The Nature of the Law: Struggles between Statute and Morality in Wilkie Collins’s The Woman in White and No Name

Much has been made of Wilkie Collins’s legal training and its influence on his literature. Most of this research focuses on Collins’s explicit championing of certain pet legal causes (Maceachen 139; Dolin 30-31; Simpson 115) or his synthesis of litigation structure into his narratological frameworks (Sayers 55; Dolin 1-2; Maceachen 121; Dunbar 97). In fact, Collins’s adherence to proselytising on socio-legal matters, especially in his later texts, led to his being teased by Algernon Charles Swinburne, who wrote, ‘What brought good Wilkie’s genius nigh perdition?/ Some demon whispered – “Wilkie! have a mission”’ (127). For many critics, these technical or overt aspects are the beginning and end of Collins’s novelistic involvement with the law: Lonoff speculates that ‘Collins had no greater ambition than to be a popular novelist’ (1) while Pykett argues that Collins saw the ‘legal system [as] a broad target for the novelist’s satiric arrows, and rich pickings for the fiction writer in search of plot situations and complications’ (40).

However, Collins’s works reveal a deeper, steadier, and less easily resolved interaction with the law at a philosophical level. Many of his texts affirm that the law requires regular revision to keep pace with social norms and morals, but wrestle with the legal notions of malum prohibitum and malum in se. Malum prohibitum is an action that is considered unlawful by virtue of statute, while malum in se is an action that is evil in itself, ‘contrary to the law of nature’ (Bell “Malum in se—Malum Prohibitum”; Husak 105). Collins’s novels not only grapple with the influence of culture upon law, but also, and more significantly, debate whether the concept of malum in se actually exists.

Great Britain’s cultural and legal friction over malum in se and malum prohibitum has a complex history. This friction is none the less convoluted for its frequently being subsumed into the large eighteenth-century debate over Natural Law, (which contends that law and morality should be inextricably linked and are handed down from a divine or supreme authority) and Positive Law (which argues that the law is a cultural construct and a regulation of social norms divorced from any overarching sense of morality) (Brink 12; Frank 21; Lemmings 106-07, 140; Ben-Yishai 6-7, 34, 130). Malum in se is a component of the former, while malum prohibitum is an element of the latter. Malum in se and Natural Law trace their roots back to religion and its involvement in legal matters, in times and cultures where there was little-to-no distinction between sin and crime (Lemmings 140; Nash and Kilday 6-8; MacCormick 27, 95; Sharpe 205, 215). This close correlation of sin and crime, which was still very much present at the beginning of the eighteenth century (Sharpe 215; Gladfelder 132), was challenged repeatedly in philosophical and legal circles over the course of the century, most notably by Jeremy Bentham, John Locke, William Blackstone, and David Hume (Ben-Yishai 34; Frank 36). Positive Law eventually became the dominant discourse by the century’s close (Lemmings 106-07; Ben-Yishai 18-19), with concepts of malum in se, Natural Law, and moral absolutism falling out of fashion in favour of the Utilitarian social construction of law as a means to enforce the greatest good to the greatest number.

What is most central to this article’s contemplation of mid-Victorian author Wilkie Collins and his interaction with malum in se and malum prohibitum is an argument made by Ayelet Ben-Yishai in The Presentness of the Past in Victorian Law and Fiction. Ben-Yishai posits that although the ‘jurisprudential debates of the eighteenth century were largely thought to have been put to rest in the nineteenth’ (18), in reality, ‘far from being laid to rest, the debates over what the law was, and how it was determined, still simmered in this period, in practice if not in doctrine’ (20-21). Indeed, it appears for Collins that the roles of malum in se and malum prohibitum were so unresolved that some of his novels were utilised as a space to debate these issues and catalogue the difficulties presented by each.

An extension to malum in se and Natural Law, and a crucial component to Collins’s struggle with them, is the principle of universalism which regards ‘humanity as a whole, rather than in terms of different nations, races, etc.’ (Oxford English Dictionary). Dolin writes that in the mid-Victorian era ‘it became difficult to reconcile universalism with the emerging evidence of cultural diversity’ (26); Collins’s works, which frequently depict those who are marginalised or ‘Othered’, champion cultural diversity. However strongly Collins denounces universalism in general, his works evince less certainty when universalism is applied to the concept of crime. On the one hand, his texts often hesitate to identify any actions which wholly transcend nationality, culture, or statute and would therefore qualify as mala in se. On the other hand, Collins wrestles with the notion that if every crime is purely malum prohibitum, an action illegal only because of culturally-constructed, then every crime may have the potential to be justifiable.

