Criminal Justice During the Long Eighteenth Century: Theatre, Representation and Emotion 9780429678462, 0429678460

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Criminal Justice During the Long Eighteenth Century

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 lawyerised performance. Third, the authors apply recent scholarship on the history of emotions, particularly relating to the constitution of ‘emotional communities’ and changes in ‘emotional regimes’. David Lemmings is Professor of History at the University of Adelaide and Leader of the Change Program in the ARC Centre of Excellence for the History of Emotions. Allyson N. May is Associate Professor in the Department of History at the University of Western Ontario.

Routledge Research in Early Modern History

Women and Jewish Marriage Negotiations in Early Modern Italy For Love and Money Howard Tzvi Adelman Piracy and Captivity in the Mediterranean 1550–1810 Edited by Mario Klarer The Reformation of England’s Past John Foxe and the Revision of History in the Late Sixteenth Century Matthew Phillpott Science in an Enchanted World Philosophy and Witchcraft in the Work of Joseph Glanvill Julie Davies The English Chartered Trading Companies, 1688–1763 Guns, Money and Lawyers Michael Wagner Enlightenment in Scotland and France Studies in Political Thought Mark Hulliung The School of Salamanca in the Affairs of the Indies Barbarism and the Political Order Natsuko Matsumori Criminal Justice During the Long Eighteenth Century Theatre, Representation and Emotion Edited by David Lemmings and Allyson N. May For more information about this series, please visit: www.routledge.com/ Routledge-Research-in-Early-Modern-History/book-series/RREMH

Criminal Justice During the Long Eighteenth Century Theatre, Representation and Emotion Edited by David Lemmings and Allyson N. May

First published 2019 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Taylor & Francis The right of the editors to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this title has been requested ISBN: 978-0-367-02500-7 (hbk) ISBN: 978-0-429-39922-0 (ebk) Typeset in Sabon by Apex CoVantage, LLC

Contents

List of Figures Acknowledgements

vii viii

  1 Historicising Emotions: Performance, Sensibility, and the Rule of Law1 DAVID LEMMINGS AND ALLYSON N. MAY

PART I

Feminine Performances and the Criminal Trial: Women’s Emotional Work in the Public Sphere

19

  2 ‘It Will Be Expected by You All, to Hear Something from Me’: Emotion, Performance, and Child Murder in Britain in the Eighteenth Century21 DANA RABIN

  3 The Prosecutorial Passions: An Emotional History of Petty Treason and Parricide in England, 1674–179041 ANDREA MCKENZIE

  4 Shame and Malice in the Eighteenth-Century Criminal Court and Community62 E.J. SNELL

PART II

Emotional Communities and Sensibilities: Truth, Theatre, and Blasphemy in Court

83

  5 Sympathetic Speech: Telling Truths in the NineteenthCentury Irish Court85 KATIE BARCLAY

vi Contents   6 Swearing and Feeling: The Secularisation of Truth-Seeking in the Victorian English Court104 SIMON DEVEREAUX

  7 Irish Sensibilities and the English Bar: The Advocacy of Charles Phillips128 ALLYSON N. MAY

PART III

Emotional Regimes and the Legal Process: Stories of Terror, Sensibility, and Patriotism in the Representation of Criminal Trials

151

  8 Theatre of Blood: On the Criminal Trial as Tale of Terror153 HAL GLADFELDER

  9 Doctor Dodd and the Law in the Age of the Sentimental Revolution177 RANDALL MCGOWEN

10 Thomas Erskine and the Performance of Moral Sentiments: The Emotional Reportage of Trials for ‘Criminal Conversation’ and Treason in the 1790s199 DAVID LEMMINGS

List of Contributors Index

218 220

Figures

6.1 Scrutiny of Understanding of the Oath: Old Bailey, 1730–1909.109 6.2 ‘Upon Your Oath’, etc.: Old Bailey, 1730–1909. 110 8.1 ‘Sarah Malcolm’ (1733). Anonymous, after William Hogarth. {{PD-old-100}}, via Wikimedia Commons. 167 8.2 ‘Louisa Calderon on the picquet’. From The Trial of Governor T. Picton, for Inflicting the Torture on Louisa Calderon (1806), published by B. Crosby. 171

Acknowledgements

This book originated in a Symposium held at the Henry E. Huntington Library on 1–2 November 2013. The editors are grateful to Dr. Steve Hindle, Director of Research at the Huntington, for supporting this event, and for his hospitality. We are also indebted to the Australian Research Council Centre of Excellence for the History of Emotions (CE110001011) for helping to fund the Symposium. Thanks are also due to Max Novick and Jennifer Morrow at Routledge for helping to turn a conference into a book.

