The Work of the Victorian Bar

IN 1836, just prior to Victoria's accession to the throne, an important piece of legislation – the Prisoners' Counsel Act – was passed (after some fifteen years of deliberation).²

This Act enabled barristers to address the jury on behalf of prisoners charged with felony (in cases where the defendant could afford representation). In the terms of John Langbein's analysis, the Act effectively “lawyerized” criminal trials, professionalizing the voices which could be heard in a Crown court (“Criminal Trial” 306). The eighteenth-century model of the criminal trial had been a rather brutal affair; legal historians such as John Beattie and Langbein explain that the criminal trials of the era were heard quickly-the average time was some thirty minutes³ – and they were often decided in clusters, with the jury hearing a number of cases before retiring to reach multiple verdicts (Langbein, “Criminal Trial” 276). Regardless of illiteracy or illness, the prisoner had to present his own defense to the charges against him. Langbein describes this old view of the criminal trial format as “the ‘accused speaks’ theory” (“Historical Origins” 1047–48), and it was supported in turn by the conception of evidence as that which is “evident.” As William Hawkins observed in 1721, “it requires no manner of Skill to make a plain and honest Defence” when language is regarded as the transparent garment of thought and facts are believed to speak for themselves (2:400). During this time, a lawyer could assist a client in the preparation of his statement outside the courtroom; in court, he could cross-examine a witness on the client's behalf, but he could not assume the right to tell the client's story – to create a persuasive narrative from the fractured facts.

Jonathan Grossman has suggested that the treason trials of 1794, where the defendants were allowed lawyers, entrenched the adversarial trial format in the public imagination (ch. 1).⁴

Certainly the speeches of men such as Thomas Erskine and Joseph Chitty created a Romantic mythology of the Bar as an arena for the adventurous exploits of great men;⁵ the independence of the Bar and the publicity of judical proceedings were valorized as quintessentially English traits. But legislative intervention in the field of criminal advocacy proved more controversial: the Prisoners' Counsel Act, which enabled lawyers to narrate their client's stories to the jury in the third-person form, also acted to silence the prisoner. Langbein describes this development as a move from the “old ‘accused speaks’ theory” of the criminal trial to “the newer ‘testing the prosecution’ theory,” which only became possible with the division of the testimonial and defensive functions of responding to a criminal charge (“Historical Origins” 1048). The exclusion of the prisoner's own voice from the court-room and its subsequent replacement by the evasive rhetoric of lawyers was to create tremendous controversy;⁶ criticized as an institutional defense of villainy, it was seen to taint legal discourse with the vicarious guilt of the criminal. This perception of the work of Old Bailey lawyers injected a new antagonistic vigor into the social commentary of authors such as Charles Dickens, and this in turn animated combative generic discussion.

The implementation of the Act virtually marked the beginning of the Victorian era, and in literary terms it coincided with the early stages of the “Newgate novel” controversy; how to speak on behalf of a felon was a question of ethics, and it was being addressed by the Bar at the same time that novelists such as Charles Dickens, Edward Bulwer-Lytton, William Harrison Ainsworth, and Thackeray were arguing about the ethical implications of the representation of criminality in fiction.⁷

Both groups sought to justify the propriety of their own practices by promulgating the binary model favored by satirists, deliberately misremembering and misrepresenting the activities of their opponents. The press castigated both authors and barristers for the expression of inappropriate sympathy towards violent criminals,⁸ and the crux of the dispute was the extent to which the influence of a text may move a potentially transgressive agent to action. In a sense both professions were competing to find the most authoritative way of describing and identifying transgression and redemption (or condemnation); the law spoke the language of rights, duties, evidence, and procedure; literature claimed the higher moral ground of an appeal to the emotions, passion, sensation, bodily pain. Ethical debate coalesced around the duties and responsibilities each group owed to the public: both professions were exploring strategies for the representation of transgression or evil in narrative form and concomitant questions of accountability.⁹

