform, see Michael Lobban, ‘Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery’, pts 1 and 2, Law and History Review, 22, 2 (Summer 2004), pp. 389–427 and 22, 3 (Fall 2004), pp. 565–99. The tourist literature spawned by Dickens’ novels takes off in the 1870s. One of the first is J Ashby-Sterry, ‘Under the Shadow of Bleak House’, in The Shuttlecock Papers (London: Tinsley Brothers, 1873). Typical of the genre is the frequently reissued Robert Allbut, London Rambles ‘en Zig Zag’, with Charles Dickens (London: Edward Curtice, 1886). For a bibliography of Dickens-related topographical literature, see William Miller, The Dickens Student and Collector (London: Chapman and Hall, 1946), pp. 257–74. For the topos of inauthentic designation, see Pall Mall Magazine, July 1896: ‘There is absolutely only one place, that I ever saw, which would satisfy the claims of the sticklers for absolute accuracy. This is the horrible little burying ground in which Captain Hawdon was laid …’. Reprinted in Dyson, Dickens’ Bleak House, p. 46. Robert Newsom, Dickens on the Romantic Side of Familiar Things: Bleak House and the Novel Tradition (New York: Columbia University Press, 1933), and Effraim Sicher, Rereading the City/Rereading Dickens: Representations, the City, Town Life in Literature (London: AMS Press, 2003), esp. pp. 187–95. As both note, at the time of writing, Dickens himself was particularly unsettled, in the process of moving house. See letter to Angela Burdett-Coutts, 17 August 1851, in which Dickens bemoans his state of ‘violent restlessness and vague ideas of going I don’t know where.’ Letters of Charles Dickens, ed. Madeline House, Graham Storey and others (Oxford: Clarendon Press, 1965–2002) VI, 462–3. On his circumstances during the composition of the novel, see Peter Ackroyd, Dickens (London: Vintage, 1990) pp. 650–712, and for an astute reading of Bleak House’s preoccupation with moving in a biographical context,




14. 15.

16.

17.

18. 19. 20. 21.

22. 23.

24.

25.

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see Rosemarie Bodenheimer, Knowing Dickens (Ithaca NY and London: Cornell University Press, 2007), esp. pp. 142–53 and 195–7. George Coode, On Legislative Expression; Or the Language of the Written Law, 2nd edn (London: Thomas Turpin and James Ridgeway, 1852). Bill to Abolish in England and Wales Compulsory Removal of Poor and Ground of Settlement; and to make provision for the more equitable distribution of the charge of relief. PP 1854 (11) vi. 243. Report of George Coode Esq to the Poor Law Board on the Law of Settlement and Removal of the Poor, PP 1851 (675) xxvi. 171, p. 2. Further references will be given parenthetically in the text in the form Coode, and page number. Cf. The parliamentary report in 1849 which notes the rise in the emigration to Australia of female orphans between ages of 12 and 16: Report of the Commissioners for Administering the Laws for Relief of the Poor in England, 1848, PP 1849 [1024] xxv. 1, paras 34–8, pp. 8–9. James Buzard, ‘ “Anywhere’s Nowhere”: Bleak House as Autoethnography’, in Yale Journal of Criticism, 12, 1 (1999), pp. 7–39, 18. Butt and Tillotson, Dickens at Work, p. 178. Cf. Schor’s discussion of portable and other kinds of property in Bleak House. Schor, Dickens and the Daughter of the House, ch. 4. Household Words, 1, 1 (30 March 1850), 19–24. Caroline Chisholm established the Family Emigration Loan Society in 1850 which encourage the emigration of families to Australia, and campaigned for the improvement of the conditions for travel and settlement. Dickens met Chisholm in 1850, and records his meeting in a letter to Angela Burdett Coutts in March 1850. See Letters from Charles Dickens to Angela Burdett Coutts, 1841–65, (ed), Edgar Johnson (London: Jonathan Cape, 1953). On Chisholm, see Margaret Kiddle, Caroline Chisholm (Melbourne: Melbourne University Press, 1950) and Janet Merkur, Caroline Chisholm (Cambridge: Cambridge University Press, 2001). See also Anthony Chennells, ‘Savages and Settlers in Dickens: Reading Multiple Centres’ in Wendy S. Jacobson, ed., Dickens and the Children of Empire (Basingstoke: Palgrave, 2000), pp. 153–72, and Rita Kranidis, The Victorian Spinster and Colonial Emigration: Contested Subjects (Basingstoke: Macmillan, 1999). Household Words, 1, 1 (March 30 1850), p. 19. On emigrants’ letters, see David Fitzpatrick, Oceans of Consolation (Ithaca, NY: Cornell University Press, 1994); Eric Richards, ‘Voices of British and Irish Migrants in Nineteenth-Century Australia’, in Colin G. Pooley and Ian D. Whyte, (eds), Migrants, Emigrants and Immigrants: A Social History of Migration (London: Routledge, 1991), pp. 19–41. Caroline Chisholm, Emigration and Transportation relatively Considered, 3rd edn (London: John Ollivier, 1847). All quotations following are from this work, but see also Chisholm, The A B C of Colonization in a series of letters (London: John Ollivier, 1850). Household Words, 1, 1 (March 30 1850), p. 20.




26. See Denman, Uncle Tom’s Cabin, and Dickens’s reply to Denman’s daughter, Mrs Cropper, 20 December 1852, Letters of Charles Dickens, VI, pp. 824–8. 27. Many critics have noticed the similarities between the two figures. Dickens wrote in a letter that ‘I dream of Mrs Chisholm, and her house keeping. The dirty faces of her children are my continual companions.’ Letter from Charles Dickens to Angela Burdett Coutts, 4 March 1850, in Letters of Charles Dickens, VI, 52–3, 53. 28. ‘The Law’, Household Words 43 (January 1851), pp. 407–8.




Unauthorized Identities: The Impostor, the Fake and the Secret History in Nineteenth-Century Britain Rohan McWilliam The son of a carpenter declares himself the heir to a wealthy estate near Bristol. An elderly woman claims to be the unacknowledged grand-daughter of the Duke of Cumberland and to know a secret that will rock the foundations of the British monarchy. Another woman takes over Dilston Castle with a servant in a suit of armour and proclaims herself its rightful owner. Secret marriages produce inheritance claims that are pursued across generations. Most periods and societies have their tales of disputed identity.1 Popular culture is filled with tales of liars, hoaxers, wronged rightful heirs, soldiers who turn out to be women and their audiences of the gullible and the deceived. From Perkin Warbeck to ‘Anastasia’, counterfeit people have captivated the popular imagination. The impostor, the fake, the claimant, the pretender – related but distinct types – have a particular charisma; indeed by the seventeenth century, they could claim their own historiography with the publication of volumes detailing the canon of History’s great impostors and deceivers.2 In the twenty-first century, fakery remains an issue. We live in an age of identity politics where identity is no longer considered something that is stable but malleable and, in the case of identity fraud, difficult to hang onto. Impostors fascinate because they are shape shifters who defy standard forms of categorization and refuse to accept their allocated social roles. Their arrival promotes disorder and attempts to define what is legitimate. Standard forms of contract and family lineage need to be protected from these people who violate the most basic forms of social trust. 67 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


4

In 1997, Natalie Zemon Davis argued that there is a tension between the timeless qualities of the impostor tale and the way in which ‘[e]ach age remakes impostor tales to some extent to stress its own concerns’.3 Narrated in different ways according to time and place, impostors gain their resonance and texture from their immediate context. The present article explores this tension by investigating the peculiarities of the impostor narrative in nineteenth-century Britain. Impostors were engaged in forms of cultural work that assist in understanding contemporary attitudes to legitimacy, heritage and the self. I argue that one characteristic of nineteenth-century impostors is that, in order to gain an inheritance, they drew on ‘secret histories’ to prove their identity. These were not simply the stories that figures such as Martin Guerre had told about themselves but often elaborate written accounts, coloured by contemporary demands for detailed evidence as well as the developing culture of History writing itself. They constituted alternative forms of authority to conventional views of the past. Moreover, impostors were engaged in a specific kind of theatricality because they possessed self-consciously performed selves, which needed to be acted out. This theatricality gained resonance from nineteenth-century concerns with romance and the gothic. The argument will be made through three case studies. I will examine the strange claims of Olivia Wilmot Serres (and her daughter, Lavinia Ryves), Thomas Provis/’Richard Hugh Smyth’ and ‘Amelia Radcliffe’.

I It is a quirk of the impostor tale that the impersonators we know about are usually failures, revealed in their true colours at some point. By definition, we do not know who the successful impostors are. They take their secrets with them. There tend to be three sorts of impostors (although these are overlapping categories).4 The first adopts a disguise in order to achieve wealth. The second is dissatisfied with the expectations of society and dons a mask (women who adopt male attire and perform male roles such as going to war would be an example).5 The third is simply unhappy with his or her identity and finds solace in becoming someone else.6 I will mainly deal with the first kind but the second and third kinds also call out to be historicized. We might, for instance, see the numerous twentieth-century 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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cases of doctors and lawyers who turn out to be people with no training whatsoever as a by-product of the rise of professional society. These replaced the impostors who claimed to be unacknowledged members of the elite who are the focus of this article. The prevalence of claimants to ancient titles in Victoria’s century might be explained by the fact that, despite the rise of middle-class, liberal, meritocratic or even democratic values, the aristocracy retained much of its political, social and, importantly, cultural power (as well as access to money and credit). Hence nineteenth-century popular culture cherished tales of inheritance and seekers after fortune. Stage melodramas and penny dreadfuls offered tales about wronged heirs and claimants to ancient titles, while novels frequently turned on disputed wills.7 An important function of impostor cases was to keep the lifestyle of the landed classes in the public eye. Through the press, they provided an entrée to aristocratic culture in much the same way as a tour round a stately home did.8 The fakes discussed below all went to great effort to document the lineages and property to which they were laying claim. Impostor narratives were an uneasy reminder that wealth and attainment might not necessarily be based on solid foundations. Cases of imposture produced questions about the aristocratic principle, the law, property and possession. Who should own the land? How did they get it? How sound are the contracts on which land ownership is based? These were precisely the questions that nineteenthcentury radicals were asking as they opposed the Norman Yoke and repeatedly came back to the issue of land nationalization. Thus we should not be surprised to find (below) that impostors could generate a Whiggish or even radical language when asserting their rights. One vehicle for this was the deployment of the ‘secret history’. This was not peculiar to the nineteenth century. Annabel Patterson has described how the secret or alternative history enjoyed a revival after 1688 and became part of Whig discourse. However, it later also featured strongly in the debates over the 1832 Reform Act by providing a vehicle for bringing elite corruption into the public sphere.9 The impudence of impostors consisted partly of contesting claims about inheritance and laying down alternative stories that threatened to unveil the conspiracies that went into the manufacture of power. Whilst the impostor may appear to be a subversive figure, it should also be added that the impostors treated here were usually people 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Unauthorized Identities

who wanted to become aristocrats and thus endorsed the aristocratic principle, underwriting elitism. Impostors were ultimately conservative. On the other hand, getting caught up in an analysis of the radicalism or conservatism of impostors can be a reductive, zero-sum game, which closes down discussion and distracts us from examining the complex cultural effects of these figures and their stories. Thus this article is concerned with the essential liminality of these figures. They were ambiguous, caught between different stations in society, combining aristocratic airs and lowliness. The ‘liminal’ figure is a vital archetype in many cultures that attempt to ritualize transitional states. According to the anthropologist Victor Turner, ‘[l]iminality implies that the high could not be high unless the low existed, and he who is high must experience what it is to be low’.10 One function of liminal personalities is to strip the pretensions of power from holders of high office and so reduce them to the level of common humanity. Turner identifies holy beggars, third sons and simpletons as liminal figures. Their stock in trade is a language of natural justice, freedom and fairness. They create a mood of nostalgia or of yearning for a different, more integrated form of society.11 The politics of the Tichborne cause, where thousands of working-class people championed the claims of a butcher who claimed to be an aristocrat or (as we will see below) the Jacobite echoes of the Amelia Radcliffe case exemplify this mood evoked by pretenders to wealth. Unexpected claimants to wealthy estates were not uncommon. In the Wicklow Peerage case of 1869–70, the widow of the fourth Earl of Wicklow produced an infant who, she claimed, was the son of her late husband. The House of Lords heard evidence that the widow had never had a child and that the infant had been procured from a workhouse. The Earldom passed to the fourth earl’s nephew with the Earl of Winchilsea opining that the widow’s story was ‘incredible, being only worthy to form the plot of a sensational novel’ (evidence of the literariness of many impostor claims).12 In the Dysart Peerage claim in 1881, Elizabeth Acford argued before the House of Lords that she had been seduced by the late Lord Huntingtower (son of Lady Dysart) when she was a servant and that they had engaged in a ‘Scottish marriage’ in 1844. Three children had been born of the liaison, but Huntingtower later deserted them. The House of Lords Committee on Privileges found that there was not enough evidence to prove her story.13 Issues of illegitimacy and bastardy had haunted 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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the aristocracy since the eighteenth century, evidence of the easygoing attitude to sexuality amongst the elite.14 Readers of the press frequently learned about secret marriages that had produced children who were not known to exist and therefore disrupted elite family trees.15 These episodes required the disclosure of secret histories that had previously been concealed.

II Let us begin with the case of Ryves and Ryves v. the Attorney General (1866). The trial represented the end of a claim that had been pursued for half a century, initiated by Olivia Wilmot Serres in 1820.16 It turned on the kind of secret marriage that, as we have just seen, constantly turns up in cases of this kind. It was alleged by Olivia Serres that Dr James Wilmot, a retiring eighteenth-century Oxford clergyman and don (notable for being one of the first to suggest that Francis Bacon wrote Shakespeare’s plays), had not died a bachelor, as was always supposed, but had secretly married the sister of Count Poniatowski (later king of Poland). The fruit of this marriage was a daughter, Olive Wilmot, who grew up and was courted by Henry, Duke of Cumberland. They too were secretly married, with James Wilmot officiating, on 4 March 1767. However, after she became pregnant in 1771, Cumberland apparently deserted her and entered into a bigamous marriage with Lady Anne Horton. In 1772, Olive Wilmot gave birth to a girl whom she had christened under her own name. Cumberland’s brother, George III, was furious when he found out about the desertion and refused to receive him at court. However, to prevent any scandal, he directed that the baby should be re-baptised and brought up as the daughter of James Wilmot’s brother, Robert, though she was given the title of Duchess of Lancaster. The mother then went abroad to France where she died, whilst James Wilmot apparently reacted to this injustice by writing the letters of Junius.17 The daughter, Olive (or, as she was usually known, Olivia), grew up in ignorance of her identity and married the marine painter, John Thomas Serres of the Royal Academy, in 1791. They separated six years later but, amongst the children born as a result of the union, was Lavinia Serres (later Ryves) who brought the action in 1866. Olivia Wilmot Serres lived on the fringes of high society, painting, writing romantic fiction and composing lyrics to songs including 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



one in praise of the Prince of Wales.18 She was desperate for the latter’s patronage for the composition of an opera and from 1812 onwards sent him a series of begging letters in which she claimed that her literary work had brought her into contact with ‘many supposed concealed matters’ which she wanted to communicate to the Prince. She failed to get an audience.19 In 1815, Olivia Serres was reportedly informed by the Earl of Warwick (who had known of the marriage) and the Duke of Kent (father of Queen Victoria) that her real father was the Duke of Cumberland.20 She was, however, pledged to secrecy as George III was still alive. Warwick (who died not long after in 1816) was alleged to have given her the documents that were later used in the 1866 trial. The Duke of Kent requested his friend Robert Owen, the socialist, to advance Serres over nine hundred pounds as he had no funds at the time. He died in 1820 before the money could be repaid.21 On the death of George III, Serres commenced a long campaign to achieve recognition of her claim to be Princess of Cumberland. She petitioned Parliament on 14 July 1820, six months after the death of the King. It was a controversial time for such a claim, pursued during the height of the Queen Caroline agitation. One of the documents that had come into her possession was a will of George III granting her a fortune. In 1822, she instituted an attempt in the Prerogative Court to have the will proved but received a frustrating setback when the judge ruled that he had no jurisdiction in the matter and so could not act.22 Sir Gerald Noel, MP, took up her case in the Commons and obtained a debate in 1823, saying it was a serious question which needed to be settled and that he believed the documents to be genuine. Sir Robert Peel, however, ridiculed her claims as ‘ludicrous’, noting how Warwick signed himself as ‘Brooke’ in the documents whereas in fact he signed himself ‘Greville’ at that time before he took up his title.23 Serres refused to be defeated and continued to press her claims both through her own pamphlets and through those of others.24 She is thought to have been the author of The Secret History of the Court of England, an underground publication that was distributed in 1832.25 On the title page, the author was rendered as ‘Lady Anne Hamilton’, former lady in waiting to Caroline of Brunswick, whose reputation was damaged by this attribution. The book laid out a libellous history of corruption in the courts of George III and 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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George IV since 1760. It was perhaps most notorious for the allegation that the Duke of Cumberland had murdered his servant Sellis. It also even more shockingly implied that George III’s wife, Queen Charlotte, had had a hand in the death of Princess Charlotte in 1817 who was apparently secretly poisoned.26 Queen Charlotte was allegedly ‘one of the most selfish, vindictive, and tyrannical women that ever disgraced human nature!’ She was responsible for the reign of ‘imbecility and Germanism’ that characterised the life of the court.27 Queen Charlotte, together with evil ministers employing Tory policies, hoodwinked George III and increased taxes, which hurt the labouring classes. The volumes demonstrated great sympathy for the sufferings of the Irish people and identified strongly with the achievements of Napoleon Bonaparte.28 The Prince of Wales was notorious for the ‘excess of indulgence in voluptuousness’ and it was scandalous that this dissolute figure was allowed to marry the morally upright Caroline of Brunswick.29 Adopting a populist pose, the book praised the new form of government that was emerging in 1832. After Serres’s death in 1834, the torch passed to her daughter, Lavinia, who had married a Mr Ryves, although they were later divorced. In May 1844, a committee was formed to assist her claim. The upshot was the case of Ryves v. the Duke of Wellington in 1846. It was claimed that the Duke had failed, when acting as executor of George III’s will, to provide Olivia Serres with the money that the king had set aside for her. However, this suit received much the same kind of treatment as the 1822 case. It was judged that, until the will of George III was proved, the court had no jurisdiction.30 Lavinia then published a long series of articles in the Morning Post justifying her claim and republished these as An Appeal for Royalty ten years later.31 She demanded the title and dignity of the Duchy of Lancaster as well as the sum of £26, 438 for each year since her mother’s death in 1834. Together with money due to Olivia, this would have amounted to £1,004, 644, although she said she was prepared to resign all claims to the revenue of the Duchy of Lancaster.32 She was advised to obtain a decree against the Attorney-General that she was the legitimate daughter of Olivia Serres, which she did through the Court for Divorce and Matrimonial Causes in 1861.33 Then, in late 1865, she petitioned under the Legitimacy Declaration Act to obtain a declaration that her mother was the daughter of Olive 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



Wilmot and the Duke of Cumberland.34 The climax came in a trial before a special jury in June 1866 – Ryves and Ryves v. the Attorney General. Together with her son (who had been born in 1833), she produced many documents including a marriage certificate of the Duke of Cumberland and Olive Wilmot as well as the birth certificate, signed by Dr Wilmot, of their daughter, born on 3 April 1772. However, there then followed the astonishing claim which Mrs Ryves had detailed in An Appeal for Royalty in 1858 when, alluding to the Royal Family, she spoke of ‘the great state secret which so deeply affects the honour of that house and which the accident of birth threw into my keeping’.35 She drew on a part of The Secret History of the Court of England to spice up her claim.36 Ryves claimed to possess evidence that George III’s marriage to Queen Charlotte was bigamous. The king (like his brother Cumberland) had previously entered into a secret marriage before marrying Queen Charlotte. His bride was the semi-mythical figure, Hannah Lightfoot. Whether Hannah Lightfoot existed or not (and the evidence seems to suggest she did), she certainly enjoyed a prominent place in nineteenth-century anti-aristocratic polemics. She was a Quaker woman, cast out of the Society of Friends in 1756 for having married a Baptist.37 After being immortalised in a painting by Joshua Reynolds (‘The Fair Quaker’), she mysteriously vanished, and it was her disappearance that secured the attention of many conspiracy theorists who claimed she had married George III in 1759. It is not surprising therefore that the Hannah Lightfoot myth should have emerged in a cause which implicitly charged the royal family with corruption and not listening to the legitimate claims of one of its own.38 Roundell Palmer, the Attorney-General, reacted by saying that it was nothing less than a claim to the throne and, furthermore, that he intended to treat it as ‘a case of fraud, fabrication and imposture from beginning to end’.39 Lavinia Ryves’s ‘secret history’ was rubbished. A week later, after much evidence from handwriting experts, the Lord Chief Justice, Alexander Cockburn, attacked the Hannah Lightfoot evidence as ‘gross and rank forgeries’ and, with the Judge Ordinary and the Lord Chief Baron in full agreement, excluded it from the case.40 The trial ended on 13 June 1866, when the jury decided it was not convinced that Olivia Serres was the daughter of the Duke of Cumberland. It was revealed that the story about Doctor Wilmot marrying one of the sisters of Count Poniatowksi 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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was unlikely, as they had never visited England. The implication was that the whole matter had been dreamt up by the fanciful imagination of Olivia Serres who had produced the forgeries.41 A subsequent appeal to the House of Lords in 1868 was instantly dismissed. Despite the support of the great agitator, George J. Holyoake, the case never became a great popular cause, and Lavinia Ryves died in 1871.42 What did survive of the cause was The Secret History of the Court of England, which had an extraordinary after life in radical circles where it contributed to anti-aristocratic arguments. It was reprinted in 1878, 1883 and 1903, and there were several editions published in the United States at the beginning of the twentieth century. Its claims, particularly about George III and Hannah Lightfoot, were widely diffused. During the nineteenth century, radicals such as William Howitt, Charles Bradlaugh, G.W.M. Reynolds and the maverick eco-warrior of the 1870s, John De Morgan, all expressed some belief in the theory and the allegations in the Secret History. 43 Even Daniel O’Connell at one time considered writing a novel with ‘a natural son of George III, by Hannah Lightfoot’ as its hero.44 Despite Mrs Ryves’s failure, it is significant that these impostor cases often included a political dimension in their claims (the Tichborne case is the best example of this). Their causes frequently had recourse to a Whig-liberal language or the radicalism of dissident members of the elite. Although this kind of language was the stock in trade of oppositional politics after 1688, it does serve to locate this kind of imposture within the specific context of the nineteenth century where older languages of politics concerning the constitution were deployed with great effectiveness.45 The appeal of ‘secret histories’ is that they often take public events that we think we know about and persuade us that we do not understand them; they have the semi-pornographic function of drawing apparently private matters into the public domain and thus challenging conventional notions of legitimacy. The use of secret histories and a flamboyant aristocratic identity meant that impostors or fakes acquired meanings that went beyond their own specific cases. Olivia Serres and her daughter traded on the fantasy of the ‘suppressed Princess’. The affair was thus a bizarre sequel to the Queen Caroline affair with its claims that the rights of a legitimate royal had been denied. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor




A second area where we might pursue the nineteenth-century peculiarities of the impostor is over the issue of theatricality. If some theorists are right, then we are all impostors. Our lives involve a variety of performances in which we impersonate gender roles or the expectations of the public sphere.46 The transvestite, the actor or the impostor fascinate because they remind us of this uncomfortable fact. The Victorians often viewed the theatrical or any kind of performance with suspicion, a denial of the essential integrity on which human behaviour should rest.47 Nineteenth-century popular culture placed a high premium on transparency and sincerity. For example, in melodrama, the motivations of characters are always clearly signalled to the audience; the villains in Victorian fiction are often speculators, blackmailers and confidence tricksters. This should of course mean that impostors are intrinsically bad; they are not transparent and lack sincerity. However, the opposite of any kind of taboo is usually fascination, and impostors offered a distinctively theatrical and performed presence. Stories of imposture are always tales which document the abandonment of one identity or role and the adoption of another. Impostors served to define legitimate and clear forms of behaviour. For the Victorians, the impostor may have been an uneasy reminder that wealth and attainment were not necessarily based on solid foundations. But the theatricality of impostors goes deeper: they required an audience. All accounts of impostors focus on the dupes, the gullible and the deceived who believed their stories and resemble in one sense the people who believed in millenarian figures such as John Nicholls Tom/Sir William Courtenay or Joanna Southcott. The Victorians may have been drawn to impostor stories because they demonstrated how social interactions were based on a form of performance. These narratives provided a space where one could see these performances being enacted in a self-conscious way. A good example would be the famous case of the servant Mary Willcocks who passed herself off in 1817 as ‘Princess Caraboo’ from the island of Javasu. Her orientalist performance and tall stories of abduction by pirates impressed the inhabitants of Almondsbury, Gloucestershire for a while before she was found out.48 Dupes featured in the affair of Smyth v. Smyth, an action of ejectment which commenced at the Gloucester Assizes on 8 August 1853. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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‘Richard Hugh Smyth’ laid claim to a baronetcy and estates in Clifton, near Bristol, as well as parts of Gloucester and Somerset to the value of £40,000.49 The trial was notorious enough for the counsel for the plaintiff to remind the jury that they had to dismiss from their minds all that had appeared in the press.50 The Smyth family had owned Ashton Court since 1420. The fifty-six year old claimant alleged that he was the son of the late Sir Hugh Smyth, who, though twice married, was thought to have died without legitimate issue (he was known to have sired a bastard son who had died before the case commenced). The claimant insisted that he was Sir Hugh’s son by a secret marriage with the daughter of Count Vandenbergh in 1796. When his mother died in childbirth, he had been taken away by Grace the butler to be brought up by a Warminster carpenter named Provis. Grace had told Sir Hugh that his son was dead. As he grew up, ‘Smyth’ came to realise that he was not the humble son of a carpenter, but really the heir to a fortune. Grace had him educated at Brislington, Bristol, and, later on, the Marchioness of Bath sent him to Winchester College, where he stayed until 1810. The Marchioness then gave him about £1,500 and sent him to his father. However, he frittered the money away on a wild life abroad and returned in 1826 to discover his father had died. Having no money to obtain legal assistance and so pursue his claim, he became a mnemonics lecturer, having learned a system utilizing the art of memory. He spent his time working in schools until 1849, when he approached Sir John Smyth, brother of Sir Hugh and the current baronet. The latter knew of the secret marriage and recognised him, but unfortunately died the morning after the interview. The baronetcy passed to Sir John’s sister, Florence, and then, on her death, in 1852, to her son who was still an infant and was the real defendant in the trial. That same year ‘Sir Richard Smyth’ emerged from obscurity and was thrown out of Ashton Court when he asked its inhabitants to leave. He then pressed his claims at law. In court, the claimant produced a family Bible, which contained an entry recording his ‘parent’s’ marriage and his own baptism. He said he had obtained this as well as other documents from Provis, the carpenter who brought him up. However, it was discovered that the motto on one of the family seals on the documents was misspelled – ’Qui Capit Capitor’ instead of ‘Qui Capit Capitur’ – and hence was an obvious forgery.51 Equally damaging was the revelation 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



in court that the claimant had been sentenced to death in 1811 for horse stealing under the name ‘Thomas Provis’; the sentence had been commuted to eighteen months’ imprisonment.52 The claimant denied this but the court found him to be an impostor. Provis’s wife, it turned out, had been a servant in Ashton Court, explaining how he had known so much about the estate.53 When he was sentenced to gaol, Provis pulled out a pigtail, which he bizarrely presented to the court as proof that he was an aristocrat. He was clearly engaged in an elaborate performance. Provis, we know, was a man of the theatre having taught actors and apparently having had some involvement in stage performances.54 Like the Tichborne Claimant and Princess Caraboo, Provis’s theatricality had, previous to the trial, allowed him to live off some local dupes who believed his story and hoped to gain when he came into his inheritance. Reynolds’s Newspaper reported that the end of the trial ‘produced quite a commotion among the tradesmen of Clifton, who had, in the hope of gaining his future favours, warmly espoused “Sir Richard’s” cause, and trusted him to a large extent with goods and money’.55 Provis lived in luxury at St. Vincent’s Priory, Clifton. According to one report, ‘It was amusing to see … the bowings and scrapings’ when Provis and his wife attended the local church which allowed Provis to perform the role of a landed gentleman.56 To gain further favour, he had hinted he would build a suspension bridge at Rownham and promised one man that he would pay him £2000 a year to be his land steward. The latter apparently sold his butter shop in expectation.57 It is clear that a motivation for playing the role of a dispossessed aristocrat was not only the hope of gaining land and fortune, it was in the short term an effective way of gaining access to credit. Constructing the identity of an unknown person subverted the intense belief in character on which nineteenth-century credit relations depended.58 Acquiring goods on credit was also an alternative to the necessity of working. Selfhood and the security of property were undermined by the emergence of pretenders with their claims to be unknown members of the elite. The case was well known mainly because it was a romance. The return of a lost heir to claim an inheritance (on which these cases depended), although a very old plot device, was a popular theme in nineteenth-century fiction because it contained the idea that the 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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heir had been purified by years of wandering, that he or she might have attained the kind of character which would not squander the inheritance sought. Poetry and fiction employed the device of ‘the Return’ as a way of reflecting on time and human change and of escaping the confinements of conventional society. The acquisition of an inheritance after a struggle could often be a measure of moral worth.59 Provis thus promised that he would preserve the gardens at Ashton Court, which he claimed were threatened with destruction, and criticised the distinguished Smyth family for not doing more to assist the economy of Bristol.60 Provis claimed that his ‘statements, though romantic, are the utterances of truth’.61 He adopted a romantic pose in Gloucester Prison, presenting himself as a wronged rightful heir in a pamphlet that resembled a romantic novel: The Victim of Fatality; Or, the Claimant of Ashton Court. A Romantic Tale of the Nineteenth Century. This was essentially another secret history. The need for ‘secret histories’ of this kind partly fed off the development of the laws of evidence particularly in criminal trials in the early nineteenth century. Provis complained that the seventy witnesses who were prepared to speak in his defence were not called. He presented himself as the ‘persecuted and ill-fated heir of an ancient family’ brought down by one indiscretion in his youth.62 The Victim of Fatality was written in a floridly romantic style that employed gothic devices, commencing with a colourful description of Ashton Court with its remains of an old castle. Provis promised to say more about this in the future ‘being in possession of some interesting legendary lore respecting it’. 63 He also wrote of how his ancestor Sir Jarret Smyth had helped hide Charles II from Cromwell. The Smyth family tree was included. As with the other impostors in this article, Provis presented himself as the custodian and scholar of an alternative history about an ancient family. The impostor, the fake and the forger became infused with the categories of Romanticism in the late eighteenth century. As Margaret Russett shows, trade, migration, contact with other cultures, the credit economy and the development of commercial society helped create a Lockean form of individual personhood that was in turn partly defined by its antithesis, the fake. Romantic subjectivity was fascinated by counterfeiting of all kinds. 64 Aviva Briefel explores comparable territory by demonstrating how the nineteenth-century art market was defined by increasing emphasis on authenticity, 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



where the forger and the new role of the connoisseur (trained to spot fakes) fed off one another. These were roles that could be taken up by people more generally.65 Fakes provided useful models to think with in a changing and unpredictable society. Provis’ fakery was infused with Romanticism. In The Victim of Fatality, Provis claimed that during his wanderings he went to a churchyard by Harrow School and bumped into the young Lord Byron stretched out on a tombstone lost in ‘dreamy fancy’: ‘the dew-drops of the rising morn of his enlarged genius bedecked his eyelids and they spoke of worlds and scenes as yet unknown to him but in idea’. Allegedly, Provis told the young Byron of his travels and the two not only wept together but Byron alluded to him in Childe Harold, evidence of the romantic frame which Provis adopted to present himself.66 The pamphlet also makes much of his wanderings. The author is rendered as an incomplete and dislocated presence, who is struggling to possess fixity through acquiring his rightful inheritance. As its title suggests, the pamphlet presents the author as the victim of fate, which he argues was a trait of the Smyth family.67 For example, Dr Arnold of Rugby School allegedly offered Provis a teaching job but died the following week before the arrangements could be confirmed.68 The book celebrated both Byron and Napoleon (who Olivia Serres also admired and who was the object of Romantic identification) as similar victims of fate. Provis asserted that his ‘father’, Sir Hugh, had secretly married his mother on a visit to Ireland but had to keep both the marriage and the claimant’s birth secret as Sir Hugh’s father wanted him to marry another woman. His tale resembled Sigmund Freud’s ‘family romance’: the child’s belief that his or her parents are not genuine and that the child has been stolen from princes or people of illustrious rank.69 If we take the paternalist claims of the monarchy and aristocracy seriously, then these secret histories have an oedipal charge; they induce the feeling in the reader of discovering the truth about his or her parents and offer an apparent path to maturity. They are fictions of social mobility that are very different from the ideal of self help. Rather, they are part of a theme that Gareth Stedman Jones has identified as intrinsic to popular culture, the belief in the ‘lucky windfall’ as the way out of poverty.70 The ways in which a society theorizes luck are always crucial to the way it conducts itself. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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Claimants like Provis were people who hoped they had won the lottery or who, to employ another archetype in popular fantasy, presented themselves as Cinderella figures going from rags to riches overnight.

