The Reader and the Jury: Legal Fictions and the Making of Commercial Law in Eighteenth-Century England

The Reader and the Jury: Legal Fictions and the Making of Commercial Law in Eighteenth-Century England Martin A. Kayman "Quest.2. Whether 'tis lawful to read Romances?" —The Athenian Mercury, Saturday 7 Dec. 16921 In articulating the emergence of a new form of prose fiction with concurrent transformations in property and social relations, critical attention during the 1980s focused on the relation of the early novel and the criminal law.2 This was by no means surprising, given the work of English social historians of the 1970s such as Douglas Hay and E.P. Thompson, who showed the importance of the law in general, and the criminal law in particular, in the social transformations of the eighteenth century. In the words of John Brewer and John Styles, "the notion of 'the rule of law' was central to seventeenth- and eighteenth-century Englishmen 's understanding of what was both special and laudable about 1 In Novel and Romance, 1700-1800: A Documentary Record, ed. loan Williams (London: Routledge and Kegan Paul, 1969), p. 29. 2 See Lennard Davis, Factual Fictions: The Origins of the English Novel (New York: Columbia University Press, 1983); John Bender, Imagining the Penitentiary: Fiction and the Architecture of the Mind in Eighteenth-Century England (Chicago: Chicago University Press, 1987); D.A. Miller, The Noveland the Police (Berkeley: University ofCalifornia Press, 1988); Lincoln Faller, Crime and Defoe: A New Kind of Writing (Cambridge: Cambridge University Press, 1992); and Martin A. Kayman, From Bow Street to BakerStreet: Mystery, Detection, andNarrative (London: Macmillan, 1992). EIGHTEENTH-CENTURY FICTION, Volume 9, Number 4. July 1997 374 EIGHTEENTH-CENTURY FICTION their political system"; the concept of "the Law" functioned as "an idealization , a potent 'fiction' ... which commanded wide-spread assent from both patricians and plebeians."3 The Law which produced both general assent, and indeed pride, in the English was of course the "Common" Law, whose superiority to the arbitrary government of absolutist monarchs had ostensibly been proved by the Revolution. In his Commentaries on the Laws of England , Sir William Blackstone, the first professor of English Law (Oxford, 1758-66), demonstrated the virtues of this law in protecting the individual 's property by "assigning to every thing capable of ownership a legal and determinate owner," while, at the same time, guaranteeing the subject 's most precious possession—liberty—by means of "the glory of the English law," trial by jury.4 Commerce, Narrative, and the Common Law In looking to the relation between the novel and modern forms of property, however, if we press beyond the territory of crime we find it increasingly difficult to use the Law to stabilize our interpretation. If we look, not at the capital statutes passed to protect property, but, following the suggestion of J.G.A. Pocock, at Parliament's creation of a system of public credit, we find that, in the eighteenth century, the law as a master code was itself in the process of splitting and transformation.5 Lately, new perspectives on the development of the novel have been opened through studying the impact of the new credit system on literary production. But, just as Pocock's "civic humanist" paradigm presents itself as a challenge to the traditional "jurisprudential" approach to the period, recent studies of literature and finance have hitherto operated as an alternative to the earlier study of the relations between the novel and the law.6 In this essay, then, I propose to reconnect the concern with finance with the discussion of relations between the emergent novel 3 John Brewer and John Styles, "Popular Attitudes to the Law in the Eighteenth Century," Crime and Society, ed. Mike Fitzgerald et al. (London: Routledge and Kegan Paul, 1981), p. 30. 4 Sir William Blackstone, Commentaries on the Laws of England, 4 vols (1765-69; Chicago: Chicago University Press, 1979), 2:15 and 3:379. 5 See J.G.A. Pocock, "Cambridge Paradigms and Scotch Philosophers: A Study of the Relations between the Civic Humanist and the Civil Jurisprudential interpretation of Eighteenth-Century Social Thought," Wealth and Virtue: The Shaping ofPolitical Economy in the Scottish Enlightenment , ed. Istvan Hont and Michael Ignatieff (Cambridge: Cambridge University Press, 1985), pp. 235-52. See also David...