MARTIN J. WIENER

Judges v. Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England

Whenever the law is made ... to bear a meaning which its terms do not suggest to plain minds, it is difficult to put it in force.

James Fitzjames Stephen, 1864

Although it is well known that the criminal law's administration in nineteenth-century England altered decisively, ¹ little important change has been noted in the substantive criminal law. Yet change there was, but produced less through legislation (as was much administrative change) or even appeals court rulings than through everyday criminal justice practice. In particular, the effective meanings of legal terms central to the prosecution of homicide—terms such as provocation, intention, and insanity—were in motion during the nineteenth century as part of a broader redefining and reimagining of liability and responsibility. To grasp these often subtle shifts of meaning, we must look to the sites in which they occurred, the most important of which were the courtrooms of the assize courts, where the most serious offenses were tried.
1

      Drawing on an extensive range of mostly forgotten nineteenth-century murder cases, ² this essay argues that tensions and contestations between courtroom actors, especially the two most determinative, judges and juries, fueled significant changes in the courtroom understanding of criminal responsibility. Such tensions and changes were, of course, inseparable from movements in the wider culture: attitudes toward violence, images of manliness and womanliness, views of the proper relations between different sorts of persons, and feelings about capital punishment were all evolving, as were relations between the different classes from which judges, jurors, counsel and most defendants, victims, and witnesses in trials were drawn. However, for the most part, this wider scene must remain implicit here, as we focus on examining Victorian assize court discourse and practice more closely than has yet been done. ³
2

      Despite the wealth of available documentation, the workings of the criminal courts in nineteenth-century England ⁴ have been little explored. Their earlier history is far better known, while the century's major developments in the criminal law's administration—the rise of professional police forces, the rise and fall of transportation, and the growth of imprisonment—have been far more closely studied than what happened between arrest and punishment. Many popular accounts of "notable Victorian trials" exist, but they generally fail to throw much light on the workings of either the law or the society in which it was imbedded.
3

      Nor have most legal accounts of nineteenth-century cases done so. As a distinguished legal historian, A. W. Brian Simpson, has complained, his colleagues have shown "a general lack of interest in empirical investigation of cases." ⁵ Most legal scholars, he noted, have an implicit theory of decision making "in the sense of a belief that certain factors, loosely defined by the conventions of legal argument, ought to be irrelevant to the decision of cases. And from this it is a small step to suppose that they are irrelevant to the doctrinal understanding of cases." ⁶ Yet this assumption often produces an understanding of a case and its significance that would hardly be intelligible to its participants, or to its contemporary audience. More generally, legal scholarship focuses on doctrines as enunciated in the published reports of leading cases but neglects the process—the trial—out of which these judicial pronouncements emerged. ⁷ "Courts" have been regarded as a single thing—the "courts" did this or that. Yet, before they produced verdicts and rulings, courts were settings for events—arenas where competing narratives were in play, sites of contestation where values and beliefs were not only declared but shaped. ⁸ Indeed, as Michael Grossberg has recently demonstrated for a mid-nineteenth-century American civil case, trials may usefully be approached as "social dramas" in the anthropological sense. ⁹ By explicating the narratives put forth or called upon in these dramas—and the dramas that often continued around them outside and after the trial—much may be learned about the law as an expression of a society's fundamental values and an instrument of its latent conflicts.
4

      This article seeks to understand what such terms as "provocation," "intention," and "sanity"—fundamental to the criminal law of homicide—meant to the participants in and observers of nineteenth-century trials. As the one remaining capital offense, murder in nineteenth-century England, as today, produced trials in which the stakes were highest and the argument often most intense and of most public interest. "Sensational" trials, as these often were, were not just events in media history or cultural history. More often than has been appreciated, they led to significant developments in legal history. Such cases were rarely the "classic" murders of familiar account—the very small proportion in which much of the interest lies in the detective work involved in solving the cases and convicting the perpetrator. Rather, the murder trials explored here are more interesting to the historian of the law or of nineteenth-century society than to the aficionado of mysteries.
5

      It is not surprising that study of the trial itself has lagged. Little is yet known even about judges—how they arrived at their opinions, decisions, and sentences, or what they meant by them. Less still is known about counsel, whether prosecuting or defending. And about juries we know hardly anything—even the history of the American jury, so much more visible in public life and ideology, is, as Albert Altschuler and Andrew Deiss have reminded us, still to be written. ¹⁰ However, this ignorance is to some degree remediable. In England during the nineteenth century two developments created two complementary extensive archives of information about the conduct of homicide trials. First, invention of the steam press joined with removal of heavy taxes on newspapers to unleash an explosion in their number and circulation, which produced almost an embarrassment of accounts of the more serious trials. ¹¹ At the same time, the growth and bureaucratization of central government created a second archive—the capital case files at the home office. Most reprieves from capital sentences outside London in the eighteenth century had been decided by judges (these required the approval of the monarch, but that seems to have been given almost automatically). ¹² Some appeals for mercy in murder cases (chiefly from London) were preserved, first in the State Papers and then (after its creation in 1782) in the home office files. However, these files only became systematic and extensive at the end of the 1830s, after two changes in the law. The first was the abolition in 1836 of the requirement (established in 1752) that murderers be hanged within forty-eight hours from their conviction. Thereafter, there was time to appeal, and most such convictions soon led to appeals and consequently an official file. Second, the removal in these same years of the capital sanction from nearly all offenses other than murder drastically reduced the mercy caseload and enabled the home secretary and his officials to take over the process of decision from the judges and to treat these appeals more carefully. ¹³ These two complementary sources, one read immediately by many thousands and one closed to nonofficial view for a hundred years, when taken together provide a much richer picture of the nineteenth-century murder trial than can be extracted from the published law reports and law journals of the time.
6

      In these trials both judges and jurors played more active roles than might be expected by observers of modern professionalized trials. Since printed law reports were only beginning to assume an authoritative role, since professional counsel were only gradually working out their role in the courtroom, and since the modern administrative state had yet to be born, English high court judges for most of the nineteenth century had greater freedom of action than would their successors. On the whole they were not loath to use this freedom. Guided by what we would call policy preferences—what they saw as "moral imperatives"—judges employed a large vocabulary of denunciation and (less often) praise and frequently gave precedents new meanings to fit the moral demands of their present. In the long run, the judiciary was to become increasingly technical and conservative, binding itself tightly to precedent and leaving legal innovation ever more to Parliament and the civil service. But this shift was very gradual and became dominant only in the twentieth century.
7

      If English judges retained in the nineteenth century a good deal of freedom of action, English jurors also did—if not perhaps as much as American jurors, certainly more so than usually recognized. They, of course, had less reason to respect precedent than did judges. Moreover, they had their own moral agendas, however awed they may have been by the august wigged-and-robed judges instructing them in the law. These moral imperatives held by judges and jurors sometimes coincided, but sometimes clashed. Out of these conflicts came some significant legal development.
8

      Judge-jury contestation in English criminal courtrooms in earlier centuries has been examined, but little notice has been taken of nineteenth-century occurrences. This is possibly because two broad movements in the law diminished its likelihood and significance. First, the gradually mounting diversion of prosecutions to summary courts, in which magistrates sat alone, meant that juries heard in the course of the century an ever-shrinking proportion of criminal proceedings. At the same time, however, those more serious criminal trials that remained the province of juries were receiving rapidly expanding newspaper coverage, as the new mass-circulation papers quickly came to feature major crimes and trials. ¹⁴ Since such trials were becoming longer and more contentious, they provided more grist for the new steam presses. In this way juries, though participating in an ever-smaller proportion of criminal prosecutions, were actually more visible, bulking larger in the public mind and doing more significant "cultural work" than ever before. Once the use of the death penalty for other offenses collapsed in the 1830s, murder trials—all employing juries ¹⁵ —assumed their modern place at center stage in the public theater of criminal justice.
9