IV The themes of the secret history and of theatricality are also combined in my final example. ‘Amelia Radcliffe’ maintained that she was descended from James Radcliffe, the last Earl of Derwentwater, who had been beheaded in 1716 for his support of the Old Pretender.71 His property, including Dilston Castle near Hexham, Northumberland, had been confiscated and given to the commissioners of Greenwich Hospital, but his son John was allowed to remain as tenant of the property, though without a title. The latter was assumed to have died in 1731 but, Amelia claimed, his ‘death’ had simply been a ruse to fool his Hanoverian enemies. He escaped to France and then to Germany where he married the Countess of Waldsteine-Waters, replacing his name with her own. Their grandson had married a descendant of John Sobieski of Poland who, in turn, produced a daughter – Amelia. In other words, her existence was proof of a secret history. On 29 September 1868, ‘Amelia Radcliffe’ turned up at the Derwentwater estates, dressed in an Austrian military cloak, with a retinue of servants (one of whom in a photograph appears to be wearing a suit of armour) and took possession of the ruined Dilston Castle.72 She was allegedly thirty-eight at the time. To make the long-deserted castle habitable, tarpaulins had to be erected as there were no roofs. She also brought her own furniture with her and the flag of the Derwentwaters was floated from a window.73 This whole performance was a proclamation of her identity. Charles Grey, receiver to the Greenwich Hospital Estates (and brother of Josephine Butler, the feminist), arrived and informed her that she and her servants were trespassing, but she refused to leave. Radcliffe was ejected by local officers a few days later. Still not defeated, she camped with her servants outside on the road, despite heavy rain. Unsurprisingly, she became the centre of a great deal of local attention as well as sympathy. On 4 October, over 500 people visited her encampment, and a public meeting was held in nearby 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



Blaydon on 10 October where a Mr Watson urged the establishment of a national fund to promote her claims. A subsequent meeting launched a subscription list, based in a shop. It may have been such support, together with that of friends, which led to the purchase of a wooden hut for the Countess. She originally refused the offer but then accepted on account of the extreme cold.74 At a public meeting in the Hexham Corn Exchange, William Taylor (the Chairman) said ‘he was happy to see so many working men present; they were the hardy ‘sons of toil’ and were the persons that were the bone and sinew of England ... He did not go in much for the “bloated aristocracy”, knowing that it were the middle and working classes who were the real aristocracy of the land’.75 Supporters included pitmen from Mickley and Prudhoe.76 The Radcliffe agitation, like the cause of the Tichborne Claimant, employed an apparently contradictory radical language – opposition to the aristocracy who were lazy parasites upon the industry of others and yet in support of the rights and estates of an aristocrat. Amelia was able to present herself as a ‘wronged woman’ and much of the response to her was couched in chivalric terms. Her neo-feudal cause was premised on the vague but powerful and utopian idea that a better society might ensue with the restoration of her rights. Like the Olivia Serres case, it was the Queen Caroline affair revisited, albeit in a minor key. Amelia Radcliffe’s heroism emerged from challenging the legitimacy of Greenwich Hospital’s claim on the land. She was moving because she seemed to become almost at one with the land by camping out on it. The Hexham Courant, which initially had some sympathy with the Countess, commented: One ... cannot but express a hope that the Countess will have every fairplay, and that if she has been illegally kept out of possession of what is properly her own, reparation be at once made, and thus end one of the darkest chapters in the history of our country by a becoming act of equity and justice.77 There was also presumably a Jacobite strain in the affair. James Radcliffe had been beheaded for his support of the Old Pretender and his story was a familiar one to locals. But this was very much an example of Victorian Jacobitism, a sentiment that exhibited the peculiar appeal of the romantic lost cause. It was a form of political 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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allegiance that cost nothing to support as it was no longer practical politics. The Countess was fined for obstruction in the magistrate’s court but she still refused to move. It was only when her hut was demolished that she consented, sword in hand, to move to Hexham and then to Shorncliffe where she became the guest of a supporter.78 But this was not the end of her claim. A year later, in November 1869, Charles Grey was collecting rent from the tenant farmers of the Derwentwater estates in the Anchor Inn, Haydon, when the Countess entered, with five or six attendants, and tried to dissuade the tenants from paying their rents. A fight broke out when Grey attempted to eject her. She reached for her sword but Grey managed to pull it away and broke it in two. The tenants apparently paid no attention and paid their rents as usual, but, as she left, she was cheered by locals in front of the inn.79 The following January, the Countess took possession of tenantless Newlands Farm, near Shotley Bridge, with her retainers. Stopping to plant a flag on the land, they drove all its livestock to Consett. She argued that it was her property and that she was taking the livestock in lieu of rent. A demonstration took place in her favour when she arrived at Consett, where she tried to sell off the livestock. The muchharassed Charles Grey arrived with some of the local constabulary but was forced to withdraw when their lives were threatened. The victorious Countess then visited Dilston where she was warmly received by the local inhabitants. She told the crowd that she could not invite them in to dine but ‘when she came into full possession of her property, she would take care that every man, woman and child, who had thronged the streets on that memorable 15th of January should be regaled with princely hospitality’. As she left the town, the horses were removed from her carriage and it was drawn by the people. She promised that an ox would be roasted on the Blue Heaps close by when she came into possession of her estate.80 She also put together a secret history in the form of a privately printed volume, Jottings of Original Matter from the Diary of Amelia, Countess and Heiress of Darwentwater, which provided further evidence for her supporters. Her story, a fantasia of feudalism and melodrama, became the object of collective identification. The political language of supporters veered between romantic toryism and radical liberalism (in the same way that the Tichborne 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor




Common decency and christianity have been outraged, and the sacred rights of a Briton trampled on. It is appalling to see a defenceless lady, struggling for her father’s home with lawless tyrants, in the example of ancient chivalry, in the year 1868, and martyred for simply asking for her lawful rights.81 Chivalry was opposed to unpatriotic elites and produced the distinctive language of the ‘freeborn Englishman’ with its language of ‘rights’ and ‘freedom’ established over the centuries. Another pamphlet warned: We hope the Queen will not listen to the Reports of Self-paid men out of the Entailed Darwentwater estates, but will see the wisdom of commanding the Public Records to be brought, and there see what the false imprisonment of John Hampden cost the Nation … We have no wish to live John Hampden’s days over and Charles the First ... The House of Lords have been prevented from doing their duty to the Countess; but we are the men of England, and it is our duty to enforce that command which our Lordly presidents were entrusted with – ‘TO LET RIGHT BE DONE!!!’82 The triumph of the Countess did not last long. Another attempt to collect rent was repulsed and her claims denounced as ‘frivolous’.83 In February, nineteen people were indicted for riot and conspiracy during the Newlands Farm incident. At the subsequent trial, the auctioneer of the livestock, who had threatened to murder Mr Grey, was sent to gaol for nine months whilst the others were ordered to enter into recognizances to appear to receive judgement if called upon.84 By this time, the Countess’ creditors were closing in. Her property (including, apparently, paintings by Titian, Leonardo, Rembrandt and a Van Dyck portrait of Charles I) was seized and auctioned and by 1873 the Countess herself was in Newcastle Gaol for Contempt of Court.85 This did not stop the Countess, once free, from again demanding that the tenants on the estates should pay their rents to her and, on 17 July 1874, ordering her associates to seize £1,105 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


cause did). Patriotism was invoked in opposition to the law. Radcliffe’s Jottings featured the following complaint:

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worth of livestock from Fairle Farm, near Whistonstall, in lieu of rent. The registrar of the County Court immediately ordered the return of the livestock.86 In April 1877, the Countess attended the Consett Petty Sessions Court and said that the land on which the courtroom was built belonged to her. The magistrates refused to acknowledge her title or property.87 The Countess died of bronchitis three years later in 1880. She was never given the opportunity (possibly through lack of funds) to prove her identity in a court of law. To appease her creditors, she had documents brought over from Germany, but these failed to satisfy them. Her claim in any case depended upon the survival of John Radcliffe who was meant to have died in 1731, so its truth is unlikely. Hers was a genuinely popular cause, although it was mainly of local rather than national interest. Amelia Radcliffe was the only one of my three impostors not to have a former self restored (the law courts decided Lavinia Ryves was the granddaughter of Robert Wilmot and not of the Duke of Cumberland, ‘Richard Hugh Smyth’ was actually Thomas Provis). She may have been a teacher called Amelia Buske but the evidence is thin and we may never know for sure who she actually was.88 It was common to write about imposture as a malign pursuit but also one which resembled a form of art.89 The energy and skill of impostors is striking. Bram Stoker prefaced his Famous Impostors by stating that his purpose was to show that ‘the art (of imposture) has been practiced in many forms’ and described impersonations conducted ‘merely for the love of the art’.90 If Amelia Radcliffe painted the fake ‘Old Masters’ that she owned (which seems likely), she was something like a forged artwork herself.

V Impostors were illegitimate persons. Theirs was both an indeterminate and an unauthorized form of identity. The three examples examined here demonstrate the way in which impostors confronted and threatened to subvert standard forms of inheritance. Their secret histories provided an alternative form of contract. We can find in these secret histories an obsession with pedigree. The impostors were bogus genealogists. Family ties (especially royal or aristocratic pedigrees) provided both a form of belonging and even of national identity.91 Provis, Serres and Radcliffe provided 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



family trees to demonstrate how they fitted into families that had played a role in the national saga (the royal family, the Smyths who had helped save Charles II, the romantic earl of Derwentwater). Imposture was therefore an unlikely contribution to the nineteenthcentury heritage industry, a view in which certain old families were central to the national story and were even custodians of it. At the same time we should also view these secret histories as part of a wider culture of history writing. They demonstrate the love of place, which we find in antiquarian histories, together with the romantic mode of engaging with the past that was influenced by figures such as Walter Scott. Amelia Radcliffe almost certainly discovered a great deal about the Derwentwater family from William Sidney Gibson’s history, Dilston Hall. Gibson, a barrister and scholar, argued that he was not being disloyal to Queen Victoria when he claimed that he regarded the Earl of Derwentwater as a martyr and that, if he had been a contemporary, ‘he would probably have done as Lord Derwentwater did’. The latter was a ‘gallant and generous figure’.92 Whilst Amelia Radcliffe was pursuing her claim, Harrison Ainsworth, noted for his romantic and picturesque historical stories, produced a novel about Derwentwater based on a set of antiquarian collections about Jacobitism published by the Chatham Society.93 Amelia Radcliffe with her claim to be descended from James Radcliffe was acting out a romantic form of history writing (with its strong sense of place) prevalent in the nineteenth century; hence the importance of trying to live in the ruins of Dilston Castle (an absurd move as the castle was uninhabitable). It also explains her sword and the servant in a suit of armour. The function of these impostors was to confront the present with the past. Olivia Wilmot Serres, Thomas Provis and Amelia Radcliffe were unreliable narrators, but their claims and writings can nevertheless be read fruitfully. They narrated themselves through romantic and gothic devices in order to build sympathy and appeal to possible supporters. These impostors staged a confrontation between the old hierarchy and the new, more complex class society of the nineteenth century. Having been shut out from the elite, they employed a crude device to join it. This explains the obsessiveness about status and lineage that is a part of all these episodes. Amelia Radcliffe’s assault on Dilston Castle and the legal adventures of Provis, Serres and Ryves made these hierarchies visible and glamorous. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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They also stood for a very peculiar form of selfhood: one that was liminal and in flux but one that may have felt true. It was a form of selfhood that was theatricalized in the extreme. This theatricality is most visible in the impostors’ audiences, their dupes; for example, Provis’ creditors or Amelia Radcliffe’s accomplices. Psychoanalyst Phyllis Greenacre argues that impostors could only succeed when their dupes ‘had a hunger to believe in the fraud’ because social aspirations inclined them to buy into the fantasies offered by these pretenders. Greenacre suggests the dupes were therefore ‘not only victims but unconscious conspirators’. Impostors are dependent on their audience. According to Greenacre, ‘It is from the confirming reaction of his audience that the impostor gets a “realistic” sense of self, a value greater than anything he can otherwise achieve.’94 The failure of impostors to remain within the normal boundaries of a given identity was a reminder that identity was not so much stable as a form of performance or (even more terrifying) that there was no such thing as the individual self. No wonder the Victorians found the impostor a fearful figure. However, this liminal identity meant that pretenders such as Amelia Radcliffe could become symbols of yearning or longing, a common theme in popular culture – the gesturing to an inchoate but better social structure symbolised by justice and transparency, a structure of feeling that can never be contained by a political programme because it remains essentially an emotion. The identities of the impostors may have been unauthorized but they still offered a singular authenticity.

Notes 1. Clive Cheesman and Jonathan Williams, Rebels, Pretenders and Impostors (London: British Museum, 2000). This article is a companion piece to my book, The Tichborne Claimant: A Victorian Sensation (London: Hambledon Continuum, 2007). Thanks go to Kelly Boyd and to Susie Steinbach for comments on this article. My thanks also go to Mary Rose Ridley for her hospitality when I visited Dilston Castle. 2. Natalie Zemon Davis, Remaking Impostors: From Martin Guerre to Sommersby (London: Royal Holloway/University of London, 1997), pp. 11–12; see also idem, The Return of Martin Guerre (Cambridge, MA: Harvard University Press, 1983); idem, ‘From Prodigious to Heinous: Simon Goulart and the Reframing of Imposture’, in André Burguière, Joseph Guy and Marie-Jeanne Tits-Dieuaide (eds), L’Histoire Grande Ouverte: Hommages à Emmanuel Le Roy Ladurie (Paris: Fayard, 1997), pp. 275–6. For accounts 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



3. 4.

5. 6.

7.

8. 9. 10. 11. 12. 13. 14. 15. 16.

17.

of imposture in the period under consideration see Celebrated Claimants, Ancient and Modern (London: Chatto and Windus, 1873); Joseph Brown, The Tichborne Case Compared with Previous Impostures of the Same Kind (London: Butterworth’s, 1874); Bram Stoker, Famous Impostors (London: Sidgwick and Jackson, 1910). Important recent discussions of the impostor include Hillel Schwartz, The Culture of the Copy: Striking Likenesses, Unreasonable Facsimiles (New York: Zone Books, 1996); Partha Chatterjee, A Princely Impostor?: The Strange and Universal History of the Kumar of Bhawal (Princeton, NJ: Princeton University Press, 2002); Margaret Russett, Fictions and Fakes: Forging Romantic Authenticity, 1760–1845 (Cambridge: Cambridge University Press, 2006). Davis, Remaking Impostors, p. 8. There is a fourth type (people with some form of split personality), which is beyond the scope of this article, although it is conceivable that ‘Amelia Radcliffe’ might be an example of this. Julie Wheelwright, Amazons and Warrior Maids: Women Who Dressed as Men in the Pursuit of Life, Liberty and Happiness (London: Pandora, 1989). Sarah Burton, Impostors: Six Kinds of Liar (London: Viking, 2000) is particularly strong on figures such as Ferdinand Waldo Demara and others who enjoyed becoming doctors, lawyers and other professional occupations without having any qualifications. John Reed, Victorian Conventions (Athens, OH: Ohio University Press, 1975), ch. 12; E.S. Turner, Boys Will be Boys (London: Penguin, 1976 [1948], pp.19–20; Kelly Boyd, Manliness and the Boys’ Story Paper in Britain: A Cultural History, 1855–1940 (Basingstoke: Palgrave Macmillan, 2003), p. 83. Peter Mandler, The Fall and Rise of the Stately Home (New Haven: Yale University Press, 1997). Annabel Patterson, ‘ “Secret History”: Liberal Politics and the 1832 Reform Bill’, Literature and History, 7 (3rd ser), 1, (1998), pp. 33–52. Victor Turner, The Ritual Process: Structure and Anti-structure (London: Routledge and Kegan Paul, 1969), pp. 95, 97. Ibid., pp. 106–7, 110. The Times, 1 April, 1870, p. 5. The Times, 8 March 1881, p. 4. Lawrence Stone, The Family, Sex and Marriage in England, 1500–1800 (New York: Harper Collins, 1979 [1977]), pp. 330–2. McWilliam, The Tichborne Claimant, pp. 195–6. On the facts in the case of Ryves and Ryves v. Attorney-General (1866), see ‘J.L.S.’, ‘Ryves v. The Attorney-General’, American Law Review, 1 (1866–67), pp. 65–78; Celebrated Claimants, Ancient and Modern; John Henry Ingram, Claimants to Royalty (London: D. Bogue, 1882); Mary L. Pendered and Justinian Mallett, Princess or Pretender? (London: Hurst and Blackett, 1939); Margaret Shepard, Princess Olive (Shipston-on-Stour: P. Drinkwater, 1984); Jan Bondeson, The Great Pretenders: The True Stories behind Famous Historical Mysteries (London: Norton, 2004), ch. 4. The claim for Wilmot as Junius was first made in Olivia Wilmot Serres, The Life of the Author of the Letters of Junius, the Rev. James Wilmot, D. D.




18.

19. 20. 21.

22. 23. 24.

25.

26. 27. 28. 29. 30. 31. 32. 33.

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(London: E. Williams, 1813) and was continued in the same author’s Junius. Sir Philip Francis Denied! (London: E. Williams, 1817). Both accounts lack the motivation for the Junius letters which were later attributed to Wilmot in the trial of 1866. Olivia Wilmot Serres, Memoirs of a Princess; Or, First Love. An historical romance (London: John Maynard, 1812). Serres’ songs include God Save the Prince (London: M. Kelly, 1806); idem, Sweet Love, Sweet Love! The Morn Appears (London: M. Kelly, 1806). Olivia Serres to Prince of Wales, 4 August 1812 (copy): TS 18/48 (National Archives). Emphasis in original. Affidavit of Olive Serres, May 31, 1822, HO 44/1 f.144 (National Archives). Robert Owen, Life of Robert Owen, written by himself (London: E. Wilson, 1857), p. 197. According to G. J. Holyoake, writing as ‘Landor Praed’, the sum amounted to £1,600, A Suppressed Princess (London: F. Farrah, 1863), p. 5. Olivia Serres herself put the sum at over £100,000 in her The Princess of Cumberland’s Statement to the English Nation (London: Privately printed, 1822), p. 56. However, the more likely sum is £1200 which, in 1859, Queen Victoria agreed should be repaid to Robert Dale Owen (following his father’s death): correspondence of Robert Dale Owen and Sir Charles Phipps, February–March 1859, TS 18/112 (National Archives). In re His Late Majesty, King George III (1822) 1 Addams Reports 255, 260–73, reprinted in The English Reports, 162 (1917), pp. 94–5. Parl. Debs., new ser., ix (June 18 1823), col. 1026, 1030. Olive Wilmot Serres, The First Part of the Authenticated Proofs of the Legitimacy of Her Highness Olive, Princess of Cumberland (London: privately printed, 1830); Elizabeth Wright Macaulay, The Wrongs of Her Royal Highness the Princess Olive of Cumberland (London: Purkess, 1833). ‘Lady Anne Hamilton’, The Secret History of the Court of England (London: W.H. Stevenson, 1832). This was preceded by a similar volume attributed to ‘Lady Anne Hamilton’: Authentic Records of the Court of England for the last Seventy Years (London: J. Phillips, 1832). Pendered and Mallet argue that Serres at the very least had a hand in their authorship of both, given the references in the volumes to James Wilmot: Princess or Pretender?, pp. 246–7. The first volume of The Secret History identifies Wilmot as Junius (p. 48), which suggests the identification of Serres as author is reliable. ‘Lady Anne Hamilton’, The Secret History of the Court of England, i, pp. 276, 290–2, 303 Ibid., i, pp. 28, 32. Ibid., i, p. vii, 61, 67; ii pp. 65–6. Ibid., i, p. 79, 115–16, 118. Ryves v. Duke of Wellington (1846) 9 Beavan Reports 579, reprinted in English Reports 50, p. 467. Morning Post, 20 May–16 September, 1848. Lavinia Ryves, An Appeal for Royalty (London: W. Freeman, 1858), pp. 79–81. The Times, 21 January 1861, p. 11.




34. 35. 36. 37. 38.

39. 40. 41. 42.

43.

44. 45.

46.

47. 48. 49. 50. 51. 52. 53.

The Times, 8 November 1865, p. 9. Ryves, An Appeal for Royalty, p. 1. Emphasis in original. ‘Lady Anne Hamilton’, Secret History of the Court of England, i, pp. 26–30; Photographs of Minutes of Westminster Monthly Meeting Relating to Hannah Lightfoot (London: n.p., 1908). On Hannah Lightfoot, see W.J. Thoms, Hannah Lightfoot (London: W.G. Smith, 1867); Pendered and Mallett, Princess or Pretender?, chs 10–11; Mary L. Pendred, The Fair Quaker: Hannah Lightfoot and her Relations with George III (London: Hurst and Blackett, 1910); John Lindsey, The Lovely Quaker: Hannah Lightfoot (London: Rich and Cowan, 1939); Michael Kreps, Hannah Regina: Britain’s Quaker Queen (London: Cardinal Press, 2002); Matthew Kilburn, ‘Hannah Lightfoot’, Oxford Dictionary of National Biography, xxxiii (Oxford: Oxford University Press, 2004), pp. 751–3. The Times, 2 June 1866, p. 11. The Times, 8 June 1866, p. 11. The Times, 14 June 1866, p. 13. Holyoake’s article is in Weekly Chronicle, 5 December 1863; reprinted as ‘Landor Praed’, A Suppressed Princess. Holyoake’s biographer said that it was the ‘only pamphlet of his that wholly missed its mark’: Joseph McCabe, Life and Letters of George Jacob Holyoake (London: William Heinemann, 1908), ii, p. 281. G.W.M. Reynolds, The Mysteries of the Court of London (London: John Dicks, 1849–55), i, pp. 3–4; ‘John Hampden Junior’ (William Howitt), The Aristocracy of England (London: Effingham Wilson, 1846), pp. 203–6; Charles Bradlaugh, The Impeachment of the House of Brunswick (London: Austin and Co., 1873), p. 36; John De Morgan, Royal Knavery! (London: George Howe, 1879). W.J.O’N. Daunt, Personal Recollections of the late Daniel O’Connell (London: Chapman and Hall, 1848), p. 35. Gareth Stedman Jones, ‘Rethinking Chartism’, in his Languages of Class: Studies in English Working-class History, 1832–1982 (Cambridge: Cambridge University Press 1983), pp. 90–178. See Erving Goffman, The Presentation of Self in Everyday Life (New York: Doubleday, 1959); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (London: Routledge, 1990); Tracy C. Davis and Thomas Postlewait (eds.), Theatricality (Cambridge: Cambridge University Press, 2003); Lynn M. Voskuill, Acting Naturally: Victorian Theatricality and Authenticity (Charlottesville: University of Virginia Press, 2004). Nina Auerbach, Private Theatricals: The Lives of the Victorians (Cambridge, MA: Harvard University Press, 1990). Russett, Fictions and Fakes, ch. 5. The Heath House and Ashton Cause (Bristol: J.Hewitt, 1853), p. 1. Ibid. Ibid., pp. 16–17. Ibid., p. 27. Annual Register (1853), p. 330.




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54. Thomas Provis, The Victim of Fatality (Bristol: J. Hewitt, 1854) p. 34 speaks of Provis’ adopted son who he put on the stage but who subsequently died. 55. Reynolds’s Newspaper, 21 August 1853, p. 14. 56. The Heath House and Ashton Cause, p. 31. 57. Ibid. 58. Margot Finn, The Character of Credit: Personal Debt in English Culture, 1740–1914 (Cambridge: Cambridge University Press, 2003). 59. Reed, Victorian Conventions, p. 275. 60. Provis, The Victim of Fatality, pp. 4, 12–13. 61. Ibid., preface. 62. Ibid., p. iii. 63. Ibid., p. 1. 64. Russett, Fictions and Fakes. 65. Aviva Briefel, The Deceivers: Art Forgery and Identity in the Nineteenth Century (Ithaca and New York: Cornell University Press, 2006). 66. Provis, The Victim of Fatality, pp. 25–6. 67. Ibid., p. 5. 68. Ibid., p. 42. 69. Sigmund Freud, ‘Family Romances’ in James Strachey (ed.), The Standard Edition of the Complete Psychological Works of Sigmund Freud, ix (London: Hogarth Press, 1959), pp. 235–41. 70. Gareth Stedman Jones, ‘Working-Class Culture and Working-Class Politics in London, 1870–1900: Notes on the Remaking of a Working Class’ in his Languages of Class, pp. 227–8. 71. See also Ralph Arnold, Northern Lights: The Story of Lord Derwentwater (London: Constable, 1959), ch. 4; Maurice Milne, The Strange Story of the ‘Countess of Darwentwater’ (Newcastle upon Tyne: Frank Graham, 1970). 72. Hexham Courant, 29 September 1868, p. 4. The photograph is in the possession of the Dilston estate. 73. Hexham Courant, 3 October 1868, p. 3. 74. Ibid., 6 October 1868, p. 6; 13 October 1868, p. 8; 17 October 1868 p. 3; 20 October 1868, p. 4. 75. Ibid., 20 October 1868, p. 6. 76. Ibid., 3 November 1868, p. 8. 77. Ibid., 29 September 1868, p. 4. 78. Ibid., 7 November 1868, pp. 6, 8. 79. Ibid., 20 November 1868, p. 7; The Times, 20 November 1869, p. 11. 80. Ibid., 15 January 1870, p. 4; The Times, 18 January 1870, p. 5. 81. ‘Lovers of Justice’, Jottings of Original Matter from the Diary of Amelia, Countess and Heiress of Darwentwater (London: privately printed, 1869), pp. vii–viii. 82. ‘Amelia Radcliffe’, The Countess of Darwentwater’s Appeal to the Sheriff of Newcastle (Gateshead: Observer Office, 1873), p. 18. 83. Hexham Courant, 25 January 1870, p. 8; The Times, 10 February 1870, p. 5. 84. The Times, 24 February 1870, p. 12.




85. The Times, 25 February 1870, p. 5; 23 June 1873, p. 11; ‘Amelia Radcliffe’, The Countess of Darwentwater’s Appeal to the Sheriff of Newcastle. 86. The Times, 28 July 1874, p. 11. 87. Ibid., 21 April 1877, p. 11. 88. Arnold, Northern Lights, p. 253. 89. Phyllis Greenacre, ‘The Relation of the Impostor to the Artist’ in her Emotional Growth: Psychoanalytic Studies of the Gifted and a Great Variety of Other Individuals (New York: International Universities, 1971), ii, p. 533. 90. Stoker, Famous Impostors, p. v. 91. Sophie Gilmartin, Ancestry and Narrative in Nineteenth-century British Literature: Blood Relations from Edgeworth to Hardy (Cambridge: Cambridge University Press, 1998). 92. William Sidney Gibson, Dilston Hall; Or, Memoirs of the Right Hon. James Radcliffe, Earl of Derwentwater, a Martyr in the Rebellion of 1715 (London: Longman, 1850), pp. ii, iv. 93. William Harrison Ainsworth, Preston Fight; Or, The insurrection of 1715 (London: Tinsley Brothers, 1875). 94. Phyllis Greenacre, ‘The Impostor’, in her Emotional Growth, i, pp. 94, 100.




