Criminal Justice During the Long Eighteenth Century

Theatre, Representation and Emotion

David Lemmings, Allyson N. May

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429678462
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This book applies three overlapping bodies of work to generate fresh approaches to the study of criminal justice in England and Ireland between 1660 and 1850. First, crime and justice are interpreted as elements of the "public sphere" of opinion about government. Second, "performativity" and speech act theory are considered in the context of the Anglo-Irish criminal trial, which was transformed over the course of this period from an unmediated exchange between victim and accused to a fully lawyerized performance. Thirdly, the authors apply recent scholarship on the history of emotions, particularly relating to the constitution of "emotional communities" and changes in "emotional regimes".

1 Historicising Emotions

Performance, Sensibility, and the Rule of Law

David Lemmings and Allyson N. May

[A]midst shame and misery I yet wish to live; and most humbly implore that I shall be recommended by your lordship to the clemency of his majesty.

(Dr. Dodd’s Speech, which He Delivered to the Judge, before receiving Sentence of Death (London, 1777), broadsheet)

Background, Aims, and Themes

With these words and appropriate tears, the ‘unfortunate’ Dr. William Dodd appealed for mercy after being convicted of forgery at the Old Bailey in 1777.¹ This was a classic case, much studied by historians of crime and punishment (and not least by Randall McGowen in Chapter 9 of the present collection). It is exemplary of the dramatic characteristics which have made the history of crime and justice in eighteenth- and nineteenth-century Britain such a popular subject. But the genre has not yet reached its full analytic potential. A more complete unpacking of justice in general and Dr. Dodd’s story in particular requires a fresh focus that attends to: the professionalisation of the trial process from the mid-eighteenth century; the contemporaneous growth of the ‘public sphere’ of newspapers and print culture generally; and—most importantly—the history of emotions and ‘performance’. The epigraph itself, delivered by Dodd with ‘streaming eyes’, may be classed as a ‘performative’ statement, insofar as it sought to ‘do things with words’: in this case by enacting Dodd’s repentance so as to persuade the presiding judge to recommend him to the king as a fit object of mercy.² Although ultimately unsuccessful, it was an elaborate appeal to public opinion and aesthetics as well as to the judicial bench, being spoken and published by a professional orator (Dodd) and written by a famous man of letters (Dr. Johnson). Finally, as McGowen demonstrates, it was also a choice specimen of emotional ‘sensibility’, a hyper-emotional style of expression, which was the prevailing literary genre of mid-eighteenth-century England. As William Reddy has suggested, when expressed as ‘emotives’, like ‘I yet wish to live’, emotional expressions can result in historical change, and it is arguable that Dodd’s execution, despite the public’s sympathy for his plight, constituted a watershed in attitudes towards the broad application of the death penalty in England.³ In these ways this collection seeks to contribute new cultural-historical and theoretical perspectives to the history of the English criminal trial process, which has previously been dominated by the pioneering work of social and legal historians.

The background to this collection of essays consists of three overlapping bodies of work, which are fruitfully applied to generate a fresh approach to the study of crime and criminal justice in Britain over the period 1660–1850. Firstly, crime and justice news has been interpreted through the conceptual lens of the ‘public sphere’ (i.e., printed reportage and commentary about public affairs), inspired originally by Jürgen Habermas, but developed in recent studies of early modern British history.⁴ Thus the reporting of crime and punishment in the press may be regarded as a ‘media’ conversation among stakeholders about the merits of law and justice, rather than an accurate representation of events.⁵ Secondly, ‘performativity’ and speech act theory are related to the special historical context of the Anglo-Irish criminal trial, which was transformed over the course of this period from an unmediated exchange between victim and accused to a progressively lawyerised performance culture.⁶ And thirdly, the authors take account of recent scholarship on the history of emotions, particularly relating to the constitution of ‘emotional communities’, changes in ‘emotional regimes’, and also press representations of ‘scandalous’ events and their implications for popular participation in public affairs.⁷ Indeed, all these genres regard collective emotions and their cultural contexts as fundamentally important for constituting moral identities and driving historical change. In this book their complementary theoretical and empirical perspectives are applied to crime and justice proceedings: an important site of British government at the interface of state and society.

