Dana Y. Rabin. Identity, Crime, and Legal Responsibility in Eighteenth-Century England. Basingstoke: Palgrave Macmillan, 2004. ix + 234 pp. $75.00 (cloth), ISBN 978-1-4039-3444-4.

Reviewed by Robert Shoemaker (Department of History, University of Sheffield)
Published on H-Albion (June, 2007)

Sympathy for the Criminal

The eighteenth century, it has recently been argued, witnessed the formation of modern conceptions of the individual self; but what were the implications of this development for understandings of deviance and mental incapacity? In this fascinating book, Dana Rabin charts evolving conceptions of criminal responsibility within the English criminal courts. Historians of crime and the law have recently demonstrated the growing importance of mitigation within a judicial system which was at once dominated by the "bloody code" and increasingly reluctant to implement it, and they have argued that this provided extensive powers of discretion to the victims, jurors, and judges who determined judicial outcomes, thus making them open to the influence of wider cultural trends. This was a time when new ideas in philosophy, sensational psychology, and literature (notably the growing influence of sensibility) transformed understandings of subjectivity. To ascertain the impact of these new ideas, Rabin has examined the pre-trial depositions from the Northern Circuit Assizes between 1660 and 1800, a sample of the printed trial accounts from the Proceedings of the Old Bailey (before they were available online), the judicial notebooks of Sir Dudley Ryder (Chief Justice of the King's Bench), and a variety of legal and other printed texts.[1]

Insanity had been viewed as a legitimate excuse for crime since the Middle Ages, but only when the accused was deemed to be totally deprived of the use of reason, and therefore incapable of having malicious intent. Few of the accused in such cases were formally prosecuted, and when they were the indictments were usually rejected by the grand jury, or if they went to trial defendants were typically acquitted and remanded into custody. Encouraged both by developments in the wider culture and by changing judicial practices which provided additional opportunities for the mental state of defendants to be discussed, the eighteenth century witnessed a dramatic expansion in the language of mental incapacity used in judicial hearings, taking it far beyond what the law allowed. In contrast to seventeenth-century ideas of a self inevitably corrupted by sin, a "language of the mind" developed in the eighteenth century which explained deviance as the result of forces which overwhelmed the "true self" and led to a temporarily "displaced self" which committed crime, but could not be held responsible for it. Defendants argued, and jurors, lawyers, judges, and social commentators occasionally accepted, that drunkenness, extreme necessity, passion, and various forms of compulsion had rendered them temporarily insane, which meant that they should not be held accountable for their actions. In 1788, Samuel Aderton explained that he stole a horse in "a momentary frenzy occasioned by the dissolute behavior of his wife" (p. 126).

Perhaps the best example of this development is the changing pleas used by single women in infanticide cases. The fact that women accused of this crime under the 1624 "Act to prevent the Destroying and Murthering of Bastard Children" were rarely found guilty in the eighteenth century (and never at the Old Bailey between 1775 and the stature's repeal in 1803) has never been satisfactorily explained, with reference usually made to increasing dissatisfaction with a law which presumed guilt unless the defendant could prove her innocence. In cases where a birth was concealed and the baby died, the law presumed that it had been deliberately killed (and was not stillborn) unless the mother could prove otherwise (usually by proving that she had made preparations for the baby's birth). This led to widespread acceptance of the so-called "preparation defence," even though it was often little more than a legal fiction, in the sense that little evidence was needed to convince jurors that such preparations had been made. Rabin shows, however, that defendants and witnesses increasingly adopted a different tactic and resorted to the "language of the mind," in which it was admitted that the killing had occurred but the new mothers were described as temporarily insane as a result of the physical and emotional distress associated with childbirth, exacerbated by the shame and fear associated with illegitimacy.