Collins was a prolific writer and many of his plots deal explicitly with the legal system and matters of social justice; a more thorough investigation of malum in se versus malum prohibitum in all of Collins’s works extends beyond the capacities of this article. As such, this article will only analyse the two texts which most heavily discuss the nature of crime, universalism, and malum in se versus malum prohibitum: The Woman in White (1860) and No Name (1862).

The Woman in White

Collins’s first major success, The Woman in White (1860), is one of the strongest examples in both form and content of his legal literature. The novel deals explicitly with gender biases in the Matrimonial Causes Act of 1857, although Matthew Sweet, in his introduction to The Woman in White posits that the novel ‘does not agitate explicitly for a change in the law’ but rather ‘simply suggests that the domestic space might be home to a number of alarming possibilities’ (xxx). The structure of the novel, in which evidence is gathered and presented through several first-person testimonials and affidavits, mirrors litigation proceedings. Further, the narrative of the false imprisonment of Lady Glyde in an asylum was based on an actual French conspiracy and its subsequent legal actions, known as the Douhault case (Richardson vii).1

More significantly, The Woman in White presents Collins’s first lengthy contemplation on the nature of crime, law, sin, and cultural and moral subjectivity. Collins’s unease with any one definitive authority (be it universal morality or subjective and changeable law) begins immediately, when his first narrator, Walter Hartright says,

If the machinery of the Law could be depended on […] the events which fill these pages might have claimed their share of the public attention in a Court of Justice. But the Law is still, in certain inevitable cases, the pre-engaged servant of the long purse [….] As the Judge might once have heard it, so the Reader shall hear it now (1).

Hartright illustrates the fallibility of mala prohibita by illuminating the shortcomings of a justice system based on statutes that are mechanical in execution and subject to stagnation and exploitation. Collins, through Hartright, asserts that the proscriptive justice for mala prohibita frequently depends upon other external factors, like wealth or gender; the supposedly rigid and impartial regulations of crime, justice, and the law become, in Collins’s text, exploitable technicalities for those with vested interests.

As the narrative continues, Hartright repeatedly aligns himself with the concept of malum in se and what he considers universal, moral wrongdoings for which law makes no provision. Graham Law and Andrew Maunder support this reading of Hartright as not only an ‘upholder of the moral law, but [a] bloodthirsty avenger as well’ (75, italics mine). Hartright, in an attempt to avoid the limitations that these vested interests impose upon culturally constructed law, goes above the bounds of the law and mala prohibita by collecting evidence (sometimes illegally) as an amateur detective and pleading his case to a public judge and jury. His goal is to create a case for malum in se: that the crime perpetrated upon the heroine, Lady Glyde, is a moral crime and an inherently evil act, though not wholly illegal in the eyes of the law. While her husband, Sir Percival, would likely have received some minor sanctions for falsifying her death records and improperly accessing her funds, he was perfectly within his legal rights to imprison his wife in both his home and an asylum, and possibly within his legal rights to abuse her to the extent that he does in the novel. Wife-beating was a common grievance in police stations and court rooms, but punishment was often relegated to an informal admonishment of the husband and a demand to treat his wife with more care (Emsley 294; Gray 92-115). It was only with the Matrimonial Causes Act of 1857 that wives and children were protected against more serious physical abuse (Nash and Kilday 185), for which it is doubtful that Lady Glyde would qualify. As for Sir Percival’s imprisonment of Lady Glyde, it would not be until 1891, with the landmark Regina v Jackson case, ‘that husbands could no longer physically restrict their wife’s freedom’ (Nash and Kilday 185).

