In 1890 a Writer for All the Year Round Observed

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Chapter One

Writing the Will, Writing the Novel: the Rhetoric of Law and the Poetics of Literature

In 1890 a writer for All the Year Round observed:

By the year 2000, if we can trust Mr. Edward Bellamy’s ‘Looking Backward,’ wills will be curiosities of an extinct phase of civilisation [sic] for in his ‘Utopia’ no one will possess any property to bequeath. In the meantime, however, every reasonable person will make his or her last will and testament at the very earliest moment after becoming possessed of anything worth disposing of. And by making it, we mean getting it made, for there seems to be a fatality about making one’s own will, to which even lawyers themselves fall victims. (“Wills: Old and New” 178)

Post-millennium readers will find Bellamy’s prediction belied; from the writer’s perspective, the prospect of even another hundred years would be inadequate to dislodge property as the key-note of social organization and personal ambition. Indeed, his note that “in the meantime” the act of acquiring property should almost immediately prompt thoughts of its disposal wryly suggests that will-writing is something of a compulsion and that the history of troublesome wills must continue to pose thorny legal questions for the foreseeable future. For with the acquisition of property comes a sense of individual rights and/or duties pertaining to it.[1]

Property is the focus of an economic and psychological investment both prompted and perpetuated by the link between ownership and domestic comfort, social standing, familial welfare and fundamental egoism. The credo that one is what one owns implies that the control of property during one’s lifetime is an essential component of personal and social identity, which the controlled testamentary disposal of property will preserve even in death; as Charles Cutler remarked in The English Illustrated Magazine in 1897, “The character of a man is usually stamped on his will” (171), right along with the goods it catalogs.

But the practical dimension of this continued existence, the legal execution of the testator’s desire, was apt to suffer in direct relation to his proprietary sense and to his active role in “making” a will. The writer for All the Year Round comments that among the many purposes Blackstone attributed to the will, its chief object was “to prevent strife and confusion” (178), but if one counts personal interest among those “other purposes” Blackstone mentions, it is easy to see why “a counsel practicing in the Probate Court probably considers that they [wills] were primarily intended to create instead of prevent it” (“Wills: Old and New” 178). Thus, the writer advocates a more passive role for the testator, one in which his desire is framed and mediated by the legal profession. Such intervention may raise doubts, however, as to exactly whose character is “stamped on [the] will”: the testator’s or the law’s?

Any simplistic notion of the will-as-document as a “true” and direct expression of its testator’s desire must itself be tempered by the understanding that when the private will takes a public form, it becomes subject to the higher will of the law. The purposes of the will and the uses to which it is put, the right way to make (and not to make) one, its meaning for the testator and its effect on the heirs was a much-discussed legal issue in the nineteenth century. But as a process in which “every reasonable man” (and, after 1882, every reasonable woman) could expect to be engaged, will-writing occupied the popular imagination as well.

Articles like the above that go on to catalog examples of “curious” wills frequently appeared in magazines of the century and catered to the public interest in Midas-like testators, mercenary heirs, twists of fate and eccentric or secret practices. Part of the reason for this interest lay precisely in the private dimension of the will. Although a legal and therefore a public document (at least after probate), the will is also a statement of the author’s personal desire. It records a unique relationship between possession and personality that literally effects the fortunes of those to whom property is or is not bequeathed and which, as B.B. West lamented in 1893, can give a funeral “the odious quality of an antechamber to a lottery office, at which the company at once hope and fear to learn the result of a turn of the wheel of fortune” (130). Businesslike though many wills prove to be, the idea of a will nonetheless titillates the voyeuristic imagination.

In “Some Peculiar Wills,” printed in The Strand Magazine in 1897, L.S. Lewis invited his readers to accompany him on a private tour of “the vast vaults and strong rooms beneath the Probate Registry” (441). “In spite of the ever-present gloom and dust,” he enthuses,

The great spirit of romance pervades the great subterranean chambers we are considering. Millions of wills, going right down through the ages! The system of arrangement is absolutely perfect. Shakespeare’s will is as readily produced as is that of the lowly Cockney who died the other day. (441)

It is not simply the wills themselves that are so intriguing (though Lewis will give descriptions and photographs of some of the most “peculiar,” such as the will in rhyme or the will in shorthand); it is their very aura that excites interest. They exist in a world of Victorian gothic- - a “subterranean” world of “gloom and dust,” stretching “right down through the ages,” yet one of perfect “arrangement”- - and exude a sense of “romance.”