The terms in which this discursive struggle were conceived suggest a mutual fascination with such concepts as passion, intention, and violence. That imaginative representation stood in a derivative relation to the drama of trials and (particularly capital) punishment was articulated by Edmund Burke in his Philosophical Enquiry into the Origin of our Ideas of the Sublime and Beautiful (1757):

For Burke, sublime feelings were rooted in pain and terror, and generated in a social context by the operation of sympathy, “a sort of substitution, by which we are put into the place of another man, and affected in many respects as he is affected” (Burke, 43). This informs the theoretical structure of representation, as the lawyer or the politician stands in place of his client's or his constituent's interest. The aporetics of sympathy are not uncontested,¹⁰ yet it was this associative cluster of substitution and terror which was to bring legal rhetoric and literary aesthetics into collision during the 1840s.

Crime and Narrative Complicity

THE DEPLOYMENT of rhetoric by legal and literary advocates in the service of felons – a discursive and narratological defense of violence – fed a well-documented “murder-mania” in the 1840s, allowing moralists to conceive of both professions as complicit in the criminal culture of early Victorian England. The charge of complicity – the allegation that a party has acted as an accessory before or after an act which constitutes a crime – brought the spoken and written word into a synergistic relationship with motive and action, the representation of which provided the telos of many a narrative structure. The idea of complicity, with its legal resonance and its attributions of moral culpability, thus provides a point of access into a cultural debate which generated some of the earliest examples of Victorian realism.

In his Dictionary of the English Language, published in 1755, Samuel Johnson provided this definition of an accessory to a principal's crime:

Writing in Chambers's Edinburgh Journal in 1849, the editor observed that whilst “crime [may be] a symptom of mental disease,” the propensity to action is inflamed by “the exciting and abhorrent details of slaughter offered by the public journals”: In an influential piece which appeared in the Edinburgh Review in 1824, Lord Denman suggested that the nation's newspapers had turned to the coverage of crime after the cessation of war with France; in a sense, peace licenced newspapers to investigate domestic drama (171).¹¹ Fictional exploration of this theme followed shortly afterward: the first so-called “Newgate novel” made its appearance in 1830 with the publication of Edward Bulwer's Paul Clifford. Other works which also attracted this questionable sobriquet were based on incidents taken from the Newgate Calendar (1773); it was reprinted regularly and its cases were recycled as plots in subsequent generations, both feeding and creating a strong public memory of atrocious crime. In Eugene Aram (1836) Bulwer tried to turn the eponymous murderer into a tortured Faustian hero; Ainsworth told the tale of Jack Sheppard (1840), and Thackeray (vitriolically opposed to the work of the other “Newgate” writers) pitched in with a burlesque biography of the murderer Catherine Hayes in 1839. Punch pursued Bulwer-Lytton and Ainsworth mercilessly. In “Murderers as they are and Murderers as they Ought to Be,” passages from Eugene Aram were set alongside evidence from his trial: hence, his fictional aspirations could then be juxtaposed against his brutal threat in actuality to kill his own wife should she seem likely to give evidence against him. “Felons as they are and Felons as they Ought to Be” appeared next, criticizing Jack Sheppard in similar terms (Punch 2 [1842]: 82, 98).

Dickens also pursued an interest in crime which he shared with the barristers of the Old Bailey, and, given Punch's treatment of his colleagues, his attacks on the morality of the Bar perhaps suggest an attempt to deflect criticism away from his own regular recourse to Newgate and the scaffold; Oliver Twist, The Old Curiosity Shop, Barnaby Rudge, Martin Chuzzlewit, Bleak House, and A Tale of Two Cities all bear testimony to his fascination with violent death and/or state-sanctioned murder. As the Bloody Code was progressively dismantled, and as penal policy shifted, in Foucauldian terms, from an inscription of punishment on the body of the malefactor to the surveillance and reform of his mind, Dickens's fiction refracted the older anxieties about murder, desecration, and providential revenge which persisted in popular culture. In Barnaby Rudge, for example, Barnaby bears the mark of Cain on his wrist, as a consequence of his father's denial of responsibility for an old murder and his father's progress toward the gallows is marked by providential signs – for example, the blood stains at the site of the murder will not fade until the murderer's identity is disclosed. That a fictional trial may lead inexorably to the death of a character embeds a narrative in the referential frame which generates sublime feelings; to speak on behalf of one about to die (such as Fagin in the condemned cell in Oliver Twist), or to reanimate an extinguished consciousness (such as the murderers anatomized and dissected in “A Visit to Newgate” in Sketches by Boz) was to tether fiction to Burke's notion of terror transmitted by sympathy and to yoke narrative to the imperative power of the state. Dickens explicitly acknowledged this nexus of punishment and state-enforced silence in Darnay's appearance at the Old Bailey in A Tale of Two Cities:

And so too, perhaps, was the interest of novelist, lawyer, and reader.

Complicity and the Rhetoric of Romanticism

THE POINT at which the divergent currents of Romantic theories of rhetoric were to converge was the extension of full legal representation to those accused of felony. Once a barrister was allowed to address the jury on behalf of a prisoner – once “clothed” with the rights of the prisoner – could he lie to the court? Could he seek to influence the emotions of the jurors rather than simply appeal to their judgment? The integrity of legal rhetoric was put to the test in 1840 when Francis Courvoisier was charged with the murder of Lord William Russell. Courvoisier was a Swiss national, and the prosecution alleged that he wanted to steal enough money from his master to return to his homeland. Courvoisier retained Charles Phillips as his defense counsel. Phillips had joined the Middle Temple in 1807 and he was called to the Irish Bar in 1812. Seeking to establish himself as a public orator in the cast of his countrymen Richard Sheridan and Burke, he soon acquired a reputation for ornate declamations and sentimental speeches. His poem “The Emerald Isle” was published in 1812, followed by “A Garland for the Grave of Sheridan” in 1816, and an anthology, Specimens of Irish Eloquence in 1819, but as he sought to promote such decorative and passionate language in the forensic forum of the courtroom, Phillips attracted inevitable criticism.

In 1816, Phillips delivered a famous speech for the petitioner (the abandoned spouse John Guthrie) in the criminal conversation case of Guthrie v. Sterne, in which he self-consciously constructed models of female domestic propriety worthy of the eighteenth-century novels of sensibility,¹²

appropriating the language of Burke's sublime to persuade the jury of his client's cause. Ireland, Phillips asserted, “reverenced…the nuptial contract…[T]he slender curtain, that shades the sanctuary of the marriage-bed, has in its purity the splendour of the mountain snow, and for its protection the texture of the mountain adamant” (Speeches 2). Prior to her seduction, Mrs. Guthrie was the heroine of this sentimental tale – yet the very fact of litigation forecloses the possibility of reconciliation or union at the conclusion of the narrative. He characterizes Sterne, the wily seducer, as a sentimental rake, prepared, like Lovelace in Samuel Richardson's Clarissa (1747–48), to adopt the language of feeling for manipulative purposes: Phillips asks the jury to imagine the plight of the deserted husband: “Imagine you see him, in the reverie of his grief, trying to persuade himself it was all a vision, and awakened only to the horrid truth by his helpless children asking him for their mother! – Gentlemen, this is not a picture of the fancy; it literally occurred” (12). In the typology of the biblical Fall, Mrs. Sterne's image is conjured up for the all-male gaze of the court to dissect; she had moved from the “cloudless chastity” of her earlier life to “the loathsome refuse of an adulterous bed; festering in the very infection of her crimes” (14). In conclusion, Phillips tried to postulate a motive for the seduction – ambition: Finally, he urged the jurors to bring in a verdict which would “save [their] firesides from the contagion”: The jury found for Phillips's client, awarding him five thousand pounds. Yet as Phillips moved the audience to spontaneous applause and reduced the Jury to tears, he appropriates some of the characteristics of the sentimental rake; it seems that he too was in search of topics upon which to display his enlarged sensibility. The publication of the speech provoked both admiration and outrage, creating a public curiosity “unparalleled in extent since the press teemed with the productions of the immortal BURKE” (Preface, Phillips, Letter).