With little trust placed in legal statutes, Hartright commits a series of minor crimes, including blackmailing and threatening one of the villains, Count Fosco, into a confession, which is ultimately futile: any legal admission of this nature must be ‘truly the voluntary confession of the criminal’, confirmed by ‘two concurring witnesses’, without which it is ‘insufficient in point of law’ (Bell “Confession”). But with Fosco’s timely death in an unrelated matter, no one challenges the legitimacy of the confession. The narrative resolution of Hartright’s investigation is a logistical tangle between malum in se and malum prohibitum, oscillating between his adherence to one and adherence to the other. In his attempt to overcome the injustices of statute by creating a case for malum in se, Hartright ends up violating mala prohibita through the illegal elements of his investigation. These violations of statute ultimately reward him by providing viable legal evidence to resolve the case through mala prohibita, making his case for malum in se irrelevant. By trying to circumvent the technical legal system, Hartright becomes victorious through the technical legal system; the boundaries of mala prohibita become the final authority. And yet, it was Hartright’s pursuit of punishment for a moral and universal crime that led him to legal justice, also reinforcing the boundaries mala in se as the final authority. Hartright says:

the poverty which had denied us all hope of assistance had been the indirect means of our success[….] If we had been rich enough to find legal help, what would have been the result? [….] The law would never have obtained me my interview with Mrs. Catherick. The law would never have made Pesca the means of forcing a confession from the Count (560).

Despite Hartight’s assertions, the law is exactly where the case is formally resolved and by which Lady Glyde regains her identity. It is uncertain whether Collins advocates for action to be taken above the law against what he perceives to be a true and universal crime, or whether all crimes and all laws are cultural constructs, the latter of which may be altered or manipulated to achieve an ever-changing and always subjective sense of justice.

Although Collins expresses disappointment in the law, he does not call for any revocation of the legal system; in fact, he reifies society’s reliance upon statutes, technicalities, and legal systems even as he subverts that reliance. Hartright opens the narrative describing the failings of mala prohibita and appealing to the reader’s sense of moral justice; he then reaffirms his own commitment to mala prohibita by mimicking the legal system in his own external investigation of the crime, ensuring that he collects enough legally permissible evidence to restore Lady Glyde’s identity through conventional avenues by the end of the novel. All discussions regarding the nature of the crime perpetrated on her become moot when a happy conclusion is reached and the crime is portrayed to be both malum in se (by virtue of the narrators’ assertions of the evil nature of the crime) and malum prohibitum (when enough technical verification is gathered to prove a crime had been committed and to have her identity legally restored).

Although Collins ultimately ends the narrative of the crime in a position where malum in se and malum prohibitum align for the same tidy result, other elements of The Woman in White do not resolve the issue so neatly. The novel’s villain, Fosco, serves as the manifestation of Collins’s struggle with the nature of law, and through which no definite conclusions are reached. Fosco’s status as a foreigner underscores Collins’s partial breakdown of universalism and support of mala prohibita. As an Italian, Fosco, unsurprisingly, does not perfectly align with the values and practices in England. He finds amusement in situations others do not, begging them to ‘Allow me my Italian humour’ (297), and multiple references are made to his overly familiar or unorthodox ‘foreign’ habits (193; 272; 278; 288; 313). Collins refers to him several times as ‘the Italian’ or ‘the foreigner’, usually when Fosco is speaking, in order to distance Fosco’s perspective from those of the English narrators. The collision of two cultural perspectives, English and Italian, help to discredit universalism: malum in se is unlikely to exist if there are such wide disparities even between two countries that are relatively close, both geographically and culturally.

Fosco explains as much himself, in what is potentially the most overt conversation about malum in se and malum prohibitum in any Collins text. Fosco states that there is no action which may be considered intrinsically, universally, a crime. When Lady Glyde asserts, ‘I have always heard that truly wise men are truly good men, and have a horror of crime’, Fosco replies, ‘those are admirable sentiments, and I have seen them stated at the tops of copy-books’. Sir Percival goads Lady Glyde, saying, ‘Tell him next, that crimes cause their own detection. There’s another bit of copy-book morality for you, Fosco’ (204-05). The two villains trample Lady Glyde’s increasingly feeble moral logic by stating that reactions to crime are inculcated from childhood and that there is nothing intrinsically unwise about breaching mala prohibita. The debate rages on with Fosco’s long, persuasive, and pragmatic onslaughts against universalism and mala in se:

The machinery […] set up for the detection of crime is miserably ineffective—and yet only invent a moral epigram, saying that it works well, and you blind everybody to its blunders [….] When the criminal is a resolute, educated, highly-intelligent man, the police in nine cases out of ten lose. If the police win, you generally hear all about it. If the police lose, you generally hear nothing. And on this tottering foundation you build up your comfortable moral maxim that Crime causes its own detection! Yes—all the crime you know of. And what of the rest? [….] I am a citizen of the world, and I have met, in my time, with so many different sorts of virtue, that I am puzzled, in my old age, to say which is the right sort and which is the wrong. Here, in England, there is one virtue. And there, in China, there is another virtue. And John Englishman says my virtue is the genuine virtue. And John Chinaman says my virtue is the genuine virtue. And I say Yes to one, or No to the other, and am just as much bewildered about it in the case of John with the top-boots as I am in the case of John with the pigtail (205-07).

Fosco provides a clear invective against the concept of malum in se, in which he not only triumphs over the arguments of the two female protagonists (including the sharp-witted Marian Halcombe), but also speaks with the same clear-minded fervour and lengthy reproaches which Collins usually reserves for characters voicing Collins’s own stated views. However convincingly Fosco asserts his beliefs—and on these issues he may even stand in for the author himself—Fosco’s identity, relationships, and actions undercut the very argument Collins might be making through him.

Firstly, Fosco is an object of distrust in the novel. By simultaneously building up Fosco’s complex portraiture and morality while sometimes collapsing him into a stock antagonist role, Collins utilises novelistic conventions of heroes and villains to interrogate issues of legal philosophy. Though clearly delineated as a malefactor through narrative structure, Fosco is good-natured, seemingly without malice, and (notwithstanding his status as a supporting character instead of a protagonist) is frequently imbued with antiheroic traits. Both repulsive and fascinating by turn, he bewilders the conventional and definite morality of characters and avoids easy categorisation by readers. Fosco embodies his own rhetoric that opinions and mores are really matters of perspective, and therefore changeable; however, Fosco’s changeable and subjective characterisation makes it is difficult to say whether Collins puts forth Fosco’s ideology as something to which the reader should ascribe or not. Marian Halcombe, whom the reader is encouraged to trust as a reliable narrator, intelligent woman-of-action, and a force of good, highlights her debate with Fosco as ‘important [….] for it has seriously disposed me to distrust the influence which Count Fosco has exercised over my thoughts and feelings, and to resist it for the future as resolutely as I can’ (203). That the competent and benevolent Marian is in danger of being swayed by Fosco’s unconventional views of morality and crime again confuses Collins’s stance on malum in se: Fosco’s argument appeals to Marian’s sense of fairness and reason, and yet she resists. Her resistance could be an unfortunate product of the ingrained ‘copy-book’ morality of which Fosco speaks, or it could be a demonstration of her strength against a sinister and seductive but ‘evil’ line of reasoning.

Further, Marian proves to be hypocritical in her own actions and reactions to (in)justice, extending Collins’s complicated struggle with the issue. Suspecting Sir Percival’s foul motives toward Lady Glyde, Marian eavesdrops on Sir Percival and Fosco’s private conversation. Fosco retaliates by reading Marian’s diary in order to discover how much she knows and to thereby protect himself and Sir Percival. Both actions involve a purposeful intrusion upon another’s private thoughts in order to gather intelligence for future manoeuvers in a high-stakes domestic situation. Both actions are done in an attempt to foil another’s plan and to protect loved ones. Neither action is a crime by the statutes of England. It is here that Collins uses novel form as a mode for couching his legal discussions: Fosco’s reading of Marian’s diary is portrayed to the reader as a violation of the highest and most malicious order. Fosco’s invasion of her personal thoughts while she lies prostrate and insensible with illness, coupled with his increasing domination in the household and his attempted wooing of Marian, reads almost like a rape scene (Miller 117). Collins presents the act as malum in se and foils Fosco’s argument that malum in se does not exist, that there is an action of inherent evil. However, Collins rapidly undercuts his argument again, siding subtly and perversely with the character that he has just portrayed as unforgivable. Both Collins and Marian justify Marian’s own violation of Sir Percival and Fosco’s conversation because Marian’s motives were pure; Collins goes so far as to depict her act of eavesdropping as daring, crucial, and heroic. Malum in se is defined as ‘an action that is evil in itself’, but in this instance, Fosco and Marian’s actions are the same. Fosco’s intrusion cannot be malum in se without Marian’s being equally malum in se, subverting the narrative horror Collins builds around Fosco reading Marian’s diary. Further, if one is not dealing with absolutes, if the same action can be justifiable in one set of circumstances but not in another, then Collins and Marian are proved to be hypocritical in the qualification of Fosco’s prying as malum in se, and their hypocrisy only serves to prove Fosco’s point: there is no true, inherent crime, only perspective.