The style of Lewis’s account of Somerset House is enough to situate the will as a subject of literary interest, but he in fact opens his article with the question that forms the epigraph of this study: “Goodness only knows what novelists and dramatists would do without wills” (441). He frequently reminds us that literature has adopted the will for its own use because it is both a character in private dramas as well as a narrative form itself.[2] For example, “the will stories buried away in the dark vaults of Somerset House,” he writes, “would enable novelists to turn out stories until the Greek Kalends. Only one has to do one’s own delving in this extraordinary place- - as Miss Braddon frequently does, by the way” (446).References to Shakespeare and Braddon, like the reference to Bellamy, only illustrate the point that the legal last will and testament is equally a “will story.”

In this chapter I discuss these “will stories” in terms of the literary dimension of the law, of both the legal and symbolic function the will served, of its narrative potential, of its “authors” (meaning the testator, the solicitor, and the novelist alike), and of the reasons it came to define a sub-genre of the nineteenth- and early twentieth-century novel as well. I begin by discussing the cultural significance and literary potential of the law as a basis for my reading of the statutes and wills to follow. And I conclude by forecasting the way this conception of the law opened it to the uses to which realist novelists put it.

One cautionary note: I have chosen to look at the wills of the same Victorian authors whose books appear throughout this study as well as those of the Edwardian writers’ fathers, but I attempt very little psycho-biographical reading of them. The potential for this sort of reading, to draw causal connections between the subject of the novels and the content of the will, is clearly nascent, especially in my discussion of the Edwardians’ response to their literary fathers. But I do not avail myself of the tools of psychoanalytic literary criticism, preferring instead a largely historical investigative mode. Thus, my reasons for choosing authors’ wills are largely pragmatic: rather than wading through the “millions of wills going right down through the [Victorian age],” which L.S.Lewis observed, to choose authors’ wills was the more expedient route. Although from time to time the suggestion of a connection between particular novels and the will has proven irresistible, I leave biographical explanations of the nature of the bequests themselves to another and look at the wills primarily for what they can say about the historical relationship between the individual testator and the legal institution and for what they offer by way of analogy to the writing of novels.

1. Reading, Writing and Reality: Foundations of Law and Literature

To read the will and the novel together depends on certain assumptions about the nature of law and literature. In the first place, they are both linguistically constructed cultural forms, by which I mean, first, that they both depend on language, and, second, that in varying degrees they each serve to create, maintain, and critique the cultures of which they are a part. In the second place, they both operate according to principles of consensus. Literature, at least the realistic novel, begins with the premise that although language is fundamentally unstable, that is, only tenuously related to the things it names and therefore incapable of fully capturing their essence, it is nonetheless the means through which people communicate their experiences of the world, themselves, and each other. Language thus becomes the means of establishing community at a specific point in time, and as such its individual terms must be agreed to mean “one thing understood by all” (Green-Lewis 30). Furthermore, the worlds created by literature are carefully bounded (except where the boundaries themselves are the subject of critique) so that, like the language it uses, the potential meanings should be equally available to all readers. Using various techniques, the novel engages its readers, inviting them to participate in and evaluate what happens within its framework and thus to cooperate in an understanding of how that world functions and how it may translate or apply to their lived experience outside the novel.

The law depends similarly on consensus. Although it has been called a “culture of argument” (White 78), the purpose of that interpretive debate is to arrive at meanings that will either bring the issue under discussion into closer conformity with the existing laws, or to reform the law in an effort better to reflect shifting cultural values. The legal system works because it is malleable, and it is malleable because it has been constituted by the law in the first place. To suggest that the law is discursive, originating through and using language, should not, however, suggest that it is somehow unreal. For those within the legal community itself, their active cooperation ensures the maintenance, to use DonaldKelly’s term, of a “legal mythology,” the “ideals and norms” by which legal practitioner and layperson co-exist (qtd. in Dolin 11). They accept it as real because they have had a stake in creating it, which by extension so do all who live in a democratic society. In this sense the law, like the realist view of language, applies equally to all, and the very reason that those who live within its purview accept it as real is because it provides a framework for lived experience outside the courtrooms and halls of legislation.

