A Broad View of Character for Nineteenth-Century Law and Literature


Review of Character: Writing and Reputation in Victorian Law and Literature, by Catherine O. Frank.

Edinburgh: Edinburgh University Press, 2021


As someone who came to law through early nineteenth-century literature, I was surprised when I first encountered a major difference between law as it was then and law as it is today: the inadmissibility of bad character and the diminished place that character in general occupies in the present-day courtroom. Having spent a few months reading late eighteenth- and early nineteenth-century dueling cases in Scottish legal archives, I was immersed in vigorous discussions of character. Was the panel’s (prisoner’s) conduct gentlemanly or not? Was he the sort of person who practiced with firearms? How did he comport himself when exchanging civilities (or incivilities) with his soon-to-be-victim? Was he solicitous of his injured or killed adversary’s well-being after the fact? Did he maintain rigorous standards of sportsmanlike fairness during the encounter? How did he phrase the cartel bearing the challenge? And so on. In murder and manslaughter cases resulting from duels, accused persons rarely denied killing their adversaries. How else, besides character, might one defend a client who had been the only one to return from a pre-arranged and fatal meeting? 

Soon after my return to the US, I attended a surreal talk by a criminal defense attorney at an upstate New York gun club (not only surreal because, now that I live in Texas, “gun club” and “New York” no longer seem to belong in the same sentence) who explained that he generally avoids character even if spotless, unless as a last resort in a particularly grim case. Who, the attorney asked, is so clean as to be comfortable opening that door with safety? Who can confidently hope that the state can’t turn something up to sour the jury’s reception of one’s character? A friend who used to prosecute in a major American city’s family court system told me something similar: she must perform rhetorical gymnastics to avoid openly stating a child abuser’s history of child abuse prior to the case in question, and may never mention past convictions. 

None of this is news to attorneys, though scholars and students of nineteenth-century literature may benefit from a perusal of J.R. Spencer’s Evidence of Bad Character (3d ed. 2016) or Nicola Lacey’s In Search of Criminal Responsibility (2016) to get up to speed, at least with how the English common law deals with character. Though both legal historians notice ways in which character seeps into proceedings overtly meant to exclude it, it is safe to say that in the twentieth and twenty-first centuries, character more comfortably operates in the so-called court of public opinion.

Recent controversies over police-perpetrated violence are cases in point—an important component of right-wing responses to condemnations of that violence has been to publicly vilify the individuals upon whom it was perpetrated. One of my guilty pleasures is spending a few minutes every morning comparing Fox and CNN headlines on similar topics, and I can say that nearly all of the high-profile police violence cases that made recent waves were discussed most frequently in terms of character. News readers, unlike the actual jurors and legal professionals involved, encountered the case against Derek Chauvin and his fellow Minneapolis officers as being primarily about who Chauvin was, with his history of being reprimanded for excessive force—and over who George Floyd was, with his eight past convictions. CNN played up the former, presenting Chauvin as a serial offender and sadist; Fox played up the latter, presenting Floyd as a career criminal who needed to be stopped. This public battle of characters—also visible in reportage surrounding the shootings of Jacob Blake, Breonna Taylor, and Ahmaud Arbery and the ensuing cases—has a complicated relationship with what was actually allowed as evidence in the courtroom, a recipe for confusion and frustration when verdicts don’t always line up with what the public comes to expect from the media-generated battle of characters.

It is an earlier iteration of this ongoing public discourse about character that Catherine O. Frank takes up when she uses the terms “character talk” in her new monograph, Character: Writing and Reputation in Victorian Law and Literature. Character talk is a more loosely defined sense of character that crosses the divides among disciplines—literature, law, history, cultural studies, media studies—that each have their own, stricter definitions of character. Character talk is what occurs when we gossip about our neighbors; write, read, or repeat news stories that disseminate private information about persons of public interest; debate the merits of the accused’s, the victim’s, or the witnesses’ characters in the courtroom; or read novels whose omniscient, third-person narrators “expose” protagonists’ interior thoughts to our cold scrutiny. Frank’s book is about the Victorian period in Britain because many of the issues surrounding character were, as it explains, developed in the sometimes fraught interplay between the major novels and major court cases of the era.