Fosco again lands himself at the analytical crossroads of malum in se and malum prohibitum through his treatment of women. The overt plot of The Woman in White centres on the issue of a woman and her property becoming the legal property of her husband. This gendered division of law creates the opportunity for moral crimes to be committed because they are not considered to be legal crimes under the current parameters of mala prohibita. Collins alludes many times that the systematic reduction and victimisation of women is inherently evil, as are those who take advantage of the legal vulnerability of women. Again, it is Fosco who cuts through Collins’s own assertion of malum in se by being both proto-feminist and misogynistic, and by supporting Collins’s claim about the agency of women even as he undermines it. Fosco marries Lady Glyde’s aunt, who had suffered at the hands of men for making her own decisions and knowing her own mind. After her marriage to Fosco, however, he seemingly breaks her spirit, turning a once-fiery woman into a slave eerily devoted to his whims. Marian says of Madame Fosco,

Madame Fosco in her maiden days was one of the most impertinent women I ever met with—capricious, exacting, and vain to the last degree of absurdity. If her husband has succeeded in bringing her to her senses, he deserves the gratitude of every member of the family, and he may have mine to begin with (167).

Given that Collins (mostly through Marian’s narration) spends large sections of the text asserting that Sir Percival’s cruelty, removal of rights, and demands for obedience from Lady Glyde are mala in se, it is strange that Marian would then congratulate Fosco on performing the very same actions. The misogynistic abuse of Lady Glyde is portrayed as an outrageous crime because Lady Glyde is sympathetic, while the same outraged characters applaud the similar treatment of Madame Fosco because Madame Fosco is unlikable. An inherent, unforgivable, and universal crime once again becomes a matter of context and perspective.

No Name

Collins’s 1862 novel, No Name, continues his tradition of questioning malum in se and malum prohibitum, as well as his presentation of legal injustice through the medium of a literary court case with a reader serving as judge and jury. Where The Woman in White attacked England’s outdated marriage laws, No Name attacks England’s antiquated inheritance laws. Further, where Collins was once ambiguous in his stance on this legal philosophy, in No Name he sides more definitively with universalism and malum in se, all but rebuking the subjective and alterable malum prohibitum.

Much like Walter Hartright in The Woman in White, the protagonist of No Name, Magdalen Vanstone, undergoes a quest for justice outside the bounds of the law after the legal system fails her and she is robbed of her rightful inheritance. The shortcomings of mala prohibita are again explored at length: the law disenfranchises and makes vulnerable all children who are born out of wedlock, and malum in se is again invoked to categorise those who take advantage of the disenfranchised.

Unlike The Woman in White, Collins departs from his first-person epistle-testimony structure and instead employs third-person narration limited mostly to Magdalen. At a structural level, Collins’s alignment with universalism and mala in se is palpable: the narrative follows procedures of the courtroom far less, gathers nothing which could be construed as ‘evidence’, and presents the reader with only the author’s perspective instead of with multiple perspectives. Collins, for a majority of the novel, makes a case for qualifying the treatment of illegitimate children as malum in se and presents most practical applications of the law as negative and without views to greater, universal justice.

The story revolves around two wealthy sisters, Magdalen and Norah Vanstone, who discover after the sudden deaths of their parents that they were born out of wedlock. Their parents eventually married later in life and attempted to protect their daughters’ financial security in light of inheritance laws which made no provision for illegitimate children. Children born out of wedlock in England at this time were legally determined to be fillius nullius (‘nobody’s child’), with no legal next of kin and no claim to any hereditary position or estate, unless bequeathed property as a personal gift. This law, which would not be repealed until 1921, had remained largely unchanged in England since the Middle Ages and, in fact, became even more severe with the bastardy clauses of the 1834 Poor Law Amendment Act and the Bastardy Act of 1845 (Finn, Lobban and Bourne 5-6; Maceachen 123; Frank 194). In spite of Mr. and Mrs. Vanstone’s precautions, a small legal loophole keeps Magdalen and Norah from inheriting the money that their parents had intended for them to inherit.