Law and literature alike, then, are functional, cultural tools for ordering reality. RichardWeisberg and Jean-PierreBarricelli write that both are “basically narrative” and “rely on language to structure an otherwise amorphous and non-linguistic reality (161). By distinguishing between the theoretical and practical dimensions of law and literature, between what they are and what they do, Weisberg and Barricelli remind us, however, of one of the most widely-noted differences between the two: the realistic novel is never punitive. In the absence of consensus, it is the realistic novel that fails, its world that collapses, while the law quite literally enforces its world-view and effects “consequences in the world that are immediate and non-textual” (Dolin 10). Yet it is precisely this “non-textual” or “non-linguistic” reality that both law and literature seek to organize and make concrete by fixing it through language. The law organizes decidedly material, social relations; it does so through physical force but also through the codes and documents upon which the above debates are founded. Sublime, romantic moments of connection with something beyond oneself and anterior to their representation in language may be a private and perhaps a non-linguistic experience, but to put that experience into language, to narrativize it, is to make it in some sense permanent and communicable. And to make something communicable is implicitly to offer it up for comparison to others’ experience and evaluation: to assume, on the one hand, that there are already others for whom that experience will be meaningful and, on the other, to establish a community through the act of representing and replicating that experience.

Writing of the legal community, R. Howard Bloch argues that its language functions as “the collective discourse governing relations between individuals or between individuals and the state,” while literary language represents private experience: “Where one stands as a vehicle for the expression of the private and the particular, the others serve as a mechanism for their regulation” (in Dolin 3). In this view legal language is functional, literary language statically representative. Similarly, James Boyd White suggests that as a language, law is “a set of intellectual and social activities, [that] constitute a culture…and a community, a set of relations among actual human beings” (xi). Furthermore, while the legal text creates a relationship with its individual reader, its primary goal is to create a relationship among readers:

The law is literally and deliberately constitutive: it creates roles and relations, places and occasions on which one may speak; it gives to parties a set of things that they may say, and prohibits them from saying other things; it makes a real social world. A literary text does not do these things, or not in such direct ways. (95-96)

Both Bloch and White conceive of law as a communal language, “governing relations between individuals” or constituting “a set of relations among actual human beings,” but White suggests that (legal) language comes first and establishes what can be said, by whom, and with a view towards communication or the creation of “community.”

To say that the literary text “does not do these things,” however, hinges largely on what sort of literary text one considers. The post-modern novel, for example, with its focus on the individuality of experience, the isolation of the individual from all but the most fragmented sub-cultures, disbelief in liberal humanism and the possibility of shared experience, and the failure of referentiality in general certainly supports the notion that literature does not create communities in the way the law does.[3] But there is a sense in which literary language is also constitutive. If, in the first place, we look at literature as involving more than a writer’s recording of private experience or a reader’s escapist consumption of the text, and, in the second place, focus on the realistic novel, then we can see literature engaged in processes analogous to those White attributes to the law.

Literature obviously creates imaginary worlds, but it is a particular function of realism to establish communality both within and outside the novel (and to make the imaginary nevertheless familiar). The realistic novel creates literary ways for people as characters to relate to one another, affording them new opportunities to speak, that may in turn offer an alternative way for other people as readers to think about reality. If, as Jennifer Green-Lewis argues, the novel “creates a world in which all who speak its language belong” (30), then the reader who shares that language and reads that novel becomes part of its community. But, as I’ve said, the novel is not punitive; it does not decide who its readers will be in the sense of constraining their agency. It is precisely in the degree to which it engages its audience, lets it adjudicate the success of the novel’s representation, and mirrors, if not the real world, then the desire for a “containment and unity” lacking there that literature creates a community (Green-Lewis 30).

Part of White’s purpose in claiming that legal language is constitutive is to identify the ways it establishes meaning and their effects. The methods, he argues, are both rhetorical and poetic: rhetorical in the sense of using language (to persuade, yes, but, more broadly, to create contexts for reading, writing, and speaking), poetic in the sense that the language used is “complex, many-voiced, associative and deeply metaphorical” (xii). The effect is to establish a largely interpretive “culture of argument” through whose operation “the rules” it develops for ordering social relations “acquire their life and ultimate meaning” (98). Meaning does not inhere, then, in the letter of the law, but must always be checked against changing cultural contexts, other texts and other interpretations, because only through this sort of constant reevaluation can the law maintain itself.[4] Stressing the element of interpretation, White suggests that to read literature is really to be engaged in the same process of determining meaning, which like law and language itself is cumulative and contextually dependent on the reader’s relationship with the text. This emphasis on the reader does not, however, render meaning entirely subjective. If reading is largely interpretive, it remains nonetheless possible to arrive at “confidently shared understandings” of both literary and legal texts that are “objective” (82), where “objectivity” is not an ontological category, but an agreed-upon meaning. What law and literature do then is offer views of their texts and perforce of the worlds they represent that are “real” because they are agreed to be so. When those views are rejected, they must be refashioned.