The Fauntleroy Forgeries and the Making of White-Collar Crime Randall McGowen

There was something more than a little familiar about the first reports of the crime in September, 1824. Still, word of a forgery created an unusual level of interest in early nineteenth-century London, as it had periodically for almost a century. ‘Hardly any thing has been talked of,’ the Morning Chronicle announced, ‘either in the city or at the west end of the town, but this singular event, and all sorts of rumors are current on the subject.’1 The Times soon followed with more details, offered in a column entitled simply ‘Mr. Fauntleroy.’2 Many readers knew that Henry Fauntleroy was a partner in the firm of Marsh, Stracey and Company of Berners-street. Hints at the scale of the crime defied belief. Alarm spread and anger mounted as reports appeared announcing the bankruptcy of the bank. The Bank of England itself appeared to be one of the main victims of the crime. Losses were said to exceed several hundred thousand pounds. For the preceding twenty-five years it had been the forgery of low denomination Bank of England notes that had resulted in almost two thousand prosecutions and over two hundred executions. While the Bank campaign against the crime attracted press attention and negative comment, individual offenders, most of whom were lower class, secured little notice. This forgery, however, marked the return to an older pattern in which the social identity of the offender sparked unusual interest in the case. Forgery was a peculiar offence in the catalogue of crimes that composed the eighteenth-century penal code. Although few in number, forgery cases produced many of the most celebrated trials and executions of the period. The names of William Dodd, the Perreau 93 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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brothers, William Ryland, John Rice, or Henry Weston were familiar to the public long after those of the men and women who perished with them at Tyburn or outside Newgate were forgotten. The Fauntleroy case was full of eerie echoes of these earlier episodes.3 What made forgery so disturbing a crime was not only the imagined extent of the threat, but the way in which social identity became tangled up in the question. The offence concentrated all of the doubts and anxieties about the new system of credit into a concern with the nature and effects of the fabrication of false financial instruments. Among the vast range of shady practices and fraudulent dealings that accompanied the rise of commercial society, forgery was singled out for maximum punishment.4 It was believed to be the most serious property offense because it not only threatened losses far greater than other such crimes, but because it undermined confidence in the practices and institutions that sustained a commercial society. ‘With respect to the crime itself,’ Robert Peel explained to Parliament in 1830, ‘there were many reasons, such as the magnitude of the gain which might be acquired – the facility of committing the crime, the difficulty of detection, and the temptation to commit it, which marked it with peculiar characteristics, and made it deserving of especial consideration.’5 Just as important, however, to the defenders of the extreme penalty was the identity of the people who committed the crime. M.W. Ridley informed his colleagues in 1830 that ‘those who committed Forgery were ordinarily of a higher rank than the majority of other offenders: they were persons sensible to the pleasures of society.’ The solicitor general, in the same year, agreed: ‘The number and description of persons who committed the offence,’ Sir Edward Sugden argued, ‘went a long way to justify the law. These persons were always men of education, and they calculated on the probability of escaping with impunity. They were generally persons deeply in the confidence, and familiar with the habits of business and mode of writing of those on whom they forged.’ These particular features of the crime made it worthy of the most severe penalty the law had at its disposal. ‘If the punishment of death were justified by the laws of God and man,’ he concluded, ‘it was justifiable in reference to this crime.’6 Parliament had affixed the death penalty to the crime in 1729, and the gallows had continued to take a small but regular toll of offenders in the years since then. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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For much of the century the presumed necessity for this severity went unquestioned. Yet the more notorious episodes continued to be marked by a conflict of emotions.7 It was as if the very inevitability of execution permitted an overflowing of sympathy for the accused. The tone adopted by the papers in reporting the conduct of the condemned invariably shifted as the time for the execution approached. They fully reported the strenuous efforts made to sway the course of justice. Even offenders of dubious moral character were suddenly transformed into worthy objects of pity.8 Whatever dread arose from the discovery of a forgery, it was compounded by the distress occasioned by the penalty that awaited the offender. This uneasiness was betrayed in the linguistic twists and turns that surrounded the description of the crime and the criminal. Two adjectives frequently employed in reporting the Fauntleroy case captured the tension that surrounded this offense. The Morning Post spoke of the shock occasioned by the discovery of ‘the extraordinary conduct of their partner.’ Later it talked of the ‘extraordinary affair,’ the ‘extraordinary circumstances’ of the crime, and the ‘extraordinary’ sensation it made.9 Here was an elusive but loaded term, one that obscured as much as it revealed. It implied a momentous event, a surprising development, but it avoided offering a judgment of what it described. Similarly, the word ‘unfortunate’ was immediately applied to Fauntleroy. It spoke of a doomed man while evading the question of his responsibility or culpability. It was not only the papers that were afflicted with linguistic imprecision when it came to this crime. Justice Park, in summing up the case against Fauntleroy at his trial, mentioned ‘the misfortune of these cases, that it was persons of high character who had the opportunity of committing such frauds; no others could do it.’10 As the Bank solicitor, James Freshfield, wrote in a letter in which he explained why he had declined an offer from Marsh and Graham to stop the prosecution by replacing the stock, ‘I did not chose to augment the grief of the individuals by placing before them the full measure of the calamity with all its horror.’11 The horror to which Freshfield alluded was not simply the scale of personal loss, but the grim fatality that surrounded the judicial proceedings. The Fauntleroy forgeries foregrounded a series of issues that we more typically associate with the vague but potent label of ‘white collar’ crime. The term is messy because it is often unclear whether 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


The Fauntleroy Forgeries

what distinguishes this category of crime is the social identity of the perpetrator, the means used to execute the offence, the amount of the loss or the economic position of the offender.12 Many of the sentiments, many of the ideas, we associate with white-collar crime found expression in the eighteenth century. The century was well acquainted with many of the forms of financial impropriety that mark the modern economy – embezzlement, stock manipulation, false accounting, breaches of trust, fraud. Yet the notion did not gel. One of the reasons for this had to do with the penalty for the crime of forgery, death, and the regularity with which it was imposed. The punishment that awaited the offender decisively influenced how the crime was seen. It altered the balance between anger and sympathy that was experienced by a public outraged at the scale of the fraud, while also touched by the predicament of a polite and respectable offender.

The Fauntleroy forgeries Marsh, Stracey, and Co. was an old, well-respected bank with many influential and wealthy clients. The Morning Post described it as a ‘most respectable banking-house, in the west-end of the town.’13 It was thought of as ‘a safe and solid’ firm which could be entrusted with a family’s financial resources. The bank had been created by an alliance of gentry and commercial wealth, though by the early nineteenth century most of the partners had withdrawn from active participation in the running of the firm. William Fauntleroy, who had gained his banking experience at Barclays, joined the bank in 1792, and was soon managing its day-to-day operations. At his death in 1807, the partners turned to his son, Henry Fauntleroy, who had been a clerk there since 1800, to take over his father’s position. Although only twenty-three at the time, he did so with skill and energy.14 A quiet and hard-working man who attracted the confidence of those with whom he dealt, Fauntleroy soon displayed a remarkable head for figures. The Times declared that ‘there is not in the whole metropolis one man that he would select in preference to Mr. Henry Fauntleroy, for a perfect acquaintance with, and knowledge of, the banking business. He was acquainted minutely with every description of public securities, both foreign and domestic, and could, in an instance, tell their respective and relative values.’15 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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The other partners in the bank placed absolute trust in him. They were happy to enjoy their substantial dividends without the bother of active attention to the details of managing a large firm. Marsh was an elderly man who no longer paid much attention to business. George Edward Graham, the man who most often acted as the innocent intermediary in Fauntleroy’s transactions, was an army officer who had served with distinction with Wellington in Spain. Stracey was content to spend ‘the greater portion of his time enjoying the pleasures of the country.’16 As The Times noted, Fauntleroy ‘may be considered the firm himself in point of activity.’ So highly were his talents regarded that he came to manage the finances of several well-known charities. He did not push himself forward, but he still became a recognizable figure in polite circles and lived a suitably fashionable life. ‘Mr. F,’ one correspondent wrote, ‘had a splendid establishment at Hampton, where his entertainments were of the most hospitable description.’ The papers declared that his Brighton establishment, while not ostentatious, was an elegant house, impeccably furnished. The house, one correspondent wrote, ‘tout ensemble is befitting the residence of a gentleman.’17 Yet behind this facade of financial probity and stability all was not well. While the bank had weathered the storms of suspension in 1797, the collapse of several builders and brickmakers who had dealt heavily with the firm entangled it in difficulties. ‘Considerable advances,’ one paper claimed, had ‘been made by the house to promote the extensive building speculations going on in the neighborhood of the Regent’s Park.’18 Henry Fauntleroy claimed in his defense that he confronted daunting challenges almost as soon as he assumed management of the bank. In the days following the disclosure of the fraud, the papers revealed more details of what had happened in this period. Faced with massive calls upon its reserves, Fauntleroy resorted to extraordinary measures to produce the funds that would guarantee the bank’s survival. He forged the names of people who had deposited government securities with the firm to powers of attorney which authorized him to sell the bonds. To those who dealt with the bank, there was nothing unusual about the sight of such transactions. Bankers often managed the accounts of their leading depositors. The clerks at the Bank of England did not inspect with enough care the documents presented to them by Fauntleroy or one of the other partners. The greatest challenge confronting Fauntleroy 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



was to maintain the illusion that the bank still held the securities. He possessed a separate book in which he kept track of the ever more complicated operations to insure that the correct dividend was recorded in the statements sent to his customers so that they would not suspect the fraud. These manipulations, going on for over a decade, amazed those who commented on the scheme after its discovery. Fauntleroy’s situation became ever more precarious. His financial transactions frequently involved a loss, and the sums needed to sustain the pretence that all was well grew astronomically over time. The most frightening moments came when he had to produce huge sums to cover the settlement of an estate when a client died. The papers delighted in describing the close shaves he had as only his skill or quick wit helped him to escape from certain disaster. Usually it was his close relationship with so many of his depositors, and his untarnished reputation for integrity, that saved him. There was wonder at his coolness and self possession, and a sense of uneasiness about how easily he betrayed those who relied upon him. ‘As an instance of the utter indifference with which he looked upon the victims of his guilt, it is said that he was in habits of intimacy with almost all the parties whom he robbed; and that long after he had squandered all their money, and while he was paying their dividends, he used frequently to attend companies at their houses, and to invite them to his own in return.’19 No client ever scented the danger. Even in a period when many banks came in for critical examination, no one seems to have doubted the liquidity of Marsh, Stracey, and Co. Finally, in September, 1824, the web of deception was disclosed, when the trustees of an estate went to the Bank of England to investigate the assets for which they were responsible. They were stunned when the Bank told them that there was no trace of the stock that Fauntleroy had assured them was there. Well versed in what to do, the Bank solicitors made arrangements to detain the banker. Fauntleroy’s response, like that of dozens of similarly placed men when he was approached by the police officer Plank, was to appear ‘dreadfully agitated,’ and to ask, ‘Good God, cannot this business be settled?’ As he and every reader of the scene knew, it could not. ‘Fully aware of the dreadful situation in which he was placed,’ he walked quietly at Plank’s side as he left the bank. His last act was to leave instructions for the other partners to be summoned and told of what had happened.20 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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Upon arriving at the bank, the partners reeled under the shock of the news they received. It took some time to grasp the extent of the fraud. Believing at first that it was a solitary forgery, one said that there was no cause for ‘dread of their own stability.’ Soon they came to understand that more was at stake. Mr. Graham, ‘on learning the situation of his unhappy partner … was thunderstruck for the moment, and scarcely able to articulate.’ He ‘had not well recovered from his shock when Mr. Marsh, a very elderly gentleman, another partner, came in, and the unfortunate affair being disclosed to him, he dropped into a chair, and became almost insensible from the shock.’ The two men quickly realized that not only did their business face ruin, but that they too were suspects in the case. Graham, in particular, remembered that the accused had involved him in many of the transactions at the Bank of England. For several days the bank remained open, even as rumours circulated wildly about what was going on. The partners injured their own standing with the public when it was disclosed that each had withdrawn a substantial sum of money under suspicious circumstances. Later, letters appeared in the papers saying that some depositors had received mysterious warnings to withdraw their money before some unspecified disaster overtook the bank. These dark hints of privileged knowledge and suspect conduct only deepened the scandal as it unfolded. When Marsh, Stracey, and Co. finally closed its doors, some feared violence. The partners issued a brief statement saying the action was the result of ‘the very unexpected situation in which we suddenly find our house placed, by the extraordinary conduct of our partner, Mr. Fauntleroy.’ ‘Accordingly,’ The Times reported, ‘on Monday morning, the bankinghouse did not open, and the consternation into which the west end of the town was thrown by the circumstances, surpasses any thing that has occurred in the monied world for many years.’ The paper estimated that over a thousand tradespeople who resided in the area kept accounts at the bank, as well as several collectors of various taxes. ‘The whole of Berners-street was thronged with a multitude of persons of all ranks during the entire of Monday; and to avoid all chance of accident or misdeed, it was deemed proper by the Magistrates of this office to place a sufficient force of the civil power to counteract any evil of the sort.’ Fortunately, no trouble occurred. The subsequent meeting of the creditors was not so peaceful. There was some mystery about who called it. At the gathering, several angry 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



men called for a quick settlement of the bank’s debts and demanded to know the truth of rumours that thousands of pounds had been paid out just days before it declared a stoppage. They expressed their doubts that one could rely on the ‘honour’ of the remaining partners to be fair in resolving the bank’s affairs. There was even a threat of a duel and an embarrassing tussle for control of some important documents.21 Inevitably, other financial establishments found themselves caught up in the maelstrom. ‘A want of confidence,’ one paper predicted, ‘which has been produced by the bankruptcy of Marsh and Co., will prove most disadvantageous to bankers in general, particularly at the west end of the town, and will render it necessary for them to keep in their hands a large available amount of cash, to meet any demands that may be made.’ The general panic meant a constriction of credit, and many firms scrambled to meet the demands made by uneasy depositors. The crisis soon overwhelmed Chambers and Son, which stopped payment in November.22

Embarrassing revelations and the claims of class Fauntleroy’s frauds seemed a particularly aggravated instance of the crime. Several worthy causes, including the Marylebone Charity School and the Queen’s Lying-in Hospital, suffered as a result of his misdeeds. He betrayed friends and relations; he perverted his considerable skills as an accountant to illegal purposes. The length of time he eluded detection and the systematic way he pursued his purpose produced great alarm. Gossip of another sort soon appeared in the press, which was desperate for any news beyond the dry details of the judicial proceedings. Tales began to circulate that Fauntleroy was not the upright man he presented himself to be. Malicious letters full of slanderous accusations quickly appeared in the papers. There were hints of an extravagant life-style, of gambling debts and a succession of mistresses. It was said he married his wife only because he was forced to, after getting her pregnant. He abandoned her soon after the wedding, and was currently living with another woman by whom he had several children. One story suggested that, earlier in life, he had become the cats-paw of a group of sharpers, led by the notorious ‘Mrs. Bang.’ A correspondent complained of all the sympathy being bestowed on Fauntleroy. ‘The effect of it is,’ he wrote, to give a false glare of refined distress to the conduct of a gambler, an 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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adulterer, and a swindler; it talks of his amiability and gentlemanlike generous habits, while he was robbing hospitals, and consorting with rogues and prostitutes.’ The author doubted that he was any better than a murderer, from a moral point of view.23 Some of these letters appear the work of those who felt particularly vindictive towards the banker. His friends were no less passionate as they leapt to his defense. James Hamer, Fauntleroy’s solicitor, sent a letter to the papers denying, in carefully chosen words, most of the charges leveled at his client. ‘Most of the assertions are either false or gross exaggerations, the publication of them is rendered still more reprehensible and cruel.’ Fauntleroy was, Hamer said, ‘overwhelmed with odium by a statement of delinquencies and a course of profligacy for which there is no foundation.’ Hamer called such charges a ‘mischief’ beyond recalling.24 One paper took an even stronger line with such tactics. ‘It is impossible,’ it said, ‘to read the daily dissertations upon the private conduct of Mr. Fauntleroy’s former life, with which the newspapers teem, without being at once shocked at their indelicacy, and disgusted with their needless cruelty.’25 Some forgery cases spawned a popular debate which usually focused on questions of character. The participants recognized an old truth, that the battle for public opinion played an unusually significant role, not only in the course of the legal proceedings, but even more in the final deliberations concerning Fauntleroy’s eventual fate. The Times felt compelled to defend itself against the charge that it had shown the accused too much sympathy. ‘True it is,’ the editor explained, ‘we have expressed ourselves in moderate terms, for we do not think it decorous or humane to hold abusive language towards a defenceless prisoner, who will shortly be brought to a trial which must probably consign him to the scaffold. But we have used no expression of palliation except perhaps the epithet “unfortunate”, a word which by common usage even Judges apply to criminals while they sentence them to death.’26 A forgery case, because of the class of the offender and the fate that awaited him, produced a powerful conflict of emotions, often enacted in the reports of the case. Sympathy and anger, disgust and curiosity, warred with each other, no one securing a final triumph. The case was marked as well by an overwhelming impulse to get close to the accused and to secure an accurate portrait of his appearance. The scene at the magistrate’s office, when Fauntleroy was first 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



brought in, threatened to descend into chaos. An order was given to clear the office, since the matter was held to be largely private. Spectators hid themselves in all sorts of odd places, behind chairs and around corners, in order to avoid being evicted. Then, after further deliberation, the authorities decided to admit the public, with special attention being given to the representatives of the press. The office quickly filled; the Governor and Deputy Governor of the Bank were present, along with several directors of the East India Company. They all strained to catch a glimpse of the accused; the papers poured out detailed descriptions of his dress and demeanor. Fauntleroy looked bewildered when he was brought in, and he soon dropped his head. ‘He appeared to be about 50 years of age, but we understand,’ one paper explained, ‘his real age is not more than 40.’ His hair was remarkably gray. The tone of such descriptions was almost uniformly sympathetic. His expression was ‘that of pure John Bull good nature, and easy, quiet, and unassuming.’ While a report had been circulating that he looked like Napoleon and had fostered that impression, the correspondent denied the resemblance. ‘Indeed,’ he contended, ‘there is no part of his face indicative of talent, or genius, or even of shrewdness and cunning.’ When he sat, his body was bent, but he made no effort to disguise his face. He seemed ‘unconscious of what was going on about him.’27 These discussions of his physiognomy served to underline his social status, but they strove to do more, to penetrate into the psyche of the accused, to deepen the identification with the man and his plight that already existed. During his examination before the magistrates at Marlborough-street, The Times reporter took careful note of every aspect of his appearance. ‘The prisoner,’ he wrote, ‘appeared to have undergone a most extraordinary change, in point of health and spirits, during the short time that has elapsed since his last examination. He presented rather a ghostly than a living hue upon his countenance, and altogether exhibited the appearance of one who has lately suffered intense mental anguish. His eyes seemed languid and heavy, without any of that lustre that brightened them when we last saw him.’28 In the debates over his conduct and the scramble to get a glimpse of the man, polite society displayed a desperate desire to get to the truth of his character and so to understand if he deserved his fate. His treatment when in court and confinement underlined his social status. Neither the rumours of immoral conduct nor the evidence 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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of massive deception earned Fauntleroy severe measures. James Freshfield, the solicitor for the Bank, exerted every effort to be helpful to the accused man, despite the fact that the Corporation had lost over £300,000 through his fraudulent practices. Indeed, Fauntleroy enjoyed a succession of favours, due in part to his class, but even more to a consideration of the fate that awaited him. ‘He is treated with indulgence,’ one paper reported without apology.29 He was permitted to stay in the prison where he had first been confined because, it was said, he had a dreadful terror of Newgate. He was provided with an airy room with a view towards the Hampsteadhills, ‘and he is allowed every indulgence and accommodation that the nature of his situation will permit.’ He suffered no restraints. Someone remained with him at all times, but this was to insure that he did not try to take his own life.30 As usual in forgery cases, the defence Fauntleroy offered at his trial provided the best opportunity to hear his own voice. He never denied his guilt, but he gave an account of his conduct that was meant to be part of a campaign for mercy from judge and Crown. His was a narrative that depended upon the strong identification it would arouse in those of his class and occupation. He offered a history of his firm that suggested others had been responsible for the bad loans that undermined the bank’s fiscal integrity in the years before he took over its management. He argued that the extreme measures he had taken had never arisen from a desire for personal profit, but were entirely directed towards saving the business. He condemned those who sought to blacken his reputation. He called the charges ‘ungenerous’ and ‘untrue.’ ‘To suit the purposes of the persons to whom I allude,’ he responded, ‘I have been represented as a man of prodigal extravagance, – prodigal, indeed, I must have been, had I expended those large sums which will hereafter be proved to have gone exclusively to support the credit of a tottering firm, the miseries of which were greatly accelerated by the draughts of two of its members, to the amount of near £100,000.’ Here was a desperate attempt to shift part of the blame for his conduct on to partners who had brought the firm to the brink of collapse, drawn upon it for substantial sums, and then been content to quietly draw their profits while he struggled manfully with the impossible situation he had inherited.31 He elaborated on this argument in the plea he made before sentencing. ‘I trust it may be considered as some palliation 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



in a moral point of view, that a desire to preserve myself and others from bankruptcy, and not personal aggrandizement or selfish gratification alone, urged and impelled me to the acts I have committed.’ He steadfastly denied any ‘deliberate intention to defraud.’ He had hoped to make full ‘restitution’ as soon as possible. ‘Unfortunately for me, a succession of adverse events, which I could neither avert nor control ..., led on from one false step to another, until the affairs of the house became so involved that extrication was impossible.’ He had passed through years of anxiety. He had made himself ‘a sacrifice’ to the salvation of those with whom he was associated. He thought the humiliation he now suffered was punishment enough for any man of his character and status. He concluded with a poignant plea to the King for mercy.32 Those assembled in the courtroom greeted his speech with respect. ‘During the reading of this address,’ the Morning Post reported, ‘profound silence was preserved.’ ‘In several parts of the Defence, the Prisoner’s feelings were strongly excited, and the emotions he felt drew forth a corresponding sympathy from the whole audience.’ His character witnesses, men of distinction and respectability, talked of his ‘honour, integrity, and goodness of disposition.’33 In forgery trials, the judge confronted a delicate task when it came time to sum up the case. Park showed peculiar sympathy for the plight of the accused and sensitivity to the indignity that a person of his rank must feel. He lamented the news stories that had circulated so widely, and he called upon the jury to ignore prejudicial tales. On the other hand, he felt compelled to confront the general tendency of Fauntleroy’s defense, one that used circumstance and class position as mitigating factors. The message was stern, meant to counteract the natural sympathy he presumed those in the court would feel for Fauntleroy. Fauntleroy claimed that he had acted ‘to save the falling fortunes of the house.’ The judge responded that ‘he was bound to say that no inducement on earth could have led any man of honourable mind to commit such wanton robbery – such gross peculation – such cruel frauds on women and children, as the prisoner confessed himself to have committed.’ ‘The frauds were of such an extent as even to be cruel on the men of substance on which a part of them were committed, some of the powers forged were for sums so large, that almost any man must be injured by the loss of them.’ The condition of the accused, far from acting as mitigating 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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his guilt, exacerbated it. His class could not palliate his crime. No doubt jury members would feel the pull of fellow feeling for such a man on trial for his life. ‘Every man of feeling must lament – to see a man of the prisoner’s rank in life in the prisoner’s situation.’ Still, he called upon the jury to do its duty.34 This message of necessary severity followed Fauntleroy’s conviction as well. ‘I am afraid,’ the judge warned him, ‘that, after the many serious acts which, under your own hand-writing, have been proved against you, involving so many persons in ruin, you would only deceive yourself by indulging in any hope of mercy on this side of the grave. Do not, therefore, flatter yourself with expectations.’35 Little had changed in the century since forgery had become a capital offense. The authorities still felt compelled to resist all appeals arising from the special circumstances of the condemned. They made class the crucial issue in the decision about the final disposition of the case; they appealed to it explicitly in their justifications for the ultimate penalty.

Public reaction Without doubt, once Fauntleroy was convicted, the certainty of the gallows influenced all reporting on the case. His lawyers appealed to the twelve judges on a technical point, but there was little doubt that the judges would reject the appeal as they had in so many other forgery cases. There was a powerful sense of inevitability to the entire drama. The contrast to the treatment of other condemned offenders was stark. ‘The important case of Mr. Fauntleroy,’ The Times noted, ‘has so much engrossed the public mind, as to exclude attention from the only prisoner, amongst 38 capital convicts, who was doomed to suffer death.’ Joseph Harwood was only nineteen when he suffered death for highway robbery. He met his death expressing sorrow and contrition, as well as a hope for salvation, but the press was scarcely interested in his fate.36 ‘It is natural,’ the Morning Chronicle suggested, ‘that the case of Mr. Fauntleroy should continue to engross public attention, for abstracted from all considerations of the character and rank of that unfortunate gentleman, the effects of his transgressions are now beginning to be felt by the community.’37 While the public began to collect petitions on Fauntleroy’s behalf, including one from the creditors of the banking house, no one expected them to succeed. There was a more general unease about 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



whether enough was known about the case. Several correspondents called for an investigation of the points raised by Fauntleroy in his defense. One lamented the fact that the partners, in their rush to clear their own names, damaged the efforts to secure a pardon for Fauntleroy. ‘It seems the part of the public press,’ he wrote, ‘combining mercy and humanity with its acknowledged power, to implore the partners to be patient for a while, rather than to irritate them into making statements or disclosures which may affect the life of a fallen fellow-creature.’38 Other correspondents expressed an anxiety to know the truth of the charges made about Fauntleroy’s private conduct and whether he had squandered huge sums on luxuries and immoral pursuits. There remained the hope that some fact would appear that would provide either a justification for death or grounds for a successful application for mercy. ‘We cannot help thinking,’ one paper concluded, ‘there is more in this case than has yet met the public eye.’39 The public’s appetite for news of Fauntleroy soared to frenzied heights as the date for the execution drew near. The papers hastened to report on the disruption of divine services when a female convict, under sentence of death, fell into hysterics and ‘her shrieks’ were heard for half an hour. ‘The effect was such that the Ordinary could scarcely proceed. Mr. Fauntleroy covered his face with his hands, and seemed quite overwhelmed with affliction.’40 When the Recorder and the Ordinary went to tell him that his appeal had failed, Fauntleroy was quoted as saying that he resigned himself to the inevitable: ‘I expect nothing less than death.’ When left alone, one paper suggested that he ‘began to paint death in his imagination in all its usual terrors.’41 The papers gave hourly reports on everything the man did. Many of these accounts were heightened by melodramatic convention, offering a level of detail about what was said and felt that could scarcely have been grounded in fact. They were particularly taken up with descriptions of painful leave takings. The press, so long curious about the facts of Fauntleroy’s domestic circumstances, discussed the visit of Mrs. Fauntleroy and her son to the condemned man, and then that of his mistress, Maria and her two sons. These were scenes of high drama, painted in the most pathetic terms. His last interview with his wife was exquisitely painful: ‘The scene was one, which, even those amongst whose ordinary avocations was that of witnessing the eternal partings of wives 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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from husbands, and fathers from children, were deeply affected at.’ When finally separated, the wife ‘screamed and supplicated to be readmitted.’ The farewell to his brother and sister was equally ‘heart-rending.’42 The papers talked confidently about the battle of hope and fear, desperation and resignation, which went on in the condemned man’s mind. They described the ministrations of clerics, and how his son read to him during his last days. They reported on the prayers he read and the poems he contemplated. The last day was summarized with almost minute-by-minute thoroughness. The authorities reinforced the railings around Newgate out of a fear that a crowd would injure or kill people in the general rush for spaces. In the middle of the night they began to erect the gallows, and soon thereafter people began to assemble. Perhaps one hundred thousand people attended the event. Those who claimed to know described how Fauntleroy walked up and down all night. He was sleepless, constantly mumbling prayers and reading Scripture. No detail was too trivial to be passed over.43 The description of Fauntleroy’s last minutes marked the melodramatic culmination of the wrenching tale of his life. The accounts in the press went well beyond what was normal in newspaper reports of executions. The narratives assumed a powerful identification with the feelings and thoughts of the condemned man. As Fauntleroy walked along the corridors leading to the Debtors’ Door, the first sound of the tolling of the prison bell ‘had an appalling effect on all present.’ Two ministers supported him as he approached the platform. Their support of him became still more requisite, as the prisoner continued more slowly and exhaustedly, though successfully, endeavouring to retain his erect posture and solemn step. He took his station immediately under the rope, with his clasped hands projected before him, and his head elevated, but with a perfectly unmoved countenance. The Rev. Mr. Baker, at this moment, made some remark, or joined in prayer with Mr. Fauntleroy; and towards the close of Mr. Baker’s last communication with him, the prisoner very faintly uttered, or rather breathed out, ‘Yes, yes, yes!’ He made no other observation; he spoke not to those about him; he seemed to have nothing further to impart, or to do in this world. He appeared calmly to await the closing of the scene. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



The last awful preparations then commenced. Mr. Baker began to loosen the prisoner’s neckerchief, but it was finally taken off by the executioner. The cap was next drawn over his face – the rope adjusted around the neck, and after that had been done, the executioner tied the prisoner’s neckerchief over the cap, and across the eyes. The prisoner still remained immoveable; continuing the attitude already described. The Rev. Mr. Cotton resumed the reading of the funeral service; and once or twice that part of the cap which covered the prisoner’s mouth was raised, as if he were repeating a word or two, or saying ‘Amen!’ While the service was reading, the platform dropped, apparently only about fifteen or eighteen inches; but the drop was so steady and sudden, that the body was not agitated by it. We observed but one convulsive motion, when the shoulders were only slightly raised. The crowd, the reporter claimed, ‘conducted themselves with the greatest decorum.’44 If this execution was edifying and decorous, by the standards of the day, it was also a deeply unsettling experience. A member of polite and respectable society had met a terrifying end. The firm words of the authorities, and the steady assurances of the clerics, could not alter this fact.

