Macovski, "Introduction: Juridical Texts and Transgressive Containment"

Romanticism and the Law

Introduction: Juridical Texts and Transgressive Containment

Michael Macovski, Fordham University

  1. The far-reaching copyright verdicts of Donaldson v. Beckett and Millar v. Taylor, the Pitt-Grenville Gagging Acts of 1795 and the Six Acts of 1820, the riotous treason trials of 1794, and the infamous blasphemy charges against Hone and others--such cataclysmic events highlight the Romantic era as a legal watershed within late eighteenth- and early nineteenth-century history. Yet these events become all the more remarkable when we consider that the legal discourse behind them--the very fabric of British law--has begun to tear and rip during this period. As legal strictures blur, collapse, and metamorphose, we come to realize that what marks the juridical terrain of the Romantic era is the shifting sand of defined criminalization: the radical redefinition of legal dissent, legal ownership, and legal publication during this period. Such slippages in legal language and meanings define not only the unstable ground of Romantic legal praxis but also the evolving concepts of intellectual property, blasphemy, sedition, and treason during this period.

  2. The essays in this volume of the Romantic Circles Praxis Series trace this legal evolution in the writings of and responses to a variety of authors. What they have in common, though, is a new view of juridical language. In particular, they conceive of Romantic legal discourse as a history of textual hermeneutics--a trajectory of misinterpretation and reinterpretation, reframing and slippage. Taken together, they demonstrate how the law during this period both reflects and determines nineteenth-century attitudes toward textual (mis)interpretation.

  3. In "The Discourse of Treason, Sedition, and Blasphemy in British Political Trials, 1794-1820," Michael Scrivener summarizes this textual slippage when he suggests that "it is the rule, rather than the exception, perhaps especially during the English Romantic literary period, that transgressive discourse, whether of treason, sedition, or blasphemy, has unstable boundaries so that the very same words appear in different contexts and registers for different effects." Scrivener goes on to demonstrate how this legal blurring becomes particularly intense during the late 1790's, when the reform movement provokes a discourse of government repression that "softened the distinctive differences among treason, sedition, and blasphemy." Throughout this period, for instance, seditious libel emerges as nearly interchangeable with blasphemy for enforcing political norms; it would typically replace the charge of blasphemy if the latter proved difficult to establish.

  4. This manipulation of legal discourse leads in turn to a new play of definitions, recontextualizations, and interpretations during court proceedings. Treason stands as a kind of ill-defined, interpretive text, in which judges read remote actions, initiations of a process, or even the imagining or compassing of the king's death as actionable. Seditious libel becomes equally hermeneutic, particularly when courts are asked to ascertain the "obvious and natural sense" of satirical "innuendo." Scrivener shows how these legal devolutions recast such widespread concepts as the "person of the king," the "Constitution," and the "very nature of the public sphere." In reformulating such concepts, government ministers conjure a "new discourse . . . that would legitimate political repression."

  5. Scrivener then traces the response to this new discourse in the work of three major political writers of the era: William Godwin, John Thelwall, and Robert Wedderburn. In Godwin's case, Scrivener locates a contradiction between the writer's conservative and radical hermeneutics--a slippage that emerges most clearly when Godwin deploys the rhetoric of blasphemy against the allegedly seditious Thelwall and the London Corresponding Society. In Thelwall's own case, we see the accused manipulate the discourse of the treason charges against him, using a brilliant combination of chiasmus, modulation, and recontextualization. He is able both to recast legal definitions of "intemperate" language and to recontextualize the political action of a play. Finally, in the case of Robert Wedderburn, Scrivener explains a similar recontextualization, in which the court reframes blasphemy charges according to the accused's other texts, speakers, and vocations.

  6. As we have suggested, then, political history is often constituted as a function of discourse--of institutionalized language that is often legally constrained. In Scrivener's words, "the discourse of subversion is a site of political contention, but that discourse also constrains and determines the very nature of the contention." And as we will see in the following essays on copyright context, the evolution of law during this period again marks what is essentially a radically new reading of this discourse and its texts--what amounts to a transgressive textology.

  7. In "Copyright's Rhetoric and the Problem of Analogy in the Eighteenth-Century British Debates," Susan Eilenberg locates a parallel textology of legal slippage--one that constrains the discourse of not treason but copyright. Eilenberg traces the linguistic evolution of several pivotal legal debates concerning intellectual property throughout the eighteenth century. She demonstrates how the legal principles said to underlie copyright derive not from a closely-reasoned set of logical principles but from a "series of precedent-setting accidents." That is, the allegedly philosophical definitions of what might constitute intellectual property in fact "masked commercial and even nationalistic interests." She traces this combination of diversion, illogic, and legal slippage in several key analogies within the legal debates of the period.