      A second development, the abolition of the "Bloody Code" in the early decades of the century, ended much of the impetus for jury independence and conflict with judges. The removal of the gallows as a possible fate for convicted thieves and forgers drastically reduced in these trials many discretionary practices of juries, such as downgrading charges or acquitting "against the evidence." Yet while in most criminal cases, as Thomas A. Green has observed, "the jury slowly ceased to be viewed as a discretionary body," ¹⁶ this was not so true (as Green has noted) when murder charges were brought. In these cases the traditional discretion of the jury to find the lesser charge of manslaughter continued—and continued to be a source of strained relations with the judge. ¹⁷ Indeed, as manslaughter charges, rare earlier, increased substantially in the first half of the nineteenth century, ¹⁸ the rationale for this traditional jury discretion was becoming less obvious: if magistrates, coroners, and grand jurors were assuming the task of discriminating between homicides, was it still necessary for petty jurors as well to do so in more than a few exceptional cases? Thus judges began to view discretionary behavior by juries as an increasingly irritating anachronism.
10

      Meanwhile, the growing use of legal counsel for the defense, which in murder trials became practically universal after the Prisoner's Counsel Act of 1836, introduced a new set of tensions (between judge and counsel), while probably doing more to intensify than to ease existing sources of tension between judge and jury. ¹⁹ Lawyers (on both sides) appeared to diminish the jury's role by taking over questioning of witnesses and by bringing in experts. ²⁰ But from another standpoint, defense lawyers seem to have helped preserve and strengthen jury independence against judges. The use of defense counsel lengthened trials. This in turn ended the practice of a single jury hearing many cases one after the other, and, in difficult cases, stretched out the time juries took to reach their decision. Hurried consultations in the jury box ceased to be common, and juries became expected to withdraw from the courtroom to deliberate in private. Perhaps most important for our concern today, defense counsel often gave jurors information, about both the facts of the case and the law, that they might not get from judges (and that judges might prefer they did not get at all). ²¹ They also gradually began to challenge judicial evidentiary rulings and even the legal instructions judges had often given juries. Their presence tended to weaken the position of the judge (who could no longer decide these matters ad hoc). ²²
11

      At the same time the rise of defense counsel appears to have made judges more prosecution-minded. Not only did a prisoner no longer require judicial solicitude, his counsel might demand judicial correction. Increasingly concerned that juries might be led astray by over-zealous and even unscrupulous defense counsel, judges began regularly to sum up cases for the jury, frequently in effect against the defense. ²³ However much the theory of the judicial role in the criminal trial became assimilated to that in the civil trial—an impartial moderator in an even contest—the practice was something else. Giving way to what James Fitzjames Stephen (later to be the foremost Victorian authority on the criminal law) called in 1863 "the natural and genuine bias of professional judges in favour of authority and all its agents," nineteenth-century judges tended to closely monitor the legal claims of defense counsel, even to the point of explicitly rebutting them before the jury. ²⁴ Rarely did they do the same to prosecution counsel. ²⁵ Nor, after a conviction, were judges as likely to suggest reprieves to the home secretary. ²⁶
12

      Taken together, these changes ensured the persistence of courtroom contentiousness in murder trials. ²⁷ Such tensions significantly influenced the evolution of the law by furnishing an important mechanism for the development of legal and public thinking about criminal responsibility. In the absence of major legislative changes to the substantive English criminal law, the effective meanings of central terms relating to responsibility like provocation, intention, and insanity were nonetheless not fixed. Changes in these meanings did not emerge simply from philosophical discussions between jurists. To understand them, we must take note of the concerns and the behavior of the chief actors in these proceedings—judges, jurors, and the accused and his counsel.
13

Moral Reform and Jurisprudence

Two broad developments in the first half of the nineteenth century changed the context of English criminal law. First, there was a new sense of a "mission" among the agents of state justice (in particular, officials at the home office, the judges, and many magistrates—fellow members of the English upper class) to moralize and civilize the rapidly growing population of industrializing England (particularly as this population, or at least the male half of it, was steadily advancing toward political power). This sense of mission was part of the wider effort at moral reform we associate with Victorianism, an effort much wider than sexual prudery and embracing the aim of a general reformation of behavior and character. ²⁸ The most significant aspect of this mission for our topic was a diminished, and diminishing, tolerance of interpersonal violence, seen now as an unacceptable relic of barbarism. ²⁹ Not only were the number of prosecutions for crimes like attempted murder and manslaughter rising, new legislation was increasing the penalties for these, and related, offenses. ³⁰
14

      As self-mastery became arguably the preeminent Victorian value, the law came to be seen as a crucial school for its development. Its role, as perceived by many participants and observers, expanded beyond upholding accepted moral standards to educating the populace in new, higher, standards. Similarly, criminal (like civil) law came to be expected not only to deal with the consequences of people's behavior, but also to give them guidance on behavior before they acted. A crucial supposition underlying early Victorian legal changes was that the most urgent need was to make people self-governing and that the best way of doing this was to hold them, sternly and unblinkingly, responsible for the consequences of their actions. In this way, to define more precisely and to raise the legal standards of personal liability was both to declare a faith in the existence of individual free will and to make use of a promising instrument for developing such capabilities of will. ³¹
15

      Rising legal intolerance of violence particularly opposed that perpetrated against those not able to defend themselves—women, children, or the elderly—and that taking place in previously unpoliced areas. Indeed, it can be seen as one facet of the nineteenth-century growth of the state, as its agents sought to expand the reach of the criminal law into spaces and settings hitherto left largely alone—the military, the high seas, aristocratic duels and working-class "fights of honor," and the home. ³² From Robert Peel in the 1820s through Richard Cross a half-century later, home secretaries (even as they helped reduce the penalties for most property crimes) began to urge judges to a more vigorous struggle against interpersonal violence. A consensus developed among the higher legal authorities on the importance of severity for "men of blood."
16

      This phrase is used advisedly; the prime targets of this new drive to "pacify" ordinary life were men (overwhelmingly from the working classes), the perpetrators of most violence. ³³ Violence in the home, in particular, was coming to seem ever more outrageous. Charles Dickens, who did so much for the image of the home as the heart of English life, complained in 1851 that "the fact of a woman being the lawful wife of a man, appears to impress certain preposterous juries with some notion of a kind of right in the man to maltreat her brutally, even when this causes her death." ³⁴ As an editorialist for the Daily News argued in 1846, the root of this supposed "right" lay in the false ideas of marital relations prevalent among the popular classes—"not one of mutual dependence and intercourse of protection and comfort, but of absolute control on the one hand, and abject submission on the other." ³⁵ Such widely expressed sentiments soon began to find their way into judicial pronouncements.
17

      However, this new sense of judicial mission ran up against the stubborn persistence, and in some ways enhancement, of the position and prestige of the jury. For all the inefficiency and uncertainty it was said to spawn, trial by jury remained, as Stephen noted in 1863, "the most popular of all our institutions." ³⁶ In an increasingly egalitarian age, the jury was one of the few institutions of "Old England" that remained in high esteem. Moreover, it retained not only popularity but power. Despite their supposed limitation to questions of fact, in practice, as Stephen pointed out, "whether the juries are good judges or bad, they are in the most effectual way judges, and do actually decide the whole of the case in all its branches upon their own responsibility." ³⁷ The combination of upper-class judges with a "civilizing" mission and jurors drawn from the ordinary middle class of farmers, shopkeepers, and petty professionals (who were generally less diffident than their predecessors) did not nurture easy relations.
18

      Differences between judges and juries only rarely revolved around the finding of guilt itself. Despite associations of Victorian England with Sherlock Holmes and Jack the Ripper, in most nineteenth-century murder and manslaughter prosecutions the identity of the killer was never really in question, and outright acquittals were rare. ³⁸ The typical homicide trial focused on the character of the act—could it be seen as accidental, or, if not, what excusing or mitigating factors existed? ³⁹ In short, how "bad" a killing was it? These trials were closer to sentencing hearings than to "whodunits." As such, the locus of any conflict was how to assess the fatal act and the roles of the actors (both perpetrator and victim). In these assessments, in the more serious situation of trials for murder, jurors had five main options: guilty of murder, guilty of murder but with a recommendation to mercy, guilty of manslaughter, not guilty by reason of insanity, and simply not guilty.
19

