“His manner was–what man’s is not–so much that of one who would love and cherish and defend her, under any conditions, changes, charges, or revelations, that her gloom lessened as she basked in it” (chapter 29; p. 199)
From William A. Davis, Jr., “The Rape of Tess: Hardy, English Law, and the Case for Sexual Assault.” Nineteenth-Century Literature 52, no. 2 (Sep 1997), 221-231.
English law in the nineteenth century defined rape as “the offence of having unlawful and carnal knowledge of a woman by force, and against her will” (Nevill Geary, The Law of Marriage and Family Relations: A Manual of Practical Law (London: Adam and Charles Black, 1892), p. 480). Mews’s Digest of English Case Law further explains that “to constitute rape, it is not necessary that the connection with the woman should be had against her will; it is sufficient if it is without her consent“‘ (John Mews, ed., The Digest of English Case Law, Containing the Reported Decisions of the Superior Courts: and a Selection from Those of the Irish Courts to the End of I 897, 16 vols. (London: Sweet and Maxwell, 1898), IV, 1,548-49. KSN’s emphasis).
The law specifically addressed several situations in which it might be assumed that a woman had not given or could not give consent. Among these is the situation of a woman who is asleep: “If the woman is asleep when the connection takes place, she is incapable of consent, and although no violence is used, the prisoner may be convicted of rape, if he knew that she was asleep” (The Earl of Halsbury, ct al., eds., The Laws of England: Being a Complete Statement of the Whole Law of England, 31 vols. (London: Butterworth and Co., 1907-17), IX, 612). A review of Victorian case law shows that the courts held firmly to the idea that a sleeping or unconscious woman was incapable of consenting to a sexual relationship. R. v. Ryan (1846), for example, affirmed that “where a girl is in a state of utter unconsciousness, whether occasioned by the act of thee prisoner, or otherwise, a person having connection with her during that time is guilty of a rape” (“R. v. Ryan” (1846), Cox’s Criminal Law Cases, 2 (1848), 115).
“You are a poem,” Will tells Dorothea (223). If Dorothea is a poem, feminist critics have pointed out for decades, then she has no agency; she’s just someone else’s creation, lovely but passive. I find this a striking contrast to the parallel we discussed in class between Dorothea’s relationship to art and her relationship to Mr. Casaubon’s mind.
Dorothea originally thinks a husband should be above her, beyond her. She takes a similar attitude to art. Relevant passages named in our discussion include those on 79, 193, 206, 391, 421. She assumes that she doesn’t understand art, doesn’t relate well to it, because she isn’t smart enough: “I am too ignorant to feel” (79). And Will, full of innuendo the artless Dorothea misses entirely, explains that, although many people appreciate art only after acquiring a massive knowledge base (206), he believes it is best simply “to love what is good and beautiful when I see it. But I am a rebel: I don’t feel bound, as you do, to submit to what I don’t like” (392).
“He had reflected that in taking a wife, a man of good position should expect and carefully choose a blooming young lady…. On such a young lady he would make handsome settlements, and he would neglect no arrangement for her happiness: in return, he should receive family pleasures and leave behind him that copy of himself which seemed so urgently required of a man…. He had not yet succeeded in issuing copies of his mythological key; but he had always intended to acquit himself by marriage” (278).
“He had not had much foretaste of happiness in his [unmarried] life. To know intense joy without a strong bodily frame, one must have an enthusiastic soul. Mr. Casaubon had never had a strong bodily frame, and his soul was sensitive without being enthusiastic: it was too languid to thrill out of self-consciousness into passionate delight; it went on fluttering in the swampy ground where it was hatched, thinking of its wings and never flying. His experience was of that pitiable kind which shrinks from pity, and fears most of all that it should be known: it was that proud narrow sensitiveness which has not mass enough to spare for transformation into sympathy, and quivers thread-like in small currents of self-preoccupation or at best of an egoistic scrupulosity. And Mr. Casaubon had many scruples” (279).