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 nineteenthcentury 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,

2  David Lemmings and Allyson N. May 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

Historicising Emotions  3 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

4  David Lemmings and Allyson N. May 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

Historicising Emotions  5 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 middleclass 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 eighteenthcentury infanticide trials. Drawing on the work of Barbara Rosenwein, she highlights the interaction of emotional displays in the courtroom,

6  David Lemmings and Allyson N. May 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 thus examines the last dying speeches ascribed to women convicted of murdering their newborn children. ‘Ascribed’ is the operative word, for the extent to which such accounts reflected the feelings of women accused of infanticide is debatable. The speeches published were carefully scripted to achieve desired ends. Still, Rabin argues, such accounts reveal society’s expectations about what was considered an appropriate emotional response to the crime of infanticide. In this regard she contrasts reportage of the executions of Bessy Turnbul and Margaret Inglis, both hanged for infanticide on 6 April 1709. Turnbul was described as having performed in accordance with societal norms, demonstrating grief, acknowledging guilt, and expressing repentance. Despite belonging to the same emotional community of single women, Inglis did not. Her refusal may in itself be interpreted as a speech act. Collectively, the infanticide cases discussed in this chapter attest to ‘the gendered affective impact of the courtroom and the power dynamics in the room’ (34). Male judges performed calculated emotion from a position of power and authority. Female defendants were subordinated, and their comparative silence, now understood as one of the few speech acts available to them, was in their own time more likely to be read as an indication of indifference, or lack of ‘proper’ feeling. True emotional exchange was absent. The ‘voice’ gained on conviction, via

Historicising Emotions  7 scaffold speeches, is also problematic and might be read in many cases as an exercise in ventriloquism that reflected societal norms rather than the feelings of the individuals concerned. Constrained as they were by the restrictions of the genre, last dying speeches, according to Rabin, nonetheless afforded female convicts the possibility of agency. The emotions performed were occasionally contradictory; they also met with a range of responses from those who heard or read them. Like Rabin, Andrea McKenzie (Chapter 3) focuses on women charged with a form of murder, in this instance not infanticide but petty treason, the murder of a husband, a master, or mistress, and parricide, the murder of a father, between 1674 and 1790. Theoretically, these crimes struck at the heart of the contemporary social and gender hierarchy. It is McKenzie’s intention to place the infamous cases of the period, which have been publicised by a variety of micro-histories, in the context of numerically representative cases, as well as that of homicide trials generally. The vast majority of her petty treason trials, all of which were heard at the Old Bailey, involved women accused of killing their husbands, with Henrietta Radbourne, charged in 1787 with murdering her mistress, providing the single exception. The Old Bailey heard no case of parricide during the period in question, but McKenzie concludes by briefly comparing and contrasting two cases of men charged with matricide in 1722 and 1735 with the cause célèbre of Mary Blandy, who was tried and executed in Oxford in 1752 for poisoning her father. McKenzie explores the ways in which emotions expressed or enacted in the courtroom by a variety of actors were reported in such trials. She teases out connections between exculpatory narratives presented in court and the verdicts reached, as well as examining press representation of the defendants and their victims. In summarising verdicts, she points to a marked drop in conviction rates after 1740, and considers whether it might relate to a shift in emotional regimes. The decline may, she suggests, reflect a growing sympathy for the wives of violent or abusive husbands; alternatively, it may indicate a decline of public interest in petty treason involving working-class victims and defendants. Agency is once again a key issue, and McKenzie asks whether the older form of criminal trial, before it became a professional contest between paid advocates, combined with an emotional regime which encouraged empathy, allowed women charged with various forms of murder an opportunity to present themselves as the true victims. Carefully constructed and performed narratives of suffering and abuse could, she argues, enable women to avoid the noose. Yet such emotives had inherent risks as well, and their performances attracted intense public scrutiny. Navigating acceptable performance of emotion was fraught with difficulty; defendants deemed overly emotional were suspected of being insincere, but an apparent lack of feeling was equally damning. Pointing to Natalie Zemon Davis’s work on pardon narratives, McKenzie also emphasises that early