      There are several rough indicators ⁴⁰ of judge-jury tensions in such cases. The first is the number of manslaughter verdicts returned in murder prosecutions against the recommendation or inclination of the judge. Whereas the only sentence for murder was death (though, as we will see, this could be—and often was—commuted to life imprisonment, which normally meant in practice twenty years), that for manslaughter could range all the way from life imprisonment down to a day in jail. Often manslaughter verdicts were in effect agreed with, even encouraged by the judge, but others were statements of the jury on its own, sometimes even in direct opposition to judicial summations and directions. For example, there were ninety-three spouse murder trials during the 1860s in which the defendant was not declared to be insane. These resulted in thirty-five verdicts of manslaughter, twelve of them in opposition to the instructions or clearly expressed views of the judge.
20

      A second, also quite imprecise, indicator is the significant number of jury recommendations to mercy against the stated views of the judge. These were less effectual than manslaughter verdicts (a judge's steadfast opposition could usually prevent the home secretary from heeding such recommendations), but they could receive wide publicity, putting the legal establishment in an uncomfortable position. For example, spouse murder trials during the 1860s produced twenty-four recommendations to mercy, fourteen of which were not supported by the judge.
21

      Overall, there were quite a few mid-Victorian murder trials in which the jury gave a lesser verdict than that apparently preferred by the judge. They almost never gave a harsher verdict. When we consider the enormous procedural powers employed by English judges, such as delivering the last word, sometimes at a length of several hours, while able to confine the jury without food, drink, or heat until they reached a verdict, ⁴¹ as well as the great deference Her Majesty's ermined representatives could still command from everyone in court, this suggests some significant divergence in outlook between judges and jurors. Jurors and judges often had their own, rather different, views as to what circumstances and conditions mitigated a killing, particularly those that could be seen as motivated by passion rather than calculation. ⁴²
22

      Counting outcomes, however, will not take us very far into the nature of any such differences. If trials are indeed complex social performances in which a variety of "scripts" may be employed, then it is necessary to delineate and decipher the discourse employed therein. What was said, by whom and to whom, in what circumstances, for what purposes, and with what apparent meaning? The rest of this article is devoted to such questions through the examination of a range of specific trials, selected partly for their typicality and partly for the degree to which they expose the mental processes at work in such events.
23

The Judicial Attack on the Provocation Defense

As judges raised their expectations of popular self-control, their first target was the defense of provocation, for many years a common way of mitigating or even excusing lethal violence. ⁴³ They also began to restrict the defense of lack of intent to kill, in order to punish and discourage not only violence that was coolly premeditated, but reckless and/or malevolent violence, including that perpetrated while intoxicated. Together, this two-pronged judicial offensive gradually moved the goal posts of courtroom play in both murder and manslaughter trials. ⁴⁴ By the last Victorian decade the bar for provocation had been significantly raised and the claim of drunkenness greatly restricted. Both these jurisprudential developments, partly shaped by struggles between judges and juries, were two facets of a gradual and informal redefinition of "intention." What has become known as an "objective" standard of criminal responsibility had taken firm shape, a standard set by a putatively "ordinary" and "reasonable" man, by whose behavior under stress offenders were to be judged. ⁴⁵ Such a man, of course, was less an empirical datum than a cultural figure: as one recent defender of an objective standard of provocation in domestic homicide has observed, "like court cards in the Tarot pack, the ordinary individuals generated [by such doctrine] give body and substance to the moral imagination and provide a vehicle for the exercise of intuitive judgment." ⁴⁶
24

      Some early nineteenth-century judges attempted to rein in jurymen's discretion more directly by limiting their sphere. In 1837, when William Fisher was told that a man had had sex with his fifteen-year-old son, he stalked the offender for several days, then stabbed him to death. ⁴⁷ Taken into custody, he declared that he had only done what any Englishman would have done. His counsel asked the jurors to "consult your own natures.... In the case of an adulterer being taken in the fact by a husband, and killed by him, it is the very lowest degree of manslaughter. But this is a case in which the provocation is far beyond that of adultery, bad as that offense is.... At least it is reduced to the offense of manslaughter, if reason had not time to resume her seat. But the case is one without a parallel, and the ordinary rules cannot be applied to it.'" Mr. Justice Park (after consulting the two other attending judges) rejected this argument and, moreover, sought to restrict the jury's scope, telling them that "whether the blood had time to cool or not, is rather a question of law [for himself to decide]." For the traditional provocation of adultery to apply, he ruled, "in all cases the party must see the act done." Being told of it could never take the place of seeing it. Nonetheless, the jury shook off his instruction and, apparently "consulting their own natures," brought in a verdict of manslaughter, accompanying it in addition with a recommendation to mercy. Park sentenced him to one year's imprisonment, more no doubt than the jury wanted, but probably less than he would have liked to hand out. ⁴⁸ Park's unsuccessful effort to directly limit the extent of jury deliberation does not appear to have been repeated. Thereafter, the right of juries to decide whether a killing had been committed in "hot blood" (and thus sufficiently provoked to reduce to manslaughter) or not was firmly secured. ⁴⁹ But how they arrived at that determination was very definitely to be reshaped. Judges were henceforth to concentrate their efforts on narrowing the grounds upon which juries were to reach their decisions through more restrictive definitions of "provocation" and "lack of intention."
25

      Compared to civil trials, criminal cases rarely encouraged elaborate judicial reasoning. Yet judges occasionally made explicit general arguments that appeared to underlie their rulings and instructions in many other terser trials. In particular, out of the effort to construct narrower channels for jury discretion emerged a new, general standard of self-controlled behavior. Behind repeated statements that particular actions did not constitute provocation was the ever-clearer standard of the "reasonable man." When William Kirkham's grown son threw him to the floor in 1837, in revenge he fatally stabbed him. Asking the jury to decide whether "there was sufficient time for the passion excited by [being thrown on the floor] to cool before the fatal stabs were given," Mr. Justice Coleridge (later to be lord chief justice) cautioned them, in words that were to be repeated often thereafter, that although the law "will not require more from an imperfect creature than he can perform.... it considers man to be a rational being, and requires that he should exercise a reasonable control over his passions." ⁵⁰ Again, however, the jury reduced the charge to manslaughter; displeased, the judge sentenced the offender to the maximum possible sentence, transportation for life.
26

The Reasonable Man Test

A generation had to pass before the reasonable man test (by this time familiar in civil trials and implicitly, I would maintain, in criminal trials) was explicitly set forth in a criminal court. In 1869, another stabbing between two men led to an unusually direct courtroom confrontation on the law. Defense counsel had urged that the law "ought to be administered with humanity, and with a reasonable allowance for the defects of mankind and for the vast difference between the temper and passions of various men" ⁵¹ and described his client as "a man of hasty temper." Stung perhaps by the barrister's description of previous judicial rulings on provocation as "arbitrary," Mr. Justice Keating was moved to speak more abstractly than usual: "The law [he insisted] is that there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion," such as, he explained, "a severe blow—something which might naturally cause an ordinary and reasonable-minded man to lose his self-control and commit such an act." ⁵² The jury took some time deliberating and coupled its finding of murder with a recommendation to mercy; however, the judge declared his satisfaction with the verdict and his lack of sympathy with the recommendation, and the convicted man was hanged.
27

      Even when such terms as "reasonable man" or "ordinary man" were not explicitly used, they lay understood in the background. This situation makes sense of what would indeed otherwise be simply a series of ad hoc judicial statements. For instance, when in 1840 a Glasgow bookbinder, Thomas Templeton, dashed his drunken wife's head against their wall and floor and left for a pub, he set off a major confrontation between official and popular conceptions of provocation as well as intention. ⁵³ He had not intended to kill her, telling a friend when he arrived at the pub, "I have given her as much as she will not trouble me for two or three days." However, she died. After one of the two judges jointly hearing the case firmly declared his opinion that (despite defense counsel's long argument for manslaughter) it was nothing less than murder, the Scottish jury found him guilty of that by fourteen to one, but unanimously recommended him to mercy on grounds of "the repeated provocation which the prisoner had received from the deceased." ⁵⁴ After one of the judges sharply queried the jury foreman as to the precise grounds of the recommendation, his brother justice remarked on the "brutal nature of the crime" ⁵⁵ and pronounced the sentence of death without any suggestion of possible mercy. A petition signed by 12,000 quickly arrived at the home office. ⁵⁶ Feeling against the death penalty was rising, particularly in Scotland. However, the strongest source of support for a reprieve seems to have come from sympathy for Templeton's troubled marriage. As a letter to the home secretary from a bank clerk, ⁵⁷ himself apparently plagued with a dissolute and quarrelsome wife, observed,