Emotions and Change: A Cultural History of Performance

So progressing the history of crime and punishment means attending to the performance of emotions, particularly to the formation of ‘emotional communities’, and shifts in ‘emotional regimes’, through close readings of relevant print culture and their implications for popular feelings about public affairs.⁸ As suggested in Dodd’s case, his semi-religious repentance may be regarded as a speech act: an emotional display which ideally could convene an emotional community of sympathetic auditors and readers. As such, it had the potential to subvert the dominant emotional regime of the state, the majesty of criminal justice. The essays that follow consider criminal trials and punishment as ‘performances’ in two different but related senses. First, like Erving Goffman’s classic, The Presentation of Self in Everyday Life, they recognise that social interaction generates behaviour designed to control and shape the impressions received by others with a view to achieving advantageous treatment. To be successful, this requires conformity with the emotional style and manners of the time and place in which the exchange takes place.⁹ Thus, in the case of the protagonists in eighteenth-century British justice proceedings, individual expressions and atmospherics were successfully tailored—or not—according to the emotional style or manners and mores of the courtroom and the communities represented there, including the jurors, members of the legal profession, and judicial agents of state power. As we shall see, this seems to have involved acknowledging the current importance of ‘sensibility’ in polite society, as well as recognising but resisting the ‘majesty’ of the proceedings: emotional styles which shaded into terror when the judges pronounced sentence or into confessional mystery when the condemned stepped onto the scaffold. Indeed, courtrooms and scaffolds were even more like theatrical performances than most social situations because they were exchanges formally structured by special circumstances, and the outcomes were often matters of life and death.

Secondly, it is important to understand that the interpretations and expressions of emotion studied here are ‘performative’, insofar as they constitute discursive communities of feeling by publically naming good or bad emotions in connection with the dramatis personae of trials.¹⁰ According to this theory, emotions are embodied cultural practices, rather than interior states: they are mobilised to ‘do things in the world’ by attracting or repelling, cultivating feelings, and thereby shaping individual or collective identities. They follow cultural scripts, constituting ‘embodied knowledge’, that has evolved through habitual experience of previous interactive exchanges and that has been learned by active participation. And they can be studied in texts like those attended to in this collection: third-person accounts of crime, justice, and punishment, which routinely use emotional cues to signal approbation or disapprobation, social inclusion or exclusion, and strive to elicit congruent feelings in readers.¹¹ These texts deploy emotion to mobilise sentiment in the public sphere. Moreover, as the essays in the first section show, the ‘feeling rules’, or normative scripts of emotional behaviour, which were routinely applied to constitute judgements about victims or defendants in eighteenth-century criminal proceedings, were gendered according to the mores of the age.¹²

The eighteenth-century ‘culture of sensibility’, or ‘sentimentalism’, is so frequently invoked in these essays that it is necessary to say a few words about it here. After 1700, increasing literacy, the growth of a leisured middle class, and the expansion of publishing provided the context for emotional appeals to readers’ sympathy via printed descriptions of virtuous suffering.¹³ In the milieu of this ‘Enlightenment of sympathy’, sympathetic emotions became intellectually respectable.¹⁴ According to the ethics generated around Hume’s ideas about passions motivating action, and Smith’s emphasis on natural sociability, sensibility to virtue in distress defined men and women as authentically human and civilised. It was also somatic: individual sensibility was often demonstrated by bodily expressions—blushing, tears, and fainting—and benevolent intervention on the part of social superiors.¹⁵ As Dana Rabin suggests in her essay, the rise of sensibility led to increased interest in emotions, and it also influenced the style of performance expected from participants in criminal trials by consumers of crime and justice literature. Several essays suggest it generated doubts about truth-telling in court, however, especially in the later eighteenth and early nineteenth centuries, as the experience of revolutionary sentimentalism in France and the presence of professional advocates complicated judgements about ‘authentic’ emotions. Indeed, while sensibility persisted in the performances of some English and Irish barristers after 1800, the final section of this book identifies enduring emotional regimes, strong discourses of sobering emotion, which always competed with sensibility, in the cultivation of terror associated with the control and legitimate authority of the state.

Perhaps the most important question addressed by this book is how far the theatre of sensibility compromised and de-legitimised this more traditional image of order and justice in the rule of law. It is true that ‘civilising mechanisms’ had always ameliorated legal regimes based on exemplary terror.¹⁶ Law-related performance, story-telling, and appeals to sympathetic emotions had deep roots in western European literature, oftentimes as a discourse of entertainment as well as instruction.¹⁷ But the exceptionally rapid growth of print culture in our period surely influenced the public conversation. In England, the rise of the novel and its emotional engagement with stories about criminal law expanded the scope for ordinary but literate people to participate critically in the administration of justice.¹⁸ By mid-century, narratives of sensibility constituted the dominant emotional regime among the English middle classes and provided more sympathetic reading matter about victims of the administration of justice, even in the case of murder.¹⁹ Doubtless this sympathy was most evident in the case of property crime. Certainly, from an Enlightenment perspective, while acknowledging the defendant’s guilt, readers among ‘a humane and polished people, who have sensibility to the passions of others’ could sympathise with the condemned because they were prepared to pardon small infractions against order.²⁰ Inevitably, such sympathy resulted in a degree of alienation from the existing cultures of justice. The administration of criminal law had traditionally constructed guilt or innocence according to the evidence of providence, whereby oath-taking had substantial consequences; and its wide scope for discretion distinguished the guilty from the law-abiding citizen in what came to be seen as irrational and inconsistent ways.²¹ In the opinion of reformers like Beccaria and Blackstone, extensive application of the death penalty was therefore evidence of ‘a form of quackery in government’.²²