8  David Lemmings and Allyson N. May modern women were required to shape their emotions in gender-specific ways. Female passion was suspect and condemned. Who was to perform emotions, and how a woman could elicit sympathy from jurors and the public, was also at issue. According to McKenzie, in order to succeed, female defendants needed to suppress their own voices and allow witnesses to testify on their behalf. Given contemporary gender norms, which valued womanly submission, an overly assertive defendant was likely to alienate public opinion: exculpatory narratives of victimhood were ideally presented by someone other than the female defendant. McKenzie’s defendants had to contend with powerful public sympathy for their genteel victims as well. In E.J. Snell’s Chapter 4, the focus shifts from women as perpetrators of violent crime to victims of rape. Emotion played a central role in narratives of rape trials, for obvious reasons. Such trials provided victims, the accused, and their witnesses with opportunities to share their feelings, and print representation of their various testimonies speaks to contemporary beliefs about acceptable emotional responses to this crime. Snell examines the experiences of participants in eighteenth-century rape trials and explores the possible political meanings of their emotive expressions, contrasting portrayal of the victims’ emotions with those of the men charged with the assaults in question. In studying these narratives, she looks at two particular emotions which were regularly expressed: shame and malice. Invocation of these emotions, she suggests, may have been employed in the trial process to negotiate power. But embedding rape accusations in a narrative of shame often failed to achieve the victims’ desired goals, while accusations of female malice could likewise thwart justice. Many victims of rape chose—like Samuel Richardson’s Clarissa Harlowe—to suffer in private and in silence rather than pursuing criminal charges. A sense of shame, negative self-judgment, and fear of lost reputation contributed to such disempowered decision-making. Snell describes the ways in which rape victims were also pressured to suppress their experience by family members concerned about a transfer of shame and by their social communities. Other victims believed that a trial could restore both their own damaged reputation and that of their families, and consequently, while speaking of shame, drew attention to their victimisation. But as Snell demonstrates, this strategy often backfired. The decision to prosecute could be read as a performance of defiance; the agency inherent in this course of action, that is, contravened gender norms which included helplessness, a willingness to forgive, and a turning away from anger. Eighteenth-century barrister Manasseh Dawes, who campaigned for the repeal of the death penalty for rape, acknowledged ‘the ravished woman’s feelings’ (62), including their desire for both justice and revenge. But he also believed that to act on these negative emotions via a criminal prosecution had adverse consequences for both the victim and society as a whole. Rape victims went to court to gain restitution and possibly to restore their character and reputation. But in

Historicising Emotions  9 presenting their assault within discourses of shame, they cast themselves as deviant and dishonourable. Prosecutions initiated in good faith could be interpreted as motivated by anger and vengeance; a false or malicious prosecution was evidence of wickedness. Men charged with rape, by contrast, actively eschewed any demonstration of being ashamed, employing instead a discourse of guilt which, while allowing them to be represented as potentially culpable, also allowed for the possibility of redemption. In some cases, their actions were even depicted as acceptable male behaviour. As described in this chapter, rape trials thus reflected emotional double standards deeply embedded in eighteenth-­century society, standards which made successful trial outcomes, in terms of either achieving justice or restoring the victim’s personal reputation, very rare. The chapters in Part I testify to the fact that in performing emotions in the eighteenth-century criminal courts, women clearly suffered from a repressive culture of gender discrimination. Women’s silence, or otherwise, is a theme running through these chapters, and it appears to have been a double-edged sword. As Rabin demonstrates, the silence in court of a woman accused of infanticide was interpreted by her contemporaries not as authentic periperformance but rather as evidence of a lack of feeling. Yet in rape trials, the very act of bringing a prosecution was viewed with suspicion. Vocal women were condemned for not adhering to gender norms: narratives of victimhood and domestic violence were properly told by others, not by the victim herself. A modest woman would be reluctant to divulge details of an abusive husband’s behaviour or a sexual attack. And as both McKenzie and Snell’s chapters reveal, a ‘woman whose reputation had to be defended in public was already irreparably compromised’ (44). Much has been made in criminal justice history of the disadvantages suffered by many defendants by virtue of their class: trial records indicate that, unlike counsel and judges, most were demonstrably lacking in verbal dexterity and powers of expression. Women were doubly disadvantaged by an emotional regime that censured female agency and prescribed a very limited range of acceptable emotives. Part II, ‘Emotional Communities and Sensibilities: Truth, Theatre, and Blasphemy in Court’, comprises chapters by Katie Barclay, Simon Devereaux, and Allyson N. May. Katie Barclay’s chapter considers the relationship between truth, sympathy, and legal oratory in early-nineteenth-century Irish, rather than English, courtrooms. Following an overview of contemporary discussion of this relationship, she examines speeches by Irish judges and barristers to determine how it was manifested and played out in the courtroom. The ‘truthfulness’, or otherwise, of the speaker, Barclay argues in Chapter 5, ‘reflected a particular anxiety of the era’ (89), an anxiety returned to throughout this collection. John Locke had suggested that in arousing the passions, oratory might mislead judgement. He and others offered simplicity of expression as a potential corrective: dishonesty was thus located in

