Academic journal article Mosaic (Winnipeg)

Constructive Treason and Godwin's Treasonous Constructions

Academic journal article Mosaic (Winnipeg)

Constructive Treason and Godwin's Treasonous Constructions

Article excerpt

In recent years, the study of literature and law has tended to move away from the more traditional examinations of legal themes in literature to a concern with the literary and linguistic aspects of legal formulations. Thus postmodernist scholars like Stanley Fish and Jonathan Culler and members of the Critical Legal Studies Movement have attempted to apply deconstructive theory to the study of law in order to challenge its claims to articulate objective and universal truths. A related New Historicist tendency is the concern with the way law and literature mutually interact within a given culture. In Cross-Examinations of Law and Literature, for example, Brook Thomas explores the influence of 19th-century American legal history on the development of its literature and the influence of such literature on American laws. Similarly, in Strong Representations: Narrative and Circumstantial Evidence in England, Alexander Welsh traces the rising importance of contextual proof and the way it influenced representations of truth in both the legal and literary domains.

Conjoining these current directions, my general purpose in the following essay is to "cross-examine" the 18th-century law of treason in the light of modern critical theory and to explore 18th-century literature in the light of legal attitudes toward the nature of treason. Specifically, I wish to focus on the 1794 charge of "constructive treason" made against a group of radical thinkers and William Godwin's response to that charge - directly, in the form of a pamphlet he wrote entitled Cursory Strictures, and indirectly in the form of his novel Caleb Williams. In the process, I also want to suggest the way that Godwin's writings reflect a struggle to uphold the notion of a legal "truth" that exists independently of its linguistic formulations and the way that his fiction and literary constructions operated to deconstruct his own political philosophy.

In 1794, John Horne Tooke, Thomas Hardy and other members of the London Corresponding Society were charged with the crime of "high treason. The men were accused of publishing radical books and pamphlets and of belonging to a political society with the object of changing the existing form of government. It was a time when any political activity that seemed at all radical was regarded by the government with intense suspicion. Therefore although the defendants' actions did not specifically fall within the Treason Act which defined "treason" as "compassing and imagining" the death of the king (25 Edward III. st. 5. c.2),(1) the Lord Chief Justice Eyre submitted a charge to the grand jury in which he interpreted the statute broadly enough to include their conduct. The accused men were accordingly indicted on the charge of "constructive treason," a legal charge which allowed judges to impute treason to the actions of a person even though, taken severally, those actions did not amount to actual treason under the statute.

Two weeks later, William Godwin responded to the Lord Chief Justice's charge with Cursory Strictures on the Charge Delivered by Lord Chief Justice Eyre to the Grand Jury, in which he attacked not only His Lordship's construction of the law of treason, but the very notion of "constructive treason" itself. Godwin argued that judges should not be allowed to "construct" new laws in the process of interpreting old ones, and that such judicial constructions belonged to the realm of fiction, not legal fact. In support of this contention, Godwin quoted Blackstone as having stated that the original purpose of codifying the common law of treason was to provide clear cut and limited guidelines by which to define this law in order to protect the people from arbitrary accusations and executions (156). The actions of Tooke and Hardy, et al. did not specifically fall within the wording of the statute, or within the parameters of previous judicial decisions. Indeed, as Godwin observed, the Lord Chief Justice admitted in his charge to the jury that the case had no precedent: that it involved a series of facts that "no lawgiver in this country ha[d] ever ventured to contemplate in its whole extent" (152). …

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