Needless to say, this extension of the language of mental excuse for crime threatened to destabilize the judicial process; it reached its apogee in the trial of James Hadfield, who in 1800 fired a pistol at George III (and missed) when he was attending a play. At Hadfield's trial for high treason, his lawyer Thomas Erskine developed the eighteenth-century language of mental excuse to argue that one did not have to be totally unable to distinguish right from wrong to be occasionally temporarily deluded and lose control over one's actions. (Hadfield had suffered severe war wounds to his head, and it was alleged that under the influence of drink he became quickly deranged.) Despite the fact that this did not meet the legal definition of insanity, and that the trial involved attempted regicide and took place at a time of war and revolution, Hadfield was acquitted. In response, Parliament immediately passed the "Act for the Safe Custody of Insane Persons Charged with Offences," which reduced the range of pleas available to defendants and required anyone acquitted of serious offences by reason of insanity to be incarcerated. Hadfield spent the rest of his life in Newgate Prison and Bethlem Hospital. This case and the resulting statute marked the transition to a different nineteenth-century approach to criminal responsibility, in which pleas were shaped by physicians and lawyers rather than the accused, and those deemed mentally incompetent were subjected to the rehabilitative regimes of incarceration. Perpetrators of crime became subjects, with limited agency to define their representations of the self.

This is a well-documented, convincing, and important book, which demonstrates both what can be learned from placing legal history within its social and cultural context, and the challenges of doing so. Rabin effectively demonstrates that the language of sensational psychology and sensibility permeated the judicial process in the eighteenth century, and thereby provides valuable evidence of its wide social purchase, as it can be found in the language of poor single mothers as well as middle-class jurors and elite judges. Although she shows its influence on the Hadfield trial and the subsequent backlash, she does not prove that this language was effective more generally in the courts. She justifies her decision not to include the verdicts of most of the cases discussed by noting that the reasons behind jury and judge decisions were not documented, but implies that the pleas she documents were nonetheless effective: "the cultural work of these pleas was in their conception and deployment rather than just their efficacy" (p. 7, emphasis added). However, in the one chapter where verdicts are analyzed, concerning the relatively small number of cases of infanticide, trials in which the language of mental excuse was introduced were considerably more likely to result in conviction than in those where it was not. The limited measurable impact of this language in the courtroom makes it difficult to argue for the wider cultural influence of the trials in which it was used.

For the historian of crime and criminal justice, on the other hand, this book provides valuable additional evidence of defendant agency, and of the ambivalent attitudes towards crime in the eighteenth century. Even within the so-called "accused speaks" trial (before defendants were represented by lawyers), defendants of all social classes understood the law and were able to extend and manipulate its principles of mental incapacity in making their pleas, though as we have seen such pleas were not necessarily effective. More significantly, at a time of heightened concern about the extent and violent nature of crime, a developing belief in the existence of a criminal class, and repeated efforts to improve policing and find more effective methods of punishment, this book provides evidence of widespread sympathy for the perpetrators of crime, as jurors, victims, and others demonstrated their own sensibility by exhibiting their understanding of the weaknesses of others. In the late eighteenth century, elite and middle-class observers increasingly viewed crime as an activity committed by an inferior class of people. Yet rather than simply condemning poor and female criminals, they saw an opportunity to demonstrate their superior sensibility, as they condescendingly sought to explain the misdeeds of those with less capacity for reason and understanding than themselves. These arguments helped justify the exclusion of such people from political citizenship; nonetheless, they reveal a more sympathetic view of the criminal at this time than is usually recognized. Regardless of motives, the widespread sympathy for the criminal demonstrated in this book is an important part of the story of late eighteenth-century judicial and penal reform which has been previously neglected.

Note

[1]. See John Smail, "Review of The Proceedings of the Old Bailey, London, 1674-1834," H-Albion, H-Net Reviews, June, 2003; http://www.h-net.msu.edu/reviews/showrev.cgi?path=397.

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Citation: Robert Shoemaker. Review of Rabin, Dana Y., Identity, Crime, and Legal Responsibility in Eighteenth-Century England. H-Albion, H-Net Reviews. June, 2007.
URL: http://www.h-net.org/reviews/showrev.php?id=13330

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