But how could a more critical and challenging perspective have developed at the level of the individual? Certainly, the formality of legal proceedings provides unusual opportunities for disrupting the illusion of justice. Judith Butler and other theorists have shown that it is possible for normally disenfranchised individuals to inform a more strategic response to authority in the form of ‘counter-speech’.²³ As stated previously, the culture of sensibility often meant increased sympathy for women whose circumstances were cast as ‘virtue in distress’, and it therefore had the potential to constitute a form of counter-speech.²⁴ And yet the standards for demonstrating female sensibility were unforgivingly high. Thus in Chapter 3, Andrea McKenzie shows that at her trial for murder, Mary Blandy, the ‘fair parricide’, represented herself as a respectably middle-class offender who was seduced into poisoning her father by a feckless adventurer. In this case, however, her performance misfired; although her plight attracted some sympathy, she alienated many observers by her apparently dispassionate demeanour, and the prosecuting counsel played successfully on the tragic figure of her father as victim. Indeed, a failure to show sufficient sensibility could be interpreted as outright resistance. In Chapter 2, Dana Rabin discusses the case of Margaret Inglis, a poor woman convicted of infanticide, who ‘never appeared to be duly affected’ by the evidence against her, and who ultimately refused to express conventional guilt and remorse at the gallows. Such stubborn opposition to the prevailing emotional script may be regarded as an incidence of insurgent ‘counter-speech’: a story that challenged the hegemony of official justice with an enactment of ‘dissident citizenship’.²⁵ As Rabin remarks, Inglis’s behaviour was so shocking that it required a rebuttal by the author of the pamphlet that recorded her last words. In these ways, over the course of the period covered by this book, the mainstream emotional regime of exemplary terror was nuanced and sometimes confronted, if not overthrown, by alternative narratives of feeling constructed by printed accounts of crime and punishment. And as McKenzie shows, like the criminal trial itself, for the protagonists the performance of emotional scripts in the context of justice proceedings was fatally ‘adversarial’.

Structure of the Book

The chapters in Part I of this collection, ‘Feminine Performances and the Criminal Trial: Women’s Emotional Work in the Public Sphere’, explore feminine performance in trials of infanticide (Dana Rabin), petty treason and parricide (Andrea McKenzie), and rape (E.J. Snell). They look, that is, at the performance of women in the courtroom as both perpetrators and victims of violent crime.

The crime of infanticide has acquired a considerable historiography. In Chapter 2, Dana Rabin adds to this a new and nuanced exploration of the relationship between emotion and performance in eighteenth-century infanticide trials. Drawing on the work of Barbara Rosenwein, she highlights the interaction of emotional displays in the courtroom, contrasting, for example, Dudley Ryder’s masculine performance, as judge, to a masculine audience, the jury, with that of the female defendants who appeared before them. In the trial of Francis Cheek (1754), she argues, Ryder carefully timed his display of emotion, reserving it for the pronouncement of the death sentence. He aimed for an appropriate balance of emotion and justice, directing the jury against an acquittal and insisting on a conviction, yet demonstrating sensibility once that had been achieved. His demonstration of emotion was also carefully staged: in asking for a handkerchief during sentencing, Ryder simultaneously called attention to and partly shrouded an emotional display.

Unlike Ryder, the women tried for infanticide were unable to make clear speech acts. Few defendants in this era spoke at length in court, and in the months leading up to their trial these particular accused had clung to silence and concealment in an attempt to avoid discovery and prosecution. Their emotional displays in court were thus very different. Rabin considers at some length cases of women accused of infanticide who declined to tell their stories, or who sat mute while their sentence was pronounced. She invokes Eva Kosofsky Sedgwick’s concept of ‘periperformatives’ to allow us to read their courtroom silence as the unspoken performance of socially marginalised people.

This chapter also contrasts courtroom periperformative, rooted in silence, with emotive scaffold speeches in which convicts ostensibly acquired a voice. Like the courtroom, the scaffold was a scene of emotional exchange and performance, and Rabin thu...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• List of Figures
• Acknowledgements
• 1 Historicising Emotions: Performance, Sensibility, and the Rule of Law
• Part I Feminine Performances and the Criminal Trial: Women’s Emotional Work in the Public Sphere
• Part II Emotional Communities and Sensibilities: Truth, Theatre, and Blasphemy in Court
• Part III Emotional Regimes and the Legal Process: Stories of Terror, Sensibility, and Patriotism in the Representation of Criminal Trials
• List of Contributors
• Index