The debate over punishment and class In the wake of the execution there was a good deal of discussion about whether the punishment had been too severe. Since it took place in the midst of a decade long struggle to mitigate the penalty for forgery, it was scarcely surprising that this should happen. Yet here too the papers found it hard to sustain a consistent line. Where sympathy was shown on one day, a harsher tone succeeded on another. The Times had offered a poignant portrait of the condemned man during his last days. But immediately after the execution it adopted a sterner approach. An editorial began with a lament that the papers had devoted so much attention to a sordid business. Other, braver, men had died without ‘rousing any public emotion of sympathy.’ The most striking thing about the paper’s defence of the proceedings was the repeated recourse to Fauntleroy’s social class as justification for the outcome. ‘In fact, if we contemplate this unhappy man, from the commencement of his crime to its 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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expiation by a shameful death, we cannot discover any one quality which should have exempted him from the ordinary fate of persons convicted of the same offence – except that he was a banker.’ The author had nothing but contempt for the man’s defense of a course of conduct which, except for the Bank of England’s restoration of the stock for those injured by the crime, would have ruined many families. It noted, as well, the ironic consequence of the petitioning campaign on Fauntleroy’s behalf; the logic of the appeal implied that ‘there must be no distinction, therefore, between guilt and innocence, unless the criminal be poor: then, – then, indeed, we may deal with him as he deserves.’ The paper marveled at all the attention aroused by the call for reform of the criminal law, since it believed that in the aftermath of such a crime, there would have been tremendous public pressure to make it a capital offence, if it had not already been so.45 The paper returned to this theme a few days later. In an even blunter column, it declared that Fauntleroy received the penalty he fully deserved. After pointing out that his offense represented ‘a series of fraud and artifice never, perhaps, equalled in the annals of crime,’ the author went on to say that ‘no instance ever occurred in which the law was more properly suffered to take its course.’ To have extended the King’s mercy to so unworthy a man would have been a terrible mistake. It would have argued that ‘our sympathy and compassion are especially due to any man, who, in a situation of great trust, has hardihood enough to effect, and art enough to conceal during many years, a series of the most flagitious frauds.’46 In every one of these statements, the high class of the offender was taken to justify the course pursued. As if afraid to let the issue drop, it quoted approvingly from another journal a vindication of Fauntleroy’s fate. ‘We have not,’ the article began, ‘for a long period felt more scandalized at any thing than the sympathy which has been excited in the public mind in favour of Mr. Fauntleroy.’ The author could understand how pity may and ought to be extended to all those unhappy creatures who, from having been denied the advantages of education, doomed to associate with the worst and most degraded of their species, and exposed, by circumstances in which they were placed, to all sorts of excitement and temptation, could hardly do otherwise than commence and terminate, in the usual 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor




Fauntleroy, however, had no such extenuating circumstances to plead. He was ‘well educated, and fenced by connexion, acquaintance, and intercourse, with all the safeguards of character, and having all the incitements to upright and honourable conduct which the best society affords.’ Nonetheless, he became ‘a wholesale dealer,’ and carried on ‘for years, coolly, deliberately, and skilfully, a wholesale trade in crimes of the deepest dye.’ ‘Sympathy,’ in such a case, was ‘in itself absolutely and obviously culpable.’47 What is striking is how often these sentiments were repeated in the years after Fauntleroy’s death, when this memorable case was invoked in debates over capital punishment for forgery. An author in the Quarterly Review, in 1832, posed the question in two, slightly different, ways: did not the man guilty of a huge fraud deserve a punishment at least as severe as that imposed on a minor thief? and, did not the individual with more advantages deserve a more severe penalty than the person from a more disadvantaged background? ‘While the housebreaker,’ this writer argued, is generally a man of the lowest order, who is urged to the commission of crime by actual not by artificial necessities, and possessed of few advantages of education, religion, or intelligence, the forger is almost necessarily a person superior to the vulgar classes in education and capacity, who wilfully tramples on principles and knowledge to which the humble delinquent is a stranger, and often relieves self-centered embarrassments as gratifies pampered appetites by his refined and dexterous depredations on his neighbours. Differently circumstanced in life, men like Fauntleroy would have been housebreakers or highwaymen, ‘had not their superior station and intelligence opened to them a less precarious and far more efficient road to plunder.’ ‘In a moral, in a religious, in a political point of view,’ the author concluded, ‘what distinction can soundly be drawn between the different offenders, favourable to the character of the forger?’48 Fauntleroy’s fate, in short, was seldom referred to by the advocates of criminal law reform.49 He never became a sympathetic figure for 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


manner, career of crime. Guilt, in such cases, is hardly distinguishable from misfortune.

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their cause. Not surprisingly, they did not refer to him. His story, however, was repeatedly invoked by those who challenged reform, especially in Parliament. For them his privilege and skill, as well as the scale of his fraud, deserved a singular and terrifying punishment. He epitomized the evil that resulted from gross financial impropriety. The security of society, the righteous anger of the countless victims of such crime, and the grave injury done to often vulnerable people all demanded the ultimate penalty. By 1830 the controversy over this policy had reached its crisis stage. It is scarcely surprising that this extraordinary crime was invoked, since it seemed to fulfill perfectly all the direst predictions about the dangers presented by the offense. Charles Wetherell, in 1832, insisted on retelling, at considerable length, the story of the Fauntleroy case, describing the banker as one entrusted with large sums who ‘carried on a habitual system of forgery.’ The effect of the exposure of his frauds resulted in ‘the extinction of confidence and the ruin of hundreds of innocent persons.’ ‘He had seen the list of sufferers,’ he confided to the other members, ‘of persons hurled from affluence and respectability into deprivation and misery.’ He drew a pathetic picture of the results. ‘The widow’s £5000, and the orphan’s £10,000, and the savings of the retired tradesman’s life, were all swept away by this delinquent, and yet that was the case in which philanthropists went through the town, with weeping eyes and white handkerchiefs.’ The scale of such suffering demanded an extraordinary punishment.50 ‘How many honest and industrious persons,’ Lord Eldon demanded, ‘had been reduced to want and misery by such nefarious and profligate proceedings?’ Law reformers made much of the claim that it was immoral to execute anyone for a property crime that did not involve violence. Tories responded that some property crimes hurt far more people, spread so much more misery, than any other offence. The Fauntleroy case, to these men, exposed the hollowness of the humanitarian appeals. ‘Forgery,’ Lord Eldon added, ‘might be committed with some most aggravated circumstances, there might be great breaches of confidence – a person might be intrusted with powers of attorney, and might defraud all his customers – a man might do as Fauntleroy did, forge all the names of the customers for whom he was trustee, and might take out of the pockets of those customers, in a few months, £250,000 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



or £300,000; and to say that such a man was not to be punished with death, out of respect for human life, was carrying the doctrine too far.’51 The most stalwart opponent of reform in this instance was Robert Peel. He took the lead in the Commons debates, challenging the wisdom of what he saw as a dangerous revolution in the criminal law. The change appeared to him a risky experiment, one that threatened the happiness and well-being of many, not because of the frequency of the crime, but because of the potential scale of even one episode. To all the other arguments, he added the concern that no other infliction would prove effective. ‘There was one peculiar reason for being cautious in their advances towards mitigation of the punishment of forgery,’ he announced: it was an offence chiefly committed by persons of ability and information, and whose ability and information frequently gave them the means of committing it to a great extent: for instance, in the case of Fauntleroy, the forgeries which he committed amounted to above £400,000. If the capital punishment were entirely remitted, some secondary punishment must be substituted. Now, however mischievous and extensive was the crime of Fauntleroy, he was quite sure that if such a person had been sentenced to such a punishment as two years’ hard labour on the public roads, the sympathy of the public would soon have been excited at seeing him degraded to the condition of associating with the commonest and vulgarest criminals. If he had been sent to New South Wales, such a man in that colony would have found that transportation was the slightest punishment that could have been inflicted on him.52 Two years later he repeated the claim that a less severe punishment would not work for offenders of this class. It would be defeated by the assets the convicted man possessed, or the excessive, even if understandable, sympathy that the public and those in authority in penal establishments might feel for the social class of these individuals. ‘The immediate spectacle,’ he warned, ‘of inflictions so unsuitable to the previous habits and acquirements of an offender soon awakens a sympathy, which is more powerful than the feeling 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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of resentment at his crime, or even the sense of the abstract justice of the punishment.’53 Peel predicted that class might operate in the wrong way, if forgery ceased to be punished by the gallows. Peel failed to stem the tide of reform. The last execution for forgery took place in 1829, and capital punishment for the offence was finally abolished in 1837.

Forgery and white-collar crime The Fauntleroy case served as the climax of the long history of sensational forgeries in Britain; it was the largest, the most astounding, and the most destructive of the many instances of the crime, so enshrined in popular memory. ‘The career of the late Mr. Fauntleroy,’ a correspondent wrote to one journal, ‘and its fatal termination, has interested perhaps millions in these kingdoms.’54 In this instance the nightmare that had for so long haunted the judicial authorities seemed to be realized. Fauntleroy appropriated a fantastic sum of money over a long series of years. He displayed a consummate skill as he betrayed the trust of clients who had placed absolute faith in him. He was a man who enjoyed elite social status and great wealth. The exposure of the crime also revealed the dark underside of respectable life. The opponents of reform, no doubt, had good reason to believe that this case would convince the public of the necessity of preserving death for a particularly disturbing kind of fraud. Nonetheless, the reverse proved to be the case. Fauntleroy was one of the last forgers to die on the gallows. The abolition of the death penalty for forgery did not come about because the better off revolted at the prospect of members of their own social class being at risk of dying on the gallows. There were deeper and longer term forces at work which produced a fundamental alteration in the criminal code as a whole. Nonetheless, the end of capital punishment for forgery had wider consequences for how financial fraud was perceived by the public. ‘The delight experienced by persons of a sensitive humanity,’ wrote David Morier Evans in 1859, ‘at the alteration in the criminal code, by which death was declared too severe a penalty for the crime of forgery, must have been not a little qualified by the increase of dishonesty that has followed the mitigation of the law.’55 Whether Evans was right, that the mitigation of the criminal law produced an increase of 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



dishonesty, it is certainly true that the alteration influenced how fraud was experienced. Death was an extraordinary punishment; its rituals and the publicity surrounding the execution commanded an attention that no other penalty could inspire. No doubt other aspects of the crime – the sums involved, the social class of the offenders, the rapt attention to the details of the suspect’s life – marked it out as unique, yet it was, finally, the gallows that made forgery a sensational event. The punishment did what mere words could not, set forgery in relation to what were regarded as the most serious crimes facing society. The Recorder of London, Newman Knowlys, made precisely this point when he pronounced death upon a group of offenders that included Fauntleroy. ‘He could say nothing as to mercy being extended to them,’ he warned. ‘There were crimes among them of great magnitude, the forger, the midnight burglar, and the robber on the highway who left his victim with small signs of life.’ 56 The gallows did not exactly neutralize the effects of class, but it brought the offences of the rich into relationship with those of the poor. Forgery, the authorities argued, produced deep and lasting harm to its victims and society. The peculiar nature of the property, when combined with the identity of the accused, was held to demand a special measure of severity. In turn, the magnitude of the punishment, in some sense, authorized, even demanded, the foregrounding of class in the public discussion of the crime. Reform transformed this equation. The considerations that had loomed so large in the calculations of eighteenth-century authorities, when it came to considering the dangers of financial fraud, were overturned when forgery came to be seen as merely another property crime. It was, above all, the removal of death that diminished the trauma associated with the crime. The more modest punishment that followed reform never proved equal to the uproar generated by the discovery of major fraud. A few years in prison seemed banal next to the high flown rhetoric about the seriousness of the crime and the reproach addressed to the betrayal of trust. If death had seemed too heavy a penalty because of the social class of the condemned, a short period of confinement now seemed an inadequate response to the scale and character of the offence. The label, ‘white-collar’ crime, presents itself as a neutral description. Yet it pretends to an objectivity and clarity that it cannot sustain in practice. It conceals a deep ambivalence about the relationship of crime, class and punishment. One effect of the label is 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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to make the crimes so categorized seem more innocuous than other ‘real,’ and invariably lower class, criminality. When the size of the fraud and the class of the accused no longer earned extraordinary severity, the older narrative of the ‘unfortunate’ forger disappeared. The Fauntleroy case marked one of the last times when so frank a discussion of these concerns could occur. It may not be too much to say that the emergence of white collar crime was made possible by the disappearance of capital punishment for forgery. As the quote from Evans demonstrates, not everyone embraced the consequences that flowed from reform, at least in this instance.57 There remained a troubling gulf between the size and seriousness of the crime and the severity of the punishment. At some level popular opinion continued to yearn for a decisive punishment that somehow bore a relationship to the scale of the injury inflicted by serious financial fraud. Perhaps we can detect in the suicides of Merdle in Little Dorrit and that of Melmotte in The Way We Live Now, a lingering sense that only death settled the account of the well-heeled fraudulent financier.

Notes 1. Morning Chronicle, 17 September 1824. The Morning Post first mentioned the crime on 14 September, in a two sentence note. 2. The Times, 20 September 1824. The paper promised ‘a full, faithful, and accurate’ account of the arrest and committal of the man. 3. In the issue given over to a full description of Fauntleroy’s execution, the Morning Chronicle devoted a column to summarizing the history of the episode, fifty years earlier, that seemed closest to this case, that of the Perreaus and Mrs. Rudd: 1 December 1824. 4. For more on the rise of forgery as a much feared crime, see my articles, ‘From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution,’ Past and Present, 165 (1999), pp. 107–40; ‘Knowing the Hand: Forgery and the Proof of Writing in EighteenthCentury England,’ Historical Reflections, 24 (1998), pp. 385–414; ‘Forgery Discovered, or the Perils of Circulation in Eighteenth-Century England,’ Angelaki, 1 (1993/94), pp. 113–29. 5. Parliamentary Debates (hereafter Parl Debs.), new ser., xxiv (1830), col. 1045. 6. Parl. Debs., new ser, xxiv (1830) col. 676; xxv (1830), col. 56. 7. For a wide-ranging and subtle discussion of another penalty that touched the bodies of the polite classes, see Margot Finn, The Character of Credit:




8.

9. 10. 11. 12. 13. 14.

15. 16.

17. 18. 19. 20. 21. 22.

23.

24. 25.

Personal Debt in English Culture, 1740–1914 (Cambridge: Cambridge University Press 2003), especially pp. 188–93. On this point, see my ‘Forgers and Forgery: Severity and Social Identity in Eighteenth-Century Justice,’ in Moral Panics, the Press and the Law, ed. David Lemmings (forthcoming). Morning Post, 14–15 September 1824; The Times, 24 September 1824. Morning Post, 1 November 1824. Bank of England, F10/93. George Robb, White-Collar Crime in Modern England (Cambridge: Cambridge University Press, 1992), pp. 4–5. Morning Post, 15 September 1824. Horace Bleackley, The Trial of Henry Fauntleroy and other Famous Trials for Forgery (Edinburgh: W. Hodge & Co., 1924), pp. 1–4. The case has been well served by Bleackley’s spirited account. The Times, 24 September 1824. Morning Post, 25 September 1824. The Bank of England solicitor complained that the partners ‘had altogether neglected to render themselves acquainted with the details of the business’. Bank of England, AC22/107. The attack upon the partners continued throughout the contentious bankruptcy proceedings. Morning Post, 20 December 1824. For more on the subsequent controversy over the bankruptcy of Marsh & Co, see James Edelman, ‘Marsh v. Keating,’ in C. Mitchell and P. Mitchell (ed), Landmark Cases in the Law of Restitution (Hart Publishing: Oxford, 2006), 97–122. The Times, 24 September 1824, 12 November 1824; Morning Chronicle, 20 September 1824. Morning Chronicle, 20 September 1824. Morning Chronicle, 1 November 1824. The Times, 20 September 1824. The Times, 20 September 1824, 2 October 1824, 5 November 1824. The Times, 5 November 1824. The paper praised the integrity of Chambers and Son, which had avoided the temptation to misappropriate any of the securities deposited in its hands. ‘It is very well known,’ the Morning Post observed in December, ‘that the balances in several banks throughout the kingdom, have been greatly reduced since the failure of Marsh, Stracey, and Co: for the public have not yet recovered from the panic infused by the circumstances of that failure.’ 20 December 1824. The Times, 25 September 1824. Further charges of immoral conduct on Fauntleroy’s part surfaced after his execution. Morning Post, 17 December 1824. The Times, 27 September 1824; 1 November 1824. Morning Chronicle, 15 October 1824. The paper was generally more sympathetic to Fauntleroy, and reserved some of its harshest comments for the Bank of England. The Morning Post also attacked the reporting of salacious stories. See 8 October 1824. The sensation surrounding the case produced alarming commentary on the morals of the age. ‘It is scarcely credible,’ The Times reported, ‘and yet we are positively assured




26.

27. 28. 29.

30. 31. 32. 33. 34. 35. 36. 37. 38.

39. 40. 41. 42.

43. 44.

45. 46. 47.

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of the fact, that bets to a large amount are depending upon the issue of Mr. Fauntleroy’s trial, and that the books of some of the frequenters of Tattersall’s and the One Tun are not less occupied with wagers upon the fate of a fellow-creature than those upon the Oaks, Derby, and St. Leger.’ The conduct was ‘so gross an outrage on common decency,’ that it was hard to believe. 19 October 1824. The Times, 25 September 1824. The Morning Chronicle on several occasions took the Times to task for what it printed about the case. 13, 15 October 1824. The Times, 20 September 1824. The Times, 20 October 1824. Morning Chronicle, 4 October 1824. As always with the Bank of England, its generosity had a calculated dimension. The Bank said it had no objection to friends and relations visiting Fauntleroy once he revealed the location of all of his papers. Bank of England, F10/93. The Times, 20 September 1824. The Times, 1 November 1824; Gentleman’s Magazine, 94 (1824), p. 461. The Times, 3 November 1824; Morning Chronicle, 3 November 1824. Morning Post, 1 November 1824; Annual Register, 66 (1824), p. 146. The Times, 1 November 1824. The Times, 4 November 1824. The Times, 26 November 1824. Morning Chronicle, 6 November 1824. The Times, 4 November 1824. The meeting of the creditors produced loud accusations and violent demands of the partners. Many said they were ‘disgusted with their situation, owing to some misrepresentations on the part of the bankrupts, the discovery of which caused a material alteration in their opinion as to the amount of the dividend likely to accrue to the creditors.’ The Times, 15 November 1824. Morning Chronicle, 1 November 1824, 4 November 1824, 8 November 1824. The Times, 17 November 1824. Morning Chronicle, 25 November 1824. Morning Chronicle, 27, 29 November 1824. Several days later, Mrs. Fauntleroy was reported to be in a precarious state of health. The Times, 29 November 1824. Morning Chronicle, 1 December 1824. Morning Post, 1 December 1824. Rev. Henry Cotton was the Ordinary of Newgate. Baker was, in fact, a layman in the Map Office of the Tower who offered spiritual assistance to prisoners. See also, Annual Register, 66 (1824), p. 163. The Times, 1 December 1824. The Times, 4 December 1824. The Times, 6 December 1824. The Morning Post, in a comment immediately following the execution, added its voice to that of The Times. ‘Melancholy as they naturally are, they can excite but one feeling,




48. 49.

50. 51. 52. 53. 54. 55.

56.

57.

approbation of the Justice which condemned him to die, and of the firmness which rejected the humane but ill-advised applications for mercy.’ ‘It is,’ the paper concluded, ‘dangerous to suffer feeling to fling a veil over crime.’ 1 December 1824. ‘Wakefield in Newgate,’ Quarterly Review, 47 (1832), p. 175. For one of the few articles connected with the Fauntleroy case that did attack the death penalty, see the collection of clippings held by the Bank of England archives entitled ‘Fauntleroiana.’ AC22/108. Parl. Debs., 3rd ser., xiv (1832), cols 975–6. Parl. Debs., 3rd ser., xiii (1832), col. 988. Parl. Debs., new ser., xxiii (1830), cols. 1182–3. Parl.Debs., 3rd. ser., xiii (1832), col. 199. Gentleman’s Magazine, 94, (1824), pp. 380–1. D. Morier Evans, Facts, Failures and Frauds: Revelations Financial, Mercantile, Criminal (London: Groombridge & Sons, 1859, reprint New York: David & Charles, 1968), p. 1. Morning Post, 3 November 1824. Fauntleroy was particularly alarmed at his being compared to ‘the cold-blooded murderer Thurtell.’ Morning Post, 1 November 1824. According to Allyson May’s entry on Newman Knowlys in the Oxford Dictionary of National Biography, he ‘was known to oppose reform of England’s severe criminal law,’ and the Morning Chronicle ‘despised him for his reactionary opinions.’ For some reflections on the paradoxes associated with white collar crime, see Robb, White-Collar Crime, pp. 181–91.




Commercial Morality and the Common Law: or, Paying the Price of Fraud in the Later Nineteenth Century Michael Lobban In the second half of the nineteenth century, investment in financial assets became an increasingly prominent feature of the British economy. The middle classes – many of whom were tempted into share purchases in the age of the Railway Mania1 – became increasingly aware of the workings of the stock market, informed as they were by new forms of financial journalism.2 The expansion of business increased the number of investors. Between 1870 and 1900, the number of serious holders of securities quadrupled, reaching a million.3 With the rise of the limited liability company, investment portfolios also diversified, from the governmental securities or railway shares predominant in the mid-century to commercial and industrial investments, trading at home and abroad. By the end of the century, smaller share denominations had tempted an increasing number of small investors into the market. The rise of the middle-class investor is often associated with an ‘age of equipoise’ which succeeded decades of anxiety, both about personal salvation and public order. The principle of limited liability, it has been argued, was designed to cushion investors from financial failure, and to reduce the stigma previously associated with it,4 allowing painless participation in free-market capitalism. At the same time, however, a number of historians have shown that in the era of laissez-faire, a prominent strand of opinion sought to resist the acquisitive individualism associated with the teachings of political economists and to moralize the market.5 In an age of periodic financial crises, with stock market crashes in 1857, 1866 and 1873, there was continuing anxiety both about the facility 119 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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with which fraudsters were able to deceive the public, and about how easily otherwise upright people could be seduced into schemes promising to give them something for nothing. Moralists attacked the ‘Mammonism’ of the age, which was prone to lead people into conduct which ranged from the dishonourable to the fraudulent. In portraying the corruption wrought by the love of money, novelists like Dickens and Trollope often rooted the evil in the activities of financial speculators, often outsiders whose background was unknown, but who rose rapidly in society, dazzling the credulous and greedy with a show of wealth. Those who were inveigled into corruption – like Alaric Tudor in The Three Clerks – ended up in prison; those who drove the speculation – like Mr Merdle in Little Dorrit or Augustus Melmotte in The Way We Live Now – ended up losing it all, driven all too often to suicide.6 Other social commentators took a similarly pessimistic view. ‘[T]he reckless speculator,’ David Morier Evans said in 1859, ‘would risk everything in the hope of a sudden gain, rather than toil safely and laboriously for a distant reward.’ His ruling passion was to obtain money to gratify his luxurious habits: ‘[t]he artificial necessity for expenditure comes first, and the beginning of financial crime is the attempt to make an appearance which the legitimate resources of the adventurer in the game of fortune will not justify.’7 Evans illustrated the principle with a series of case studies of financial ‘high art crimes,’ which had ended in suicides or gaol. It was not so much the institutions of capitalism – the stock market or the limited company – which caused anxiety, as the use made of them by both swindlers and gamblers.8 A distinction was made in public debate between legitimate investment and speculation. But this was a hard line to draw. Defending the Stock Exchange in 1877 from accusations of being ‘the promoter of speculation,’ William Morgan wrote that if a royal commission could ‘discover the precise moment when enterprise or investment ended, and speculation begins, they will have made a very great discovery.’ He added that ‘it would be far better than to attempt to protect people by imposing restrictions on buying and selling, to drum into [investors’] heads the salutary lesson which would most effectually protect them, viz., never to buy more than they can pay for, nor to sell more than they can deliver.’9 The morality of investing on the Stock Exchange was defended more generally in the later nineteenth century, by 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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distinguishing this respectable pursuit from unrespectable gambling, of the sort engaged in by the working class.10 Though the problem of commercial morality was constantly in the public eye in the last three decades of the nineteenth century, there was little agreement over how to draw the line between legitimate and illegitimate trading. Nor was there much agreement on how far the state should intervene with a tougher regulatory regime for company flotations and share trading. This can be seen most pointedly in the way that the state – and the public – reacted to the fraudulent company promoter. Historians are familiar enough with those who had the highest profile, and whose social stock plummeted as quickly as it had risen: Albert Grant, the model for Melmotte, who lost his status and fortune in 1877; E.T. Hooley, whose businesses collapsed in 1898 and who wound up in the bankruptcy court or in prison on several occasions into the twentieth century; Whittaker Wright, who swallowed cyanide in 1904 in the Royal Courts of Justice soon after being sentenced to seven years’ penal servitude for false accounting.11 The stories of these men might suggest that the moral lessons of Little Dorrit or The Way We Live Now were also acted out on the real commercial stage. Yet following the career of a more obscure company promoter reveals that the line between commercial respectability and illegitimate conduct was a very blurred one, and that a man with a thick skin and an appetite for litigation could remain afloat for a long time in the commercial world.

Edward Hartmont’s businesses In 1867, the German-born Edward Herzberg fled Paris for London, having just been sentenced to two years’ imprisonment for fraudulent bankruptcy. The promoter of two companies, he arrived with debts of £50,000. Herzberg’s first acts in England were to change his name to Hartmont and to petition for bankruptcy. With no one to oppose him,12 he obtained his discharge in November, and was free to start again.13 He soon struck up a friendship with Robert Spear Begbie, another bankrupt,14 which blossomed into a commercial partnership. Together, they launched into a world which offered many lucrative opportunities for those seeking to make money by promoting companies and playing the stock market. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Commercial Morality and the Common Law

Hartmont’s first venture was to float a Latin American loan, a kind of investment highly popular with speculating financiers at the time.15 In May 1869, he was appointed Consul-General for Santo Domingo and contracted to raise a loan of £420,000 on the London Stock Exchange for the government of that island, with Hartmont retaining £100,000 for commission and expenses. Repayment of the loan was to be funded from export duties, notably on guano from the island of Alto Vela. Hartmont was assisted in floating the loan by the Edinburgh mercantile firm of Peter Lawson & Co, which wanted the guano, a commodity in which they traded, but which they were finding difficult to acquire.16 When the London financier, J.T. Mackenzie, who had agreed to handle the loan withdrew at the eleventh hour, Lawson’s issued the prospectus for the loan. It flopped: less than 10 per cent was subscribed for by the public, though Lawson & Co took 12 per cent at a discounted price themselves. Since this was too small a take-up to qualify for a settlement on the Stock Exchange, the bankers Cazenove & Co were persuaded to ‘dispose of’ the rest. In common with other firms which floated such loans, Hartmont and his confederates broke the rules of the Stock Exchange in order to keep the price of stock up. The Santo Domingo loan ended badly. In 1872, the government, which claimed to have received only £38,000, repudiated the loan, largely because the projected repayment cost of £1,472,500 over 25 years was likely to queer its negotiations for a union with the United States. Three years later, the Vice Chancellor, Sir Richard Malins, condemned the Santo Domingo loan as ‘one of the most fraudulent loans that ever was brought before the public, [which] has brought disgrace on every person concerned in it.’17 In that same year, the loan was subjected to a Commons inquiry (along with other Latin American loans) which condemned the conduct both of those floating the loans, and of the governments seeking them, and which criticized the lax approach of the Stock Exchange.18 Yet at the same time, there was a recognition that an excessively regulated Stock Exchange would hamper the raising of legitimate capital. Moreover, there was limited sympathy for investors, who were themselves engaged in speculation. No new system of regulation was introduced. ‘[H]ad the Foreign Loans Committee recommended a state prosecution of the contractors with the object of making them disgorge their ill-gotten gains for the benefit of their victims,’ Morgan noted, they 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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might have had something practical to show for their labour. As it was, it had only succeeded in causing a panic which destroyed public confidence in foreign loans.19 Instead, it was left to disgruntled parties to use the courts to determine the bounds of acceptable conduct. But when it came to the Latin American loans, the courts were not too helpful. Although those who floated the loan, such as Hartmont, retained significant amounts of cash,20 neither the governments nor investors managed to squeeze it out of them. For instance when Costa Rica sought to recover money retained by the respectable banking firm of Erlanger & Co, they only ended up losing even more.21 When one investor in the Peruvian loan, James Twycross, sued the bankers who had retained money designated for servicing the loan, he had no more luck. In the view of the Master of the Rolls, Sir George Jessel, the ‘so-called bonds’ issued by the foreign governments ‘amount to nothing more than engagements of honour,’ which could not be enforced in British courts. Since the banks were merely the agents of those governments, they could not be sued themselves for the money.22 Banks like Erlanger & Co. felt no moral obligation to give back the money; and so investors had no option but to wait for proposals from defaulting governments. In the Santo Domingo case, this did not occur until 1885, when the government needed to raise more money for the development of a railway, and sought to make itself creditworthy once more.23 The Santo Domingo loan was part of a larger scheme concocted by Hartmont, to profit from exploiting the guano concession he had obtained. In the event, only negligible deposits of guano were found on the island of Alto Vera, though there was plenty of alumina phosphate, which could be used in the purification of sewage. However, since this commodity was of no use to Lawson & Co, it was decided to float a company which would buy the concession and extract the phosphate.24 The rights would be sold to financial agents, Engelbach and Keir, for £50,000, which would be paid for in shares in a company to be formed by them. Engelbach and Keir were to receive a £15,000 commission, making the total price of the concession to the company £65,000. A provisional committee was assembled for the projected ‘Phosphate Sewage Company,’ which consisted of Hartmont, Begbie, Engelbach and a military man of little business experience, Col. W.L. Grant. When the Company was launched in 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



May 1871, with a capital of £200,000, Hartmont’s interest was hidden, and Lawson & Co. (already themselves in financial difficulties) were set forth as the vendors.25 Of 8,107 shares allotted, 4,500 fully paid up shares went to the directors and their friends. Though the company had failed to comply with its rules, a settlement was obtained on the Stock Exchange (in June 1872), and when trading began, the price of shares rose. Hartmont set about profiting from trading in the shares, and had soon acquired two-thirds of the company’s share capital. The share price rose dramatically when it became known that he had entered into negotiations with a French company for the use of the Phosphate Company’s patent. Hartmont’s ‘negotiations’ were with Oppert & Co., of which he was a director, and they resulted in a formal offer of £250,000 for the purchase of the rights, with the deposit being paid by Hartmont himself. On the back of this, Hartmont sold 1,000 shares, netting himself £56,000. Besides exploring French interest, Hartmont through Begbie agreed to sell the use of the patent to a company to be formed in Berlin. Begbie paid £15,000 to the Phosphate Sewage Company to acquire the German rights, and sold them on for £30,000 to a trustee for the projected Berlin Phosphate Sewage Company. The trustee in question was a clerk in Hartmont’s office. When the Berlin company was floated, the £15,000 profit on the transaction was distributed as a dividend to the shareholders of the English Phosphate Sewage Company, whose share price immediately rose. Hartmont again took the benefit by selling at a premium. His game was one of stock market manipulation; but there were serious flaws in his projects. Most crucially, there was a flaw in the original rights to mine in Santo Domingo. The concession acquired by Hartmont could be set aside by the Santo Domingo government if it did not produce enough revenue to service the loan (which it never did). When the loan went sour in 1872, the concession was duly cancelled. Hartmont had therefore sold an imperfect title to the company he had projected, without making this clear. Since his nominal purchasers – Engelbach and Keir – had £15,000 to gain from the sale, they did not look too closely at the finer details. Neither did the solicitors, who had been employed by Hartmont to act both for himself and the newly formed company. When in 1873 the Phosphate Sewage Company failed, with its shares (which had at one point reached £60) 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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trading at £2, the shareholders were shocked to find the weakness of their title to the resources on the island. The Berlin company was in no better position, for (as was well known to Begbie and Hartmont), they had no patent to sell to Berlin: the Prussian government did not to allow exclusive privileges to foreign-developed processes. Hartmont’s activities in the Santo Domingo venture were not his only attempt to buy cheap and sell dear. In 1872, he sold a Nevada mine purchased by a syndicate he had formed for £60,000 to a company floated for the purpose – the Ruby Consolidated Mining Company. The company paid £285,000 for the mine, £131,250 of which went to Hartmont. He was far from being the only promoter to seek to make a quick – and large – profit from floating overseas mining companies. The notorious Grant was another specialist in this field. So was the respectable banker Baron Erlanger, who in 1871 bought a lease for the phosphate rich West Indian island of Sombrero from a company being liquidated for £55,000, before selling it on to a newly formed company of which he was promoter for £110,000. There was thus something of a rage for promoting mining companies in the early 1870s. But when companies began to fail in the middle of the decade and disgruntled shareholders sought to recover their investments, the courts had to look again at the morality of commercial enterprise.

