Persuasions #6, 1984                                                                                                                                            Pages 44-47





P. Scott Marshall

Annandale, Virginia

That Jane Austen was well acquainted with eighteenth- and nineteenth-century English property law and financial affairs needs no further proof after Enid G. Hildebrand’s exposition on those topics two years ago (“Jane Austen and the Law,” Enid G. Hildebrand, Persuasions, 1982, pp. 4, 34-41). That article suggests that Jane Austen learned something of the law and finance during the controversy over Chawton involving her brother Edward and during the bankruptcy proceedings involving her brother Henry. Similarly, she learned of English criminal law of the period when her aunt, Mrs. Leigh Perrot, was accused of what we would now call shoplifting a piece of lace in 1799 – a crime the punishment for which was either hanging or transportation to Botany Bay in southeastern Australia for fourteen years (A Portrait of Jane Austen, David Cecil, Hill and Wang, New York, 1978, pp. 86-88). To these personal experiences of the law in action we can add the fact that as a member of her class Jane Austen undoubtedly participated in discussions involving law and probably included lawyers among her acquaintance. Not only does substantive law, Mr. Elliot’s being Sir Walter’s heir presumptive, play a role in Persuasion, but one of the primary language patterns of the novel is that of the law, and two of the major scenes portray characters exhibiting the art of the advocate – in proof of a proposition before a jury and in oral argument before a judge.

Any novel whose action is set in motion by what the future has proved to be wrong-headed persuasion, which contains words like “persuade,” “dissuade” and “convince” within its opening pages and phrases like “take up her own cause,” “brought to the proof,” “defended himself” and “appealed to as an umpire” within its first half, promises much enjoyment for a lawyer. Mr. Shepherd’s efforts to persuade Sir Walter to rent Kellynch Hall on the usual terms to Admiral Croft at the beginning of the novel is an amusing example of how a lawyer deals with a most obstreperous client who selfishly refuses to see the absolute necessity to reduce his expenses and increase his income. Even Mrs. Clay gets into the act after Sir Walter gives his two-pronged argument against the navy when she rises to its defence and compares sailors with soldiers, lawyers, physicians and the clergy, obviously having failed to answer Sir Walter’s first point, which, based as it is on his prejudice alone, cannot be rationally attacked.

It is as Persuasion reaches its climax that the lawyer’s art comes to the fore and in two scenes determines the novel’s ending. In the first, Mrs. Smith reveals Mr. Elliot’s character to Anne; in the second, Anne and Captain Harville argue the nature of feminine and masculine love all the while being overheard by Captain Wentworth. The first scene could well take place in a trial courtroom with Mrs. Smith at first as the defence lawyer and then as the prosecutor and with Anne throughout the scene as the jury. The second scene could well occur in any courtroom with Anne and Captain Harville each arguing on his client’s behalf and with Captain Wentworth sitting as judge.

Mrs. Smith is, at first, under the mistaken impression that Anne and Mr. Elliot are soon to announce their engagement. Because their marriage might be of assistance to her, Mrs. Smith begins her discussion of Mr. Elliot in his defence, saying that she has been “ ‘a good deal acquainted with him.’ ” She “ ‘confess[es] the truth’ ” that she wants Anne to speak with Mr. Elliot about her. Since Anne disabuses her of her mistaken impression, she begins to “ ‘plead for [her] – present friend [she] cannot call him – but for [her] former friend.’ ” Undermined by her calling Mr. Elliot a “ ‘former friend,’ ” her pleading is weak. Though she has just admitted knowing him a “ ‘good deal,’ ” Mrs. Smith is forced to rely on an out-of-court statement for the truth of the matter the statement contains, the classic definition of hearsay – the statements of Colonel Wallis – “ ‘ … and who could know him better than Colonel Wallis?’ ” No one misses the fact that she does not quote Colonel Wallis directly, as she has never personally heard him speak. She dismisses Anne’s seeming “ ‘objections’ ” regarding Mr. Elliot’s wife’s only recent death and, instead of pleading on his behalf, actually pleads on her own. It is only when Anne hints that there is someone else with a claim to her affections that Mrs. Smith becomes a prosecutor, and her arguments become both factually stronger and emotionally more heartfelt. As she says, “ ‘Facts shall speak.’ ”