Collins quickly presents the legal treatment of illegitimate children as an issue of universalism, and vocalises this qualification most significantly through Mr. Pendril, the Vanstones’ lawyer. Pendril says:

The law of England, as it affects illegitimate offspring, is a disgrace to the nation. It violates every principle of Christian mercy [….] It is not the law of Scotland, not the law of France, not the law […] of any other civilized community in Europe (59).

That a character dedicated to the study and practice of culturally-specific mala prohibita here desires legal universalism is significant in Collins’s continuing struggle with the notion of an absolute authority and a crime which transcends all boundaries. Collins continues Pendril’s qualification of malum in se by placing the injustice in a near-religious light, connecting the issue back to Natural Law and notions of sin: the legal treatment of illegitimate children places ‘the sins of the parents on the children’ (59). By invoking the Bible, Collins critiques the law on two levels. Firstly, his choice to reference Exodus 20:5 (‘I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children’) illustrates that the law which punishes the Vanstone is outdated, even by biblical standards. The punishment of children for their parents’ actions is, to Collins, a product of Old Testament-wrath and judgment instead of New Testament-love and acceptance.

Secondly, by framing the issue in religious and Natural Law terms, Collins hints at an element of universalism, even if it is only universal in Judeo-Christian and western cultures. Specifically, Collins argues through Pendril’s rhetoric that if the laws of England are going to conform to religious dogma, it cannot be outdated dogma; this is for the very significant reason that major religious dogma transcends nations, can go over the head of mala prohibita, and in many ways becomes an issue of universal morality. The legal narrative continues to allude to Natural Law and Christian morality as a way of breaking down unjust inheritance statutes. Norah Vanstone, for example recalls the biblical Noah. She finds her entire life overturned by the ‘sins’ of others, and yet escapes the havoc largely unharmed. Further, like her namesake, Norah defers unquestioningly to authority and mirrors the Old Testament’s more rigid dictums and judgments on laws and morality. The narrative shies away from what Collins portrays to be outdated morality, by largely ignoring Norah and her bland resignation to socio-legal authority. Instead, the narrative focuses on Magdalen who, like conceptions of Mary Magdalene, is a reformed sinner. Magdalen mirrors the New Testament’s reexamination of law, morality, and authority, as well as sharing Collins’s own cloudy perspectives of and struggles over the nature and justification of crime. Magdalen, who also serves as a rebellious Christ-figure, balks from the blind and unquestioning acceptance of authority, as well from the predominance of subjective, man-made laws. Rather, Magdalen aggressively explores the many misalignments of the legal system and morality, and in doing so is able to recalibrate what constitutes a universal crime—malum in se—for her contemporary world.

The seemingly universal injustice of England’s inheritance laws is reinforced when juxtaposed with how those laws function in reality: the Vanstone sisters’ estate continually funnels away from them to increasingly distant legitimate male members of the family. Magdalen says to one of the inheritors, ‘the law which has taken the money from [us], whose father made no second will, has now given that very money to you, whose father made no will at all’ (116). These men, whom Collins represents as smug in the patriarchal legal security granted by technicalities and loopholes, embody how those who have the right to change the law will often not do so; mala prohibita are frequently derived in order to protect the vested interests of those who have power over the law. Moral rights become overshadowed by legal rights, and universal crimes are ignored in favour of technical crimes.

It is in this social atmosphere that Magdalen begins her quest to undermine the law that has failed her. She achieves this through deceiving and marrying the current holder of her inheritance under an assumed identity. Through Magdalen’s initial success in this scheme, Collins illustrates the perversity of a legal system which enables her to commit malum in se (her defrauding marriage is portrayed by Collins as an inherently wrong act) under the guise of morality. By lying and selling herself in marriage to the obnoxious, effete Noel Vanstone, Magdalen undertakes a form of prostitution. Collins represents this marital prostitution as an inexcusable and bleak crime that nearly leads to her spiritual and moral destruction. A major failure of mala prohibita is that this form of prostitution is not only legal, but also socially acceptable. Further, and most sickeningly, Magdalen prostitutes herself for her own money and for the right to use her own name, Vanstone, of which she was stripped as a bastard but is re-granted through marriage to her distant relative.

