Fishman on Trollope's Lawyers

James Fishman, Pace University School of Law, has posted A Random Stroll Amongst Anthony Trollope’s Lawyers:

Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society.

Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton upholding the social and political framework of the country. Over one hundred lawyers appear in his work and eleven of his novels feature trials or hearings. The law intrigued and exasperated him. Along with the lawyers and legal issues he depicts are ideas of the law and legal system that are part of elaborate philosophical and jurisprudential traditions, which he recognized.

This article examines Trollope’s changing attitude toward lawyers. It describes the structure of the Bar in terms of class, status and reputation. Trollope believed the legal system should ensure justice, and those who labored in the law should be the vehicle of that pursuit. Justice for Trollope was the meting out of rewards and punishments as the consequence of a right or wrong decision. However, the law, as he depicted it, was often an impediment to this process, and lawyers were unreliable guides.

Initially Trollope portrayed lawyers critically as caricatures as evinced by such names as Alwinde, O’Blather, Slow & Bidewhile, Haphazard, and Chaffanbrass. He was outraged that barristers (lawyers who appear in court) put loyalty to their clients ahead of the search for truth and justice. The adversary system was flawed as the enactment of laws in accord with the laws of nature assumes an inbuilt moral compass in humans that contains self-evident truths of right and wrong. Trollope felt there was no reason why a right-minded person could not intuitively recognize the truth, so criminal law’s adversary system was unnecessary. The legal system sought not the discovery of the truth but was more interested in aiding the guilty defendant to escape punishment. Another grievance was that cross examination in a trial submitted honest witnesses to torture and distracted them from testifying as to the truth.

As he matured as a writer and achieved success, Trollope’s understanding and appreciation of the legal profession changed. He met and become friends with leaders of the Bar, and they influenced his descriptions of lawyers, who became realistic and often admirable human beings. Beyond the legal problems of its characters, Trollope’s later novels incorporated the social, political, and jurisprudential issues of the times and engaged the Victorian legal culture in a broader sense of history, traditions, continuity and change.

Trollope’s attention to the faults of the adversary system had its source in principles of natural law, which posited that God-given universal axioms of right and wrong gave individual guidance or a map for reaching the right result in a legal controversy. Natural law principles were challenged during the Victorian era by positivist notions that law is what the statute books say, and legislators enact. These divisions lurk in the background of his later portraits of lawyers and the legal system. In his later period Trollope created a realistic characterization of the legal profession at the time that offered universal insights into human nature.

--Dan Ernst

Female Imprimatur: Women in the Lawbook Trade.

[We have the following announcement of an online exhibit at Boston College Law School.  DRE]

Female Imprimatur: Women in the Lawbook Trade.  This exhibit was inspired by the 100th anniversary in August 2020 of the ratification of the 19th Amendment, which granted suffrage to some—though certainly not all—American women. In the summer before the anniversary, Rare Books Curator Laurel Davis, Professor Mary Bilder, and Associate Law Librarian Helen Lacouture went digging into our special collections to find lawbooks with imprints featuring women printers and booksellers.   

More.

Laske's "Law, Language and Change"

Caroline Laske, a research fellow at the Ghent Legal History Institute (Belgium) and the holder of a Heinz Heinen fellowship at the Bonn Centre for Dependency and Slavery Studies (Germany), has published Law, Language and Change: A Diachronic Semantic Analysis of Consideration in the Common Law (Brill, 2020):

In this monograph, Caroline Laske traces the advent of consideration in English contract law, by analysing the doctrinal development, in parallel with the corresponding terminological evolution and semantic shifts between the fourteenth and nineteenth centuries. It is an innovative, interdisciplinary study, showcasing the value of taking a diachronic corpus linguistics-based approach to the study of legal change and legal development, and the semantic shifts in the corresponding terminology. The seminal application in the legal field of these analytical methodologies borrowed from pragmatic linguistics goes beyond the content approach that legal research usually practices and it has allowed for claims of semantic change to be objectified. This ground-breaking work is pitched at scholars of legal history, law & language, and linguistics; and is of importance to scholars of private law working on promises and contract.

–Dan Ernst

McClain on the 19th Amendment Centennial and Trollope's Palliser Novels

Linda C. McClain, Boston University School of Law, recently has posted two articles.  The first is What Becomes a Legendary Constitutional Campaign Most? Marking the Nineteenth Amendment at One Hundred, which is forthcoming in the Boston University Law Review 100 (2020): 1753-1769