In response to the speech, an anonymous article entitled “Irish Eloquence” appeared in the Edinburgh Review in 1816, castigating the suggestions of craftiness which it saw as emblematic of Irish oratory:

Whilst acknowledging that “[o]ratory has its licences as well as poetry, and must not be severely scrutinized, when it deals with matters of fact” (12), the reviewer plainly prefers an “unaffectedly and feelingly simple” narrative, perhaps an expression of that English insistence on the language of plain fact which appeared with puritanism and the work of the Royal Society in the seventeeth century.¹³ The Wellesley Index to Victorian Periodicals is unable to provide a definite attribution of this scathing review (1: 454), but it suggests Henry Brougham as a possibility, given the passing references made in the piece to Lord Erskine, whose speeches Brougham had reviewed in two earlier articles for the Edinburgh Review. In the first article, Brougham had cited Erskine's speech in defense of Lord George as a sensationally effective example of legal oratory, praising his dramatic and passionate outburst as prompting and sustaining a “flight” which carried the court with him (107–08). If Brougham was in fact the critic of Phillips's speech in the Edinburgh Review, he was not opposed to emotive advocacy per se, and indeed both men shared an attitude towards the duties of advocates which was to bring them both tremendous opprobrium and public notoriety. Brougham's defense of Queen Caroline in 1820 – in which he stated that it was the barrister's duty to use “all expedient means” to save his client, “at all hazards and costs to all others”¹⁴ – was defended by Phillips in pamphlet form, but when Phillips applied this approach to criminal proceedings it created what was perhaps the greatest legal scandal of the nineteenth century.

By 1821, Phillips was practising at the Old Bailey in London. The notorious criminal Jack Thurtell was alleged to have quoted from collections of his speeches when he made his own defense to the charge of murder in 1824 (Examiner 4 Jan. 1824), and it is also believed that Dickens used him as a model for Sergeant Buzfuz in The Posthumous Papers of the Pickwick Club, published in serial form in 1836–37.¹⁵

Phillips was approaching the end of his career at the Bar by the time he took on Courvoisier's defense in 1840. Initially, he believed his client's protestations of innocence. While the trial was still part heard, however, Courvoisier made significant admissions of his guilt and the hearing became a cause célèbre when Phillips continued to employ many of the strategies of defense which he would have used had his client been innocent. He proceeded to implicate other servants in the crime, to accuse the police of planting evidence of guilt in Courvoisier's rooms, and to attack the credibility of an important female witness for the prosecution; in short, he implemented the strategies adopted by Brougham in his defense of Queen Caroline. In dealing with the suggestion that the motive for the murder was to obtain enough money to return to Switzerland, Phillips turned to intertextual tropes of sublimity, recycling Oliver Goldsmith's poem “The Traveller” as an emotional proof of the natural affection held by the prisoner for his native land:¹⁶ Phillips stated that Courvoisier's guilt or innocence was “known to Almighty God alone” and he concluded his peroration with an exhortation to acquit lest the jurors be haunted by the memory of an unwarranted execution. When these matters became public, the press – particularly Albany Fonblanque's influential Examiner – argued that Phillips had greatly exceeded the bounds of adversarial licence in the service of his client: At this point the notion of complicity resurfaces; if a journalist could be “an accessory before the fact” to felony, then lawyers, too, worked as accessories, seeking the “manumission of murderers” in Anthony Trollope's memorable phrase (Orley Farm 86). Dickens followed this trial with enormous interest and his outrage at this apparent attempt to secure the acquittal of a guilty man generated both serious criticism and perhaps satire.¹⁷ However, when Courvoisier, in his final confession, registered the influence of Ainsworth's Jack Sheppard on his decision to commit the crime, authorial criticisms of the Bar seemed a little more self-referential.¹⁸ Both Dickens and Thackeray were present at the execution of Courvoisier on the 6th of July, and Thackeray's famous piece “Going to see a Man Hanged,” published in Fraser's Magazine in 1840, describes the ethical position of the spectator or witness watching this murderer's demise. In an act of substitution consonant with Burke's theory of the sublime, he imagines Courvoisier's last night alive, and he goes on to describe the vast crowd which gathered at the scaffold. But his narrative breaks down at the point of death – “I am not ashamed to say, that I could look no more” – and he, too, feels the contamination of crime: “It seems to me that I have been abetting an act of frightful wickedness and violence performed by a set of men against one of their fellows” (156).