28

... when a husband has to earn his bread, by the sweat of his brow, and feels that toil and torment are his earthly lot, and that torment too, springs from her who of all others should be his comfort, becoming moderation is more perhaps than can reasonably be expected.... I am aware that Lord Cockburn [the senior of the two judges] seemed to lay less stress on the provocation than [did] the jury. This rather grieves than surprises me, because from his very circumstances he cannot be supposed to know the provocation spoken of, but it seldom, in my opinion, happens that fifteen men of various professions and from different quarters meet without including some, who know and feel this worst of earthly evils.

However Cockburn, seconded by the other judge, argued confidentially that "I do not hold intoxication, not accompanied by violence ... to be provocation, in reference to such a charge, and by such a husband." ⁵⁸ Templeton was consequently let hang. ⁵⁹

      The following year, when a Salisbury pig dealer shot his wife to death after she had eloped with a lodger, marital provocation became a hotly discussed public issue in that city. Mr. Justice Erskine pointedly refused to endorse the jury's recommendation to mercy (there was evidence that the man had ill-treated his wife before her desertion). A petition for mercy was widely circulated, gaining the signatures even of the parish authorities who had prosecuted the man. However, with the judge standing firm, the home secretary again let the man—called by one letter-writer a "much misrepresented victim of passion"—hang. ⁶⁰
29

      In another wife murder in 1843, Baron Parke explicitly discussed what would, and would not, constitute provocation. The wife's abusive language (she was apparently jealous of his interest in former girlfriends) did not. Parke told the jury that "the law was clear": not only would words alone not be a sufficient provocation to reduce the crime to felonious homicide, neither would blows (from a woman), unless they were seriously injuring. The jury followed his instruction and convicted, but added a recommendation to mercy. It was to no avail; this prisoner also hanged. ⁶¹
30

      The next year, when a Sunderland army pensioner, Mark Sherwood, responded to his wife's obscene verbal and gestural abuse by cutting her throat, Chief Baron Pollock conceded for argument's sake that "words and gestures" could play a role in constituting provocation, by sufficiently aggravating otherwise-minor physical assault. ⁶² Acknowledging the possibility of finding manslaughter "if there be a provocation by blows which would not of itself render the killing manslaughter, but it be accompanied by such provocation by means of words and gestures as would be calculated to produce a degree of exasperation equal to that which would be produced by a violent blow," Pollock, however, did not find that in the case at hand. The jury spent six hours deliberating (allowed neither food nor drink) and finally, close to exhaustion, produced a verdict of murder, with a recommendation to mercy. Petitions, to which the mayor and magistrates of Sunderland put their names, followed, arguing that a manslaughter verdict was expected by everyone in court, who had heard much evidence of the woman's quarrelsomeness and of her having hit him first. Noting that "the jury had great difficulty in being brought to deliver a verdict of murder," petitioners argued that executions should only be carried out in cases of clear premeditation ("malicious design to murder," as one writer put it), which this was not. The judge, however, despite his legal concession, firmly supported the verdict, ⁶³ and the man hanged. Modern commentators have mischaracterized this case as a significant loosening of the provocation standard, ⁶⁴ but they fail to note, first, that the judge put his concession in the form of a double negative: "I am not prepared to say that the law will not regard ... "; second, that in enunciating it the lord chief baron came down firmly against its applicability in the case before him, or, indeed, in the vast majority of murder cases; ⁶⁵ and third, that in subsequent cases he and other judges retracted even this concession. ⁶⁶
31

      For example, in another domestic murder in 1852, Mr. Justice Cresswell (soon to become the legal arbiter of Victorian marriage in the divorce court created in 1857) firmly rejected the relevance of defense evidence of the wife's taunting language. Nonetheless, to Cresswell's annoyance, the jury found manslaughter (the man was quite drunk, and the wounds were received in a confused scuffle). ⁶⁷ In a case like this, if provocation by the victim was not persuasive, lack of intent could come to the defendant's rescue (though it, too, was under judicial assault).
32

      When, in an 1866 wife murder trial, the defense counsel, James Fitzjames Stephen, called upon Sherwood as a precedent, he was put in his place by Mr. Justice Byles. Acknowledging that "the ordinary meaning [of 'malice aforethought'] had been greatly extended by successive decisions of courts of law," Stephen claimed that "still many kinds of provocation were undoubtedly sufficient to raise in the mind of the person provoked that 'short madness' which may cause him to kill the provoker without malice aforethought. Thus, it had been held that when a person is assaulted under circumstances of personal indignity, and the person assaulted kills the other, the offense is only manslaughter." But the judge reminded the jury that the law did not require "that any malice was cherished before the act was done, or that death was intended; it is sufficient if, a deadly instrument being used, mischief was intended at the time." And as for provocation, "mere words are not sufficient provocation; a serious assault may be, but a slight assault [spitting] cannot." ⁶⁸
33

      Although domestic murders generated the most frequent claims of provocation, other killings were not infrequently defended on this ground. A pub quarrel in 1871 that led to a stabbing death produced much discussion in court on the nature of provocation. After being punched in the face the defendant did nothing and indeed "made up" with his assailant. But when both men left the pub, the defendant picked up a knife, issued a challenge, and stabbed the other fatally. Mr. Justice Hannen rebuffed defense claims of provocation by noting the prisoner had had "time for his blood to cool" and that the use of the knife could not be mitigated by previous injury—revenge was a completely different thing from an immediate response to provocation. Nonetheless, the jury found manslaughter. ⁶⁹
34

The Changing Role of the Press

By the 1870s a third player—the rapidly expanding press—was not only taking a more prominent part in the ongoing dispute over what constituted mitigation, it was shifting sides. Particularly in the case of wife killers, newspapers were exchanging earlier criticism of "hanging judges" for condemnation of "soft" juries. Influenced perhaps by the abolition of public hangings in 1868, which made capital punishment less offensive, and by the rise of the movement for women's rights, which hardened public opinion against domestic violence, the press, and very likely the reading public, by and large came over to the side of the judges. In an 1872 case of a drunkard pushing his drunkard wife into the fire and holding her there until she died, the Pall Mall Gazette complained of his being charged only with manslaughter. And it especially attacked the jury for adding a mercy recommendation on the ground that "the wife's state of drunkenness might have provoked him." "It would seem," the paper sarcastically observed, "that a new mode of correcting wives—by placing them on the fire—is growing into favour among husbands. Nay, it would even appear from a verdict recently given by a Lancaster jury that the punishment in question is felt to have so peculiar an appropriateness under certain circumstances that a husband must not be too severely judged for resorting to it on such occasions." As for the jury's view of provocation, the paper went on, "no grosser provocation can present itself to an intoxicated man than the discovery that his wife is intoxicated also; and when once his passions are fully aroused by this discovery the idea of putting her on the fire would suggest itself so naturally and with such irresistible force that to refrain from this act would demand a larger measure of self-control than can be reasonably expected from our weak and erring humanity." ⁷⁰
35

      Succeeding wife murder trials drew similar comment. ⁷¹ A provincial paper, the Newcastle Daily Journal, commenting on a local case in 1875, supported a reluctant jury's finding of guilt and dismissed the strong mercy recommendation that had accompanied it, which suggested that the woman may have hit the man first. According to the Journal "It is necessary that helpless women should be preserved, as far as the law can preserve them, from the sudden fury of passionate husbands; and the provocation involved in the administration of a 'smack', in retaliation for being forcibly dragged from the street into the house, is no excuse or even palliation for so ruthless an assault." ⁷²
36