  8. One of these concerns Lockean tensions surrounding the nature of selfhood. In defining such selfhood, debators often speak in terms of public identity, as represented by the name of a given author or creator. In this context, ownership emerges as a function of the self's use of personal labor, since all people perforce hold property in themselves. This legally-founded analogy founders, however, on the various forms that property may take--since ownership of land or other corporeal property differs from the kind of intellectual property under consideration by the judges. Ownership of the latter, Eilenberg notes, can be simultaneously shared, much as a written description can be circulated among a variety of readers.

  9. Such legal doubling turns on Locke's separation of three previously indistinguishable terms: "person (identity), man (individual body), and substance (presumably soul)"--so that a single person (or body), for instance, might be of two minds.

  10. The other seminal analogy that pervades the legal discourse of early copyright debates is that between corporeal and incorporeal property. Eilenberg locates a slippage between implicit comparisons of books and real estate, "properties" that are in fact defined along wholly different lines. This often unappreciated distinction between corporeal and incorporeal properties also underlies several other analogic fallacies that mark the legal debates. Doubters suggest, for example, that if we claim ownership in the ideas of a book (rather than in the book itself), we might just as well claim property in the "colouring of a picture, but none in the canvas on which that colouring is laid."

  11. Exploring these legal fallacies, Eilenberg discusses several implications of the disparity between corporeal and incorporeal property. Exclusive ownership, she notes, is an economic rather than a textual application; similarly, direct control over successive owners (or readers) is normally impossible during textual transmission. With this last claim, then, Eilenberg locates a destabilizing transmission of not only books but readers and authors as well--a legally-fraught destabilization that, like Locke's work, "undoes the identity . . . upon which property had seemed to rest."

  12. In "The Angry Owner: Samuel Richardson, Modern Authorship and the Ancient Romance," Kathryn Temple situates a similar slippage between eighteenth-century concepts of copyright and such issues as classical appropriation, sea piracy, and the synecdochic theft of the female body. Throughout her essay, Temple traces the gap between legalistic readings of originality and actual textual forms. As part of the former case, she presents Richardson's vendetta against Irish book piracy as an example of a rigid, autotelic conception of originality--one that admits of neither cultural contribution nor even transmission. Within this schema, Richardson's claim to utter originality parallels a modern view of authorship in which "our particular understanding of [copyright] (its newness, its constructedness) is unprecedented."

  13. Such a view is especially ironic when one considers Richardson's own piracy of sea-piracy motifs from ancient romance forms--the "gap between methodological claims and actual methods." In this context, Temple contrasts Richardson's strictly legalistic conceptions of copyright with a more fluid, transmission-based model represented by the various translations of Heliodorus's romance, The Ethiopian--a popular romance widely imitated and parodied through the seventeenth and eighteenth centuries. Temple situates her reading on the protagonist of Heliodorus's work, Charicleia, a heroine who literally embodies a concept of the originary that is at once historicized, revisionist, and textual. For the portrayal of Charicleia necessarily extends the concept of originality to encompass both the classical past and the genetic present--to include both the maternal and the paternal, the mythologically familiar and the racially other. As such, The Ethiopian itself becomes a historicized, trans-temporal text that both explicitly and implicitly tests eighteenth-century laws, norms, and expectations of authorship.

  14. Margaret Russett traces a parallel linkage between past authorship (or canonicity), authorial selfhood, and legal impersonation. In "Like 'Wedding Gowns or Money from the Mint': Clare's Borrowed Inheritance," she teases out the philosophical connections between landed property, intellectual property, and a plagiarized poetics. Her essay demonstrates how Clare tropes on the disjunction between written and oral property rights--that is, between the written laws governing copyright and the oralistic compositions that transgress such strictures. For when Clare insists that he is "Tied to no mongrel laws," he eschews originality and genius in favor of an alternative orality. By linking himself with "rural song," moreover, he lays bare the very foundations of poetic canonicity, including not only the attendant orthography and commodification but also the very identity requisite for cultural access. For Clare, then, such canonicity turns on some of the same concepts discussed during the aforementioned legal debates of the period--in particular, on questions of selfhood and identity, authenticity and imitation, naming and forgery.

  15. In this context, Russett goes on to demonstrate how Clare destabilizes the cultural identity that underlies canonization by impersonating one of the best-known identities of the era--Lord Byron. And since he partially imitates both Byron's poetic self and his literary language, Clare pretends to appropriate Byronism itself. In doing so, moreover, he also "dramatizes the limits of his own poetic persona." Such skewed mimickry extends not only to Byron's literary reputation but to his stanzaic forms, grammatical infringements, poetic titles--and, indeed, to his very "title" itself. For in ventriloquizing Byron's literary "inheritance," Clare also throws into relief what Russett calls the "relation between the aristocracy of blood and the aristocracy of letters." Reading Clare's Don Juan and "Child Harold" against their well-known counterparts, she points out how, "in the phenomenon of Byronism, the extremes of aristocratic and popular traditions meet; above the law, the poetic 'free-booter' is redeemed by the 'notice and affections of the lower orders.'"


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