10  David Lemmings and Allyson N. May and potentially confined to rhetorical language. But fears of the dangers inherent in emotional advocacy did not subside; as demonstrated elsewhere in this book, the relationship between truth and courtroom rhetoric remained problematic into the nineteenth century and beyond. However, in exploring specifically Irish understandings, Barclay argues that sympathy was deemed essential to the conveyance of truth, and that in Ireland this belief served to reduce anxiety with respect to the role of lawyers in the trial process. After looking at the ways in which rhetoric was taught across the United Kingdom, she examines how theory was put into practice by Irish lawyers. Barclay notes that different types of legal speech frequently employed common rhetorical structures, so that many speeches demonstrated strong similarities regardless of the specifics of particular cases. Sympathy was clearly valued, but both judges and juries were expected to rein in their emotions in the process of judgement, creating a particular tension in the courtroom. Was rhetoric to be condemned as chicanery, or was oratory a truthful form that promoted justice? Figurative language was one issue, but the sincerity or otherwise of the orator/ advocate was the principal concern, with, Barclay argues, ‘the success of an oration almost becoming synonymous with its truthfulness’ (89). Ideally, orators engaged the sympathies of their audience by utilising eloquent language to comment on evidence and make their arguments. Juries, according to Barclay, were asked to make decisions which, while based on the evidence presented in court, were equally felt as emotional truth. Within legal processes, that is, emotion was to be harnessed to achieve just ends. The potentially deceptive power of oratory nonetheless continued to raise concerns, as did the possibility of speakers who only pretended sincerity. This troubling possibility became a public preoccupation with the emergence of defence counsel. Barclay’s chapter thus touches on Charles Phillips’s controversial defence of François Benjamin Courvoisier, who was tried and executed for the murder of Lord William Russell in 1840. Phillips’s famous, or infamous, closing speech—which is referenced in Devereaux and May’s chapters as well (Chapters 6 and 7, respectively)— attracted widespread criticism. Barclay examines in particular the allegation that, despite being personally aware of his client’s guilt, he tried to redirect attention to other suspects. In doing so, she distinguishes Irish from English opinion: Irish commentary, she finds, was much more supportive. The Irish press defended Phillips’s integrity and admired his performance. Both Devereaux and May examine rhetorical performance in nineteenthcentury English courts. Devereaux offers an explanation for the Criminal Evidence Act of 1898, which allowed defendants to testify under oath. This innovation had been resisted on the basis that those accused of crimes would be tempted to lie in self-defence, performing untruths in the courtroom and thereby imperilling their souls. It was equally believed that truth could not be produced without the threat of perdition inherent in false testimony. In the final decades of the Victorian era, however, these beliefs were retreating in the face of secularisation and increased education. By