Noel discovers her real identity, drafts a new will in which Magdalen ‘sha’n’t [sic] have a farthing’ (214), and promptly dies, leaving Magdalen in the same position as before. Her brief attempt to turn the legal system to her own advantage (adhering to Fosco’s idea that crimes are subjective and profitable) is proved to be untenable. Magdalen committed a crime which, from Collins’s perspective, is morally wrong and she is justly punished for it. Her inheritance is conducted down yet another, more distant branch of the family, until finally one of the recipients, George Bartram, having been briefed on the conditions of this inheritance, refuses to accept it. His recognition of a true and evil wrongdoing overcomes any desire to protect his own vested interests under the technical legal landscape. Collins’s belief in malum in se triumphs over the authority of malum prohibitum.

However strongly Collins aligns with the concepts of malum in se and universalism throughout the course of the novel, he challenges his perspective and complicates his allegiance through a last-minute twist of fate: the inheritance which was taken from Magdalen and Norah by a legal technicality is returned to them by a legal technicality. Since George Bartram, their distant relative next in line to inherit, refuses to keep the terms of probate, the Vanstone inheritance reverts back to George Bartram’s nearest living relative (by marriage): his cousin Noel’s disinherited widow, Magdalen. The inheritance should have fallen back to Magdalen because she is also the nearest blood relative of both George and Noel, but the law will not recognize a bastard as a legal cousin; instead the estate comes as the profit of her dabble in marital prostitution, which was formerly treated as malum in se and ultimately proves the point Fosco made in The Woman in White that any crime can be justifiable.

Collins’s last-minute realignment of the issue is doubly significant when one considers that he set up a potential ending where the overcoming of malum in se would have achieved the same rewards. At the end of the novel, George Bertram courts and eventually marries his distant cousin, Norah Vanstone, and Collins leads the readers to anticipate that George will recognise the injustice of the law as malum in se, fulfill the requirements of the will, and freely restore the fortune to the sisters through his marriage to Norah. However, this logical conclusion of events that Collins so carefully builds is purposefully ignored and left impotent. The vilified malum prohibitum becomes the ultimate, surprising restorer of justice and continues Collins’s unresolved interrogation of the nature of the law.

While Collins’s preoccupation with legal matters spanned his entire career, as more inclusive examinations of his texts have shown, his early domestic fiction serves as the primary locus for an interrogation of the nature of the law itself. These texts are utilised by Collins as case studies where issues of malum in se and malum prohibitum may be raised and problematised, although never fully resolved. Collins strikes an uneasy, weighted balance between the two precepts. Much as with the formal doctrines of jurisprudence in the nineteenth century, Collins’s views in his texts ultimately skew toward Positive Law and the authority of mala prohibita; however, just as with the nineteenth-century practice of law, Collins’s texts also manifest an inability to fully discard the possible existence of mala in se, Natural Law, and universal morality.

Works Cited

Bachman, Maria K. and Don Richard Cox. “Introduction”. The Woman in White. Ontario: Broadview Press, 2006. 9-37. Print.

Bell, William. “Confession”. Def. Dictionary and Digest of the Law of Scotland. Edinburgh: Bell & Bradfute, 1865. 212. Print.

—. “Malum in se—Malum Prohibitum”. Def. Dictionary and Digest of the Law of Scotland. Edinburgh: Bell & Bradfute, 1865. 547. Print.

Ben-Yishai, Ayelet, Common Precedents: The Presentness of the Past in Victorian Law and Fiction. Oxford: Oxford University Press, 2013. Print.

Brink, David O. “Legal Interpretation, Objectivity, and Morality”. Objectivity in Law and Morals. Ed . Brian Leiter. Cambridge: Cambridge University Press, 2001. 12-65. Print.

Collins, Wilkie. No Name. New York: Harper & Brothers, Publishers. 1863. Print.

—. The Woman in White. 1860. London: Chatto & Windus, 1914. Print.

Dolin, Kieran. Fiction and the Law : legal discourse in Victorian and modernist literature. Cambridge: Cambridge University Press, 1999. Print.