What most becomes a landmark anniversary in the legendary campaign by women (and some men) for woman suffrage that, in 1920, led to Congress’s ratifying the Nineteenth Amendment to the U.S. Constitution? This framing of the question alludes to the famous, decades-long Blackglama advertising campaign, “What becomes a legend most?,” which (beginning in 1968) enlisted the charisma of famous women (and some men) to glamorize mink coats. This Essay also appeals to the dual meanings of legendary -- “of, relating to, or characteristic of legend” and “well-known, or famous” -- and argues that the campaign for woman suffrage is the stuff of legend in both senses. This is evident in challenges surrounding how best to represent the anniversary in public monuments (such as the recently unveiled Women’s Rights Pioneers Monument in New York City's Central Park) and public exhibitions: Which legendary suffragists are included? Who is left out? What role do legends play in the commemoration? The abundance of invocations of “the Nineteenth” in the buildup to 2020 and in the commemoration itself suggests multiple answers about how best to commemorate it. Some answers look back in time, urging critical reflection on what we do and do not really know about the campaign for woman suffrage and insisting that a deeper, intersectional examination teaches sobering but necessary lessons about inclusion and exclusion and the challenges of coalition building. Such examination also yields valuable role models of agency and action to inspire action in present-day struggles for women’s rights. Other answers focus on the present day and unfinished business: the next hundred years should bring a renewed commitment to advancing women’s political power in the next century, in particular, that of Black women, who stand out for their high levels of political participation yet who have not received sufficient party encouragement and resources as candidates for office. Another forward-looking answer urges attention to how gendered models of who should be a political leader and stereotypes about race and gender work against women’s full participation in governance. This Essay comments on these and other answers offered by the contributors to a symposium in the Boston University Law Review on the centenary of the Nineteenth Amendment: Professors Nadia Brown and Danielle Casarez Lemi, Lolita Buckner Inniss, Kelly Dittmar, Paula Monopoli, Virginia Sapiro, and Katharine Silbaugh.

The second article is her contribution to that symposium, A "Woman's Best Right" - To a Husband or the Ballot?: Political and Household Governance in Anthony Trollope's Palliser Novels:

The year 2020 marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the U.S. Constitution. In 2018, the United Kingdom marked the one hundredth anniversary of some women securing the right to vote in parliamentary elections and the ninetieth anniversary of women securing the right to vote on the same terms as men. People observing the Nineteenth Amendment’s centenary may have difficulty understanding why it required such a lengthy campaign. One influential rationale in both the United Kingdom and the United States was domestic gender ideology about men’s and women’s separate spheres and destinies. This ideology included the societal premise where the husband was the legal and political representative of the household and extending women’s rights—whether in the realm of marriage or of political life—would disrupt domestic and political order. This Article argues that an illuminating window on how such gender ideology bore on the struggle for women’s political rights is the mid-Victorian British author Anthony Trollope’s famous political novels, the Palliser series. These novels overlap with the pioneering phase of the women’s rights campaign in Britain and a key period of legislative debates over reforming marriage law. This Article looks at how the Woman Question (as mid-Victorians called it), including the question of women’s political rights, featured in these novels. In his fiction and nonfiction, Trollope expressed decided views about the Woman Question, insisting that a woman’s “best right” was the right to a husband, rather than to the ballot or greater employment. However, the evident tension between such views and the rich portraiture of Trollope’s female characters—including in the Palliser series—suggests an intriguing dialectic between espousing and subverting Victorian ideals about womanhood. Examining the first three novels in the series, Can You Forgive Her?, Phineas Finn, and Phineas Redux, this Article shows how they link matters of public power and political rule to private power and household rule. The novels gesture toward parliamentary debates over the Woman Question, but, by comparison with Trollope’s detailed creation of parliamentary debates with real-world parallels, do not include debates over woman suffrage or the various marriage law–reform bills that failed or succeeded. Even so, this Article shows that the characters in the Palliser novels are mindful of, and constrained by, the marriage law of the time, including husbandly prerogatives of household rule, wifely duties of obedience, and women’s limited options for exiting a troubled marriage. Through analyzing the various marital relationships formed in these novels, as well as other familial relationships and friendships, this Article identifies how legal and social rules about gender roles shape the characters’ connections to political and household power. Trollope’s female characters act in a social context in which marriage is the expected “career” for women, even as some of them experience ambition for a political career or occupation other than—or in addition to—marriage. The novels also explore women’s limited ability to exit disastrous marriages, even as they include examples of relatively egalitarian marriages that seem to transcend models of husbandly rule and wifely submission. This Article’s close reading of the novels is augmented by literary criticism on Trollope and some contemporaneous writings by nineteenth-century feminists, which provide a counter to Trollope’s portrayal of the feminist positions in the Palliser novels. Because Trollope believed that his novels taught important moral lessons about love, marriage, and the legal and political issues of his day, this Article also considers how Trollope’s complicated stance toward the Woman Question shaped the lessons taught in the Palliser novels.

--Dan Ernst

Utz on Dickens on the English Income Tax

Stephen Utz, University of Connecticut School of Law, has posted Boz Among the Radicals: Dickens Records a Turning Point in Tax History:

Charles Dickens, 1867 (LC)

Charles Dickens recorded many trials conduct by his friend, the attorney Thomas Talfourd. Dickens was only twenty-two years old when he recorded the trial of the Weekly True Sun's principal officers for their challenge to the Whig Parliament's rejection of an income tax. Liberal members of Parliament and the public opposed the trial. Dickens' perfect capture of the trial attorneys' and defendants' speeches at the trial reveals his understanding of the issues and his apparent sympathy with the defendants' cause. Yet he later stood back from all this, with the apparent exception of his parting of the ways with Harriet Martineau, his partner in the publishing venture of Dickens' middle years, which have been his rejection of her taking the same side the Whigs had taken in 1834.

--Dan Ernst