The rhetorical excess of Phillips' defense of Courvoisier generated tremendous debate, but it also took its place in an oft-rehearsed catalogue of cases which demonstrated the alleged amorality of the Bar. In 1845 Sir Fitzroy Kelly's sentimental defence of the notorious murderer John Tawell also attracted criticism.¹⁹

Tawell's wife was at that time unable to give evidence on his behalf, and instead Kelly read out a letter she had written to her husband on the day of the alleged murder; it was an ordinary domestic letter which began “My only loved one – My thoughts have been with thee throughout the day …” and it was signed by “thy beloved wife:” The learned counsel shed tears once or twice while reading this letter, and then proceeded to say that no man could receive such a letter as that and do an act which would make his affectionate wife a widow, and his children fatherless” (Examiner 29 Mar. 1845). This appeal to the epistolary form of the sentimental narrative failed, and Tawell was convicted. What had motivated Kelly's display of sensibility – compassion or a determination to act upon the jurors's feelings? The Examiner's denunciation was quickly forthcoming: Again, the allegation was one of complicity; those “who bring about the example of the impunity of crime are morally responsible for the crimes committed in consequence of such evil encouragement” (29 Mar. 1845).

Public Memory, Satire, and the Victorian Bar

EACH LEGAL SCANDAL of the 1840s generated incisive satirical commentary, with humorous allusions dependent upon a simultaneous sense of shared public repulsion and public voyeurism in response to acts of violence. The journalistic repetition of cases where lawyers exceeded the limits of adversarial license created a public memory to be drawn upon for caricature as and when required. Punch, itself named after the murderer who cheats the hangman, began in 1841, the year after Courvoisier's trial, and although its editorial staff (Douglas Jerrold, John Leech, and Mark Lemon) remained opposed to capital punishment throughout the 1840s, it took every possible opportunity to denounce what the Times labeled as the public's “morbid fascination” with criminals (Punch [1841]: 227). Hence Phillips, and later Kelly, were worthy targets of their ire. The very first volume of Punch lashed out at the Irish dialect of Dr. Tully Cicero Burke Sheridan Charles Phillips Hobler Bedford in a piece entitled “The Lambeth Demosthenes” (Punch 1 [1841]: 219), and set forth a lengthy parody and pastiche of Phillips's conduct in both the Courvoisier case and in adultery hearings such as Guthrie v. Sterne. In the mock adultery trial called Bonbon v. Punch, “Charles Phillips” appeared as counsel for the deserted wife:

This mock-pastoral idyll draws upon public remembrance of the motive in Courvoisier's case, whilst simultaneously parodying the language of sensibility and sublimity; it also gestures towards the narrative nature of evidence, as legal representation (like other forms of mimesis) cannot fully make present that which is absent. The conclusion to the trial reveals the sham at the heart of hired rhetoric: As “Phillips” embodies the sufferings of his client in terms reminiscent of a gothic melodrama, Punch exposes the rhetorical absurdities, the luxurious metaphors and rich descriptions which form part of the barrister's contract of service; the insincerity of the expressions is emphasized by the final satiric onslaught – “the learned counsel sat down, and, [having completed his deliberate manipulation of the feelings of the jury], ate a sandwich.” Counsel for Punch, on the other hand, stated the facts plainly and the jury was inevitably persuaded to agree with him, thus exposing the ethics of (mis)representation (Punch 1 [1841]: 245–46).