Historicising Emotions  11 1898 the testamentary oath had become accepted as a purely symbolic gesture rather than being considered fundamental to elucidation of truth. Devereaux links the 1898 legislation with the 1836 act that allowed defence counsel to speak on behalf of their clients. The Prisoners’ Counsel Act, he suggests, had already potentially threatened the role of divine revelation in granting moral authority to verdicts. He also raises concerns expressed prior to and after passage of that act about the potential resort of counsel to emotional appeals rather than reasoned argument. His discussion begins with a consideration of the case commonly attributed as having established modern understandings of a defendant’s right to counsel: the Old Bailey trial of Courvoisier. Charles Phillips’s decision to continue in the defence of a client who had confessed his guilt mid-trial occasioned enormous public controversy. Criticism of his closing speech included an appalled reaction to Phillips’s alleged—and disputed—invocation of the vengeance of the Almighty upon those who questioned his client’s innocence. Dual issues of religiosity and feeling in the courtroom thus lie at the heart of this chapter. These joint concerns, Devereaux argues, were rooted in a widespread belief that the authority of the criminal law rested on public approbation. And the public in question, in particular those who were put on trial themselves, or who followed criminal proceedings, tended to be drawn from a class of persons incapable of privileging reason over emotion in their own lives, and whom, until the very end of the Victorian period, the educated classes believed still to require the combination of threat and assurance inherent in the testamentary oath. The passage of the Prisoners’ Counsel Act, in Devereaux’s view, nonetheless marked the beginning of the end of belief in the revelatory mode of criminal trial. After 1836, forceful presentation of competing evidentiary claims by prosecution and defence counsel was accepted as the most probable means of determining the truth of a criminal charge. Devereaux’s chapter thus charts the process by which truth-telling in the courtroom became secularised, tying the function played by oaths in the courtroom with the gradual abolition of oaths in other aspects of Victorian public life. He also explores public anxieties about the role played by rhetoric in the newly lawyerised courtroom, more specifically, quoting from Agatha Christie, ‘the emotional effect of emotional appeals by some of our more emotional counsel’ (114). In an increasingly secularised, lawyerised trial, one of the primary issues was the proper relationship between reason and emotion in arriving at verdicts. It might, Devereaux suggests, be argued ‘that the cultivation of a feeling reaction in a jury lay at the heart of the new profession of criminal barrister’. Ideally, however, counsel should deploy feeling to reinforce rather than override reason. And perhaps, he concludes, the true innovation of the Victorian period would be the emergence of ‘the ideal of a reliably honest, emotion-free presentation by lawyers’ (123). Allyson N. May’s Chapter 7 examines the courtroom performance and reputation of barrister Charles Phillips prior to his controversial conduct in the Courvoisier case. Phillips’s early career, now overshadowed by

12  David Lemmings and Allyson N. May its end, was marked by notoriety of a different sort, one rooted in his emotional style of advocacy. Phillips attracted censure within a few years of his call to the Irish bar in 1812—on the Connaught Circuit he had enjoyed considerable success—and by the time he joined the English bar (1821), his rhetoric had been subjected to an extensive critique. That critique was firmly rooted in his ethnicity: despite having an English father, the Sligo-born Phillips would be identified throughout his career as an ‘Irish barrister’, and ‘Irish eloquence’ was deemed by the English and the Scots as overly emotional. Emotional performativity is generally acknowledged as culturally specific, and the criticism intensified when Phillips moved to England and the English courts. After failing in Westminster Hall, he retreated to the criminal courts where, until the Prisoners’ Counsel Act of 1836 allowed defence counsel to address the jury, his overly expressive tongue and performative abilities were curbed. Even at the Old Bailey his talents contrasted with those of his chief rival, John Adolphus, who was described as a quintessential Englishman, without fancy or imagination. Irish oratory had not always been condemned, nor were all of its orators: Edmund Burke had usefully added pathos to English logic and reason; the speeches of John Philpot Curran attracted cautious praise for their originality and power. But by the time Phillips began his career, concerns had arisen about a perversion of the Irish style, and he would be castigated repeatedly as a chief offender in this regard. Phillips’s emotional appeals per se were not at issue, but he was condemned for linguistic excesses and absurd hyperbole. Phillips’s emotional style was censored by the English as alien to and incompatible with proper English sensibilities. Even his critics admitted that Phillips had a heart; regardless of ‘tasteless exaggerations’ (143) in pleading their causes, he felt for his clients. But the final years of his criminal practice again raised the question of whether the feeling expressed and emotions performed in court by an advocate were always sincere. Eloquence was to be reserved for good causes, emotive appeals made to enforce reason and to further rather than prevent justice. Yet Phillips had continued in defence of Courvoisier after he had admitted his guilt. In correspondence with Henry Brougham a few years earlier, Phillips had also admitted that verdicts often depended ‘not on innocence but on eloquence’ and that ‘the most awful of considerations’ sometimes fell victim to ‘sophistry’ (146). Contemporary debate over the proper relationship between, and respective roles played by, feeling and reason in courtroom rhetoric and the contribution made by emotional performance to the discovery of truth are common themes among the chapters in the second part of this book. Both Barclay and May’s chapters add ethnicity to this debate, specifically, Irish conceptualisations of the value of sympathy and an alleged English preference for reason. Devereaux adds class to the mix, arguing that some English commentators acknowledged the necessity of emotional appeals in jury trials: prior to the educational reforms of the late