Though the concept of “character talk” appears to aim a perhaps too-wide lens on the notoriously difficult-to-define notion of character, the book actually relies much more closely on discussions of character native to literary studies than on ones drawn from any other field, including legal studies. Whether this is a drawback or not is up for debate. Frank’s book opens with an admirable and ambitious attempt to index, review, and integrate a wide range of major works in character studies published from the nineteenth century into the early twenty-first. Character studies has been an underappreciated and understudied subfield within literary criticism, and Frank’s comprehensive introduction is valuable to any scholar or student seeking to find a starting point—portions of the introduction usefully function as annotated bibliographies or literature reviews. Rather than aiming at a synthesis of the character studies she cites from John Stuart Mill to E.M. Forster to Dierdre Lynch and Nancy Armstrong, Frank aligns herself directly with Alex Woloch’s “character systems” as outlined in The One vs. the Many, arguing not only that such character systems arise in Victorian novels, but also that the Victorian courtroom itself is a character system. This compelling line of thinking opens a field of questions. Are attorneys themselves characters in the narrative worlds of the cases they work on? Are jurors and readers analogous (11-13)?

This is not to say that Frank ignores legal studies—she frequently cites major legal historians in their work on character. Lacey, mentioned above, is just one example, though the brevity of Frank’s references to her work is a symptom of the book’s literature-first orientation. The book also engages with foundational work on narratology in law (Peter Brooks, Robert M. Cover, etc.), a set of ideas Frank applies not only to Victorian novels but also to real court cases from the Victorian era.

Frank also engages with scholars from other fields who have made inroads into the study of character and, more directly, the modern “self,” such as historian Dror Wahrman. But again, the frequency and depth of such engagements is heavily outbalanced by the book’s compilation of an impressive set of references to literary character studies as a subfield. Frank admits as much: the “book remains grounded in literary criticism, a study of the way novels interact with law to do the work of character-building” (29). This is not a drawback if one picks up Character: Writing and Reputation with a mind to examine how literary ideas of character impact both the development of the Victorian novel and the ongoing development of the English common law. “Character talk” is the conceptual bridge whose width permits such transfer from literature to law: it is the wide range of literary and legal invocations of character, sometimes as evidence but more often simply as the fact of openly discussing—in novels, in reportage, in courtrooms, even in casual gossip—personal details connected to an individual’s identity that the individual would choose to keep private if given the power to do so. I expect to see “character talk,” a useful addition to extant law and literature methodologies, referenced in many law and literature studies to come.

The intricately interdisciplinary overlaps facilitated by “character talk” appear to advantage in Chapter 4, which triangulates the legal history of privacy dating back to Brandeis and Warren’s well-known 1890 article, “The Right to Privacy,” the representation and eventual invasion of secret, private spaces in Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde (1886) and Oscar Wilde’s The Picture of Dorian Gray (1890), and Wilde’s own “failed attempt to control his public face, or a failure of privacy” (165-206, 167). The relationship of legal privacy to literary character should be clear enough: Frank draws on Warren and Brandeis to put privacy forward as a right to the “inviolate personality” they present as essential to the functioning of modern civilization (175). Character understood in this way becomes contingent on some degree of privacy: the more it is invaded and exposed, the less it can exist. 