It was perhaps inevitable that criticism of the Bar was most intense during the so-called “War between the Bar and the Press” which erupted in 1845 when two of the disciplinary bodies of the Bar (the Oxford and Western Circuits) prohibited their members from reporting for the newspapers, ostensibly in an attempt to prevent personal antagonism from influencing the selection of reported cases. Journals such as the Examiner interpreted this edict as a suggestion that reporting was a disreputable activity in itself and responded accordingly. Countering the tendency of the Bar to conceive of its past in terms of feats of individual eloquence – the activities of the “great men” of Romanticism – Punch and the newspapers created a satirical mythology of the Bar's own malefactors in order to justify a strong attack on the Bar's amorality. The first illustration (Figure 1) reproduced from Punch conceives of the discursive struggle as a jousting tournament which the Bar is in the process of losing. The rhetorical excesses of counsel in a number of notorious cases – Brougham's defence of Queen Caroline in 1820, Chitty's assistance of the murderer Thurtell in 1824, Phillips's apparent duplicity in the case of Courvoisier in 1845, Kelly's tearful defence of the poisoner Tawell in 1845 – were rehearsed and repeated again and again as examples of the dangers of rhetoric for hire. This is Thackeray's memory of the exploits of the Bar's “great men”:

The amorality of the Bar thus justifies its surveillance by the watchful press, which acts, in its own estimation, as a custodian of ethical and honest representations. A leading article in the Examiner quoted this passage from Punch with approval, observing that “[i]n a dictionary in the year 3000 may appear, under the head of Lawyers corruptly so-called, but properly Liars, a class of men who indiscriminately advocated right or wrong for personal hire” (29 Mar. 1845). This mythology of the Bar's malefactors functioned as something of a satiric inversion of the law's appeal to precedent; if the law was shaped by the gradual accumulation of authoritative judicial decisions and relied upon the formal memory contained in the public record of these proceedings, then the legal satire of the era was equally dependent upon a public memory of the Bar's previous excesses. In response, the Law Magazine objected to the journalistic recital of the law's misdemeanors, when “petty instances of professional misconduct are…hawked from paper to paper to swell the chorus of the cry” (“The Newspapers” 166).

A more imaginative attack on rhetoric for hire appeared in 1845, entitled “The Anatomy of a Barrister's Tongue,” in which Professor Plodder presented a paper on its “Anatomical Peculiarities.” The barrister's tongue, he had discovered, displayed an “admirable adaptation to circuitous or roundabout movement, so essential to the practice of pleading.” Professor Plodder then went on to name its unique muscles:

In 1846, another light-hearted piece entitled “Forensic Singing” suggested that barristers should resort to melody “to express what counsel so often complain that mere words will not express – the feelings of the plaintiff in a breach of promise of marriage case” (Punch 10 [1846]: 138). Yet Punch also satirized the plight of the “Briefless Barrister,” unable to speak in court because he has no client to instruct him. The second illustration from Punch (Figure 2) suggests that the want of a brief may drive a barrister to distraction, until – like the Ancient Mariner – he compels passers-by to listen to his tale of woe. This is a quintessentially Victorian re-telling of a Romantic masterpiece.

Contagion, Criminal Morphology, and the Chamber of Horrors

IS CRIMINALITY CONTAGIOUS? How does one recognize a criminal? These related anxieties – of transmission and of recognition – surface in both the fiction and the satire of the 1840s.²⁰

In A Tale of Two Cities, Dickens observes that the Old Bailey of the 1790s “was all bestrewn with herbs and sprinkled with vinegar, as a precaution against gaol air and gaol fever” (63): “Gaol fever” thus effects substitution of a sort (the Judge may die before the felon) and an unwanted sympathy of sickness and symptom. Dickens represents several forms of contagion in Barnaby Rudge – that of gaol disease, which is treated by the circular application of camphor to the carpet, (673), that of mob misrule which spreads like a plague through the city of London, (484), and finally – and perhaps most suggestively – the murderer's inability to retain control of his own guilty secret: When asked why he revealed it, he can only say “[t]he act was not mine. I did it, but it was not mine” (561–62), an admission of compulsion which suggests both the projection of his guilt and the fear that criminal acts may somehow be transmitted through space and adhere to those who do not want to own them: “[t]here are times when, the elements being in unusual commotion, those who are bent on daring enterprises, or agitated by great thoughts, whether of good or evil, feel a mysterious sympathy with the tumult of nature, and are roused into corresponding violence” (62). Although the mechanism by which secrets are revealed was changing by the time of the composition of Bleak House – from superstitious providence to surveillance and detection – this anxiety of transmission reappears in the unsanitary state of Tom-all-Alone's, the property tied up in Chancery Court proceedings, which breeds cholera and pestilence.