Avoiding the Old Bailey The initial reaction of disgruntled investors was to prosecute promoters in the criminal courts. But this proved of limited success. In theory, the law should have been adequate to punish the frauds of promoters. The 1861 Larceny Act made it a misdemeanour for any director, manager or public officer of any company to publish any false statement about it or to obtain any company property in any way other than just payment of a debt.26 The directors of Overend Gurney & Co had famously been charged both under this statute and for a common law conspiracy. When they had converted the old firm of bill brokers into a limited liability company in 1865, they had issued a prospectus which failed to mention the truly parlous state of the bank’s finances. In particular, nothing was said of a secret deed which bound the company to the massive liabilities of the private bank. The vendors’ intentions were to save the business, 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



rather than defraud the public, for they secretly agreed a scheme to repay the losses. However, they were overtaken by events in the market, which brought down the limited company.27 The crash of this respectable, established bank sent shock waves through the community, and precipitated a panic on the markets. It was clear enough that no shares would have been sold in the limited company had the public known what was known to the directors, and when the directors were put on trial, their conduct was censured by the prosecution as the very height of fraud. However, at the end of the trial, Chief Justice Cockburn summed up the case in a way most favourable to them. He stressed to the jury the need to find that they had had an intention to defraud and deceive. The directors, in floating the company, he said, gave up everything: ‘What motive, then, had they for fraud?’ The jury was to consider all these circumstances, and was only to convict if they were sure that there was a wicked intent, rather than a misguided hope that the company would survive. While it was true that ‘the shareholders ought to have known that there was a second deed, and that the Stock Exchange Committee, who exercise such a salutary influence in the prevention of fraud in such undertakings, ought to have been informed of it,’ he told the jury that it would not have made the slightest difference to the majority of shareholders whether the information was made clear or not, since they relied on the Gurneys’ name. In Cockburn’s view, the jury was not to make an example of the defendants for the sake of improving commercial morality: the trial itself, and the directors’ financial ruin, would have a salutary effect.28 The judge’s comments made it clear that while he felt that ‘the spirit of speculation and gambling’ which had taken root among all classes was illegitimate, there had to be a clear criminal intent to punish the directors. The directors were duly acquitted by a special jury of merchants in Guildhall in December 1869, to the sound of large cheers from the crowd. This reflected a strand of public opinion, that commercial frauds were no more extensive than they had ever been; and that commercial enterprise had generated more benefits than harms.29 Such a verdict did not encourage prosecutions. Criminal prosecutions of company promoters, as George Robb has pointed out, were rare indeed; and even where they were instituted, the success rate was low.30 Edward Hartmont’s experience confirms the weakness of the 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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criminal sanctions. An attempt was made, in 1874, to prosecute him for a conspiracy to defraud, by H. W. Askew, an investor in his Ruby mine venture. Hartmont gave a spirited defence at the committal proceedings in Mansion House, claiming to have lost £40,000 against the £500 lost by his prosecutor. According to his defence, he could only be criminally liable if he had a duty to disclose in the prospectus the fact that he had purchased the mine at much lower price than he had sold it for. The answer to this question, he asserted, depended on how section 38 of the 1867 Companies Act was to be interpreted. He proclaimed that he welcomed the chance for a discussion of legal liabilities of company promoters which still divided the legal profession and argued that, to settle this point, the case needed to go to a higher court. In September, the case was removed from the Old Bailey to the Queen’s Bench.31 However, although Askew was bound over to prosecute, nothing was done and within two years, Alderman Sir Andrew Lusk was referring to the case as showing why a public prosecutor needed to be appointed to ensure justice.32 The high cost of a prosecution and the difficulty of securing convictions in effect protected many from criminal charges. Nor did the appointment of a public prosecutor in 1879 transform things. When Whittaker Wright’s financial frauds were uncovered in 1902, the Attorney-General refused to direct a public prosecution of the fraudster, and the Solicitor-General asked rhetorically, ‘[w]ill any one get up and say that a man can be prosecuted for publishing a false balance sheet?’33 He was only brought to trial when one determined set of creditors persuaded a judge (in face of the opposition of other creditors) to direct the Official Receiver to institute proceedings, to be paid from the assets of the firm. Opinion remained divided on how far the criminal law should police commercial morality. Thanks to this, Edward Hartmont remained untroubled by the criminal law.

‘The morality of Lincoln’s Inn’ Most attention was therefore focused on the civil liability of promoters. Debate initially centred on the meaning of the statutory provision invoked by Hartmont before the Lord Mayor. Section 38 of the Companies Act of 1867 had been introduced as a result of a public outcry against the misleading prospectus issued for Overend, Gurney & Co. It provided that every prospectus had to specify the names of any 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



parties to any contract previously entered into ‘by the company, or the promoters, directors or trustees thereof.’ Failure to do so would be considered a fraud. In the early 1870s, legal opinion was divided over whether the Act only required promoters to disclose any contracts which would bind the newly formed company, or whether they were bound to disclose any contract they had entered into prior to its flotation. The former interpretation would leave promoters free to buy assets at bargain prices, and resell them to companies at inflated ones, the risk being thrown on shareholders to ensure value for money. It assumed that assets sold to companies were to be treated in the same way as any other goods, which a vendor could sell at whatever price he chose to a willing buyer. The latter interpretation – which was premised on a view that company promoters owed fiduciary duties to those who bought shares in the companies they floated – might potentially render a promoter liable for fraud if he failed to disclose a tailor’s bill he had paid twenty years previously.34 Andrew Lusk MP, the Lord Mayor hearing Hartmont’s arguments, expressed his view robustly. Doubting ‘the honesty of people who sold things for ten times the amount for which they purchased them’, he cut through Hartmont’s counsel’s arguments about the intention of the statute by observing that ‘sometimes the Legislature had no intentions at all, and sometimes their interpretation of Acts of Parliament was entirely different from that of the lawyers.’35 The question was settled not by litigation involving Hartmont but in the case which precipitated the fall of Albert Grant, Twycross v. Grant. This arose from Grant’s promotion of the Lisbon Steam Tramways Company, for which he was paid £45,800 (or 15% of the price paid by the company for the lines) under an agreement not mentioned in the prospectus. Grant’s conduct in this case was not entirely dishonourable, for the Lisbon tramway was not simply a bubble speculation. Indeed, when it became clear – after an engineer’s report on the venture – that the original plans were unworkable, Grant himself recommended abandoning the project and distributing the remaining assets to shareholders. But he was overruled by the company directors, who needed the firm to continue so that it could obtain a settlement on the Stock Exchange, which would allow its shares to be traded there. The project limped on until 1877, when it faced £22,000 of debts to its debenture holders. In this context, eighty-eight shareholders, led by James Twycross 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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(who had lost £700 in buying shares in the firm), sued Grant in a test case. In court, Grant (who defended himself in person) claimed there was nothing illegitimate in his conduct: he was (he said) entitled to his commission, given the costs of launching the company, and the risks involved in flotation. Moreover, his conduct in shoring up the share price, by buying and selling to give the appearance of demand, and in using his contacts in the financial press to paint a rosy view of the firm, was not in his view unusual business practice. Although the confirmed free-marketeer Baron Bramwell felt that Grant should not be held liable – since he abhorred using ‘paternal legislation’ to provide shareholders with ‘information they will not take the trouble to ask for’36 – a majority of the Court of Appeal found for the claimants. In their view, since the purchase price of shares constituted the capital of a company, it was relevant for shareholders to know whether the money paid was to go to the company or to the promoters. In coming to their conclusion, the judges were aware that ‘gigantic frauds’ had been committed, and that concealed agreements were a prime method through which share purchasers were defrauded. The decision settled the point that, under section 38 of the Act, a promoter who failed to disclose any contracts which were likely to influence potential shareholders was to be deemed guilty of fraud. This meant that shareholders investing on the faith of the prospectus could sue to recover any money they had lost as a result of buying the shares, even if they could have sold their shares at a profit during the intervening period; and even if (as Grant claimed) the ultimate failure of the company resulted from the bad decisions of others. If the decision signaled a clear message for the need for commercial parties to act with the utmost good faith, it nonetheless caused disquiet in a number of circles. Lawyers were worried by a decision which endorsed a concept of ‘constructive fraud,’ whereby verdicts could be obtained against people who had not been shown to have any intention to deceive. There was also concern that the decision would prove to be a licence to investors who had lost money in long established companies to litigate on the basis of trivial non-disclosures.37 However, the remedy offered by the decision in Twycross v. Grant was useless for those who had invested in the Phosphate Sewage Company, since the statute only protected the original shareholders who had bought on the faith of misleading prospectuses. It did not 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



protect those shareholders who had bought in the market from promoters who speculated in the shares of the companies they launched. To obtain their own remedy, shareholders in the mid1870s began to wrest control of the company away from the promoters, seeking to make them liable to the corporate entity for their illegitimate conduct, either by forcing them to repay the price paid for a useless asset or by making them give to the company any sums they had been secretly paid to launch the firm. The shareholders of Hartmont’s Phosphate Sewage Company were in the vanguard of this movement. In November 1872, Hartmont was ousted from the board of directors, and a new board was appointed, chaired by Edmund Peach. The new board planned to continue the business of sewage treatment,38 but also wanted to recover £65,000 from the promoters, directors and solicitors for the rights on Alto Vela, claiming fraud and breaches of trust. In March 1876, the company won its case before the Vice Chancellor, Sir Richard Malins, who ruled that Hartmont and Lawson & Co. were liable to repay the full purchase money, while Engelbach and Keir were liable to repay the £15,000 they had received. Malins was scathing about Hartmont’s conduct. ‘The thing was from the beginning utterly worthless,’ he ruled: ‘you might as well have given £40 for a broomstick as for a share in this company.’ He doubted whether ‘the annals of joint-stock companies [would] afford a more flagrant instance of fraud’ than the ‘contract’ with Oppert which drove up the share price.39 Equally, ‘putting forward Engelbach & Keir as purchasers, and giving them a bribe of £15,000 to accept the title, was fraudulent, and of course that could not have been adopted by persons actuated by honest motives.’40 Malins (whose decision was affirmed in the Court of Appeal in April 1877) found that the concession – which was liable to cancellation – should never have been made the subject of a sale, that it had no commercial value to the company when sold; that it had been improper to represent Lawson & Co. as vendors when they had no interest in the concession, and that the increase of the purchase price by the fee paid to Engelbach and Keir was improper. In effect, Hartmont was found, through all this fraud, to have sold something defective to the company, which he had now to take back. The court’s condemnation of Hartmont was far more severe than the censure suffered by Grant in his action with Twycross. In the view of The Times, ‘Vice Chancellor MALINS claimed for his case a character exceeding all 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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precedent – “never had the annals of the Stock Exchange presented its parallel” – but a popular novelist of the day has made something very like it the nucleus of a story to illustrate “The Way We Live Now.”’41 It was not only Hartmont who came in for criticism. Like many other promoters, Hartmont had a knack of getting eminent men to endorse his companies by joining the board. When floating the Ruby Consolidated Mining Company, he persuaded the lawyer Sir George Bowyer and the Admiral Sir Spencer Robinson (former Controller of the Navy) to join the board. Each was given the £500 of shares needed to qualify as a director, on agreeing to join the board. Giving evidence in the criminal proceedings against Hartmont in 1874, Bowyer ‘said that when he joined the Board of Directors he never intended to pay for his shares, or to put a farthing into the concern. He said it was the custom when a gentleman was asked to join a new company to give him his shares.’42 While his comment raised a laugh in the courtroom, the press found the revelation considerably less amusing. In September, the Recorder of London, Russell Gurney told a grand jury that ‘[i]t was stated that this was an ordinary proceeding, but if it was, all he could say was that he was sorry for it, because the public naturally imagined when they saw the names of respectable and responsible persons appearing as directors of a public company that those gentlemen had purchased their shares, and had an interest in the undertaking; whereas, in point of fact, they had no such interest.’43 Hartmont followed the ‘usual practice’ of giving directors qualification shares they were free to trade in when launching the Phosphate Sewage Company. Colonel Grant received ninety fully paid up shares, some of which he sold when the price was favourable. He was also allotted further shares, which he sold at a profit. He did not take his responsibilities as a director particularly seriously, for he signed false documents (such as the declaration to obtain a quotation on the Stock Exchange) without familiarizing himself with the detail. When the case came to court, Sir Richard Malins clearly disapproved strongly of Grant’s conduct, but was uncertain over whether it was unlawful. In his view, taking qualification shares was ‘a thing most unbecoming in any director of a company,’ as was the practice of directors dealing in shares. ‘[D]irectly he begins trafficking in shares,’ he observed, ‘the real interest of the shareholders is lost sight of; he is no longer directing his attention to make the thing a paying concern, which alone can justify the formation of the company; his 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



mind is devoted to other objects, which are altogether improper.’ As to signing documents without taking care to verify their contents, Malins noted that Grant (and the other directors) had displayed a ‘negligence, a blindness and readiness to be imposed upon […] that is utterly incredible.’44 Nevertheless, the only penalty Malins felt he had available was to award costs against Grant: though this was perceived as punitive enough. A similar order was made against the solicitors who had handled the matter. In an era when the boundaries of legitimate commercial behaviour remained in dispute, the moralistic Malins sought to use his judgment to improve the standard of conduct in the City. The Daily News felt that Malins’s ‘observations, so warmly vituperative and so obviously dictated by a sense of the novelty of the manoeuvres brought to light, show perhaps that he may not be conversant with recent commercial obliquities.’ But it found ‘some satisfaction to know that the arm of the law has proved itself long enough to reach the astute gentlemen who nursed the Phosphate Sewage Company.’45 The Times was more sceptical. It noted archly that, ‘[i]n this way does Sir RICHARD MALINS vindicate law and morality right and left; and if he could only have had the Chairman and Secretary of the Stock Exchange also before him, and have made them also liable for the costs of the suit, we should have felt the atonement of justice was perfect.’ It was particularly troubled by the award of costs against the directors and solicitors, commenting that the potential reach of this principle was ‘extraordinarily extensive’; and adding that ‘[t]here is always a danger in sensational cases, such as that of “The Phosphate Company v HARTMONT and others” that moral indignation may overlay law.’46 The newspaper welcomed the likelihood that the case would be appealed. So indignant was Malins, and so certain that a fraud had been committed, that he failed properly to articulate the legal principles which underlay his decision. However, his decision was upheld in the Court of Appeal, and by the end of the decade, other courts had sketched out the principles of commercial morality for promoters and directors more fully. It was established that promoters owed fiduciary duties to the companies which they launched, and could not sell assets they had acquired to a company they formed without giving full information of their interests to an independent set of directors.47 The principle was also established that a promoter could 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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not make secret profit by being paid a commission for helping to float a company, even where he was not selling his own assets to the newly formed firm. Albert Grant’s downfall was therefore secured, not by the decision in Twycross v. Grant which held him liable for damages caused by his constructive fraud,48 but from a series of subsequent decisions which judged that he was bound to repay money he had made when promoting companies.49 Similarly, as courts encountered more cases against directors, they established the principle that directors had to account for the value of shares they were given. In July 1875, the Court of Appeal confirmed that a director was an agent of the company who could not be permitted to derive any benefit without the sanction of the company. This meant (in Sir William James LJ’s words) that the court ‘will make persons who engage in such schemes pay back to the utmost farthing whatever they have received.’50 The principle was taken one step further in 1878 in Nant-y-Glo and Blaina Ironworks Company v. John Grave, in which the defendant was a director of the plaintiff company and the brother-in-law of one of the promoters (who also included Albert Grant). Although he had been kept in the dark about the large sums retained by the promoters of the company during the flotation, he had received fifty £100 shares in the company, which he left in 1874, when the shares were trading at £70. Vice Chancellor Bacon decided that the money Grave received was the company’s property which had to be given back.51 But what did this mean? Grave’s counsel argued that he should only be required to restore the shares he received – now trading at £1 in the market – together with any dividends enjoyed plus interest. But the court ordered that he pay the highest price the shares had reached in the market, which was £80, together with interest and costs. Since the director had received these shares in effect in trust for the company, the court ruled, he must be liable to the same degree as private trustees.52 As these cases show, in the aftermath of company failures of the early 1870s, courts sought to establish a tough regime to prevent promoters and directors making private profits from the launch of companies. ‘The morality of Lincoln’s-inn is more austere than the morality of Capel-court’, trumpeted The Times after Erlanger’s syndicate was condemned in the Court of Appeal.53 Courts indeed often had a sense of commercial morality which was stricter than that in 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



the market, where there was an awareness both that the speculating purchaser of shares was himself not blameless and that it was not illegitimate to make profits from company formations. Nonetheless, judicial determinations did not automatically translate into effective remedies for litigants. Some more respectable businessmen – such as Emile Erlanger – paid back money to companies, as they had been ordered to do, but others, such as Hartmont, used the machinery of the courts to evade their liabilities and relaunched their speculative careers.

Not paying: Hartmont’s survival In many ways, Edward Hartmont reflects the stereotype of the swindling promoter found in the literature of the age. A foreigner, the precise details of whose background were unknown, a Jew who had changed his name, and sought to make his fortune by speculating in Latin American guano, a man who seduced others into ‘irrational exuberance’ on the stock market and who had his fingers rapped in the courts, he seems the very model of the literary anti-hero.54 Indeed, he may have been, along with Albert Grant, the model for Laurence Oliphant’s speculating promoter, Mr Mire, in ‘The Autobiography of a Joint-Stock Company (Limited)’, published in Blackwood’s Magazine in July 1876. In this tale, Mire, a German Jew, is ordered to repay £100,000 to the shareholders in the company, by a ‘high-minded judge who ... expressed himself in unequivocal language as to the corruption which had crept into a certain class of the commercial community of London.’ Mire was killed off by the shock of the decision, and ‘[h]e now lies in the cemetery of a synagogue not far distant, and on his tombstone, engraved in choice Hebrew, is a correct translation of the thirty-eighth clause of the Companies Act (1867).’55 But in fact, neither Grant nor Hartmont died from the shock of their disgrace, or (like Melmotte) by their own hand. Both continued their careers in business; and if Grant never recovered the heights he had enjoyed in the early 1870s, in the 1890s, Hartmont was able to fly higher than he ever had before. As Hartmont’s story shows, a thick skinned entrepreneur could often ride out the storm and recover: the morality that mattered was that of Lombard street and Capel court, where hard-cash creditors had




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to be paid, but speculating shareholders could be left to lick their own wounds. The very legal system which condemned Hartmont’s conduct and held him liable for large sums provided the means to allow him to avoid paying them. For under the 1861 bankruptcy system, insolvents were empowered to summon a meeting of their creditors, who could agree to a composition of their debts in a voluntary liquidation, without any formal declaration of bankruptcy or publicity to the proceedings. Hartmont, whose debts exceeded £300,000 (including the £65,000 owed to the Phosphate Sewage Company and £200,000 to the Ruby Consolidated Mining Company) was among the vast majority of insolvents who chose this path.56 He was not wholly indifferent to the fate of his creditors: he swore that he had by 1872 fully repaid his French creditors, and Malins speculated that the profits from the Phosphate Sewage Company may have gone to them.57 But he sought to make his own arrangements, in his own way, and at a time of his own choosing. He could drive hard bargains, as the Berlin Phosphate Sewage company found to its cost. In 1875, as part of an attempt to reduce its capital, the company agreed to take back Hartmont’s shares,58 in exchange for half of the money which the shareholders hoped they would get back in a suit he would bring against the English company, to recover the £15,000 paid for a non-existent patent. But the Queen’s Bench division refused to countenance an action brought by Robert Begbie, Hartmont’s henchman, against the innocent English shareholders they had duped.59 To make matters worse, as part of the deal, the Berlin company had agreed to waive all its legal claims against Hartmont, and also assigned him two estates in Prussia. But it soon found itself back in Chancery, sued by Hartmont in another dubious suit concerning these properties.60 Meanwhile, the Berlin company decided once again to seek to recover the £30,000 they had paid for the patent from the Phosphate Sewage Company and Hartmont. The latter successfully pleaded his agreement with them not to sue him, while the former said that it would be forced to liquidate if things proceeded: and so the Berlin company settled for less than £4,000. By 1881, the company was reduced to suing its own solicitors, the firm which had taken over their legal business from Elmslie, Forsyth & Sedgwick, Hartmont’s original legal co-adjutors.61 It was finally wound up in 1884. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



Frustrated by Hartmont’s insolvency proceedings, which seemed to let him get away scot-free, the shareholders in the English Phosphate Company attempted in June 1877 to have him committed for contempt of court, for his failure to pay the £65,000.62 To do this, they invoked the 1869 Debtors Act, which had abolished imprisonment for debt, but retained it for trustees who had been ordered to pay sums by a court and who had failed to do so. The company’s lawyers argued, plausibly enough, that since he was a promoter of the company who owed a fiduciary duty to it, and since he had been ordered by a court to repay the money, he fell within the provisions of the act and should be arrested. The case came before Sir Richard Malins, who felt that Hartmont ‘richly deserved imprisonment’ for his ‘moral delinquency.’ But he reluctantly ruled that since the money had been received as result of fraud, rather than already being trust property, the exception of the Debtors’ Act did not apply.63 Hartmont emerged from court a free man, and the company failed to get its money.64 The year after he had entered into his voluntary arrangement, Hartmont opened new offices at 58 Lombard street, just down the street from where he had conducted business before. He now relaunched into the world of business, and spent over a decade promoting various mining ventures at home and overseas, without attracting much attention from the press.65 In the 1890s, the name of Hartmont again became a familiar one. But in this decade, as he discovered to his cost, the morality of the bankruptcy courts had begun to exert a stronger influence, imposing a stricter view on the City of what conduct was to be regarded as illegitimate.

The fall In the 1890s, Hartmont had two money-making passions. The first was the theatre. In 1892, he agreed to put up the money needed to stage Brandon Thomas’s play, Charley’s Aunt, having been introduced to Thomas’s partner in the venture, the actor W.S. Penley, by Emily Sheridan. It is fitting that Hartmont’s fortune should have been remade by a farce of deception and mistaken identities, in which the eponymous Charley’s aunt is impersonated by an impecunious young aristocrat, in a ‘pious fraud’ designed to allow his friends to propose to their true loves. In the play, matters become ever more 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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complex when the wealthy ‘aunt’ becomes the object of the attention of both the father of one of his friends, Jack, and of the guardian of his beloved Kitty. Despite the danger, the ruse proceeds: CHARLEY (with sudden frenzy): Jack, I can live this lie no longer. JACK (shouting aggressively): Now, don’t start that! Some lies have to be lived. CHARLEY: What for? JACK (savagely): To save confessing them, you duffer!66 The protagonists hold their nerve – with Lord Fancourt Babberley, dressed as Aunt Lucia, using ‘fraudulent pretences’ to induce Kitty’s guardian, the solicitor Spettigue, to give signed permission for her marriage to Jack – and all ends happily, with each person (save Spettigue) finding his true love, along with financial fortune. The show was a smash hit, running for four years, and the £800 Hartmont put up netted him over £30,000 in profits. It also brought Hartmont a degree of fame. During the run of the play, The Lighthouse published an article drawing attention to Hartmont’s £400 weekly profits from the show. The role he was best known for, it said, was that of a company promoter, though the firms had not been as successful as their prospectuses promised: Their somewhat disappointing careers may have cast a gloom over many otherwise happy homes – not, we beg, to suggest, owing to any fault of Mr Hartmont, but through such unexpected events as the Baring failure, the Argentina crisis, the influenza epidemic, cholera, deaths in the Royal household, icebergs in the Atlantic etc.67 Hartmont might cheer the losers in his ventures, it suggested, ‘were he to arrange for a series of matinées being given, to which he could invite free and freely the disappointed people abovereferred to, so that their sadness as investors might be turned into gladness by witnessing and enjoying Mr Penley’s wonderful impersonation.’68 Just as Hartmont had not lost his appetite for promotion, so he had not lost his appetite for litigation. Charley’s Aunt led him back to the courts, for he was sued by Emily Sheridan, who had hoped to play the part of Kitty, and who claimed to have been promised 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



5 per cent of the profits of the play by Hartmont. She won her case, but Hartmont was still prepared to take it to the Court of Appeal, rather than pay out the relatively small sum of £750 awarded.69 By 1896, Hartmont and Thomas had also fallen out with Penley (who had tired of appearing every night in drag), and attempted to sue him for breach of contract for £10,000.70 Hartmont saw nothing unrespectable about fighting tooth and nail in the courts. Indeed, he was even prepared in 1894 to litigate with his caterer over the cost of a banquet in his home for fifty guests to celebrate the Duke of York’s wedding.71 Nor had he lost his knack for dodgy deals. In 1896, he sued the American theatre impresario Augustin Daly for failing to pay him royalties for the exclusive right to perform Mrs Othello in America. The play had been a hit in Philadelphia, and Hartmont wanted his cut. Although Daly’s counsel argued that Hartmont did not possess the American rights, the latter claimed that he had told Daly in a letter that he had not secured these rights.72 This was the trick of the Berlin Phosphate Sewage company all over again: the fact that Hartmont took the initiative to sue demonstrates that he, at least, saw nothing wrong with this. His other passion continued to be company promotion. Having invested heavily in a Welsh mine which had as yet produced no return, and having put much money into the failed Erie Railway Company, by 1894, his business was in trouble, and he was under pressure from his creditors. The money from Charley’s Aunt was therefore very welcome, as a means to pay off his creditors. Back on his financial feet, he turned to promoting gold mining companies in South Africa and Australia, a passion which finally led to his downfall. In 1895, he organized the purchase of over one hundred mining claims on the Witwatersrand belonging to one Leopold Lowenthal. To do this, he launched two companies – the West Rand Exploration Company and the South Luipaards Vlei Gold Mines Company Ltd – which were both entirely controlled by Hartmont, through his accountant, J.R. McNaught.73 The first of these companies bought Lowenthal’s claims for £46,000, and sold the rights on to the second company for £125,000. To avoid the pitfalls presented by section 38 of the Companies Act, Hartmont did not issue any prospectus for the South Luipaards Vlei company. Instead, he issued shares in the company to the West Rand Company, and then drove the share price up by placing telegrams from an engineer in the press (channeled via 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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his nephew in Hamburg), which gave the impression that significant amounts of gold were being found. The share price duly rose. With the price rising, Hartmont released a large number of the shares held by the West Rand company onto the market. In the event, not one shaft was sunk, and by June 1897, the company was being wound up at the instance of irate shareholders demanding rescission of the contract to buy the claims, and demanding a public examination of those responsible for what were now regarded as fraudulent telegrams.74 This venture proved Hartmont’s undoing. For the law had tightened significantly since the days of the Phosphate Sewage Company. Legislation relating to company winding up in 1890 gave the Official Receiver the powers to investigate frauds in the formation of companies, which the South Luipaards Vlei shareholders wanted to be used against Hartmont. Reforms in bankruptcy law in 1883 and 1890 had moreover made it far more difficult for insolvent traders to obtain a whitewash. The philosophy behind the reform of bankruptcy law, piloted by Joseph Chamberlain, was that insolvency was not merely a private matter which could be left to debtors and creditors to sort out, but was a matter of public interest which merited public inquiry. A composition with one’s creditors could only now be had if the insolvent could pay 7s 6d in the pound, and the court assented to the arrangement. Under the new system, an Official Receiver also investigated the bankrupt’s conduct and reported to the court which determined whether the composition could proceed, or (if there was no composition), whether the bankrupt was to obtain a discharge. Such a discharge could be withheld, for instance if the bankrupt had traded while insolvent, or engaged in hazardous speculation. When the South Luipaards Vlei company was wound up, Hartmont and McNaught were given a public examination, at which much attention was devoted to the publication of the telegrams. The two men calmly reasserted their own views of commercial morality. McNaught told the Official Receiver (G. S. Barnes) that no one who had read the engineer’s reports would have been misled by the telegram. When asked about those who had not read the engineer’s report – but who had read the published telegrams – he simply replied, ‘[i]f a man buys shares in a company he knows nothing about it is his own fault.’ Hartmont at first refused to answer questions about the 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor




Barnes: You cannot imagine how these things get into the papers? Hartmont: No: it is wonderful. They get news from everywhere. (Laughter.)75 Hartmont attributed the failure of the company to the effects of the recent Jameson Raid, and maintained that the company was still sound, declaring that ‘[t]he campaign, which ended in the windingup order, was a campaign of lies’.76 By now, Hartmont was broke, and faced seventy-eight petitions for bankruptcy against him. The first meeting with his creditors revealed that he had over £60,000 of debts, three quarters of which were unsecured. He valued his own assets at under £4,000: though a more realistic figure was £600. Ever the optimist, he persuaded the court to give him time to attempt to come to an arrangement with his creditors. Since he still held shares with a face value of £193,000 in the South Luipaards’ Vlei company, he hoped to persuade his creditors to take them in lieu of their debts. Hartmont had been in many financial scrapes before, but this time, there was no way out. Creditors were not prepared to accept worthless shares, and the Official Receiver was unconvinced that they could ever reach the necessary threshold of 7s 6d in the pound to allow a composition.77 After trying every means to avoid bankruptcy, Hartmont had no option but to accept an adjudication.78 Ten months after being adjudicated bankrupt, Hartmont sought a discharge. This was an unusual move: for while in 1899, 4,111 people were made bankrupt, only 884 applied for a discharge, since they preferred to avoid the public examination which came with the application. Hartmont may have bitten the bullet given that an undischarged bankrupt was disqualified from acting as a company director, and could run up no debt greater than £20 without giving notice of his bankruptcy. But the odds were heavily stacked against him, since the Official Receiver, in his report, had charged him with fraudulent conduct, in circulating ‘fraudulently misleading cablegrams’ in connection with the South Luipaards Vlei company. Justice Wright also pointed out that he had been bankrupt before, had continued to trade once he knew he was insolvent, and contributed to his 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


telegrams, but when forced to, claimed to know nothing about how they got into the press:

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own failure by rash and hazardous speculations on the stock market (where he had lost £5,000). Justice Wright observed that Hartmont had been guilty of a breach of his fiduciary duties to the company by making a contract for the purchase of the concession for his own benefit. What weighed most heavily on his mind, when he refused the discharge, was his ‘conclusion that the bankrupt was guilty not only of misconduct but also of fraud in relation to the affair of the company.’ At the same time as refusing the discharge, moreover, he admitted the South Luipaard Vlei company’s claim against Hartmont of £51,841.79 Hartmont was one of only 40 bankrupts to have a discharge absolutely refused in 1899. Under the new regime, Hartmont faced the public condemnation he had avoided hitherto. But there was no order for a criminal prosecution: and indeed the judge told Hartmont he could reapply if he could come up with proposals for the benefit of his creditors. Although Hartmont appeared to give evidence in 1900 in Miss Sheridan’s continuing litigation against W. S. Penley,80 he seems to have disappeared from public view thereafter. He was now sixty-one years old, and his career in England as a company promoter was at an end. In November 1903, Hartmont left England on board the Danube for Buenos Aires.81 Though largely forgotten by historians, in his day, Hartmont was, as Justice Wright put it, ‘a well-known financial agent and company promoter.’ His legal travails both in the 1870s and in the 1890s obtained wide coverage in the press. It is ironic that whereas his conduct attracted severe censure in the courtroom and in the press in the 1870s, by the 1890s, both the judiciary and the press were more temperate in their treatment of him. This should not be a surprise: for the same newspapers which carried news of Hartmont’s legal difficulties also carried news of greater financial frauds, in which corrupt directors found themselves in the criminal courts.82 Hartmont’s career is a useful barometer of commercial morality precisely because he did not go to extremes in breaking the rules, but rather sailed on the edges of what was legitimate conduct. In the 1870s, when limited liability company promotion was still relatively new, and investment on the Stock Exchange novel and risky, attempts to moralize the market, whether by severe pronouncements from judges in the civil courts, or from novelists with a moral message, generally failed. But by the end of the century, when the body of investors was 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



larger and more familiar with the Stock Exchange, and limited liability companies more familiar, the market, in conjunction with the courts and the legislature, was becoming more confident and more effective in defining commercial conduct which broke the bounds of legitimacy.