Historicising Emotions  13 nineteenth and early twentieth centuries, jury members were thought to be less likely than judges to be convinced by purely rational arguments. Part III, ‘Emotional Regimes and the Legal Process: Stories of Terror, Sensibility, and Patriotism in the Representation of Criminal Trials’, containing chapters by Hal Gladfelder, Randall McGowen, and David Lemmings, amplifies subjects raised in the previous two parts. These chapters explore the implications of a changed and newly charged emotional regime for the public image of the justice system, and the ways in which actors in that system responded to the challenges posed by sentimentalism. What role did emotions play in courtroom stagings of the truth? In Chapter 8 Hal Gladfelder maps what he terms a poetics of the eighteenth-century criminal trial, exploring the use, by judges, lawyers, and those who reported trials, of the emotional receptivity of their respective audiences. He focuses in particular on heightened feelings, such as pity, terror, and horror. Legal commentators, he explains, drew upon both the aesthetic theory of Aristotle’s Poetics and dramaturgical practice. To this new poetics, Burke’s model of the sublime and Radcliffe’s theory of Gothic contributed complementary relations among terror, power, and obscurity. By the 1790s, the Godwin circle had reconstructed the law itself as a form of terrorism. Gladfelder’s chapter focuses on two particular trials that captivated audiences: the 1733 trial of Sarah Malcolm for a triple murder and the 1806 trial of Thomas Picton, governor of Trinidad, for torture. Both cases, he acknowledges, were highly unusual, but a poetics of the eighteenth-century trial is of necessity based on accounts of atypical trials with the capacity to elicit strong public feeling. Their emotional meanings were ambivalent; although well-documented, the reports of each trial still left much to the public imagination. Conviction of an accused’s innocence or guilt, Gladfelder argues, depended on the reader’s emotional engagement: It was this imaginative realisation of the truth of an only circumstantially accessible crime that was at stake in the eighteenth-century trial; and it was this which accounted for the role played by emotion in the courtroom and its textual offshoots. In cases of doubt, the story that prevails under trial is the one that induces emotional conviction. (158) Juries were inclined to reach verdicts not on legal evidence or precedents but were instead influenced by what Gladfelder terms ‘scenic display’ in the courtroom that aroused an emotional response. In the Malcolm trial, the accused conducted her own defence and the reader was presented with two diametrically opposed narratives. The ­Picton trial, by contrast, heard some 70 years later, provides an example of the criminal trial as an adversarial contest between lawyers; Picton himself was relatively silenced. In this case, ‘an unscripted coup de théâtre’ (158) by prosecuting counsel William Garrow overshadowed the