Dunbar, Ann-Marie. “Making the Case: Detection and Confession in Lady Audley’s Secret and The Woman in White”. Victorian Review 40:1 (Spring 2014): 97-116. Print.

Emsley, Clive. Crime and Society in England 1750-1900. 2nd ed. London: Longman, 1996. Print.

Finn, Margot, Michael Lobban and Jenny Bourne Taylor. “Introduction: Spurious Issues”. Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History. Eds. Margot Finn, Michael Lobban and Jenny Bourne Taylor. Houndmills, Basingstoke: Palgrave Macmillan, 2010. 1-24. Print.

Frank, Lawrence. Victorian Detective Fiction and the Nature of Evidence: The Scientific Investigations of Poe, Dickens, and Doyle. Houndmills, Basingstoke: Palgrave Macmillan, 2003. Print.

Gladfelder, Hal. Criminality and Narrative in Eighteenth-Century England: Beyond the Law. London: The Johns Hopkins University Press, 2001. Print.

Gray, Drew D. Crime, Prosecution and Social Relations: The Summary Courts of the City of London in the Late Eighteenth Century. Houndmills, Basingstoke: Palgrave Macmillan, 2009. Print.

Husak, Douglas. Overcriminalization: The Limits of the Criminal Law. 2007. Oxford Scholarship Online (Online pub. date: Jan. 2008). Web. DOI: 10.1093/acprof:oso/9780195328714.001.0001. 22 Oct. 2015.

Hyder, Clyde K. “Wilkie Collins and The Woman in White”. PMLA 54:1 (Mar. 1939): 297-303. Print.

Law, Graham and Andrew Maunder. Wilkie Collins: A Literary Life. Houndmills, Basingstoke: Palgrave Macmillan, 2008. Print.

Lemmings, David. Law and Government in England During the Long Eighteenth Century: from consent to command. Houndmills, Basingstoke: Palgrave Macmillan, 2011. Print.

Lonoff, Sue. Wilkie Collins and His Victorian Readers: A Study in the Rhetoric of Authorship. New York: AMS Press, 1982. Print.

MacCormick, Neil. Practical Reason in Law and Morality. Oxford: Oxford University Press, 2008. Print.

Maceachen, Dougald B. “Wilkie Collins and British Law.” Nineteenth-Century Fiction 5:2 (Sep., 1950): 121-39. Web. 3 Nov. 2015.

Miller, D.A. “Cage Aux Folles: Sensation and Gender in Wilkie Collins’s The Woman in White.” Representations. 14 (1986): 107-136. Web. DOI: 10.2307/2928437. 31 Jan. 2017.

Nash, David and Anne-Marie Kilday. Cultures of Shame: Exploring Crime and Morality in Britain 1600-1900. Houndmills, Basingstoke: Palgrave Macmillan, 2010. >Print.

Pykett, Lyn. Wilkie Collins. Oxford: Oxford University Press, 2005. Print.

Richardson, Maurice. Introduction. The Woman in White. 1860. London: J.M. Dent & Sons, 1955. v–ix. Print.

Sayers, Dorothy L. Wilkie Collins: A Critical and Biographical Study. Ed. E.R. Gregory, Toledo, Ohio: Friends of the University of Toledo Libraries 1977. Print.

Sharpe, J.A. Crime in Early Modern England 1550-1750. 2nd ed. London: Longman, 1999. Print.

Simpson, Vicky. “Selective Affinities: Non-Normative Families in Wilkie Collins’s No Name”. Victorian Review 39:2 (Fall 2013): 115-128. Print.

Sweet, Matthew. “Introduction”. The Woman in White. Wilkie Collins. 1860. London: Penguin, 1999. xiii-xxxi. Print.

Swinburne, Algernon Charles. Studies in Prose and Poetry. London: Chatto & Windus, 1894. Print.

“Universalism.” Def. 2b. The Oxford English Dictionary. 3rd Ed. 2010. Web. 28 July 2012.


  1. Mme. Douhault was drugged and ‘woke to find herself in the Salpêtriète [hospital], under the name of Blainville. The supposed Madame de Douhault being dead, her estate was liquidated by M. de Champignelles [her brother]’ (Hyder 299), who discredited her as an imposter in order to keep his inheritance—which he did successfully (Bachman and Cox 14). []