Notes 1. An estimated 20% of shareholders in this era were women: see Mark Freeman, Robin Pearson and James Taylor, ‘“A Doe in the City”: Women Shareholders in Eighteenth- and Early Nineteenth-Century Britain,’ Accounting, Business and Financial History, 16 (2006), pp. 265–91. Research for this paper was done during my tenure of a British Academy Research Readership, as part of work on the law of obligations in the nineteenth century. The support of the British Academy is gratefully acknowledged. 2. See Mary Poovey, ‘Writing about Finance in Victorian England: Disclosure and Secrecy in the Culture of Investment,’ Victorian Studies, 45 (2002), pp. 17–41. 3. Ranald C. Michie, The London Stock Exchange: A History (Oxford: Oxford University Press, 2001), pp. 72–3. 4. Boyd Hilton, The Age of Atonement: The Influence of Evangelicalism on Social and Economic Thought, 1795–1865 (Oxford: Clarendon Press, 1988). 5. See G.R. Searle, Morality and the Market in Victorian Britain (Oxford: Clarendon Press, 1998), Stefan Collini, Public Moralists: Political Thought and Intellectual Life in Britain, 1850–1930 (Oxford: Oxford University Press, 1991), ch 2. 6. On Dickens’s Merdle and Trollope’s Melmotte, see Barbara Weiss, The Hell of the English: Bankruptcy and the Victorian Novel (Lewisburg: Bucknell University Press, 1986), ch. 8, Norman Russell, The Novelist and Mammon: Literary Responses to the World of Commerce in the Nineteenth Century (Oxford: Clarendon Press, 1986), chs 6–7. For other literary responses to speculation, see J.R. Reed, ‘A Friend to Mammon: Speculation in Victorian Literature,’ Victorian Studies, 27 (1983–4), pp. 179–202, and Jane Moody ‘The Drama of Capital: Risk, Belief, and Liability on the Victorian Stage,’ in Francis O’Gorman (ed.), Victorian Literature and Finance (Oxford: Oxford University Press, 2007), pp. 91–109. 7. D. Morier Evans, Facts, Failures and Frauds: Revelations, Financial, Mercantile, Criminal (London: Groombridge & Sons, 1859) pp. 2, 5. 8. As G.R. Searle has pointed out, in this era ‘the dominant middle-class response to the development of capitalism [...] was neither approval nor rejection, but ambivalence.’ Searle, Morality and the Market, p. 7. 9. William Morgan, ‘The Royal Commission and the Stock Exchange,’ Temple Bar, 50 (1877), pp. 346–65 at 353, 362.




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10. David C. Itzkowitz, ‘Fair Enterprise or Extravagant Speculation: Investment, Speculation and Gambling in Victorian England,’ Victorian Studies, 45 (2002), pp. 121–47. 11. On these men, see George Robb, White Collar Crime in Modern England: Financial Fraud and Business Morality, 1845–1929 (Cambridge: Cambridge University Press, 1992), pp. 99–109. 12. Under the bankruptcy regime introduced six years earlier, bankruptcy commissioners were empowered to withhold a bankrupt’s discharge or order imprisonment for up to a year if he had engaged in rash or hazardous speculation, or had contracted debts without having reasonable means to pay them. Bankruptcy Act 1861, s 159. 13. The Times, 7 November 1867, 11c. 14. In 1860, when running an import and export business dealing with the East Indies, Begbie had petitioned for bankruptcy with over £66,000 of debts. Bankruptcy commissioner Cecil Fane described Begbie’s case as ‘monstrous’ and without ‘a single favourable feature.’ But, in the absence of any complaining creditors, Begbie also obtained a certificate, although it was of the third – and worst – class. The Times, 19 October 1861, 9d. Fane added in passing his regret that the power of the commissioners thus publicly to brand the bankrupt’s conduct was to be abolished under the new 1861 Act. For the wider proceedings in Begbie’s bankruptcy, see The National Archives, London [TNA] B/9/280. 15. Albert Grant had also floated such a loan. 16. Lawson’s involvement is discussed in their later bankruptcy proceedings: Glasgow Herald, 15 March 1873, p. 6. 17. Phosphate Sewage Company v. Hartmont (1877) 5 Ch D 394 at 428. 18. Report from the Select Committee on Loans to Foreign States, PP 1875 (367) XI 1, xxxii–xxxiv, xlv. For public criticism of the loans (and of Hartmont), see H. Guedalla, Syndicates and their baneful influence on Foreign Loans and Public Companies, 2nd edn (London, 1873), esp. pp. 2–3, 32. See also David Kynaston, The City of London. Vol 1: A World of Its Own, 1815–1890 (London: Chatto & Windus,1994), p. 269. 19. ‘The Royal Commission and the Stock Exchange’, p. 47. 20. Hartmont himself retained £93,000 raised in the loan (having made according to his calculations £17,000 profit from the £100,000 retained), but refused to hand it over. 21. See The Republic of Costa Rica v. Erlanger (1875) 31 Law Times Reports 635. By 1878, this litigation had not been settled and the government of Costa Rica dismissed its London agent, Strousberg, and sued him for £25,000 paid to him to conduct the litigation: The Times 29 July 1880, 4c. 22. Twycross v. Dreyfus (1877) LR 5 Ch D 605. 23. The Times, 18 September 1885, 12a. 24. The company was registered on 8 May 1871. 25. Peter Lawson & Co were in bankruptcy by March 1873: The Times, 15 March 1873, col. 5b. The bankruptcy proceedings revealed that




26.

27. 28. 29.

30.

31.

32. 33. 34.

35. 36. 37. 38. 39. 40. 41. 42.

Lawson & Co received £12,300 in cash and £5000 in shares (later sold at par to Hartmont) of the £65,000 purchase price. The firm had already spent £34,000 on expenses on Alto Vela: Glasgow Herald, 19 April 1873, p. 6. 24 & 25 Vic c 96, ss 82, 84. The Act consolidated the 1857 Fraudulent Trustees Act, passed in the aftermath of the failure of the Royal British Bank; on which, see James Taylor, ‘Company Fraud in Victorian Britain: the Royal British Bank Scandal of 1856,’ English Historical Review, 122 (2007), pp. 700–24. The story is well summarized in W.T.C. King, History of the London Discount Market (London: George Routledge & Sons, 1936), pp. 242–56. See The Times, 23 December 1869, page 10. See e.g. ‘Commercial Morality,’ in Liverpool Mercury, 29 December 1869, p. 6, answering a pamphlet entitled, Stealing no Theft, and Killing no Murder; or, our So-Called Respectability Unmasked. It argued that commercial frauds were only more noticeable, because of the extent of commerce and the publicity afforded by a free press. Robb, White Collar Crime, pp. 160–8. Contrast Sarah Wilson, ‘In Defence of Respectability: Financial Crime, the “High Art” Criminal and the Language of the Courtroom, 1850–1880,’ in Ian Inkster with Colin Griffin, Jeff Hill and Judith Rowbotham (eds), The Golden Age: Essays in British Social and Economic History 1850–1870 (Aldershot: Ashgate, 2000), pp. 199–215, arguing that criminal trials played an important role in defining respectability in commercial conduct. Daily News, 29 July, 14 August, 18 September 1874; Freeman’s Journal, 30 July, 18 August 1874; The Times, 14 Aug 1874, 9d. For Askew’s attempt to rescind his purchase, see also In re Ruby Consolidated Mining Company, Askew’s Case (1874) L.R. 9 Ch. App. 664. The Times, 1 Jan 1877, 12a. The Times, 29 December 1902, 7c, 27 January 1904, 7e. In the mid-1870s, Sir James Bacon took the view that there was nothing wrong with a man buying cheaply and selling dearly to a company he later formed: see In re Coal Economising Gas Company (1875) LR 20 Eq 114 at 122–3 (affirmed by the Court of Appeal: (1875) 1 Ch D 182), and Craig v. Phillips (1876) 3 Ch D 722. Freeman’s Journal, 30 July 1874. Twycross v. Grant (1877) LR 2 CP 469 at 498. See Law Times, 62 (1877), p. 345. Birmingham Daily Post, 26 November 1872. For the continuing activities of the company, see e.g. The Times 18 December 1873, col. 4f. Phosphate Sewage Company v. Hartmont (1877) 5 Ch D 394 at 435, 437–8. Phosphate Sewage Company v. Hartmont (1877) 5 Ch D 394 at 440. The Times, 3 March 1876, 9d. Daily News, 13 August 1874. See also the solicitor general Sir John Holker’s observation that ‘[i]t is not easy to get good directors, and they




43. 44. 45. 46. 47.

48.

49.

50.

51. 52.

53. 54.

55.

56.

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must be recompensed’. In re Canadian Oil Works Company, Hay’s Case (1875) 10 Ch App 593 at 596. Pall Mall Gazette, 21 September 1874. Phosphate Sewage Company v. Hartmont (1877) 5 Ch D 394 at 444–5. Daily News, 3 March 1876. The Times, 3 March 1876, 9 d–e. This was settled in Emile Erlanger v. The New Sombrero Phosphate Co and others (1878) 3 App Cas 1218, on which, see M. Lobban, ‘Erlanger v the New Sombrero Phosphate Company,’ in C. Mitchell and P. Mitchell (eds), Landmark Cases in the Law of Restitution (Oxford: Hart Publishing, 2006), pp. 123–62. Twycross v. Grant is often held up as a landmark decision, which precipitated the downfall of a swindler. Yet the sum recovered by the eightyeight shareholders – £36,000 – was in fact less than the £45,800 Grant had himself made from the transaction. In Bagnall v. Carlton (1877) 6 Ch D 371, he was ordered to repay a £65,000 secret commission he had been paid, though he was allowed to retain £6,250 bona fide expenses; in Emma Silver Mining Company v. Grant (1878) 11 Ch D 918, he was forced to repay £100,000 of secret profit made in the purchase and resale of a mine; and he settled a claim in excess of £200,000 made by the Nant-y-Glo and Blaina Ironworks Company. In re Canadian Oil Works Co. Hay’s Case (1875) LR 10 Ch App 593 at 600–01. See also Parker v. McKenna (1874) LR 10 Ch App. 96, In re Morvah Consols Tin Mining Company. McKay’s Case (1875) 2 Ch D 1 at 5, In re Caerphilly Colliery Co. Pearson’s Case (1877) 5 Ch D 336. Nant-y-Glo and Blaina Ironworks Company v. Grave (1878) LR 12 Ch D 738 at 745–6. The quantification of the liability here followed that imposed on officers of the company who were liable for misfeasance under s 165 of the Companies Act 1862: see In re Morvah Consols Tin Mining Company. McKay’s Case (1875) LR 2 Ch D 1. The Times, 28 February 1877, 9e. Lincoln’s Inn was the home of the Court of Chancery, Capel Court of the Stock Exchange. Trollope’s mercantile anti-hero, Ferdinand Lopez, in The Prime Minister (1876) was ‘half foreigner, half Jew,’ and speculated (among other things) in guano. See also Audrey Jaffe, ‘Trollope in the Stock Market: Irrational Exuberance and The Prime Minister’, Victorian Studies (2002), pp. 43–64. Melmotte was also an outsider (an American), whose agents – as Melmotte himself may have been – were Jews. Laurence Oliphant, Traits and Travesties Social and Political (Edinburgh and London: William Blackwood, 1882), pp. 159–60. Grant, though Jewish, was not German; and the condemnation referred to by the Chancery judge might have had Malins in mind. The Times, 2 June 1877, 13f. In 1877, there were 967 petitions for bankruptcy by creditors, but 8,566 voluntary arrangements recorded by the




57

58. 59.

60.

61. 62.

63.

64.

65.

court. V. Markham Lester, Victorian Insolvency: Bankruptcy, Imprisonment for Debt and Company Winding-Up in Nineteenth-Century England (Oxford: Clarendon Press, 1995), p. 166. Another insolvent who now entered into a voluntary liquidation was Albert Grant: The Times, 4 February 1879, 3f. His colleague Begbie similarly declared a second dividend on his 1860 bankruptcy in March 1875, in which 90% of his earlier debts were paid off: TNA B 9 280. In the first year of its life, Hartmont held 8748 of 15,000 shares issued, and sold 3058 of them. See TNA BT 31/1680/5975. Cockburn CJ held firstly that they got what they paid for – an ostensible grant of an exclusive right which could be used to induce people to buy shares in their floated company. Secondly, the action was bound to fail since the aim of the contract was to commit a fraud on those buying shares in the German company. Begbie v. The Phosphate Sewage Co (1875) LR 10 QB 491. In assigning the German properties to Hartmont, the company had (to his knowledge) warranted a better title to these properties than they in fact had, and he now endeavoured to compel them to make good that title. When Hartmont hit financial problems, he assigned the deeds to them to other confederates (to raise money), before finally passing them back to the company, encumbered with charges they were unaware of. The Times, 7 March 1881 6c. They may have been inspired by a successful motion against Hartmont in February 1877 by a Yorkshire landowner named Hutchinson: Hutchinson v. Hartmont (2 February 1877) Weekly Notes, 1877, p. 29. For details, see Leeds Mercury, 16 December 1876, 3 February 1877. Hartmont seems to have evaded committal (probably by paying), for he lost no time in announcing to the press that he had a far larger counter-claim against Hutchinson: Birmingham Daily Post, 5 February 1877. Phosphate Sewage Company v. Hartmont, Weekly Reporter, 25 (1877), p. 743. By contrast, in the case brought by Hutchinson, the court was clear that he had been given the bills of exchange to hold in a fiduciary capacity. The company had no more luck in pursuing a remedy against the estate of the bankrupt firm of Lawson & Co. See Phosphate Sewage Company v. Molleson (1876) 1 App Cas 780; Phosphate Sewage Company, Limited, and the Official Liquidator Thereof v. Molleson (1879) 4 App Cas 801. According to Malins VC in Phosphate Sewage Company v. Hartmont, Peter Lawson & Co had only been able to pay 2s in the £ in their bankruptcy. Glimpses of his activities in India can be found in Hartmont v. The Madras Presidency Diamond Fields Ltd and Strutt, The Times, 9 June 1888, 5f, and Hartmont v. Cronheim, The Times, 14 October 1886, 3d. In 1890, he was involved in the New Venture Witwatersrand Gold Mining Company, which purchased a worthless mining concession in South Africa after incorporation from a set of promoters who were alleged to have made a secret profit of £22,500. The Times, 25 May 1892, 3f.




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66. Brandon Thomas, Charley’s Aunt, ed. by E R Wood (London: Heinemann Educational Books Ltd, 1969), p. 74. 67. Quoted in Jevan Brandon-Thomas, Charley’s Aunt’s Father: A Life of Brandon Thomas (London: Douglas Saunders with MacGibbon & Kee, 1955), p. 184. 68. Quoted in ibid., p. 184. 69. The Times, 12 February 1894, 13g, 9 April 1894, 3b, Pall Mall Gazette, 6 April 1894. He was also involved in litigation concerning contracts arising from other productions: see Wyatt v. Hartmont, Daily News, 7 March 1894. 70. The Era, 11 July 1896. Thomas’s action succeeded, and the two men did not speak again until 1905. Brandon-Thomas, Charley’s Aunt’s Father, pp. 207–8. 71. Benoist v. Hartmont, The Times 16 April 1894, 3d. The action was settled. 72. Hartmont v. Daly, The Times, 30 January 1896, 14c. Hartmont also went to court to try to avoid paying royalties to those from whom he had acquired the rights to put on this play: The Era ,20 July 1895. 73. Daily Telegraph, 8 February 1898, p. 5. 74. The Times, 2 June 1897, 16 b. 75. The Times, 8 February 1898, 3 c. 76. The Times, 1 March 1898, 7 f. 77. Financial News, 4 May 1898, p. 3, 7 June 1898, p. 6; Daily Telegraph, 7 June 1898, p. 5. 78. Hartmont unsuccessfully appealed to the Court of Appeal against his Receiving Order, claiming that a scheme of arrangement had been submitted to: PP 1899 (330) lxxxviii 105, p 65. 79. The Times, 26 April 1899, 15a, Financial News, 25 April 1899, p. 7. 80. The Times, 18 December 1900, 14b. 81. I am grateful to Nigel Searle for this information. 82. E.g. Daily Telegraph, 8 February 1898, carrying news of the case against F. R. Howell, Thomas Cory, and H.E. Collins, who pleaded guilty defrauding the Welsh Bank of £30,000; Financial News, 4 May 1898, p. 2, carrying news of the Brinsmead trial.




Dirty Laundry: Exposing Bad Behaviour in Life Insurance Trials, 1830–90 Timothy Alborn

In 1851, the executor of the late Giles Clement sued the Gresham Life Assurance Company, which had refused to pay his £350 claim on the grounds that Clement had concealed his intemperance and ‘vast irritation of the bladder and kidneys’ when his life had been insured as a teenager six years previously. The Gresham won the case, convincing a jury with a barrage of testimony from schoolmasters, landladies and surgeons that the young Clement had been a profligate carouser and bed wetter. For several summer days, the jury, Clement’s relatives, and readers of the London Times were treated to damning vignettes concerning both his drinking habits and ‘the appearances in his bedroom’. A surgeon who had treated his prostate in 1841 testified that the youth’s bedclothes, on examination in 1846, still ‘showed an incontinence of urine’. A schoolmaster claimed that he had found it necessary to put Clement in a separate dormitory room with another bed wetter, owing to his habit of leaving ‘mucous’ stains on the sheets; and another divulged that his inability to control his ‘very offensive’ urine led to dismissal from a different school in 1848. Finally, a Woolwich landlady mentioned ‘a “glutinous substance”, which we could only remove by warm water’, in his ‘pot de chambre’ – and her testimony was confirmed by a subsequent housemate’s report of ‘an offensive glutinous deposit’ yielded by his ‘disease in the bladder’. In case the stained sheets did not suffice, the Gresham bolstered its case with reports that Clement ‘had drinking habits’ as a teenager and ‘was inclined to drink freely’ as a young man.1 Although exposure of dirty laundry was seldom quite so literal as in this trial, Victorian insurance offices gained a reputation by the 148 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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mid-nineteenth century for dragging the bad behaviour of deceased policyholders into public view. This chapter will indicate the economic and social implications of such trials, and will explore their significance in light of changing perceptions of what qualified as legitimate behaviour and as legitimate contracts over the course of the nineteenth century. I focus on two specific types of behaviour, suicide and intemperance, which were both distinctively stigmatized by the Victorians, and which were both routinely proscribed on insurance declaration forms. Winning these trials was no easy matter, and insurance companies nearly always preferred to settle out of court. Even when they had built what they thought to be a strong case, juries still tended to side with plaintiffs who sued to collect their insurance money. In cases of suicide, this was the civil-court equivalent of the prevalent tendency of coroners’ juries to deliver verdicts of ‘temporary insanity’ in order to protect the property and status of innocent dependents. With intemperance, the problem was often that the testimony of an insured drunkard’s upper-class friends (whose personal definition of ‘temperance’ often allowed for several drinks per day) carried more weight with juries than the servants and publicans who testified to the bad behaviour in question. Even when companies won these trials, the very fact that they involved scandalous revelations attracted attention to apparent holes in the insurance contract. As one lawyer argued in 1874, they led policyholders to wonder ‘whether they were bequeathing their families a lawsuit or a provision for their subsistence’.2 This was especially a problem when the actual beneficiary of the policy was a creditor as opposed to a dependent, since creditors were more likely to be sensitive to an uncertain legal landscape. To ease such concerns, life insurers from the 1850s promised creditors that the suicide clause did not apply to them, and most by 1890 extended this exemption to all beneficiaries if the death took place one or two years after the policy was effected – thereby preventing all but a handful of suicide claims from ever going to trial.3 Life insurers were much slower, however, to respond to negative publicity generated by trials concerning intemperance. Although some did offer creditors an ‘indisputable’ clause, which would guarantee payment even if fraud could be shown, this usually only took effect after a five-year waiting period – and nearly all disputed claims fell due earlier than that. The result was a continued stream of trials into the twentieth century in which the main 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Dirty Laundry

point was to prove prior intemperance on the part of the recently deceased. These redefinitions of the insurance contract accompanied altered legal and medical assumptions about the legitimacy or otherwise of suicide and intemperance. In addition to the life insurers themselves, juries, judges and doctors also played important roles in forging these assumptions. In the case of suicide, juries and doctors consistently sided with families of suicide victims, arguing that suicide was an incident of disease and not a moral failing; whereas judges, for their part, tended to side with insurance offices. At intemperance trials, judges and juries alike defined ‘regular’ habits loosely, despite the intervening rise of medical evidence that long-term consumption of alcohol could seriously affect a person’s health. Insurance offices responded to these cues in different ways, which help account for their divergent patterns of litigation in suicide as opposed to intemperance claims. Precisely because judges consistently upheld life insurers’ efforts to resist suicide claims, creditors and other potential claimants had a strong incentive to pressure companies to alter their contracts; this incentive was not so strong in intemperance cases, which claimants usually had a decent chance of winning. Changing medical views offered further justification of a softer suicide clause, on the grounds that it was unfair to cover death by a heart attack but not self-inflicted death, if both resulted from ‘physical’ causes that had arisen after the policy had been purchased. In contrast, late-Victorian doctors convinced life insurance offices that intemperance, as a prior condition, was a deadly risk factor that should be guarded against by any means necessary – including a post-mortem trial, negative publicity notwithstanding.

Self-murder as fraud: contesting suicide claims Although there were dozens of ways a Victorian life insurance policy could be invalidated, nearly all of them concerned a failure to reveal information about behaviours or medical conditions that occurred before the first premium had been paid. Subsequent to signing the contract, the list of illicit activities was limited to travelling outside Europe without notifying the life insurer, dying in a duel or at ‘the hands of justice’, and committing suicide.4 Although insurance offices usually grouped these last three fates together under the same 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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clause, most of them repealed the duelling and execution sections by the late-nineteenth century, and almost none enforced them long before that.5 Travel restrictions, meanwhile, lightened considerably over the course of the century, with many companies issuing various types of ‘world wide’ policies from the 1850s on.6 This left suicide as the only enduring exception to the rule that Victorians, once they bought an insurance policy, could engage in just about any behaviour and still provide for their dependents or creditors if that behaviour resulted in premature death. Although companies substantially liberalized their suicide clauses between 1850 and 1900, all but a handful still threatened forfeiture in at least some cases well into the twentieth century. The reason for suicide’s exceptional status was partly a question of corporate self-protection and partly a question of public policy. Policyholders who killed themselves tended to do so relatively soon after insuring, as the Scottish Widows’ Fund discovered in surveying its 127 suicide claims registered between 1874 and 1894. Still, it could be argued (and many people did) that deaths from suicide amounted to the tiniest bump in insurance mortality (only 1.3 per cent of claims at the Scottish Widows).7 Something else, apparently, was behind the companies’ unique exclusion of that class of risk. What that was is evident from the panic that ensued among guardians of public morality when some life insurers started lifting that exclusion in the latenineteenth century. The British Medical Journal, for instance, worried in 1894 that repealing the suicide clause would be ‘contrary to public morality’ and would ‘invalidate the “canon ‘gainst self-slaughter” ’; and the leading legal treatise on life insurance concurred that the suicide clause acted as ‘a restraint on the mind and conduct of the assured’.8 In practice, most insurers probably thought their suicide clause restrained two immoral acts at the same time: fraud against the company and self-murder. As the Argus Life’s attorney argued in disputing a claim in 1845, not to do so ‘would encourage distressed men and men labouring under pecuniary difficulties to commit gross frauds to benefit the families whom they might leave behind them.’9 Against these reasons for retaining the suicide clause, life insurance offices confronted numerous arguments for paying claims in full when policyholders killed themselves. The most vocal of these came from doctors (especially those specializing in mental health), who from the 1840s grew increasingly strident in their claims that 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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suicide qualified as a disease and not an immoral act. For the asylum manager Harrington Tuke, suicide ‘depended simply upon the physical state of the blood, the increased circulation acting on disordered nerves’, and John Hitchman of the Middlesex Asylum similarly reasoned that suicide was the effect of ‘a disease of the brain’, just as ‘asphyxia is of epilepsy’. Most of these critics accused insurance offices of wrongly drawing a line between the sudden, violent act of suicide and the many less perceptible, but no less real, acts of selfdestruction carried on without penalty by many other policyholders. Hitchman, for instance, urged that a policyholder ‘may shorten his existence by continued intemperance, or he may become the veriest debauchee ... and ultimately sink a victim to the most disgusting and most loathsome of diseases, engendered by his own vices’ without endangering his claim, yet the same policy would be void if he died ‘by a disease which destroys the instinct of self-preservation’.10 Less frequently encountered in published sources, but of more consequence to insurance practice, was the sympathetic appeal to suicide victims’ dependents and creditors who suffered as a result of the companies’ refusal to pay suicide claims. Life insurers heard these appeals directly from the affected parties, both in pleas for an exception to the suicide clause and in court if such pleas were denied. More often than not, they settled as many of these cases as they could to avoid negative publicity. In 1857 the Alliance compromised for £500 on a £1000 policy (worth over £2000 with accumulated bonuses) on a man ‘who committed Suicide during a temporary derangement of mind, thereby vitiating the Assurance’; and the Church of England returned the premiums to a suicide victim’s family in 1873 ‘under the peculiar circumstances of the case’.11 Although minute books record many outright refusals to pay, a majority of suicide claims apparently resulted in all or part of the premiums being returned – even in companies that made no explicit promises to that effect. And few companies risked a court appearance without first trying to settle: the defence’s opening statement in such trials frequently commenced with a protestation to that effect.12 On account of life insurers’ aversion to negative publicity, trials involving suicides were relatively rare occurrences. When they did take place, much depended on whether the decision lay with a jury or a judge. As often as not, juries assumed that suicide victims were ‘of unsound mind’, and hence not responsible for their actions, typically 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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relying on prior coroners’ juries that nearly always delivered this verdict.13 Olive Anderson has suggested that in this regard coroners’ and civil juries acted in tandem, since a primary motive for an insanity verdict at a coroner’s hearing was to increase the chances that the insurance policy would be paid.14 In 1874, for instance, a jury required the Universal Life Assurance Society to pay a £1000 claim, citing the coroner’s verdict that he had walked in front of a train at Battersea Station ‘while in a state of insanity’.15 However, although executors’ lawyers routinely appealed to such verdicts in the hopes of achieving this outcome, not all juries were so co-operative.16 Nor did a jury’s award in civil court guarantee that a company would actually pay in the end. When the Universal appealed the Battersea case, Baron Bramwell ruled that the jury had been misdirected, ordered a new trial, and the widow agreed to settle out of court rather than incurring further legal costs.17 Although judges occasionally agreed that mental disease on the part of a suicide victim should automatically result in the payment of a life policy, most focused instead on whether the victim had upheld the precise wording of the insurance policy.18 Their primary duty, as they saw it, was to preserve the sanctity of contract, not to define the moral or medical parameters of self-murder. Some definitional work inevitably entered in, however, since policy language was never crystal clear – and in such cases Victorian judges typically gave insurance companies the benefit of the doubt. Two leading cases in the 1840s, which had a major impact on suicide clauses, both hinged on this judicial mindset: Borradaile v. Hunter (1843), in which the London Life avoided paying a claim on the suicide of a Wandsworth vicar; and Clift v. Schwabe (1846), in which the Exchequer Court overturned a Liverpool jury’s ruling holding the Argus responsible for paying its claim on a Manchester silk manufacturer. Far from strengthening other insurers’ subsequent resolve to challenge suicide claims, these two verdicts plunged potential beneficiaries into a panic regarding the security of their policies, which insurance offices could only assuage by formally declaring that suicides, in most cases, would not invalidate the contract. Hence a move towards liberalizing the suicide clause, which was already under way in the 1830s, picked up steam a decade later. On 16 February 1838, William Borradaile deposited his hat and coat on a railing of the Vauxhall bridge, then jumped to his death. 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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A local tax collector had recently defaulted on a surety that Borradaile had pledged, leaving him mentally and financially troubled. Ten years earlier, upon marrying, he had taken out a £1000 policy with the London Life, which he settled on his wife; she spent nearly four years after his death haggling with the insurer over the claim until finally taking her case to the Court of Common Pleas in December 1841. Working from the policy’s stipulation that it was void if the party died ‘by his own hand or by the hands of justice’, the judge instructed the jury to find for the London Life if they believed that Borradaile ‘came to his death, knowing what the consequences of throwing himself into the water would be, and intending to produce those consequences.’ In the next breath, however, he added that ‘real and existing causes’ might have ‘disturbed the mind, and produced disease which was the immediate cause of self destruction’. So instructed, the jury found for the London Life, ruling that the vicar had acted ‘with the intention of destroying himself’, but added that he had at the time not been ‘capable of judging between right and wrong’. That was confusing enough for the judge to qualify his formal verdict for the London Life by allowing the Borradaile family to ask a full bench of Common Pleas judges to clarify the meaning of the jury’s verdict. At this new hearing, their lawyers argued that if ‘intention’ (as implied in the phrase ‘by his own hand’) was the result of disease, the clause’s ‘equivocal language’ should not void the policy – comparing Borradaile’s actions to those of a somnambulist or a person seeing a mirage. One judge, Nicholas Tindal, accepted this reasoning, and further imputed that the clause should only apply to ‘felonious’ suicides (i.e not committed under temporary insanity) because it appeared in the same sentence with death by execution. The other three upheld the original decision, imputing both intention and foreknowledge to Borradaile.19 Many of the same issues resurfaced two years later in the Liverpool circuit court, when the Argus disputed a £999 claim by the executors of Louis Schwabe, who killed himself by swallowing a cup of sulfuric acid that he had procured from his factory’s storeroom. His widow’s lawyer depicted him as ‘a very imaginative person’ who had suffered periodic attacks of insanity since being ‘much excited’ at a British Association meeting in 1842, a recurrence of which had preceded his death. The Argus’s lawyer rested heavily on the recent Borradaile precedent. Although the relevant clause in this case excluded 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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customers who had ‘committed suicide’ as opposed to dying by their ‘own hands’, he argued that it amounted to the same thing since Borradaile’s ‘hands’ did not, in fact, cause his death. Since the Argus, like the London Life, had not specified that a suicide had to be ‘felonious’ to warrant exclusion, the lawyer claimed that Schwabe’s alleged insanity was irrelevant; Mrs. Schwabe’s lawyer countered that ‘suicide’ was by definition felonious, citing Tindal’s dissenting opinion on his behalf. The presiding judge agreed with the latter argument, and on his orders the jury ruled against the Argus – with damages worth more than five times the £999 claim at the heart of the case, since Schwab had taken out four other policies of equal value.20 The Argus responded with a misdirection plea, which was followed by a reversal in Exchequer Court by a four-to-two vote. According to the dissenting opinion, ‘if death was the result of disease, whether by affecting the senses or by affecting the reason, the insurance-office was liable’. For the majority, suicide included ‘all cases of voluntary self-destruction... sane or not’.21 Taken together, Borradaile v. Hunter and Clift v. Schwabe left life insurers in a quandary. On one hand, these decisions should have enabled them to challenge future suicide claims with more confidence, if not with impunity. Against this was the fact that both came with strongly-worded dissenting opinions, and flew in the face of a developing popular and medical consensus that suicide victims should rarely, if ever, be held responsible for their actions – which worked against a company’s chances of winning such cases before a jury, if not on appeal. This, at least, was how an insurance lawyer might have seen things. Directors, in contrast, were less concerned about the lingering chance that disputing a suicide claim would not hold up in court than they were about the increased chance that it would. In trying to draw a clear line from ‘suicide’ to ‘intention,’ and from there to fraud, the judges had rendered the legal landscape less predictable from the policyholder’s perspective, and hence less favourable for life insurers trying to generate new business. From Scotland to South Africa, companies scrambled to counter the negative publicity generated by these new precedents. In a typical damage-control effort, the chairman of the Mutual of the Cape of Good Hope ran a notice in the newspaper he published in the wake of the Schwabe verdict, sympathizing with the policyholder who could not predict ‘by what imperceptible steps his mind may sink 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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along with his corporeal powers and lead him ... to do that thing which the lawyers will pronounce to be that “suicide” intended in the Contract of Assurance’. He assured potential customers that policies in his office ‘will not be vitiated by niceties of interpretation like those alluded to’.22 Over time, most insurers did more than just promise to withhold their resort to legal sophistry in challenging suicide claims: they also widened the categories of claims they would pay in part or in full without asking questions. Already in the 1830s several firms had started promising full or partial repayment of premiums to dependents in the event of a suicide, and these changes accelerated after 1846.23 Between 1849 and 1854, several offices started promising full payment to dependents in the event of a suicide, usually with a waiting period of between six and thirteen months. In doing so, they often echoed the recent medical commentary surrounding controversial legal cases, as when the Scottish Provident denied in its 1849 annual report that its duty was ‘to act as a kind of moral police’ against self-murder and urged that ‘if the suicide be insane ... his malady is the true cause of death, as much as if he died through cholera or fever’.24 By the 1880s, the majority of life insurers either had no suicide clause or waived it after a probationary period ranging from one to five years. Eight of thirty-two firms in a survey from 1885, and eleven of nineteen in a survey eight years later, made no mention of suicide in their policies or prospectuses. Of the rest, five in the first survey voided policies within the first two years, four did so within three years, and three within five years. 25 Even with a waiting period, this was a meaningful concession, since (as the Scottish Widows’ Fund statistics showed) the large majority of suicides occurred after policies were in force for five years.26 This trend led Wynn Westcott, who conducted the first survey, to conclude that refusing payment on the grounds of suicide ‘was found by the companies not altogether a profitable business, because such cases gave rise to much discussion and more misrepresentation, and the litigating company was apt to be avoided by persons about to choose a company to insure with’.27 Liberalization of the suicide clause in the wake of Borradaile and Schwabe was even more rapid and thorough regarding policies that were assigned to creditors, who had the most reason to be concerned about a life insurance office trying to avoid payment on technical 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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grounds. Already by the early 1840s a number of companies had altered their deeds so as to promise creditors full payment from the outset on any policy in which they could prove an insurable interest.28 By 1858, fifteen years after the Borradaile verdict, the Daily Telegraph reported that it was ‘the uniform and settled practice’ among life insurers to pay all suicide claims ‘to bona fide creditors, when the policy has been assigned as a security for a recognised debt’.29 It was precisely this assurance, claimed the Post Magazine, that rendered paid-up life policies ‘as safe as Bank of England notes or the mortgage deeds of a freehold estate’.30 The insurance offices’ departure from their earlier moralistic attitude toward suicide represented a calculated business decision to put up with a significant increase in the number of claims they would have to pay – since the large majority of suicide claims were, as one actuary observed in 1893, ‘assigned, usually up to their face-value’, and hence could not be challenged. Actuaries traded stories about customers who killed themselves shortly after assigning their policies, but never seriously considered a return to more stringent rules.31 For the same reason that banks wrote off bad debts, insurance companies accepted the occasional suicide as an acceptable price for guaranteeing the peace of mind, and hence the continued business, of people who depended on life policies as reliable instruments of credit.