Anxieties of transmission and transmutation also provide the fuel for the most incisive satirical pieces published in Punch during this time. Writing in Chambers's Edinburgh Journal in 1849, the editor had noted that “even the wax-modeller Tussaud is politely permitted to perpetuate in her exhibition the memory of the horrors of the day, for the benefit of constitutional monomaniacs and of the rising generation” (209). Richard Altick notes that there was a wax-work in Fleet Street as early as 1711; Madame Tussaud's exhibition, which included figures inspired by Dr. Curtius's “Caverne des Grandes Voleurs,” settled in London in 1835, after several years spent touring the countryside (98). In a room in her Baker Street premises, which became known as “The Chamber of Horrors” in 1845, she gave corporeal form to public memory of crime. After the execution of the murderers John and Maria Manning in 1849, Punch led an amusing yet pointed campaign to declare the Chamber of Horrors – a “penal settlement for murderers in wax,” “the Norfolk Island of the metropolis” – a public nuisance. An irate “correspondent” suggested that even the artefacts of execution she collected would “bring new poison to Baker Street”: “These murder-tainted garments are to infect the atmosphere of my fireside. Talk of cholera, Sir, and miasma, is there not a worse moral poison, and does it not reek from the Chamber of Horrors, contaminating not only Baker Street, but all London?” Another “correspondent” suggested that Madame Tussaud required a “licence to exhibit RUSH, GREENACRE and COURVOISIER”; a “mother” complained that her daughter (“with a heart so tender it would bleed if a kitten wanted milk”) and her friends had gone to see it and had been infatuated with murderers ever since – “One's in love with Courvoisier and calls him her beau garčon!” (“Horrid Murder in Baker Street,” Punch 17 [1849]: 123). Continuing the metaphors of contagion over several issues, Punch finds fungi in the wax of the murderers “sufficient to poison all London.” The contaminant was seen to enter the moral food chain of the population by way of newspaper advertisements: Punch argued that “[i]f moral health be really the care of the state, there is but one remedy for the disease communicated by the felonious wax-namely the melting pot” (17 [1849]: 141). In a subsequent piece Punch also suggested innoculation (“waxination”), and expressed the hope that if the public shunned the exhibition, “the most hardened of criminals in the collection would very shortly melt into some more respectable character” (17 [1849]: 238). It is precisely this morphology of criminal form which troubles the Punch satirists – the suggestion that a murderer may appear as a decent and respected member of the community. Hence Punch castigated the extension of inappropriate sympathy to the murderer Maria Manning; in a mock report of her trial, two young ladies report that it was more fun than the opera: “When the creatures came into the dock, I was all in a twitter, and upon my word and honour, do you know, I felt for a moment as if murder was catching”:

Punch continued that “MARIA MANNING, as done in wax, is really a chef-d'oeuvre. Dear thing! she would be a treasure as a lady's maid at a hundred a-year, with all the cast dresses. Never did assassination look so amiable – so like a quality to be introduced to the bosom of families” (“The Mannings at Home,” Punch 17 [1849]: 213). This threat to the family unit seems to provide the key to Victorian anxieties about the representation of evil in both legal and fictional narrative – that the work of authors and barristers can palliate and disguise the appearance of evil, allowing it to be “introduced into the bosom of families.”

