Fashioning the Legal Subject: Narratives from the London Treason Trials of 1794

Jeremy Bentham, in his Comment on William Blackstone’s Commentaries on the Laws of England, criticizes Blackstone for casting as “laws” mere “imaginary objects” that function metaphorically.¹ Bentham describes the process of studying Blackstone’s lectures on jurisprudence as an “excursion into the land of fancy,” a terrain populated by lawyers who “can no more speak at their ease without a fiction in their mouths, than Demosthenes without pebbles.” Aligning Blackstone with other “dealers in fiction,” Bentham likens Blackstone’s concept of the “law of nature” to the notion of “zeal” in Swift’s Tale of a Tub, which is transformed “from a notion into a word, and from thence, in a hot summer, ripened into a tangible substance.” Bentham’s mission, in response to this invasion of the law by imagination, is to identify “real” laws and distinguish them from “the flock of chimæras with which these [imaginary objects] infest the approaches of the science” (6–7, 10, 20–21, 45, 58). He strives to define, clarify, and classify the law, ridding it of its ambiguity.

The London treason trials of 1794, occurring some twenty years after Bentham began his critique of Blackstone, provided a splendid example of Bentham’s complaints about the law. As John Barrell demonstrates in his comprehensive study of late eighteenth-century prosecutions of treason, Imagining the King’s Death, the trials of 1794 were about language, interpretation, and imagination. When radical reformers of the London Corresponding Society and the Society for Constitutional Information, such as Thomas Hardy, John Horne Tooke, and John Thelwall, were tried for high treason, the prosecution had to prove that the defendants “imagined the king’s death.” According to Barrell, without the corporeal death of the king, or a physical attempt on his life, the government had little choice but to focus on the defendants’ intentions and ask the jury to envisage the potential outcomes of those intentions.² Thus taking the case into the realm of imagination and engaging with the defence in a “struggle for ownership of the languages of law and politics,” the prosecution illuminated the fundamental literariness of the law.³

Two critical and closely related developments occurred as a result of the acute literariness of the treason trials and the struggles over language that ensued: the institution of the law compromised its role as a site of reason and logical argument, and the accused were given a chance to claim narrative authority in their engagement with the discourse of the trials. As the law began visibly to fail in its responsibilities of maintaining a transparent system of “regulative reason”—a promise of the modern state in the Enlightenment—it left itself vulnerable to a usurpation of authority.⁴ In addition, the court’s “excursion into the land of fancy” opened up the narrative terrain of the trials and gave those outside the institution of the law a chance to participate in legal debates. These developments allowed others, now endowed with narrative authority, to fill the void of rational discourse, and they elucidated the power of narrative not only in the courtroom but also in the public arena.

With the law thus disabled and with legal discourse spilling over the borders of the courtroom, the accused in the treason trials were in a good position to take their cases to an alternative juridical site, what John Thelwall refers to as “the bar of the public.”⁵ There, they might tell their own stories, reclaim their intention, and, of course, prove their innocence. At this alternative site, they benefited from what Jürgen Habermas describes as an emerging public sphere characterized by “rational-critical debate.”⁶ In the 1790s, those public debates were invested with assertions of juridical and political authority outside of the formal institutions of law and government.⁷ Bolstered by this conceptual shift of authority outside of the courtroom, the accused began to transform the legal subject in the public sphere. They proffered themselves as paradigms, and they used narrative to assert their authority and position themselves...