      By the later 1870s, such a combination of official and media pressure was having its effect on juries. Especially in killings of women (which accounted for an ever-rising proportion of all murder prosecutions), ⁷³ provocation defenses unsupported by previous good character (which now required a reputation for law-abiding and nonviolent behavior, not simply having respectable friends or being a good worker, as was often sufficient in earlier times) were less and less likely to produce manslaughter verdicts, or even to save a defendant from the gallows. When Thomas "Demon" Johnson stabbed his prostitute girlfriend to death in a Liverpool brothel in 1879, his counsel argued that he had been provoked by her severely hitting him with a candlestick when he was drunk. Nonetheless, Johnson (a known "lowlife") was found guilty of murder and hanged. ⁷⁴
37

The Influence of the Temperance Movement

At the same time that judges were managing, against defense counsel and jury resistance, to restrict the definition of provocation, they were curtailing the defense of "lack of intention" to kill in order to more effectually punish reckless or malevolent violence, particularly that perpetrated while intoxicated. ⁷⁵ The Victorian crusade against drink had its effect on the law: well-known legislation restricting the number of pubs was paralleled by less-known case rulings limiting the use of drunkenness as a mitigating factor. This second front in the judicial war against violence was initiated in the leading case of Carroll in 1835. ⁷⁶ Patrick Carroll, an Irish Catholic marine corporal, had gotten thoroughly drunk in a Woolwich pub. When his attentions were spurned by the landlady, he stabbed her seventeen times with his bayonet. Carroll's counsel sought a manslaughter verdict because of his client's lack of ability to form an intention and cited precedents for this. Mr. Justice Park (after consulting with Mr. Justice Littledale) made short work of this argument, rejecting the precedents cited by the defense as mistaken rulings. ⁷⁷ He went on to state firmly that drunkenness was not relevant to the question of intention. The jury followed the judge's direction, convicting Carroll of murder, and he was hanged. ⁷⁸
38

      As alcohol consumption and temperance agitation mounted together, drunkenness received ever less tolerance from judges. ⁷⁹ Although it did continue (as it had been traditionally) to be taken into account in determining the existence of intention in lesser cases, ⁸⁰ in murder trials it henceforth received short shrift. When the London barber William Lees cut his wife's throat in 1839, "'twas jealousy and drunkenness," one broadside had him saying, "caused me her life to take." More prosaically, his counsel argued that "the habit of intoxication ... brought on by the misconduct of his wife ... had made him insane, and the crime was committed while he was in law irresponsible for the act...." But the cruelty of this act—multiple stabs mangling her body—lost him possible sympathy, and he failed even to garner a mercy recommendation. As Baron Parke observed (in remarks widely quoted in broadsides and newspapers), "the law ... could never admit intoxication as an excuse for such a heinous offense; for if it did the most dreadful crimes, many of which were committed under the baneful excitement of drink, would go unpunished." Earlier that year Parke had said in court that "when a man made himself drunk, he became responsible for all the crimes he committed in that state." ⁸¹ Such remarks were not new to the law, but they had often been disregarded in the practice of criminal justice in earlier years. Now they were becoming enforced in a novel way. In Lees's case, vigorous reprieve efforts were aided by the post-trial intervention of a leading medical doctor who had been present at the trial and believed Lees to have been at the time of the crime "in such a state of mental derangement as to render him unfit to be made the subject of capital punishment." But this failed to move the home secretary, who was concerned "that murders committed under the excitement of drink had become of late so frequent, that it was necessary an example should be made." ⁸²
39

      Drunken murders, particularly if the victims were themselves drunken or otherwise "bad," were a frequent source of judge-jury differences. In one such wife-killing case in 1858, the jury foreman pointedly asked the judge "whether the law would not allow them to make the case out one of manslaughter." Mr. Justice Hill, noting that it was a case of strangulation, replied in the negative, and they dutifully found murder, with a recommendation to mercy on the ground of the drunkenness of both of them. Hill promised as usual to forward the recommendation to Whitehall, but declared that he did not think that "under the circumstances such a recommendation would have any weight." "Drunkenness," he went on, "is not—it cannot ever in this country—be allowed to be a mitigation of the crime of murder." ⁸³
40

      During a series of murder trials in the 1860s, discussion between judges and juries over the meaning of criminal "intention" became quite explicit. In an 1860 case at the Winchester assizes of another drunken soldier fatally stabbing a woman, a jury balked at the judge's sharp instruction that express malice was not necessary, that the law inferred malice from the use of a deadly weapon. Perhaps because this defendant was generally admired, having risen from private to sergeant, the jury asked Mr. Justice Keating for clarification. The exasperated judge repeated his instruction and made his position quite clear. "I tell you," he concluded, "that in point of law there is nothing in the circumstances, if the excitement was produced by intoxication or otherwise, which in this case will reduce that which is prima facie murder below that crime." Despite this, the jury foreman asked whether they could give a verdict of manslaughter. "You can give what verdict you please," Keating replied. "It is the evidence you are sworn to act upon. It is entirely a question for you. You have the power of disbelieving every witness who has been called. You may think the whole is a fiction, but you do so upon your own responsibility—that of your oaths." The jury went back to deliberate and after four more hours asked again if it could find manslaughter. "Of course you may constitute yourselves judges of the law; if you do so you violate the oaths you have taken." There was still one holdout, the foreman explained. "You must endeavour to convince him by reason," the judge responded. "You must retire and endeavour to convince your brother that he should look at the facts, and not trouble himself with nice questions of law, which are not in the province of the jury at all." Finally, a verdict of guilty was returned. But the jury, recoiling at the thought of hanging a well-respected man for a momentary lapse, however unprovoked, brought about through drink, added an emphatic recommendation to mercy. Their feelings seem to have won out; the man was reprieved. ⁸⁴
41

      Not using a deadly weapon was another traditional marker of the absence of intention to kill. Only in rare circumstances had beating deaths ever brought murder convictions. Nonetheless, in the 1860s judges, by labeling more such killings as murder, laid siege also to this defense. For instance in 1863 a Sussex laborer was tried for killing his wife. He had come home drunk and, finding his wife also drunk, set to beating her. He kept on, even after neighbors, roused by her screams, complained and urged him to stop, and she died that night. His counsel questioned whether the woman would have died if she had not already had a weak constitution due to her drinking (he got the attending surgeon to admit that her wounds "might have been aggravated by the effects of drink, supposing her to have been drinking"—though witnesses called by the prosecution described her as quite sober that day). Counsel further provided witnesses testifying to the defendant's character as "a peaceful and well-conducted man." Finally, he emphasized that the prisoner had used no weapon but his fists, reminding the jury that this was by no means a "cold-blooded murder." Nonetheless, Baron Channell virtually urged the jury to convict the defendant of murder (a verdict that in earlier years was usually reserved for those who demonstrated their premeditation by using weapons like knives, razors, or guns). "If a man used such brutal violence towards a woman," he concluded, "and continued to do so, after having been warned and cautioned not to kill her, it was difficult to see that he could have meant anything else than to cause her death...." He was bound to tell them, he said, that, in point of law, "it was not essential that the prisoner should have intended to deprive her of life. If death was caused by acts of violence, which amounted to a felony, it was murder; to wound with intent to do grievous bodily harm was a felony: so that if the prisoner had inflicted blows with intent only to do his wife serious injury, or knowing that they would have that effect, and they in the result caused her death, he would be guilty of murder." ⁸⁵ However, the jury refused to accept this instruction and, apparently agreeing with defense counsel that the killing was not "cold-blooded," convicted him only of manslaughter. The judge (sensing perhaps that he had pushed them too far) acknowledged that the lack of use of a weapon merited some mitigation and gave the man ten years. ⁸⁶
42