Drinking themselves to death: intemperance on trial With the liberalization of the suicide clause, life insurance offices closed the door on the last type of fraud concerning actions that were committed subsequent to the policy being taken out. As they moved in this direction, they also moved away from disputing claims on the basis of fraudulent concealment of prior medical conditions. Until the 1850s, life insurance litigation arose more or less equally from several major varieties of concealed diseases, as well as intemperance. Concealment of gout, consumption, pneumonia, dyspepsia, heart disease, and epilepsy all routinely figured in trials during the first half of the nineteenth century, and insurance offices won these as often as not. As with suicide, their success in court was a doubleedged sword. Critics charged them with being too lax in accepting lives, then too ready whenever a premature claim fell due to detect evidence of a prior disease. The Times, for instance, took companies 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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to task for being too willing to ‘accept proposals with carelessness, receive the premiums on the insurer’s life so long as he happens to live, and resist payment at his death, on the chance of being able to show that he had some disease’.32 Adding to the negative publicity, life insurers took advantage of a string of verdicts into the 1840s that held policies to be invalid even where a ‘concealed’ disease had been unknown to the person who had filled in the proposal form. Judges started to reverse this precedent in 1849, ruling in Hutchinson v. National Loan Fund and successive cases that a customer’s ‘own knowledge and reasonable belief ... did not impart a declaration against any latent imperceptible disease, that could only be discovered by postmortem examination, or from symptoms disclosing themselves at an after-period of time’.33 Once judicial and public opinion had converged in this manner, it did not take long for insurance offices to divert their efforts from post-mortem litigation to improved medical screening prior to issuing policies. Anticipating this sea change, the Scottish Widows’ Fund promised in its 1842 prospectus to be ‘most cautious and particular in their inquiries before admitting members,’ instead of ‘affording every facility to parties to join the Society, and afterwards throwing all manner of unnecessary obstacles in the way of settlement when the claim emerges’.34 Insurers acted on this promise by increasingly relying after 1850 on physical examinations by appointed medical advisers (rather than reference letters from often-biased medical attendants), and by paying closer attention to candidates’ family history.35 This new reliance on medical screening reduced post mortem litigation by cutting down on the number of premature claims, and also by diminishing the life insurer’s legal standing when customers did die prematurely. Going to trial in such a case invariably meant facing up to the fact that the life in question had been passed as ‘first class’ a short while before by a paid servant of the company.36 Intemperance was the one exception to this newfound aversion to litigation. Though otherwise mostly barren of disputed life insurance claims from the 1860s onwards, court reports continued to bristle with cases in which alleged drinkers pretended to be temperate on the proposal form – to such an extent, as a Norwich Union director observed in 1899, that ‘more of the disputed cases in the event of early death are in some way connected with concealment of intemperate habits than with all other causes put together’.37 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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One reason for insurance offices’ continued willingness to litigate in these cases concerned changing actuarial and medical views regarding intemperance as a risk factor. Although already seen to be a serious health risk prior to 1850, it ranked well below many other conditions (including gout, hernia, and asthma) in its inclusion on proposal forms, with over a third of all offices not requiring candidates to certify their prior habits.38 By 1900, most actuaries were convinced that drinking had a serious effect on mortality, on the basis of statistics relating to mortality among publicans and from “abstinence” sections in some firms.39 Insurance medical advisers generally agreed with this assessment, although they endlessly debated among themselves regarding the question of where ‘moderation’ left off and ‘intemperance’ took over.40 If most insurance officials were convinced by 1900 about the negative long-term health effects of drinking, they were less certain about how to deal with it. The combination of physical examination, clinical testing and family history, which worked for detecting most other risks, did not work as well for any but the most extreme cases of intemperance. Medical advisors warned each other to be on the lookout for ‘furred tongues’, bad breath, and shaky hands, but admitted that they were likelier to be deceived by a habitual drinker than by nearly any other ‘under-average’ life.41 Companies supplemented the medical exam by sending queries to candidates’ friends, and occasionally deputed an agent to follow up a rumour. But for the most part, these surveillance efforts ranged from minimal to non-existent – in contrast with American companies, which commissioned ‘inspection reports’ and other character checks for large policies.42 This left post-mortem investigation, which enabled companies to focus their detective efforts on cases where premature death made prior intemperance seem likely. If investigation turned up enough evidence, they at least stood a chance to win the ensuing trial, since intemperance clearly did not fall under the post-1850 legal standard that candidates who were unaware of a proscribed pre-existing condition could not be accused of fraud. Unlike a ‘latent’ disease with few or no symptoms, intemperance was a condition that could be assumed to have been apparent both to the insurance candidate and many others as well. These all seemed like good reasons for insurers to contest intemperance cases. Their decision to do so sometimes resulted in the saving 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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of a few thousand pounds, and possibly worked to dissuade other proposers to conceal past intemperance. On balance, though, the effect of such trials on business was mixed at best. Their intrinsically scandalous nature guaranteed extensive press coverage, and at least some of the mud dredged up in these trials stuck to the insurance offices. They were also difficult to win, owing to what one observer in 1847 called the ‘incessant cross-swearing among the witnesses’.43 Claimants enlisted friends and family members, sometimes numbering in the dozens, to swear that a policyholder had been a moderate drinker, if not an abstainer. Insurers responded with an army of witnesses who testified that the opposite was true. This latter testimony, though, typically came from servants, innkeepers or fellow drinkers, whom many juries deemed to be less credible than claimants’ higherclass witnesses. It took little imagination to tar the testimony of a fellow alcoholic, and dismissed servants had a plausible motive for stretching the truth about their former boss. Although claimants had an even clearer incentive to downplay a policyholder’s excesses, they could divert attention from selfish motives by claiming to be interested in defending the honour of a dead husband and father. More often than not, the combination of social class and family honour was enough to win the plaintiff’s case when a disputed claim went to trial. The social solidarity of the British upper classes was seldom so apparent as when an insurance office tried to expose a dead aristocrat’s misspent youth – especially when these social ties were reinforced by the esprit de corps of military service. The Clerical Medical discovered this in 1834 when it disputed a creditor’s £300 claim following the death of a retired army officer by the name of Dolbell, who had paid only two premiums on his policy before dying of consumption in debtor’s prison. The insurance company denied the claim on the grounds that he had concealed his prior addiction ‘to the habits of drinking brandy and other liquors to excess’, calling on former landladies who ‘swore that he used to have raw brandy before he got out of bed, and again in the middle of the day’; that he ‘had expressed his conviction that he should kill himself by drinking’; and ‘that he was constantly calling for brandy, which he used to have in by two gallons at a time’. Dolbell’s fellow officers, in contrast, described him as ‘a man of extremely temperate habits ... never exceeding a pint of wine a-day, although frequently exposed 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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to the temptation of indulging in excess when dining with brother officers’. The jury sided with the officers against the landladies, and the Clerical Medical had to pay the claim.44 The creditors of the late Colonel Edward Greswolde were just as successful in their efforts to secure £5000 claims from the Eagle and Atlas offices, in trials lasting from 1835 through 1837. As the Eagle’s lawyer acknowledged in his failed motion for a new trial, at least part of the reason for the verdict in this case had been that his client’s witnesses had been ‘of a lower rank in life than those for the plaintiff’.45 Specifically, the Eagle assembled a succession of servants and mess-waiters who had been discharged by Greswolde before he died, all of whom recounted his daily diet of brandy before breakfast. Opposing lawyers marshalled several of Greswolde’s fellow army officers, who testified that he was ‘invariably fit for duty in the morning,’ and (in the Atlas trial) that he had been ‘selected to command in cases of considerable difficulty, requiring great activity, judgment, and discretion’. The jury in the Eagle trial accepted the plaintiff’s closing claim that the company ‘had raked up every species of the lowest witnesses’ in a vain attempt to counter ‘the evidence of the colonel’s relations, intimate friends, and gallant associates, from whom it would have been impossible to conceal such a failing.’ After seven hours of deliberation, the jury reached the same verdict in the Atlas trial.46 Even when testimony from a gentleman’s friends revealed substantial alcohol consumption, juries often accepted their claims that this qualified as ‘temperate’ behaviour. Neither the Householders’ and General nor the Prince of Wales was able to convince juries to deprive over £10,000 in insurance money to the creditors of a failed stockbroker who was known as ‘Mad Joddrell’ while at Oxford owing to his extreme drinking – even after hearing a letter from one of the creditors describing Joddrell as ‘a man of the most regular and temperate habits’ who ‘took two glasses of sherry with his luncheon, two glasses of sherry and one of port with his dinner; at 8 o’clock two glasses of Marsala’, followed by a bedtime ‘glass of sherry and water’.47 Servants’ testimony, on the other hand, often failed to be taken seriously by either juries or court reporters. The Albion had to pay a claim on the life of Capel Clayton, another hard-drinking colonel, despite a former maid’s vivid descriptions of his exploits. The maid, Margaret Carter, who claimed that it was ‘quite sufficient 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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for me, if I see a man in liquor, to know that he is intoxicated’, recounted that Capel ‘would rush up three or four stairs at a time, and shout and hurrah and holla out ... [and] was at these times very “obstropolous” and used bad language’. Her testimony ‘kept the Court in a perfect roar of laughter’, according to a bemused Times reporter, but did not sway the jury – who apparently thought that six bottles of brandy and whiskey for a weekend hunting expedition was an acceptable quota of aristocratic refreshment.48 An insurance office stood a better chance of convincing a jury of an aristocrat’s past intemperance if it could show that servants (or other lower-class men) actually drank with the insured as opposed to simply claiming to have served the alcohol. If successfully presented, the implication that a policyholder had crossed class lines apparently increased the credibility of working-class witnesses who testified to that effect. The Asylum convinced a jury in 1841 to refuse a £2500 claim on the life of George Talbot, the Earl of Shrewsbury’s nephew, largely based on evidence of public drunkenness and apparent friendship with lower-class witnesses. A flyman, for instance, who claimed to have been ‘very intimate’ with the insured, reported that Talbot had often sent him to ‘get together the lowest persons to go with him to public houses, where he drank very freely’.49 Although not enough to win its case, the Atlas (with three other firms) managed to postpone paying a £4000 claim for six years by painting a similar picture of a dissolute heir by the name of John Cochrane. His creditor’s lawyer depicted him as robust, ‘fond of horses,’ and often tipsy but never ‘beastly drunk’. On cross-examination, Cochrane’s groom revealed that the young man was prone to stay in bed ‘three or four days at a time’ with ‘liquors in his bed-room,’ where he and his servants ‘all had our song together’.50 Lower down the social scale, claimants had a harder time convincing juries that a policyholder’s irregular behaviour still qualified as ‘temperate’. The jury was not swayed, for instance, by the witnesses who disputed the Imperial Guardian’s allegation of past intemperance on the part of a dead florist – including a business associate who called him ‘occasionally a little larkish, but never drunk’ and a publican who said ‘he drank less than the average number of his customers’. It helped, in this case, that the company could produce policemen who had seen Warren drunk ‘both in the morning and the middle of the day’.51 Lower social status, however, by no means 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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guaranteed that claimants would fail to convince a jury. When the British Commercial tried to deny a £300 claim on a Bristol publican’s wife on the grounds that she had ‘swallowed excessive quantities of brandy, rum, and red lavender’, the jury believed her friends’ testimony that she ‘had lived a very temperate life, taking only a little gin and water at lunch and supper’.52 A Baptist minister, two police sergeants, a family doctor and an herbalist convinced a jury to allow a £300 claim to the widow of a Swansea publican in 1895, partly by accusing the insurance office’s paid detectives of intimidation.53 If class considerations often influenced a jury to accept or reject insurers’ claims of prior intemperance, the other crucial variable was the testimony of a policyholder’s family. Although widows and other dependents had a clear financial stake in defending their claim to insurance money, they also had an emotional stake in defending family honour – and this latter motive often counted for at least as much with juries. A revealing illustration of this convergence of financial self-interest and family honour is the set of two trials initiated by Leah Lotinga, the widow of a Sunderland money-lender, against the Commercial Union Insurance Company. Isaac Lotinga, who was already insured with the Norwich Union, took out a £2000 policy with the Commercial Union in 1883, then died four months later when he swallowed carbolic acid from a whiskey flask. Although his wife claimed that the death was accidental, a coroner’s jury ruled that Lotinga had committed suicide, and the Norwich Union settled for all but £450 of the claim.54 The Commercial Union resisted payment, both on the grounds of the suicide and Lotinga’s alleged intemperance prior to insuring. After hearing eight days’ worth of testimony in December 1884, a London jury failed to reach a verdict, leading one insurance paper to hope ‘that this vexed dispute may be settled out of court, and that no more will be heard of it in public’. Instead, Lotinga decided to prosecute the case herself the following June, in a marathon trial lasting more than two weeks and costing (in the judge’s estimation) ‘a guinea a minute’ in legal fees. This time the ‘indomitable and persuasive widow’ prevailed, wearing down the jury with over forty witnesses – all of whom had travelled from Sunderland (effectively on the Commercial Union’s tab) to repudiate the Commercial Union’s equally thorough tarring of her husband’s character.55 At the first trial, Lotinga’s lawyer argued that the lawsuit was about ‘something far dearer than money, and that was to vindicate the 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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character of a dead man, whose reputation was now dearer even than it was during life to the widow and the children whom he had left behind him’.56 Certainly if the Commercial Union’s witnesses could be believed, Isaac Lotinga’s reputation had been far from dear during his life; and his absence – together with the prospect of collecting £2000 – had apparently made Leah Lotinga’s heart grow significantly fonder of her dearly departed. The company called to the stand the secretary of the local Conservative Club, four solicitors, two accountants, two innkeepers, a grocer, a small-ware dealer, a surgeon, a scenic artist, a photographer, a barman, a cab proprietor, a police sergeant, and four others: all of whom claimed that they had either drank with or served Lotinga several glasses of whiskey per sitting. At the second trial, a wine dealer recalled him being ‘so drunk that he would certainly have fallen through the hatch of the store-room if he had not been prevented’, and a doctor called him ‘a confirmed sot’. When Leah Lotinga testified that she had never seen her husband drunk, the Commercial Union found witnesses who claimed to have seen her dragging him home from the pub, and others who said he did not drink in her presence because he was ‘afraid’ of her.57 As a Jewish money lender’s widow, Leah Lotinga lacked the sort of ‘respectable’ friends and relatives whose testimony regarding temperance so often swayed juries. She made up for this by calling on several of her husband’s relatives, the few pillars of Sunderland’s Jewish community who would vouch for him, and a crowd of more than twenty tradesmen, publicans and stewards, all of whom alleged Isaac Lotinga’s temperance. She also depicted the Commercial Union’s witnesses as ‘notorious drunkards and the dregs of the streets’, and personally testified that Isaac has been ‘a remarkably good husband to her’. The Commercial Union’s lawyer tried his best to fend off this onslaught, claiming that many of Lotinga’s witnesses were creditors who hoped to collect money owed to them by her estate. But it was all for naught: the exhausted jury took only forty minutes to decide that Leah Lotinga should receive her claim.58 A interesting side note to the case was that even though the Commercial Union did include Lotinga’s alleged suicide as part of its defence, and called several witnesses to that end, this feature of the case was all but forgotten both in the press coverage and (apparently) by both juries, which might have been expected to follow the coroner’s verdict and find for the company on that basis alone. Instead, the spectacle of intemperance 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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overwhelmed both trials, and the spectacle of a grieving widow sealed the insurance company’s fate. The power of domestic sentiment to sway a jury can be illustrated in a different way by a case tried before the Leeds circuit court in 1874 pitting the Gresham against a Scarborough doctor named Jay, who claimed £3000 on the life of his widow. Jay had married his wife two years before her death, and only four months after meeting her, and took out the life policy to guarantee that her prenuptial marriage settlement would fall to him instead of reverting to her family in the event of her premature death. He had cagily responded to the ‘habits’ question on the proposal form by saying his fiancée ‘was fond of an occasional glass of wine, and that, after all, temperance was very much a question of degree’; and his lawyer called twenty-five witnesses to support this assessment. Her relatives less euphemistically referred to her at the trial as ‘half-tipsy’, ‘helplessly drunk’, and ‘a confirmed drunkard’ who took brandy before breakfast. They showed a united front in depicting Dr. Jay as a gold-digger who had pounced on her prospective inheritance when she was in the latter stages of drinking herself to death. Unfortunately for the Gresham, the jury chose to view Dr. Jay’s actions as less reprehensible than the family’s willingness to reveal his wife’s sordid past, and found for the plaintiff. They were nudged in this direction by the judge, who complained that ‘the whole life of the deceased woman was ripped up’, and asked the jury ‘to consider whether these relations were actuated by such high motives as had characterized the Catos and Brutuses of ancient Rome, or by spite and envy’.59 The main reason why considerations of social class or family honour could play such a significant role in determining the outcome of these trials was that ‘temperance’ – whether phrased on the proposal form as ‘sober’, ‘regular’, or ‘moderate’ – was such a fluid term that it could mean very different things to different people. The task of clarifying to a jury exactly what ‘temperance’ should mean fell to the judge, who more often than not gave alleged drinkers the benefit of the doubt. Victorian judges repeatedly denied that either the occasional ‘spree’ or regular drinking at mealtimes qualified as intemperance, and they frequently argued that ‘temperance’ depended on the circumstances of the case. A Swansea judge ruled in 1883 that a man who ‘indulged occasionally in excess’ was not necessarily ‘an habitual drunkard’; another judge at Queen’s Bench argued in 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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1897 that ‘ordinary mortals know pretty well what is meant when a person is ... sober and temperate. Some can drink more than others, and yet be sober and temperate’.60 Most dangerous of all, from the insurance company’s perspective, was Lord Fraser in the Edinburgh Court of Session, who told Standard Life in 1883 that a policyholder had not ‘assumed a false character in claiming to be temperate’ if his drinking was typical of ‘the manners and customs of the place in which the insured was resident’. This ruling set the insurance world abuzz until Standard Life successfully appealed in the House of Lords, where Lord Blackburn argued that neither ‘the personal opinion of the deceased’ nor ‘the habits of a particular locality’ were germane to the ‘fact’ of intemperance.61 When confronted with what they saw as a clear case of a drunk passing himself off as a sober candidate for insurance, life insurers had little choice but to hope that the Lord Blackburns of the legal world would outnumber the Lord Frasers. On the sidelines, the insurance press wavered between praising the companies’ ‘great moral courage’ for engaging in litigation that would leave ‘a bad impression with the public’, even if successful, and admonishing them for failing to catch drunks before things reached that point.62 As for the ‘bad impression’ left by intemperance trials, insurers took relatively few steps to deter it. The primary move in this direction took place in the late 1840s, when disputed claims of all varieties were at their peak, and talk of policyholders leaving ‘a lawsuit for a legacy’ was rife.63 This was the fad of ‘indisputable’ clauses in insurance policies, which at least twenty out of the dozens of new mid-century life insurance offices marketed as a ‘special feature’ to distinguish them from older concerns. A typical promise was the London Indisputable’s claim, in its 1848 prospectus, that ‘[a]ll questions as to age, health, habits and other matters deserving of inquiry prior to the contract being entered into, are held as finally settled when the assured receives his policy’.64 With the exception of that company, this promise inevitably was accompanied by the proviso ‘except in case of fraud’ – which rendered it both meaningless and subject to abuse from judges on the many occasions their disputed claims (often involving intemperance) ended up in court.65 To avoid the problem of claiming something that they patently had no intention of delivering, most of the established Scottish offices came out with ‘Select Assurances’ (starting with Standard Life in 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor



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1851) that guaranteed complete freedom from litigation after a waiting period of five years.66 Although this policy offered an improved level of security for some purposes, it was practically useless as a protection against litigation involving intemperance. Of thirty such trials surveyed from The Times and Post Magazine, only one of them involved a claim that fell due more than four years after the policy had been issued. What this meant in practice was that prospective claimants in these cases were left to take their chances. On the other hand, the chances that an insurance office would end up paying the claim and absorbing the cost of the trial were very good: 77 per cent of the same sample resulted in a loss for the company.

Conclusion When disputed life insurance claims entered the court room, legal and economic practice converged to determine whether the spectacle of illegitimate behaviour would continue to be broadcast in gripping newspaper accounts, or whether insurers instead would quietly pay the families or creditors of people who died from these causes. The fact that most judges sided with insurers in disputed suicide claims actually prompted them to liberalize that part of their contract much more quickly and effectively than was the case with intemperance. A widely-publicized report of a ‘suicidist’s’ family losing their insurance money may or may not have deterred future suicide claims, but it surely deterred creditors from taking out policies on financially (and hence often mentally) troubled people. In the case of intemperance, where most judges and juries ruled against insurers, the threat of litigation was less likely to deter creditors and other potential claimants from taking out a policy. Hence companies could get away with a more superficial response to negative publicity, namely the ‘indisputable’ policy with a five-year waiting period. Medical opinion also played a role in life insurance practice, but this time in the opposite direction. Both suicide and intemperance became ‘medicalized’ over the course of the nineteenth century, but only in the first case did this eliminate the spectacle of ‘immoral’ behaviour being paraded before courtrooms and newspaper readers. The medical assumption that suicide nearly always resulted from a mental disorder, which had long justified coroner’s juries in their verdicts of ‘temporary insanity’, made it easier for insurers to retreat 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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gracefully from their earlier moralistic stance on suicide. By 1880 most doctors, in tandem with the temperance movement, were in the process of similarly shifting alcoholism from the category of ‘moral wrong’ to that of ‘health risk’. At the same time, however, they had yet to arrive at reliable diagnostic tools for detecting the signs of alcoholism in a life insurance candidate. As a result, life insurance offices continued to use the court system as a means of detecting and deterring intemperance. Since they lacked both the will and the capacity to do this prior to selling each policy, they resorted instead to its post mortem equivalent, in cases where a customer’s death appeared to lead directly back to a life of debauchery.

Notes 1. The Times, 2 July 1851; the verdict is reported in ibid., 3 July 1851. 2. Gifford QC, in Jay v. Gresham Life, reported in The Times, 20 August 1874. This trial is discussed in more detail below. 3. Exceptions included disputes over the legal status of ambiguously assigned policies and evidence of prior mental illness that had been concealed on the proposal form. See, e.g. The Times, 15 March 1904 and Journal of the Institute of Actuaries, 43 (1909), p. 86. 4. A final important source of disputed claims was the failure of the claimant to prove ‘insurable interest,’ which rendered the policy invalid under the 1774 Gambling Act. I discuss this in ‘A License to Bet: Life Insurance and the Gambling Act in the British Courts’, in Connecticut Insurance Law Review, 14 (2008), pp. 1–20. 5. For repeals of dueling and execution clauses, see Policy-holder, 2 (1884), p. 319; A.W. Tarn and C.E. Byles, A Record of the Guardian Assurance Company Limited: 1821–1921 (London: Blades, East and Blades, 1921), p. 50. 6. Scottish insurance offices allowed unrestricted travel on most policies that were five years in force starting in 1851: see Associated Scottish Life Offices Minute Book (12 July 1851), Faculty of Actuaries Ms 1/1/2/1. 7. Claud Muirhead, The Causes of Death among the Assured in the Scottish Widows’ Fund and Life Assurance Society from 1874 to 1894 inclusive (Edinburgh: R. & R. Clark, 1902), pp. 76–8. 8. British Medical Journal, 19 May 1894; C.J. Bunyon, cited in Olive Anderson, Suicide in Victorian and Edwardian England (Oxford: Clarendon Press, 1987), p. 269. 9. The Times, 20 August 1845. This case (Clift v. Schwabe) is discussed in more detail below. 10. Discussion of William Ogle, ‘Suicides in England and Wales in Relation to Age, Sex, Season, and Occupation’, Journal of the Statistical Society of London, 49 (1886), p. 133; Lancet, 5 August 1848.




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11. Alliance Assurance Co. Board Minutes (21 October 1857), Guildhall Library Ms 12,162/6; Church of England Fire and Life Assurance Soc. Board Minutes (26 February 1873), Guildhall Ms 12,160D/7. For other examples of out-of-court settlements see William S. Conder, The Story of the London Life Association Limited (London: privately published, 1979), pp. 194–6; Elizabeth R. Docherty, ‘The Minerva Life Assurance Company 1836–1864’ (University of Strathclyde B.A. Dissertation, 1974), p. 32. 12. See, e.g. Conder, Story, p. 193; The Times, 23 March 1858. In Kinnear v. Borradaile, the National pulled out of a joint defense with the Rock by settling with the executor: Rock Life Assurance Co. Committee Minute Book (24 March, 1832), Guildhall Mss. 21,213/4. 13. In 85% of Victor Bailey’s sample of Hull coroners’ verdicts from 1837–99 suicide was determined to result from ‘temporary insanity’: Bailey, “This Rash Act”: Suicide Across the Life Cycle in the Victorian City (Stanford: Stanford University Press, 1998), p. 66. 14. Anderson, Suicide, pp. 264–7. 15. Insurance Record, 12 (1874), p. 73. 16. An Oxford jury, for instance, sided with Waterloo Life in 1858 despite a coroner’s finding of insanity: The Times, 23 and 25 March 1858. 17. Insurance Record, 12 (1874), p. 420. 18. An interesting exception was the judge in 1827 who required the Amicable to honor Henry Fauntleroy’s creditors’ £6000 claim (the Amicable had argued that Fauntleroy – discussed above in Randall McGowan’s contribution – had effectively committed suicide by committing an act that he knew would result in his execution). This case was later overturned on appeal: Amicable Society v. Bolland (1830) 4 Bligh Reports (new series) 194, reprinted in The English Reports, 5, p. 70. 19. The 1841 trial is reported in The Times, 17 December 1841, and the subsequent proceedings in ibid., 7 June 1842, with the final decision reported 12 May 1843. See also the report of Borrodaile v. Hunter (1843) in 5 Manning and Granger’s Reports 639, reprinted in The English Reports, 134, p. 715. Additional information is taken from Conder, Story, pp. 191–3; The Times 31 January 1842 and 25 November 1845. In a postscript worthy of Bleak House, the trustees of Mrs. Borradaile’s marriage settlement spent another four years trying to secure the £1000 from the vicar’s executors, who had refused to hand over the money on the grounds that his suicide had voided the settlement as well as the life policy: see The Times, 10 March 1847. For this litigation, see also Dormay v. Borrodaile (1847) 10 Beavan’s Reports 335, reprinted in The English Reports, 50, p. 611 and Dormay v. Borrodaile (1847) 5 Common Bench Reports 380, reprinted in The English Reports, 136, p. 925. 20. The Times, 20 August 1845. 21. The Times, 17 June 1846. 22. R. Van Selm, History of the South African Mutual Life Assurance Society 1845–1945 (Cape Town: South African Mutual Life Assurance Society, 1945), p. 8.