Mrs. Smith’s proof of Mr. Elliot’s character is four-pronged and carefully constructed. Her points are seemingly only chronological, but each logically builds upon its predecessor. Anne suggests the third point which, though not chronological, logically follows from the second. The proof involves, first, the circumstances of Mr. Elliot’s marriage; second, his treatment of Sir Walter and Elizabeth and his regard for the family in the past; third, at Anne’s suggestion, his present conduct towards Sir Walter and his family; and, finally, his behaviour towards Mrs. Smith’s late husband. About the first point she gives first-hand testimony – from her own observation – the best proof a lawyer could wish. Mr. Elliot married with “ ‘one object in view – to make his fortune, and by a rather quicker process than the law.’ ” Lawyers may make large fortunes, but marrying money is obviously faster. His wife was a very low woman, but “ ‘ ... not a difficulty or a scruple was there on his side, with respect to her birth.’ ” On the second point, Mrs. Smith offers documentary evidence, a letter in Mr. Elliot’s own hand to her late husband; “ ‘ ... you ought to have proof; for what is all this but assertion? And you shall have proof.’ ” This letter is hearsay, but as an out-of-court statement of the accused against his own interest, it can be admitted into evidence for the truth of its assertions under that exception to the rule excluding hearsay evidence (which rule, excluding hearsay, has been part of the common law since at least as far back as 1675 to 1690 according to Professor Wigmore, 5 Wigmore, Evidence, §1364, p. 16), especially since the provenance of the letter is perfectly explained, and there is no question of its having been manufactured by its proponent. It proves his dislike for Sir Walter and Elizabeth, his disrespect for the Elliot family heritage, and his usual need for funds to keep him in the style to which he had become accustomed. As Anne responds, “ ‘Thank you. This is full proof undoubtedly, proof of everything you were saying.’ ” On the third point Mrs. Smith offers quadruple hearsay. Mr. Elliot speaks to Colonel Wallis; in turn, Colonel Wallis speaks to his wife; in turn, Colonel Wallis’s wife speaks to Nurse Rooke; in turn, Nurse Rooke speaks to Mrs. Smith. Anne’s problems with the testimony are the historic rationale for the rule barring hearsay evidence; “ ‘ … we must not expect to get real information in such a line. Facts or opinions which are to pass through the hands of so many, to be misconceived by folly in one, and ignorance in another, can hardly have much truth left.’ ” Mrs. Smith’s response is telling; she asks the jury to rely upon its own knowledge and experience of human nature – after all, at the common law, that is the very function of juries. “ ‘Only give me a hearing. You will soon be able to judge of the general credit due, by listening to some particulars which you can immediately contradict or confirm.’ ” After credit is granted “ ‘to the establishment of the first point asserted,’ ” Mrs. Smith continues, urging Anne, “ ‘If there is anything in my story which you know to be either false or improbable, stop me,’ ” Anne cannot do so, and the evidence accumulates. Mrs. Smith establishes the fourth point by the same sort of evidence she used to establish the first – personal knowledge of the facts. Indeed, the letter used to establish the second point presages the fourth, and ends up strengthening the whole. Prosecutors dream of having such cases. Anne, the jury, finds Mr. Elliot guilty as charged. “It was a dreadful picture of ingratitude and inhumanity; and Anne felt at some moments, that no flagrant crime could have been worse.”

The second “courtroom” scene is much shorter. The scene is established with Captain Wentworth sitting at a table writing a letter. Captain Harville engages Anne in a discussion of the topic of that letter, a miniature of Captain Benwick painted originally for Captain Harville’s late sister, Fanny. Captain Harville comments that, “ ‘she would not have forgotten him so soon,’ ” and the argument begins – Captain Harville’s arguing that the love of men lasts longer than that of women and Anne arguing the opposite proposition. Anne’s first point, the generalization that women must stay at home and men are forced to exert themselves and that such exertions “ ‘soon weaken impressions,’ ” is easily rebuffed as inappropriate to the case of Captain Benwick, whom peace has turned on shore at the moment of Fanny’s death. Captain Harville then argues from analogy that just as men’s frames are stronger so are their feelings. That gets him nowhere as Anne argues from the same analogy that women’s feelings are more tender and longer-lasting. Neither advocate has carried the day; the argument is at a stalemate. Captain Harville is then forced to argue from the books, the treatises, like Blackstone’s Commentaries on the Common Law, written by Sir William Blackstone (1723-1780), which argument Anne will simply not permit; “ ‘ … no reference to examples in books. Men have had every advantage of us in telling their own story. Education has been theirs in so much higher a degree; the pen has been in their hands. I will not allow books to prove anything.’ ” It is deliciously ironic that the book in which that speech appears is penned by a woman – to be used, perhaps, by future Anne Elliots – but that is not my topic. To Harville’s wanting out of the argument because neither he nor Anne can prove anything, Anne assents.

We never can expect to prove any thing upon such a point. It is a difference of opinion which does not admit of proof. We each begin probably with a little bias towards our own sex, and upon that bias build every circumstance in favour of it which has occurred within our own circle; many of which circumstances (perhaps those very cases which strike us the most) may be precisely such as cannot be brought forward without betraying a confidence, or in some respect saying what should not be said.”

A lawyer may not use an unreported case, a case on which the opinion of the court is not published and available to all, for proof of any proposition. Anne, of course, the prime example to support the proposition which she has been arguing, must protect the confidences of Captain Wentworth. It is painful for the reader to remember that, after all, although the argument heretofore has been largely in general terms it is really about a specific case, that of Captain Benwick’s shifting affections. Anne has, at her command, the perfect case to establish the proposition for which she is arguing, but she cannot use it. Finally, Captain Harville is forced to argue from his own experience, and Anne parries that with, “ ‘I hope I do justice to all that is felt by you, and by those who resemble you … All the privilege I claim for my own sex (it is not a very enviable one, you need not covet it) is that of loving longest, when existence or when hope is gone.’ ” That effectively ends the argument – poor Captain Harville’s client, Captain Benwick, is not the easiest for whom to argue regarding the strength of his affections. “ ‘And when I think of Benwick, my tongue is tied.’ ”

Of course, Anne is nervous when she sees the sealed opinion of the court. What lawyer wouldn’t be? Of course, she has won the case; never having lost it, she has won the judge’s heart, and he gives her the compliment of quoting her argument.

Anne and Captain Wentworth’s final discussion is full of lawyerly phrases. “ ‘You should have distinguished … the case so different, and my age so different.’ ” “ ‘ … a question has suggested itself, whether there may not have been one person more my enemy even than that lady? My own self.’ ” We, the ultimate jury, are eager by this point to acquit both Anne and Captain Wentworth of any missteps they have made in the past. Their author and advocate has worked her magic, persuading us to care deeply for them, and we are content.

Note: The color image has replaced the original black and white image for the on-line edition of this essay. C. Moss, JASNA Web Site Manager

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