      In 1872, a similar case of a drunken husband (this time Welsh) fatally beating his wife led to another rebuff by the jury. The defense had claimed that the prisoner was first, drunk, and second, acting out of jealousy, "and therefore his crime was, at the worst, not murder but manslaughter." To rebut this, Baron Channell gave the jury explicit instructions that jealousy was no provocation, drunkenness no excuse, and "he could see nothing in this case to reduce the crime." ⁸⁷ Nonetheless, the jury returned manslaughter. ⁸⁸
43

      However, in another such killing, tried two years later at the Old Bailey, a determined Baron Bramwell laid down the law strongly enough, as the defense solicitor complained afterwards, to prevent a manslaughter verdict. As the defense counsel was telling the jury that they could not find murder in the absence of premeditation, the judge jumped in to strenuously reject that reading of the law, directing the jury that murder could be found "although the thought to do it never entered his mind till the moment he gave the fatal blow." The murder verdict that followed (though accompanied by a recommendation to mercy) aroused strong public feelings. Grand jurymen wrote the home secretary that if they had "had the slightest idea that this unfortunate man would have been convicted of willful murder ... they would have returned a Bill for manslaughter only," and large numbers of signatures were collected on a reprieve petition. However, leading newspapers kept aloof from this effort, and the new Tory home secretary, Sir Richard Cross, determined to end what he called "the shocking prevalence of the offense of stabbing, wounding and beating women by their husbands," refused to block execution. ⁸⁹
44

      In the case of John Eblethrift, who drunkenly stabbed his wife two years later, Cross similarly rejected a mercy petition signed by all but one of the jurymen, noting the "great savagery and brutality" of the act. In this case, even the judge, Baron Pollock, was ready to accede—not on the ground of drunkenness, but because Eblethrift seemed to have honestly, if erroneously, believed that his wife was hiding a man in the closet. But Eblethrift hanged. ⁹⁰ Cross's departure after the General Election of 1880 made no difference. The home office continued to reject petitions from jurymen and others in most cases of killing a wife while drunk. The following year, for example, not only petitions but a mercy recommendation from his judge (a queen's counsel acting as a commissioner of assize) did not avail William Stanway. As one official confidentially noted, "there was most brutal violence and recklessness here, which according to Home Office practice constitutes murder though there was no premeditation," and he cited decisions of the previous two home secretaries, Conservative and Liberal. W. V. Harcourt accepted these precedents and rejected the plea. ⁹¹
45

      The struggle over the relevance of premeditation (as with provocation, most intense in cases of wife killing) ⁹² continued through the second half of the century. Sometimes reluctant juries went along with judicial instructions and sometimes they did not. On several occasions, juries, not allowed by the judge to find the kind of murder verdict ("but without premeditation") they wanted, returned manslaughter verdicts. ⁹³ At other times, the same sort of drunken killing of a wife led to a murder conviction. ⁹⁴ The chief variable in many of these kindred cases seems to have been the relative strength of will of judges and jurymen. As in regard to provocation, a broad fissure had opened up between popular and official views of culpability in such intimate crimes. It was made plain in the unsuccessful reprieve petition for "Demon" Johnson in 1879. Arguing that the killing of his prostitute wife was "a sudden and unpremeditated act," it went on: "Your petitioners do not mean to use the term in its legal sense or to contradict the findings of the jury but simply to apply to it the general acceptation [sic] of its meaning, namely that although the act was done with 'presumed malice' yet it was not done with actually premeditated malice aforethought as that term is generally understood." ⁹⁵ However, later Victorian judges rarely budged from the principle that, as Fitzjames Stephen, now a judge and less defense-minded than he had been as a barrister, put it in presiding over an 1886 wife murder trial, "if a drunken man, because he was drunk, formed a drunken intent to do grievous bodily harm to another person, and in so doing caused death, he was just as responsible for his actions as if he had not been drunk." ⁹⁶
46

      By the time of Stephen's instruction, the courtroom (and Whitehall) interpretation of criminal intention had tightened. A defense of drunkenness rarely yielded acquittals; manslaughter sentences involving drunkenness were stiffer; and, if convicted of murder, such killers less often received merciful consideration. ⁹⁷ In general, Englishmen were less likely to be granted dispensation, even under severe provocation or intoxication, from the expectation of at least a minimal degree of self-control.
47

The Development of the Insanity Plea

However, legal development rarely takes a simple or even entirely consistent path. As the effectiveness of provocation and drunkenness defenses to homicide charges weakened, another defense (though equally scorned by judges) was becoming increasingly prominent and successful—that of insanity. The number of findings of insanity or unfitness to plead in homicide cases rose markedly towards the end of the century. ⁹⁸ The more frequent employment of medical witnesses that accompanied insanity claims has been seen as a Foucauldian "professional invasion" or "medicalization" of the courtroom. But the increasing appearance of medical witnesses in court may be better understood as the product of the interaction of the internal dynamics of criminal justice processes with shifts in sensibility in the wider culture—a combination of increasingly energetic defense counsel and the enhanced receptivity to such "experts" on the part of jurymen. ⁹⁹
48

      As naturalistic ways of thinking about human behavior (symbolized by the impact of Darwin's On the Origin of Species in the mid-nineteenth century) advanced in "educated opinion," reflective persons were exhibiting greater hesitation about fixing clear responsibility for outrageous acts. Even one prison chaplain—traditionally a custodian of moral discourse—observed in 1868 before the National Association for the Promotion of Social Science that "the degree of moral responsibility of persons acting under strong natural propensities is very difficult to determine.... a man may possess a disposition and a temperament which may lead him to commit certain crimes with a certainty which is perhaps only partially recognized." ¹⁰⁰ Such attitudes paved the way for increasing use of medical evidence as to mental state in homicide trials.
49

      While defense counsel were retreating on the battlefields of provocation and drunkenness, they were faring better on that of more deeply rooted mental incapacity—but only in the face of determined resistance from the judiciary. In the year following the celebrated 1843 M'Naghten case, which had widely publicized the insanity defense, for example, Baron Alderson kept a jury locked up without food, drink, or heat for twenty-two hours until it rejected an insanity defense and convicted a wife killer of murder. He then urged the home secretary not to stay execution, arguing that "this plea of madness is palliative of unruly passions leading to murder, and is very dangerous." ¹⁰¹ In the 1856 trial of the wife poisoner William Dove, a strong jury recommendation to mercy on the grounds of "defective intellect," backed up by petitions and letters, was ignored after similar judicial urging. ¹⁰²
50

      Despite the plethora of scornful judicial obiter dicta on the insanity defense, by the 1870s cracks were appearing in the official wall of resistance. A celebrated case in late 1871 brought the insanity defense into perhaps its greatest prominence since M'Naghten. A few weeks after the Reverend John Selby Watson, former headmaster of Stockwell Grammar School in South London, completed his four-volume History of the Papacy to the Reformation, he beat his nagging wife to death. After concealing her body for two days, he wrote a suicide note, declaring that "I have killed my wife in a fit of rage to which she provoked me," and took prussic acid, which, however, failed to kill him. Despite this and a history of bad feeling between husband and wife, defense counsel did not try to use provocation. All efforts were thrown into an insanity defense, relying on what even the prosecuting counsel admitted was "an antecedent improbability in the deed which would lead everyone in the first instance to seek an explanation in insanity." But when two asylum superintendents attested only to his depression (he had recently been retired against his will from his headmastership) but not to any insanity, and Mr. Justice Byles summed up strongly against this defense, the jury, after deliberating for one and a half hours, returned a guilty verdict, with a strong recommendation to mercy on account of age and previous character. A wave of petitions and affidavits from medical men followed, arguing for his insanity at the time of the crime. Unusually, the judge himself now changed his tune and advised the home secretary that the medical evidence presented at the trial suggested to him that "this is not a case in which the sentence should be carried out." ¹⁰³ Prolonged debate ensued within the home office, and further medical opinion was solicited. Some kind of imprecise mental unsoundness was accepted, and Watson was reprieved, though (since he now showed no signs of lunacy) he was not committed to Broadmoor and spent the last twelve years of his life in prison. In his case, the incongruity of the offense and the lack of any lesser defense pushed the system to a controversial finding of "temporary" insanity to prevent the unedifying spectacle of the hanging of a clergyman of the Church of England. In a sense, in Watson's case, provocation (by his wife, under the stress of his forced retirement) had been reconceived as temporary insanity. ¹⁰⁴
51