Criminal morphology, the subject of humorous experiment in the passages quoted from Punch, also troubled authors such as Dickens; to a certain extent, the realism of the criminal form is a question of genre, with evil villains prepared to confess to their deeds with delight – like Count Fosco in Wilkie Collins's The Woman in White – siphoned off into gothic interature and detective fiction. The most threatening figures were those whose appearance belied their violent predilections, like the “assassin” lurking in the heart of the bourgeois family in the quote from Punch above. Dickens's portrayal of evil in The Old Curiosity Shop is both overtly manifest (in the deformity of Quilp) and threateningly plastic in form; Quilp seems to emerge from a statue niche as he melts in and out of the shadows in his search for Nell (270); Nell's father becomes merely a “dark form ,…a mere blot upon the lighter darkness of the room” as he steals her money (301), and Nell works for Mrs. Jarley of Jarley's Wax-works. Mrs. Jarley had attempted to please the young ladies from a nearby school “by altering the face and costume of Mr. Grimaldi as a clown to represent Mr. Lindley Murray as he appeared when engaged in the composition of his English Grammar, and turning a murderess of great renown into Mrs. Hannah More – both of which likenesses were admitted by Miss Monflathers…to be quite startling from their extreme correctness” (288). Nell, too, fears the plasticity of the waxen figures; she “imagin[ed] a resemblance, in some one or other of their death-like faces, to the dwarf, and this fancy would sometimes so gain upon her that she would almost believe he had removed the figure and stood within the clothes” (269). Morphological anxieties in nineteenth-century discourse are not restricted to the legal forum; they also surface in the scientific satire of the mid-Victorian period. As Paradis explores the simian humor found in Punch, he notes that “caricaturists…furnished a steady stream of morphological eccentricities that revealed a profoundly comic impulse in the materials of evolution” (150).

Yet it is perhaps Thackeray's delicious confusion of criminality and legal representation which provides the most humorous critique of legal complicity in the defense of felons. In 1845, he composed a piece of doggerel verse imagining, in “Punch's Regency,” a suitable punishment for Kelly's controversial defense of the returned convict, Tawell:

Thackeray refines the joke in the final pages of Thackeray's Vanity Fair, where Becky's lawyers Burke, Thurtell, and Hayes, succeed in settling her claim for insurance monies after the suspicious death of Jos Sedley. The attorneys in this passage are all named after notorious murderers, whose deeds of horror would have been well known to the reading public. In this elision of identity between client and lawyer lies an ethically charged joke.

The struggle for the most effective description of crime and transgressive behavior, then, which takes place in satire as well as more earnest moral commentary, depends upon Victorians remembering and misrepresenting each others' discourses at a time when journalism, narrative realism, and the legal representation afforded to felons were all under close scrutiny. The defensiveness of journalists and of fictional authors – which motivates much of the satire – is perhaps a sign that they felt more insecure than members of the Bar, which had hundreds of years of professional standing behind it in the civil courts at least. Peter De Bolla suggests that the “continuation of the eighteenth-century debate [on the sublime] would be [located] in the social and economic theory of the 1840s where one would find the same obsessions with the interrelations between ethics, aesthetics and rhetoric, and that debate would more likely be understood historically in terms of the discourse of politics, or political economy, than aesthetics” (44). It could perhaps also be found in the legal commentary of the era as the ethics of representation – both fictional and legal – were tested by controversy and found wanting. Yet if this article deals with public memory and the transmission of criminal culpability by contagious or sympathetic means, in another sense it can also be read as a Victorian response to Romanticism; the Faustian outlaws who considered themselves above the law were very much a Romantic phenomenon, and in Victorian England we see public interest gradually turning from the spectacle of the scaffold towards the forensic process itself. As Joel Black observes in The Aesthetics of Murder, “[w]here romanticism had glorified the outlaw or outcast as a social rebel, the age of realism rationalized the criminal subject as Reason in the figure of the detective; this is what Foucault called ‘the appropriation of the criminal in acceptable forms”’ (46). So although they were also tainted by suggestions of vicarious guilt, journalists, barristers, and authors of fiction all finally became the accepted medium for the representation of criminality in the vocabulary of inquiry and investigation. Their shared interest ensured that they had to compete for authenticity on the same turf, so to speak, and their criticisms of one another tell us much about their own anxieties and pre-occupations at the beginning of the Victorian era.