Studies in Eighteenth-Century Culture

"Imaginary Productions" and "Minute Contrivances": Law, Fiction, and Property in Eighteenth-Century England ELEANOR F. SHEVLIN Power, right, prohibition, duty, obligation, burthen, immunity, exemption, privilege, property, security, liberty—all these with a multitude of otÃ-iers that might be named are so many fictitious entities which the law upon one occasion or another is considered in common speech as creating or disposing of. Not an operation does [the law] ever perform, but it is considered as creating or in some manner or other disposing of these its imaginary productions. ... the customary law is a fiction from beginning to end: and it is in the way of fiction if at all that we must speak of it. (Jeremy Bentham, Of Laws in General, c. 1782)' The contention that Common Law consisted of "a fiction from beginning to end" would have elicited indignant surprise if not scom in eighteenthcentury England. Even the era's most inveterate novel-readers—long accustomed to temporarily suspending disbelief—would have had difficulty accepting for a moment that such deeply cherished tenets of English culture as individual rights, property, security, or liberty were actually "imaginary productions " or that the law operated as a system enmeshed in fabricating and eliminating phantasmal products. "Imaginary productions" and "the mere work of the fancy" held no truck with the tradition of Common Law or the 131 132 / SHEVLIN hallowed place of property in eighteenth-century English culture. Instead, charges of fantastic indulgences were reserved for those eighteenth-century prose narratives now called novels which, despite their typical insistence on being based in truth and reality, were almost always recognized as fictional constructions. Today we are still far more likely to recognize how law operates in fiction than how fiction operates in law. True, some connections between the law and the English novel have received attention.2 But we are not accustomed to speaking of Common Law as fiction about property relations or the early English novel as a cultural court in which the law and its fictions of property are discussed and debated. By engaging in such a conversation, I wish to draw attention to how fictional fashionings of self and land in early English novels closely resemble those fictional procedures employed by Common Law in articulating property relations and determining property rights. Changing conceptions of property and the way it structured social relations spurred the growth of both legal fictions and the fictions known today as novels. In post-1688 England, the conventions surrounding the law's according a right to liberty and property to English citizens generated a cultural consciousness ripe for fostering fictions of individuality and ownership—fictions that the novel as a form has retrospectively been seen to champion. Understanding the development and place of fictions in English law will underscore how cultural conceptions of land and law, specifically English in nature, shaped the English novel during its formative years. My examination of fictions in law, moreover, proposes that the novel developed in England as a logical outgrowth of the ideologies informing Common Law. Fictions of law, the reasons for adopting such fictions, and many of the procedures by which these fictions operate become reworked in the fictional conventions employed by the eighteenth-century narratives we now call novels . Making such an argument necessarily entails the introduction of other threads, most importantly, that of property. For not only do the law's strategies and rationales for employing fictions resurface in realistic narrative, but the early English novel's thematic preoccupation with property is part and parcel of its reworking of the law. Before proceeding to similarities in procedures , the first part of this essay will therefore clarify the importance of property in thematically coupling novels and law. A look at the use of fictions in Common Law will provide a preface for discussing legal fictions and the traits that make their relationship with the early English novel distinctive. After detailing the ways in which fictions in law inform the fictional strategies employed by early novels, I will use the legal fiction of "ejectment" as a specific, extended example of how the practices of fiction in the legal realm correspond to the practices of fiction found " Imaginary Productions...