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23. These included the Palladium (1825), Provident (1838), Legal & General (1839), Law Life (1839), Commercial (1840), and Albion (1849): Cornelius Walford papers, Chartered Insurance Institute Ms 9.92; company prospectuses deposited at the Guildhall Library. 24. Scottish Provident Institution, Proceedings of the Eleventh Annual Meeting of Contributors (Glasgow: privately published, 1849), pp. 11–12. 25. W. Wynn Westcott, Suicide: Its History, Literature, Jurisprudence, Causation, and Prevention (London: H.E. Lewis, 1885), pp. 180–1; National Life Assurance Society Agency Reports (16 August 1892), Guildhall Ms 34,413. 26. 105 of 127 suicides in the Scottish Widows’ between 1874 and 1894 occurred after five years: Muirhead, Causes of Death, pp. 76–7. 27. Westcott, Suicide, p. 52. 28. These included the Guardian (1836), Alliance (1836), and Britannia (1838): Alliance Assurance Co. Board Minutes (23 March 1836), Guildhall Library Ms 12,162/2; Tarn and Byles, Record, p. 50. The Times in 1842 referred to the Britannia’s concession as ‘a somewhat novel condition in policies of life assurance’ (11 February). 29. Daily Telegraph, reprinted in Examiner, 21 August 1858. 30. Post Magazine, reprinted in Conder, Story, pp. 198–9. 31. Herbert Cecil Thiselton, ‘A Discussion of some points of Life Assurance Administration’, Journal of the Institute of Actuaries, 31 (1893), pp. 63–6. 32. The Times, 10 March 1846. 33. C. Walford, The Insurance Cyclopaedia, 6 vols (London: C. and E. Layton, 1871–80), V, p. 458. 34. Scottish Widows’ Fund and Life Assurance Society, founded A.D. 1815 (Edinburgh: privately published, 1842), p. 45. 35. See Marguerite W. Dupree, ‘Other Than Healing: Medical Practitioners and the Business of Life Assurance during the Nineteenth and Early Twentieth Centuries’, Social History of Medicine, 10 (1997), pp. 79–104; Timothy Alborn, ‘Insurance against Germ Theory: Commerce and Conservatism in Late-Victorian Medicine’, Bulletin of the History of Medicine, 75 (2001), pp. 406–45. 36. See, e.g. Huntley v. St. George Assurance Company (reported in The Times, 4 August 1858); Fowkes and Another v. Manchester and London Life (reported in The Times, 18 December 1862); and McKenna v. Colonial Assurance Corporation (reported in Insurance Record 16 (1878): 235). 37. Peter Eade, ‘Remarks on some Modern Medical Aspects of Life Assurance’, British Medical Journal, 1 April 1899. 38. In a sample of 115 mid-nineteenth century forms, 72 (or 63%) included a question about habits: Provident Clerks Mutual Life Assurance Association, Proposal Forms of Other Offices (Guildhall Ms. 20,939). 39. David Deuchar, Thomas B. Sprague, and George Low, ‘Second Report of the Committee on the Mortality among Persons engaged in the Sale of Intoxicating Liquors’, Life Offices Association Scrapbooks (Guildhall Ms 28,376/3); Roderick Mackenzie Moore, ‘On Comparative Mortality among Assured Lives of Abstainers and Non-Abstainers from




40.

41.

42.

43. 44. 45. 46.

47.

48. 49. 50.

51. 52. 53. 54.

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Alcoholic Beverages’, Journal of the Institute of Actuaries, 38 (1904), pp. 213–72. See, e.g. G.A. Heron, ‘Some Extra Ratings of Healthy Lives’, Trans. Life Assurance Medical Officers’ Association (1898), pp. 82–3; E.M. Brockbank, Life Insurance and General Practice (London: Henry Frowde, 1908), pp. 180–3. James Edward Pollock and James Chisholm, Medical Handbook of Life Assurance, for the Use of Medical and other Officers of Companies (London: Cassell and Co., 1889), pp. 28–30; C. Theodore Williams, ‘Medical Examination of Candidates for Life Assurance’, Clinical Journal, 24 (1904), pp. 289–90. John Rodger’s comment that ‘[t]he detective agency is altogether out of place in the business of Life Assurance’ was borne out by the utter lack of American-style detective agencies employed by British insurers: see ‘New Business Difficulties – Past and Present’, Report of the Insurance Institute of Bristol, (1913–14), p. 61. On the American scene see R. Carlyle Buley, The Equitable Life Assurance Society of the United States 1859–1964 (New York: Appleton-Century-Crofts, 1967), I, pp. 353–4. Alfred S. Taylor, ‘A Course of Lectures on Medical Jurisprudence’, London Medical Gazette, 39 (1847), p. 265. The Times, 3 Feb 1834 (Etton v. Clerical, Medical and General). The Times, 22 January 1836 (Chattock v. Shawe). The Atlas case was Lennox v. Desborough. The Times, 13 July 1835; 24 December 1836. See also the report of Chattock v. Shawe (1835) in 1 Moody and Robinson’s Reports, reprinted in The English Reports 174, p. 172. The Times, 17 June 1856; 29 July 1856 (plaintiffs in both cases were Thomas Trulock and James Brade). For the final act of the Joddrell saga see the case of Wheelton v. Hardisty (reported in The Times, 19 December 1856 through 5 May 1858). The plaintiff in this case was another creditor of Joddrell, the Norwich Reversionary Society, which succeeded in collecting £63,000 in claims connected to a £21,000 loan repayable by a life annuity. The Times, 9 May 1850. The Times, 17 December 1841. The Times, 15 December 1837; 8 May 1840. The Eagle, which brought the suit as Cochrane’s creditor, finally collected its claim in 1841: The Times, 1 March 1841. The Times, 4 February 1870 (Craik and Wife v. Imperial Guardian). The Times, 21 August 1837 (Huckman v. Fernie). The Times, 10 July 1895 (Griffiths v. Gresham Life). Policyholder, 2 (1884), p. 410. Leah Lotinga claimed she had put the cleaning solution into the flask without informing her husband, and that he had drunk it by mistake. The maid who was present at the time of death testified that Lotinga ‘drank it off at a gulp, remarking “What a beastly taste this whisky has.”’



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55. Policyholder, 2 (1884) p. 421 (citing the Insurance Record); Post Magazine, 47 (1886), p. 8; The Times, 26 June 1885. 56. Policyholder, 2 (1884), p. 419. 57. Policyholder, 2 (1884), p. 411; The Times, 16–18 June 1885. 58. Policyholder, 2 (1884), p. 418; The Times, 1–3 July 1885 and passim, 16 June through 3 July. 59. The Times, 20–25 August 1874. 60. Post Magazine, 44 (1883), p. 278; 58 (1897), p. 79. 61. Post Magazine, 44 (1883), p. 447; 45 (1884), p. 340. This case, Weems v. Standard Life, concerned a provost who drank freely with fellow town councilors after his weekly council meetings. The case is reported in Thomson v. Weems (1884) 9 Appeal Cases 671. 62. Post Magazine, 41 (1880), pp. 460; 44 (1883), p. 448. 63. Arthur Scratchley, Observations on Life Assurance Societies, and Savings Banks (London: John W. Parker, 1851), p. 37. 64. Cited in Luis M. Villaronga, The Incontestable Clause: An Historical Analysis (Philadelphia: S.S. Huebner Foundation, 1976), p. 5. Besides the London Indisputable (est. 1848), other firms to adopt this feature included the Trafalgar (1850), Athenaeum (1851), Ark Indisputable (1852), Achilles (1853), Caxton (1854), and British Protector (1853): Daily News, 5 April 1851; Walford, Insurance Cyclopaedia, I, pp. 17, 185, 388, 474; II: p. 490; R. Thompson Jopling, Vital Statistics (London: King, 1854), p. 15. 65. Walford, Insurance Cyclopaedia, II, p. 287 (from prospectus of Diadem Life); The Times 17 and 23 June 1856 and 11 December 1858. 66. Standard Life Assurance Co. Sederunt Books (Edinburgh). Standard Life Ms A1/1.




Afterword

Taken together, the case studies examined in this volume underline the reciprocal functions of the legal, economic, social and literary lives of legitimacy and illegitimacy in Georgian and Victorian Britain. Fictions, contested narratives and interested performances lay at the heart of determinations of legitimacy in this period, regardless of whether they were played out in the courtroom, the market, the family circle or the novel. Wilkie Collins, Charles Dickens and Anthony Trollope all took inspiration from notorious legal cases against forgers, imposters and insurance fraudsters made current by sensationalist newspaper reports, capitalising upon readers’ fascination with flamboyant individuals who had convincingly claimed illegitimate identities. In turn, these spurious claimants – Henry Fauntleroy, Olivia Wilmot Serres, Edward Hartmont, Louis Schwabe and the like – repeatedly exploited contemporary tropes of sensation and melodrama in popular and legal appeals designed to establish the veracity of their illegitimate identities. Intertextuality was the rule, not the exception, in nineteenth-century attempts to demarcate legitimate identities. Across a range of genres and fields of action, efforts to distinguish sharply between legitimacy and illegitimacy fell foul of contemporaries’ wider understanding of the need to temper law with equity, to acknowledge ‘natural’ children as legitimate and to recognise the extent to which economic growth was necessarily, legitimately predicated upon speculative, illegitimate investments. Just as labyrinthine fictions of legitimacy and illegitimacy sustained the byzantine plots of Victorians novels such as Bleak House, so too commercial markets 173 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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exploited the legal loopholes that linked legitimate and illegitimate persons, identities and transactions. From 1729, eighteenth-century legislators had sought to distinguish sharply between true and false forms of commerce by hanging convicted forgers, but by the time that Fauntleroy faced the gallows in 1824 public sentiment had clearly softened. Despite the recurrence of damaging speculative booms, Victorian jurists and jurors evinced substantial reluctance to make scapegoats of commercial fraudsters in the courts. Far from uniformly disciplining illegitimate financial behaviour, indeed, the Victorian courts often furnished the very legal mechanisms by which speculators wrested payments and profits from insurance companies, banks and investors. Public enjoyment of – and complicity in – the performance of illegitimate identities emerges as a leitmotif of popular culture in nineteenth-century Britain. The spurious contenders who deployed secret histories to buttress their claims to property and personhood performed their concocted selves to eager audiences whose willing suspension of belief was integral to illegitimacy’s symbiotic relationship with verisimilitude, veracity and truth. Aided and abetted by complicit readers, jurors, spectators and kin, spurious issues thus became central to legitimacy in nineteenth-century British law, literature and history.



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Official papers The English Reports Parliamentary Debates Report from the Committee on the Circulating Paper, the Specie and the Current Coin of Ireland, PP 1810 (28) III 385 Report of the Commissioners for Administering the Laws for Relief of the Poor in England, 1848, PP 1849 [1024] xxv. 1 Report of George Coode Esq to the Poor Law Board on the Law of Settlement and Removal of the Poor, PP 1851 (675) xxvi. 171 Report from the Select Committee on Loans to Foreign States, PP 1875 (367) XI 1

Periodicals Annual Register Birmingham Daily Post British Medical Journal Clinical Journal Daily News Daily Telegraph The Era Financial News Freeman’s Journal Gentleman’s Magazine Glasgow Herald Hexham Courant Household Words Insurance Record Journal of the Institute of Actuaries Journal of the Statistical Society of London Law Times Leeds Mercury Liverpool Mercury London Medical Gazette Morning Chronicle Morning Post Pall Mall Gazette Pall Mall Magazine Policy-holder Post Magazine 175 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


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Quarterly Review Reynolds’s Newspaper The Times Transactions of the Life Assurance Medical Officers’ Association Weekly Notes

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Theses Docherty, Elizabeth R., ‘The Minerva Life Assurance Company 1836–1864’ (University of Strathclyde BA Dissertation, 1974)



186

A Beckett, Gilbert 53 Acford, Elisabeth 70 adulterine bastardy 6–9, 11, 25, 27, 34, 36, 38 (see also bastardy) adultery 35–6, 39–40, 41–3 Ainsworth, Harrison 86 Albert Life assurance company 19 Alliance assurance company 152 Alto Vela (island) 122–3, 130 ‘Anastasia’ 67 Anderson, Olive 153 Argus Life assurance company 151, 153, 154–5 Askew, H.W. 127 Asylum assurance company 162 Atlas assurance company 161, 162 Bacon, Sir James 133 Bacon, Matthew 5 bankruptcy 93, 104, 121, 135, 139–40 Banbury Peerage case 7–8 Bank of England 93, 97–9, 102–3, 109 Barlow, Lady Eliza (née Smith) 8, 27–8, 30–1, 33, 34, 35–40 Barlow, Frederick 9, 34, 36, 38, 43 Barlow, Sir George Hilaro 8–9, 26–43 career of 26–7 divorce of 6, 8–9, 35–40 family of 28–32, 40–2 marriage of 27–8 Barlow, Major George Edward Pratt 8–9 32–9 Barlow, Sir Robert 27, 31–2 Barlow, Rev. Thomas 29, 31 Barlow, William 29–30, 31–3, 35 bastardy 2–3, 9–10, 50, 70–1 legal definitions of 5–8 prenuptial children 125–6

Beetham, David 4 Begbie, Robert Spear 121, 123, 123–4, 135 Blackburn, Lord (Colin) 166 Blackwood’s Edinburgh Magazine 134 Bloody Code 15 Borradaile, William 153–5 Borradaile v. Hunter 153–5, 156 Bowyer Sir George 131 Braddon, Elizabeth 11 Lady Audley’s Secret 11 Bradlaugh, Charles 75 Bramwell, Baron (George) 129 Briefel, Aviva 79 British Medical Journal 153 Byron, George Gordon, Lord 80 Childe Harold 80 canon law 5–6 Cazenove & Co 122 Chadwick, Edwin 53 Chalmers, Thomas 16 Chamberlain, Joseph 139 Chancery, Court of 9, 10, 48–9, 50–1, 56, 61, 135 Chisholm, Caroline 58–60 Church of England 152 civil trials 128–33, 135–6, 148–50, 152–5, 158–67 class 100–5, 108–10, 113–15, 160, 162–3, 165 Clayton, Capel 161–2 Clement, Giles 148 Clerical & Medical assurance company 160–1 Clift v. Schwabe 153–5, 156 Cochrane, John 162 Cockburn Alexander (Chief Justice) 74, 126

187 10.1057/9780230277250 - Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History, Edited by Margot Finn, Michael Lobban and Jenny Bourne Taylor


Index

Index

Collins, Wilkie 1–3, 12, 15, 173 Armadale 10 Blind Love 3 ‘Fauntleroy’ 3, 15 Man and Wife 3 No Name 3, 6, 12 The Woman in White 1–2, 11, 17 commercial morality 17–19, 94, 119–42 Commercial Union insurance company 163–4 common law 5–7, 12, 19, 125 Companies Act (1867) 127–9 Company directors 133 Company promoters 121, 125–33 Coode, George 53–57, 60 criminal law reform debates 109–13 criminal trials 101–5, 126–7 Cumberland, Henry, Duke of 67, 71, 72, 74 Daily News 132 Daily Telegraph 157 Daly, Augustin 136 Davis, Natalie Zemon 68 death penalty 94–6, 105–14 Debtors Act (1869) 136 De Morgan, John 75 Denman, Lord Chief Justice 51 Dickens, Charles 9, 15, 48–63, 120, 173 Bleak House 9–10, 17, 48–63, 173 Little Dorrit 15, 16, 18, 19, 115, 120, 121 Martin Chuzzlewit 19 Oliver Twist 10 divorce 8, 35–8, 40–2 Divorce and Matrimonial Causes Court 73 Doctors Commons 36, 39 Dodd, William 93 duelling 150–1 Dysart Peerage case 70

Eagle assurance company 161 East India Company 26, 27, 28, 34, 102 Eldon, John Scott, Lord 8, 111 Eliot, George 5 Felix Holt 11 Middlemarch 5 The Mill on the Floss 17 Ellenborough, Edward Law, Lord 8 Elmslie, Forsyth & Sedgwick 135 emigration 49, 58–60 Erlanger, Emile & Co 123, 134 Erskine, Thomas Lord 7–8 European assurance society 19 European civil law 5 Evans, David Morier 113, 120 family 3–9 nuclear 5, 25–6, 28, 36, 38 lineage 7–9, 25–6, 41, 67, 71, 85–6 Fauntleroy, Henry 15–16, 93–115, 173, 174 execution of 106–8 public reaction to 105–13 trial of 101–5 forgery 14–16, 17, 80, 93–115, 173 abolition of death penalty for 113–15 Forster, John 16 Fraser, Lord 166 fraud 120, 126, 128–30, 132, 136, 139–41, 149–51, 157, 159, 166 financial fraud 17–19, 119–42, 173–4 Freshfield, James 95 Freud Sigmund 80 Gardner Peerage case 8 George III 71, 72, 73, 74, 75 Gibson, William Sidney 86 Dilston Hall 86 Gissing, George 50, 51 Goody, Jack 25 Graham, George Edward 97, 99 Grant, Albert 121, 128–30, 132–4



188

Grant, W.L. 123, 131–2 Greenacre, Phyllis 87 Gresham Life assurance company 148, 165 Greswolde Edward 161 Guerre, Martin 68 Gurney, Russell 131 Hamer, James 101 Hartmont, Edward (Edward Herzberg) 17, 121–41, 173 ‘Phosphate Sewage Company’ 123–4, 129–32, 136, 139 San Domingo venture 122–5 Hilton, Boyd 16 Hitchman, John 152 Holyoake, George J. 75 Horton, Lady Anne 71 Hooley, E.T. 121 Household Words 49, 52, 58, 61–2 Householders and General assurance company 161 Howitt, William 75 Huntingtower, Lord 70 Hutchinson v. National Loan Fund 158 Imperial Guardian assurance company 162 impostors 10–11, 67–87, 173 insanity 2, 149–54, 167 insurance 148–68 intemperance 149–50, 157–67 James, Sir William 133 Jameson Raid 140 Jessel, Sir George 140 Jones, Gareth Stedman 80 Kent, Duke of 72 Knight, Charles 61–2 Knowlys, Newman 114 land nationalisation 69 Larceny Act (1861) 125

189

Laslett, Peter 25 Lawson, Peter & Co 122, 123, 124, 130 Legitimacy Act (1921) 6 Legitimacy Declaration Act (1858) 73 life insurance trials 19–20, 148–68, 173 Lightfoot, Hannah 74, 75 London Life assurance company 153, 154 Lotinga, Leah 163–4 Lowenthal, Leopold 138 Lusk, Sir Andrew 127, 128 Macfarlane, Alan 25 Mackenzie, J.T. 122 Malins, Sir Richard 122, 130–2, 136 marriage, laws of 10 Royal Commission on (1868) 3 Marsh, Stracey and Company 93, 96–100 melodrama 69, 76, 83, 106, 173 Morgan, William 120, 122 Morier, David 15 Facts, Failures and Frauds 15 Morley, Henry 49, 52 Morning Chronicle 93, 105 Morning Post 73, 95, 96, 104 Munro, Caroline (née Smith) 40–2 Munro, Daniel 40–2 Munro, Thomas 41–2 Nant-y-Glo and Blaina Ironworks Company v. John Grave 133 Napoleon 80, 102 Noel, Sir Gerald 72 Norwich Union assurance company 158, 163 O’Connell, Daniel 75 Oliphant, Laurence 134 ‘The Autobiography of Joint-Stock Company (Limited)’ 134



Index

Index

Overend, Gurney & Co 18, 125, 126, 127 Owen, Robert 72 Page, Elizabeth 33, 35, 37, 39–40 Park, Lord Justice 95 Patterson, Annabel 69 Peach, Edmund 130 Peel, Robert 72, 94, 112–13 Pellew, Eliza (née Barlow) 40–3 Pellew, Pownoll 41–2 Penley W.S. 136, 137–8, 141 Perreu, Robert and Daniel 14, 93–4 Perry, Ruth 28, 43 Poor Law Commission 53 Poor Law Amendment Act (1834) 5, 10, 52–3, 57 poor laws 5–6, 10, 49–50 Post Magazine 157, 167 Prince of Wales assurance company 161 Proctor, Adelaide Anne 49 ‘The Settlers’ 49 Provis, Thomas (‘Richard Hugh Smyth’) 68, 77–9, 85 The Victim of Fatality; Or, the Claimant of Ashton Court 79 Quarterly Review 110 Queen Caroline affair 72, 75, 82 Queen Charlotte 73, 74 Queen Victoria 86 ‘Radcliffe, Amelia’ 68, 81–7 Jottings of Original Matter from the Diary of Amelia, Countess and Heiress of Darwentwater 83–4 Radcliffe, James 81, 82 Radcliffe, John 81, 85 railway mania 119 Redesdale, Lord 8 Redpath, Leopold 15 Reform Act (1832) 69 Reynolds, G.W.M. 75 Reynolds’s Newspaper 78 Rice, John 94

Ridley, M.W. 94 Robb, George 126 Robinson, Sir Spencer 131 Romilly, Sir Samuel 8 Rudd, Mrs Margaret Caroline 14 Russett, Margaret 79 Ryland, William 94 Ryves, Lavinia 68, 71, 73–4, 85, 86 An Appeal for Royalty 73, 74 Ryves and Ryves v. the Attorney General 71, 74 Sadleir, John 15, 16 Schwabe, Louis 154–5 Scott, Walter 86 Scottish Widows Fund 151, 156, 158 Scottish Provident assurance company 156 sensation novels 1, 12, 15, 70, 173 Serres, John Thomas 71 Serres, Olivia Wilmot 10, 68–76, 80, 82, 85, 173 The Secret History of the Court of England 72–3, 74, 75 settlement, laws of 10, 49–50, 51–7 Shakespeare, William 6 King John 6–7 King Lear 10 Othello 58 Shedden v. Patrick 6 Sheridan, Emily 136, 137–8, 141 Smith, Adam 14 Smyth, Sir Hugh 77 Smyth, Sir John 77 Smyth v. Smyth 76–9 speculation 12–14, 16–18 Standard Life assurance company 166–7 Statute of Merton (1236) 6 Stern, Rebecca 12 Stock Exchange 119, 120, 122, 124, 126, 128, 131–2, 141 Stoker, Bram 85 Famous Impostors 85 Stone, Lawrence 8, 25, 26



190

Sugden, Sir Edward 94 suicide 20, 115, 149–57, 167–8 Tadmor, Naomi 26 Talbot, George 162 Taylor, Tom 18 The Settling Day 18 Thackeray, William Makepeace 18 The Newcomes 18, 19 theatricality 68, 76, 78, 81, 87, 174 The Times 93, 96, 97, 99, 101, 102, 105, 108–11, 132, 133, 157–8, 168 Thomas, Brandon 136 Charley’s Aunt 136–7, 138 Tichborne Claimant 70, 78, 82, 83 Tindall, Nicholas 154 Tom John Nicholls (Sir William Courtney) 76 Trollope, Anthony 10, 12, 17, 120, 173 An Autobiography 12 Lady Anna 11 Orley Farm 17 Ralph the Heir 10

191

The Three Clerks 18, 120 The Way We Live Now 16, 115, 120, 121 Tuke, Harrington 152 Turner, Victor 70 Twycross, James 128–30 Twycross v. Grant 128–33 Universal Life assurance society 153 Wahrman, Dror 43 Warbeck, Perkin 67 West Middlesex Fire and Life assurance company 19 Weston, Henry 94 Wetherell, Sir Charles 111 Wharton, J.S. 6 Wicklow Peerage case 70 Willcocks Mary (‘Princess Caraboo) 76, 78 Wilmot, James 71, 74 Winchelsea, Earl of 70 Wright, Justice 140–1 Wright, Whittaker 121 Wrigley, E.A. 25



Index

Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History (Palgrave Studies in Nineteenth-Century Writing and Culture)

Neurology and Literature, 1860-1920 (Palgrave Studies in Nineteenth-Century Writing and Culture)

Race, Citizenship, and Law in American Literature (Cambridge Studies in American Literature and Culture)

Libertinage in Russian Culture and Literature (Russian History and Culture)

STUDIES IN HEBREW LITERATURE AND JEWISH CULTURE

Colonies, Cults and Evolution: Literature, Science and Culture in Nineteenth-Century Writing (Cambridge Studies in Nineteenth-Century Literature and Culture)

"Gypsies" in European Literature and Culture (Studies in European Culture and History)

''Gypsies'' in European Literature and Culture (Studies in European Culture and History)

In Respect to Egotism: Studies in American Romantic Writing (Cambridge Studies in American Literature and Culture)

Place, Writing, and Voice in Oral History (Palgrave Studies in Oral History)

Russian Culture and Theatrical Performance in America, 1891-1933 (Palgrave Studies in Theatre and Performance History)

Culture and Hegemony in the Colonial Middle East (Palgrave Studies in Cultural and Intellectual History)

Women Poets and Urban Aestheticism: Passengers of Modernity (Palgrave Studies in Nineteenth-Century Writing and Culture)

Aristocratic Women and the Literary Nation, 1832-1867 (Palgrave Studies in Nineteenth-Century Writing and Culture)

The Victorian Press and the Fairy Tale (Palgrave Studies in Nineteenth-Century Writing and Culture)

Republican Politics and English Poetry, 1789-1874 (Palgrave Studies in Nineteenth-Century Writing and Culture)

Encounters in the Victorian Press: Editors, Authors, Readers (Palgrave Studies in Nineteenth-Century Writing and Culture)

The Musical Crowd in English Fiction, 1840-1910: Class, Culture and Nation (Palgrave Studies in Nineteenth-Century Writing and Culture)

Testimony and Advocacy in Victorian Law, Literature, and Theology (Cambridge Studies in Nineteenth-Century Literature and Culture)

Numbers and Nationhood: Writing Statistics in Nineteenth-Century Italy (Cambridge Studies in Italian History and Culture)

Luce Irigaray and Premodern Culture: Thresholds of History (Routledge Studies in Renaissance Literature and Culture)

Law and Order in Sung China (Cambridge Studies in Chinese History, Literature and Institutions)

Language, Gender, and Citizenship in American Literature, 1789-1919 (Studies in American Popular History and Culture)

The Origins of American Literature Studies: An Institutional History (Cambridge Studies in American Literature and Culture)

Writing and Cognition, Volume 4: Research and Applications (Studies in Writing) (Studies in Writing) (Studies in Writing)

Cosmology and Political Culture in Early China (Cambridge Studies in Chinese History, Literature and Institutions)

Cosmology and Political Culture in Early China (Cambridge Studies in Chinese History, Literature and Institutions)

Race and Ethnicity in Anglo-Saxon Literature (Studies in Medieval History and Culture, 24)

Justice and Legitimacy in Upbringing

Legitimacy and Power Politics: The American and French Revolutions in International Political Culture (Princeton Studies in International History and Politics)

Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History (Palgrave Studies in Nineteenth-Century Writing and Culture)

Neurology and Literature, 1860-1920 (Palgrave Studies in Nineteenth-Century Writing and Culture)

Race, Citizenship, and Law in American Literature (Cambridge Studies in American Literature and Culture)

Libertinage in Russian Culture and Literature (Russian History and Culture)

STUDIES IN HEBREW LITERATURE AND JEWISH CULTURE

Colonies, Cults and Evolution: Literature, Science and Culture in Nineteenth-Century Writing (Cambridge Studies in Nineteenth-Century Literature and Culture)

"Gypsies" in European Literature and Culture (Studies in European Culture and History)

''Gypsies'' in European Literature and Culture (Studies in European Culture and History)

In Respect to Egotism: Studies in American Romantic Writing (Cambridge Studies in American Literature and Culture)

Place, Writing, and Voice in Oral History (Palgrave Studies in Oral History)

Russian Culture and Theatrical Performance in America, 1891-1933 (Palgrave Studies in Theatre and Performance History)

Culture and Hegemony in the Colonial Middle East (Palgrave Studies in Cultural and Intellectual History)

Women Poets and Urban Aestheticism: Passengers of Modernity (Palgrave Studies in Nineteenth-Century Writing and Culture)

Aristocratic Women and the Literary Nation, 1832-1867 (Palgrave Studies in Nineteenth-Century Writing and Culture)

The Victorian Press and the Fairy Tale (Palgrave Studies in Nineteenth-Century Writing and Culture)

Republican Politics and English Poetry, 1789-1874 (Palgrave Studies in Nineteenth-Century Writing and Culture)

Encounters in the Victorian Press: Editors, Authors, Readers (Palgrave Studies in Nineteenth-Century Writing and Culture)

The Musical Crowd in English Fiction, 1840-1910: Class, Culture and Nation (Palgrave Studies in Nineteenth-Century Writing and Culture)

Testimony and Advocacy in Victorian Law, Literature, and Theology (Cambridge Studies in Nineteenth-Century Literature and Culture)

Numbers and Nationhood: Writing Statistics in Nineteenth-Century Italy (Cambridge Studies in Italian History and Culture)

Luce Irigaray and Premodern Culture: Thresholds of History (Routledge Studies in Renaissance Literature and Culture)

Law and Order in Sung China (Cambridge Studies in Chinese History, Literature and Institutions)

Language, Gender, and Citizenship in American Literature, 1789-1919 (Studies in American Popular History and Culture)

The Origins of American Literature Studies: An Institutional History (Cambridge Studies in American Literature and Culture)

Writing and Cognition, Volume 4: Research and Applications (Studies in Writing) (Studies in Writing) (Studies in Writing)

Cosmology and Political Culture in Early China (Cambridge Studies in Chinese History, Literature and Institutions)

Cosmology and Political Culture in Early China (Cambridge Studies in Chinese History, Literature and Institutions)

Race and Ethnicity in Anglo-Saxon Literature (Studies in Medieval History and Culture, 24)

Justice and Legitimacy in Upbringing

Legitimacy and Power Politics: The American and French Revolutions in International Political Culture (Princeton Studies in International History and Politics)

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