I hazard to suggest that the word “privacy” is missing from the book’s title given that four out of five chapters are centered on privacy in law and literature. Character: Writing and Reputation, in other words, is about literary understandings of character examined alongside both literary and legal ideas of privacy, where the book often understands privacy as a distinct area of law and even more often as an abstract concept tied to the function of narration. Frank articulates it with a dichotomy: the “tension between an individual’s capacity to limit access and law’s capacity to compel” (207). In engaging with privacy law, Frank is less concerned with the regulation of what, for example, a periodical can print about a given individual, than with how much access the legal system has to personal details that an individual might rather keep out of a trial. “We should ask how law participated in the creation of inner life, how it protected it, and under what conditions it could assume the power to access it or compel disclosure” (11). 

Frank draws a parallel between the courtroom’s ability to pry into the individual’s secrets and the narrator’s ability to pry into the fictional character’s secrets. The novel’s narration, like an investigation or court proceeding, can invade the privacy of various characters. Frank argues that the narrator’s central function, in fact, is to facilitate such prying. She calls it the “foundational irony” of the novel: “if accessibility is the hallmark of fictionality, and excess access is a violation, then the novel, with its third-person narrators flaunting their omniscience, by definition must be an invasion of privacy. It cannot exist in a world where privacy actually, or at least always, works” (18-19). Such logic brings to mind D.A. Miller’s famous reading of realism in The Novel and the Police (1988), where the application of Foucault to the nineteenth-century novel makes the very act of narrating the interior comparable to the function of a criminal investigation or medical examination. Like a skilled and ruthless detective, the third-person, omniscient narrator invades bodies and souls, say, of the prostitutes in Emile Zola’s Nana (1880) (Miller 20-21). Surprisingly, The Novel and the Police (more directly about British Victorian literature than it is about nineteenth-century France) is not cited in Frank’s monograph.

Frank is correct that “character is an enormous concept” and that it is “a multivalent term, at once a graphic sign, an ethical category, a professional reputation, and a literary construct” (29, 33). There are, however, only so many rhetorical gestures to the breadth of the concept that one can make—in some sections, as with its discussions of character evidence, the book would benefit from a stabler legal definition of character. This becomes visible when Character: Writing and Reputation cites legal historian John H. Langbein, who “observes that as late as 1770, the Old Bailey showed ‘a seemingly unrestrained tolerance for character evidence against the accused’ if given by the magistrate who himself had conducted the pre-trial investigation or by a third party who could describe that investigation” (100). This reference seems rather incongruous in a chapter primarily about the R. v Rowton (1865) case and Anne Bronte’s The Tenant of Wildfell Hall (1848), both from a much later era in English legal history, by which point character had been comfortably excluded from trial proceedings. Frank acknowledges this in her final chapter’s engagement with Julian Barnes’ historical novel, Arthur and George (2006) and the BBC miniseries it spawned. Citing Lacey’s claim that the early twenty-first century has seen a reintroduction of character into trials in the cases of special offenders such as sexual abusers or international terrorists, Frank proposes a reexamination of character evidence when discussing these recent treatments of Sir Arthur Conan Doyle’s famous intervention into the British legal system with his articles on the George Edalji “horse-ripping” case (209-17). Although this chapter is especially compelling, it does raise questions about how earlier chapters engage with character evidence in a Victorian era that enshrined character’s exclusion from trial proceedings.

From its contribution to the subfield in literary studies focusing on character to its development of “character talk” as a wide bridge between law, literature, and a number of other fields, Character: Writing and Reputation enlivens both legal and literary studies by taking on character, too often ignored in both disciplines. With a nod to transatlantic studies in Chapter 1’s comparison between George Eliot and Nathaniel Hawthorne, with an exploration of the literary-legal components of social justice in the racially charged case detailed in Chapter 5, and with a range of provocative comparisons between literary and legal treatments of privacy, Frank’s new book takes up the character studies tradition in literary criticism and ties it to the law and literature subfield.




Posted on 2 February 2023

ADAM KOZACZKA is assistant professor of English at Texas A&M International University, where he also serves as Women’s & Gender Studies Program Coordinator. He is currently working on a monograph on character evidence in Romantic-era courtrooms and novels.