      Two cases in 1875 highlight an apparently widening divergence between judges and juries over insanity. When another respectable middle-class man, this time an accountant, cut the throats of his wife and daughter and then tried to kill himself, the strong summing-up of Mr. Justice Brett against the defense's claim of insanity was to no avail; the jury "without any hesitation" found the man insane. ¹⁰⁵ Several months later, during the trial of a shipwright who had suddenly and lethally struck down his fellow workman, Mr. Justice Brett "distinctly repudiated the medical theory of insanity" put forward in this case by the prison doctor who examined him. The judge went so far as to himself hostilely cross-examine the doctor. He then instructed the jury that "they were not entitled to follow their own opinions, and say what ought to be the law, but simply to answer the question proposed to them" in accordance with the M'Naghten Rule. Nonetheless, they returned a verdict of insanity. ¹⁰⁶
52

      Even under the stern watch after 1874 of Home Secretary Cross, the pressure to find insanity, or unfitness to plead, mounted. When a heavy-drinking army pensioner who had spent time in a lunatic asylum beat his wife to death in 1876, his Old Bailey defense counsel, the eloquent Montague Williams, drew together his institutionalization, his excessive drinking, and the provocation offered by the victim, a "nag," into an impressive case for insanity but was unable to prevent a guilty verdict. Afterwards, however, the jury protested being bullied by Mr. Justice Hawkins, who was clearly set on convicting the man. "Had we," they wrote the home secretary, "been directed that we were at liberty to act upon a probable presumption of insanity to be founded upon the antecedent, contemporaneous and subsequent acts of the prisoner we should at once have acquitted him." Other petitioners (including City of London aldermen) called attention to what they called the "parallel" case of Dr. Watson. The home secretary, against his inclinations, felt obliged to have two physicians examine the prisoner (an innovation which Cross's Liberal successor, W. V. Harcourt, was to make standard practice in capital cases). However, they found him sane, and he hanged. ¹⁰⁷
53

      In spite of this last hanging, it was beginning to be felt that insanity now offered defense possibilities no longer afforded by provocation or drink alone. In the case of Harry Rowles, a gentleman of even higher social standing than Reverend Watson, who in 1878 shot to death his former fiancee, a woman who had drained him of all his money and then discarded him, it would be fair to say that the "real" defense was provocation, but it was now put by counsel in terms of insanity. After the jury found him guilty, though recommending to mercy on account of provocation, reprieve efforts focused almost completely on evidence of insanity. However, the judge (who had spent two and a half hours summing up) refused to recommend mercy. With Cross making the final decision, even a petition with 35,000 signatures (including those of many Oxford dons) proved unavailing when the home office doctors failed to support these arguments. ¹⁰⁸
54

      Similarly, a workingman who in 1880 drunkenly stabbed his wife to death on a public street after she left him for another man was defended on the ground of having fallen into a "fit of temporary insanity," rather than of provocation or drink. One medical man deposed, "I am distinctly of opinion that a man in the same condition as [he] was, in a short time when brain disease is better understood will be pronounced insane, indeed to be quite as much needing medical care as any patient now in any of the asylums." Very likely because his character was already bad (the victim had taken out a summons against him for his threats on her life, and at the inquest a Poor Law official described him as "a man who would not provide for his family"), the jury convicted. The judge sent on a stern warning against mercy ("a clear case of murder"), and, when the home office's doctors found him sane, Cross let him hang. ¹⁰⁹
55

      As evident in the last case, drink as well as provocation could be reconceived in the language of insanity. Several of the cases already described show elements of this, and this approach became ever more common. More explicitly, when in the following year Thomas Brown cut his unfaithful wife's throat in a drunken frenzy, his counsel focused not on her character but on the effect of drunkenness in throwing him into a state of temporary insanity. However, Mr. Justice Stephen refused to allow what he saw as interpretative sleight-of-hand, and Brown was found guilty. Petitioners (including eight of the jurymen) then brought forward evidence both of insanity in his family and of his own "weakness of brain." But his own statement to the police that "I did it, I killed her, it's a wilful murder and I shall have to be hung for it" was too much to overcome, and he hanged. ¹¹⁰ As these examples suggest, Cross, standing firmly behind his judges, for the most part held back the rising pressure for more "medicalized" evaluation of criminals. However, once he left office such pressure began to break through with increasing frequency.
56

      After the accession of the Liberal Government in 1880 the home office gradually became more receptive to pleas of mental unsoundness, even in cases of very unpopular defendants. Several months before Brown's case, when a sixty-five-year-old man, convinced of his wife's infidelity, stabbed her to death, his neighbors had attempted to lynch him. At trial his counsel (unusually well-organized for a poor man's) steered clear of character issues and brought in several alienists to testify to his delusionality. Despite the resistance of Mr. Justice Cave, Home Secretary Harcourt insisted on a medical examination, and the man was committed to Broadmoor. ¹¹¹ Sentencing power in many murder cases was in practice beginning to slip from the hands of judges into those of medical men.
57

      The case of the black seaman William Brown two years later illustrates how insanity could substitute for the now less acceptable plea of provocation. Brown, a veteran of twenty years in the Royal Navy, was well respected in the northern fishing port of Sheerness as a steady workman and a kindly mentor of younger men (though his "terrible temper when in drink" was well known). Married to a widely recognized "bad woman," who drank heavily, was unfaithful, and taunted him (despite his devotion to their four children) with racist epithets, he was saved from the gallows after killing her with both a hatchet and a razor by the evidence of sympathetic physicians that he suffered from epileptic fits. Upon being told of the epileptic episodes in Brown's past, his counsel later recalled, "'Thank God,' I said, 'Thank God.'" "When I addressed the jury," he went on, "and drew attention to the character of the man, his love for his children," he felt the case turning in his favor. He reminded them that Brown had tried, almost successfully, to kill himself also. "'Can you doubt that man was mad?' [he asked them] There were heads in the jury box nodding assent." Brown was found insane and sent to Broadmoor. ¹¹²
58

      By 1890, Mr. Justice Wills was upset enough even with a Conservative home secretary to complain of "the extreme and growing frequency of the [insanity] defense in cases of murder" and what he saw as the home office's growing sympathy to this defense. (The evidence of an asylum superintendent who examined the prisoner at government expense had just won a wife murderer he was trying at Durham an insanity verdict, unwarranted in Wills's view: "the greater part of the things [the jury] relied upon might as it seemed to me be said of a very substantial part of mankind.") ¹¹³ Nonetheless, the trend continued. Indeed, just a week before Wills's case, Mr. Justice Hawkins had had to accept a jury finding of insanity in the trial of a man who, believing his wife and his brother-in-law to be lovers, had shot both to death. ¹¹⁴ Even as the judges became used to encountering less jury "difficulty" over the issues of provocation and drunkenness, they were chagrined to find themselves increasingly isolated in their resistance to insanity claims. ¹¹⁵ Indeed, in some ways the home office, once the judges' reliable backup, now began increasingly to take the initiative in removing cases from prosecution by administratively finding prisoners unfit to plead, or by arranging for jury trials confined to the question of fitness to plead. As this new position became clear by the end of the century, judges gradually retreated, reinterpreting the old M'Naghten Rule more flexibly, or failing to cite it at all. ¹¹⁶
59

      When in 1902 William Barnaby stabbed his wife with a sharp Swedish knife, the traditional complaints about her character were made in court. ("Mrs. Barnaby," a policeman stated, "was known as an intemperate, violent woman, while her husband bore the character of a sober, respectable man.") However, the chief thrust of the defense was insanity, or more strictly, epilepsy combined with general low intelligence. The prison medical officer accepted that the prisoner was an epileptic and of weak mind, but insisted that he was not insane. However, in a rigorous cross-examination, the doctor allowed that "in some cases epileptics were subject to violent impulses, under which they did violent things without malevolence, although a fit was not upon them." Barnaby was not found insane, but was convicted of manslaughter only, receiving a comparatively short sentence of five years. ¹¹⁷
60

      Ironically, the very restrictions that the judiciary was able to impose upon the defenses of provocation and of drunkenness seem to have increased the pressure for alternative defenses and for reconceptualizing these "traditional" defenses in new, modern guises. In particular, defense counsel and petitioners turned toward problematizing the mental state of the prisoner. If ordinary men were now expected to master their passions, then the only successful path to avoid a guilty verdict was likely that of showing the prisoner to be not ordinary. If he were a man constitutionally incapable of being reasonable and self-controlling under stress, then the legal standards of responsibility would not apply to him. Rather than his situation, the defendant's constitution became the key to mitigation of his sentence. But at a heavy price: rather than reducing his penal sentence, such a determination would save his life at the cost of sending him to Broadmoor, where he was likely to spend the remainder of his life.
61

      The broadening judicial recognition of mental unsoundness thus constituted less of a challenge, both practically and theoretically, to the stricter new standard of "the ordinary and reasonable man" than did provocation or drunkenness in themselves. Not only did it ensure that defendants in whom it was recognized did not as a rule return to society, it did not offer a competing vision of "normal" behavior to that of the Victorian judiciary and home office. Rather, the shift to mental unsoundness as a defense left that vision and that standard untouched for most people and most behavior. It simply established that the small number of persons incapable of attaining it lay, as it were, outside "normal" humanity. Particularly when such persons could be, as was increasingly the case, removed from the criminal justice system before trial by a finding of "unfitness to plead," insanity pleas could be readily reconciled with "Victorian" expectations of personal self-discipline represented by the "reasonable man" and therefore form part of a typically English compromise resolution of at least some of the long conflicts between judges and juries.
62

Conclusion

By the closing years of the century, conflict between judges and juries in homicide trials did seem to diminish. Judges appeared less prosecutorial and readier to support jury recommendations to mercy, while jurors in turn showed less tolerance of violent behavior. ¹¹⁸ A good deal of conflict had, it seems, been resolved by a paradigm shift, in which the claim of insanity or unfitness to plead filled much of the "merciful" space left by tightening of provocation and drunkenness pleas. The stricter expectations of self-discipline that now prevailed for "ordinary men" were made socially and legally tolerable by easier recourse to defining grave offenders as incapable of reasonable behavior. The outcome of these decades of courtroom contestation had something for each side. In an ever-more democratic age judges came to accept the right of juries to broadly decide questions of excuse and mitigation. ¹¹⁹ As they did so, juries came to adopt at least some of the higher expectations of personal self-control preached by judges—the ideal of the "stiff upper lip" Englishman had arrived—and consequently narrowed their view of many of the circumstances that excused or mitigated serious violence. At the same time, however, juries (and eventually judges also) were allowing a widening leeway for arguments of mental unsoundness. Together, these developments provided at least a partial resolution of the tensions pervading judge-jury relations through much of the nineteenth century. ¹²⁰
63

      In so doing, they also offer one model of how courtroom dynamics, operating in a context of long-term cultural trends, can help to alter criminal law in practice, even in the absence of explicit legislative changes in statutory law or appeals court rulings in case law. This approach may perhaps be fruitful in examining other periods and other locales in legal history.
64

Martin J. Wiener is Mary Gibbs Jones Professor of History, Rice University. The author would like to thank Clive Emsley, Thomas A. Green, Michael Willrich, and the anonymous reviewers for this journal for their thorough and extremely helpful critiques. He also thanks Daniel Ernst and the Georgetown University Law Center for providing a forum to first set forth this argument and the Woodrow Wilson International Center for Scholars, where this article was written.

Notes

      1. For an overview, see Clive Emsley, Crime and Society in England, 1750-1900, 2d ed. (London: Longman, 1996).

      2. This article is based upon information on 1,630 murder trials that took place in England and Wales between 1835 and 1905 (35-40 percent of the total), including 911 trials for spouse murder (nearly every such trial held in those years). It also draws upon information on sixty-three spouse murder trials held in Scotland during this period, as well as several hundred murder trials held before 1835 or after 1905. In addition, I have examined approximately six hundred English manslaughter trials throughout this period, 274 of them for the killing of a spouse; this total includes a sample consisting of all such trials reported in The Times during every fifth March (a particularly busy month for assizes) from 1835 through 1905 (amounting to ninety-five). I have understood "spouse" to include all cohabiting couples, formally married or not (there were many of the latter). Information on spouse murder prosecutions was collected in full for a book in progress on that particular subject. Naturally, this overweighting of one kind of murder is taken into account below. The single most important source of information has been The Times, which beginning in the 1830s reported on virtually every assize. (After 1840, no more than 2 or 3 percent of murder trials, listed in toto in home office files, failed to be noted in The Times.) Its criminal trial reports have never before, as far as I am aware, been systematically used. Its reports have been supplemented by accounts in other newspapers and by the published Old Bailey Sessions Papers. These latter volumes, titled after 1834 the Central Criminal Court Sessions Papers [hereafter CCCSP], are normally fuller than newspaper reports but also less informative in a number of ways: they omit judicial summings-up, which became a characteristic and often crucial part of such trials, and they lack the additional description of related activities in—and outside—the courtroom, the commentary and the "color" usually provided by newspaper reporters. To grasp the meaning a nineteenth-century murder case held for contemporaries, newspaper reports, unlike the Sessions Papers, are essential. Substantial further information has been obtained from home office files, as well as from broadsides, pamphlets, published works of various types, and, finally, published law reports.

      3. For some consideration of this wider scene as it influenced (and was influenced by) the workings of the criminal law, see Martin J. Wiener, Reconstructing the Criminal: Culture, Law and Policy in Britain, 1830-1914 (Cambridge: Cambridge University Press, 1990); idem, "The Victorian Criminalization of Men," in Men and Violence: Masculinity, Honor Codes and Violent Rituals in Europe and America, 1600-2000, ed. Pieter Spierenburg (Columbus: Ohio State University Press, 1997), 197-212; idem, "Domesticity: Disciplining Women or Feminizing Society?" in An Age of Equipoise? Mid-Victorian Britain Reassessed, ed. Martin Hewitt (London: Scolar Press, 1999).

      4. Since Scotland has retained a separate legal system, these remarks are mainly confined to England, although there is occasional mention of contemporaneous Scottish cases.

      5. A. W. B. Simpson, Leading Cases in the Common Law (Oxford: Clarendon Press, 1995), 9. In this book Simpson offers a set of empirical investigations into well-known legal cases, in the process altering our understanding of these cases. For a stimulating book-length example of such empirical investigation, see his Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise (Chicago: University of Chicago Press, 1984).

      6. Simpson, Leading Cases in the Common Law, 10.

      7. In recent years we have begun to understand the modern history of the criminal trial process much better, thanks especially to the work of John Langbein, John Beattie, and Peter King. See John Langbein, "The Criminal Trial before the Lawyers," University of Chicago Law Review 45 (1978): 263-316, and "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (1983): 1-136; John Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986); Peter King, "Decision-Makers and Decision-Making in the English Criminal Law, 1750-1800," Historical Journal 27 (1984): 25-58, and "'Illiterate Plebeians, Easily Misled': Jury Composition, Experience, and Behavior in Essex, 1735-1815," in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800, ed. J. S. Cockburn and Thomas A. Green (Princeton: Princeton University Press, 1988), 254-304. Yet almost none of this groundbreaking work has reached beyond the eighteenth century (a partial exception is Beattie's article, "Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," Law and History Review 9 (1991): 221-67, which takes its subject only into the 1820s).

      8. There is by now a large scholarly literature on this: an early and classic text is W. Lance Bennett and Martha Feldman, Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture (New Brunswick, N.J.: Rutgers University Press, 1981); a new one is Peter Brooks and Paul Gewirtz, eds., Law's Stories (New Haven: Yale University Press, 1998).

      9. See Michael Grossberg, A Judgment for Sol