14  David Lemmings and Allyson N. May legal debates on which the case properly turned. In juxtaposing these two cases, Gladfelder demonstrates that courtroom theatricality predates the rise of professional adversarialism; lawyers merely borrowed from and built upon established forms of dramatic—and sometimes uneven—­ conflicts to provoke emotional responses in jurors and subsequently readers of trial reports. While acknowledging that the conception of trial as theatre is complicated and not without problems, Gladfelder argues that the eighteenth-century criminal trial, especially in its pre-lawyerisation form, was at its heart an attempt to stage rather than determine truth. Juries in that era, he argues, essentially confirmed rather than ascertained the truth. In the absence of lawyers, ‘matters of past fact were presumed to be known from the start; the trial’s purpose was largely to represent them as theatre’ (156). Once admitted to the courtroom, lawyers continued this theatrical tradition. While Garrow’s stage-managed examinations and ‘choreography’ of courtroom spectacle in the Picton trial appeared to confirm contemporary fears of the dangers posed by paid advocacy, Gladfelder argues instead that the barrister had simply drawn upon the theatrical potential always inherent in the English jury trial. Randall McGowen’s Chapter 9 revisits the trial and execution of the Reverend Doctor William Dodd in 1777. In February of that year, Dodd, who had been living well beyond his means, was discovered to have passed a forged bond in the name of a former pupil: Philip Stanhope, Earl of Chesterfield. His guilt, as McGowen acknowledges, was not in doubt, but Dodd’s conviction at trial sparked an unprecedented campaign for a pardon. The clergyman’s class and social connections were obviously a factor in this campaign; equally important, however, was the fact that Dodd embodied new cultural values. He seemed to personify ‘the man of feeling’ represented in sentimental novels. Displays of his personal sensibility had moved his congregation to tears; he provided financial support to a variety of philanthropic causes and was known to champion the suffering. Famously, Dodd had pleaded on behalf of a variety of the downtrodden, including debtors, prostitutes, and orphans, whom he deemed worthy of sympathy. On being charged with forgery, the doctor was transformed from ‘a sponsor of sentimental campaigns into the object of one’ (178). He became a suffering victim and performed this role as assiduously as he had pleaded the causes of others. Dodd’s courtroom performance of the sentimental victim was highly and physically theatrical: he wept, fainted, and was unable at various times to speak. His conviction provoked an equally emotional response in the courtroom and in the press. Throughout his career as a writer and a preacher, Dodd had privileged the social emotions, sympathy and fellow-feeling, over violent passions. The extent to which sympathy might be taken, however, became an issue at his trial. During the course of proceedings, emotion, McGowen argues, ‘invaded the courtroom’, and in doing so raised questions about the influence of the relatively new culture of sensibility on the determination of

Historicising Emotions  15 verdicts. Although the public’s emotional response did not prevent Dodd’s conviction and execution, it did alarm supporters of traditional criminal justice, who believed that private feeling should not be allowed to interfere with a rigorous administration of the law. In placing too high a value on the emotions, the cult of feeling threatened the moral order upon which justice depended and proponents of the new sentimentalism were accused of privileging emotion over duty. Dodd and his defenders were also suspected of being insincere, their emotions fraudulent and calculated. Despite these concerns, and although the sentimental campaign on Dodd’s behalf failed to save him from the gallows, McGowen concludes that the sympathy expressed contributed to public discontent with the capital code, and thus to demands for reform of the criminal law. Even those who fought against sentimental appeals, he argues, had been forced to acknowledge their power. The celebrated eighteenth-century barrister Thomas Erskine was also a sentimentalist, and like Dodd his courtroom performances provoked a degree of public unease. In Chapter 10, David Lemmings explores concerns expressed in the 1790s about the potential moral and political dangers inherent in lawyerly ‘performance of moral sentiments’ (199) in the courtroom. Apart from the famous treason trials, this decade was remarkable for an increase in high-profile trials for adultery: ‘criminal conversation’ actions in which husbands sued men who allegedly had seduced their wives for financial damages. Both treason and adultery occasioned considerable public alarm in this period. Ungoverned sexuality was linked in the popular imagination to the social disorder unleashed by the French Revolution; political radicalism became associated with an apparent increase in adulterous relationships and the moral deviance of adulterers. Throughout the 1790s, in his work as the principal prosecutor in ‘crim. con.’ cases, Erskine would identify the affective domestic family explicitly as the basis not merely of masculine honour, but of national power, and he became famous for his theatrical appeals to familial sensibilities. Lemmings categorises newspaper and pamphlet reportage of Erskine’s performances as a species of dramatic, social discourse used to shape public conceptions of patriotism and to stoke a fear of Jacobinism. Press accounts of Erskine’s speech and gestures were employed to engage readers’ sympathies, just as happened in the contemporary theatre. Against these narratives, Lemmings juxtaposes anti-theatrical accounts that attempted to disrupt them by deconstructing Erskine’s oratory. This conflicted reportage, he argues, might be understood as evidence of a ‘crisis of moral sentiments’. In treason trials, as leading counsel for the radicals, Erskine played a central role in an anti-panic campaign intended to prevent them from being demonised as proto-revolutionaries. Lemmings considers in particular press coverage of the 1794 trial of Robert Hardy, secretary of the London Corresponding Society. While not neglecting the arguments presented on the law of treason, some reports emphasised that Erskine was a

16  David Lemmings and Allyson N. May man capable of feeling for, and caring about the rights of, humble people. As in his crim. con. prosecutions, Erskine’s speech in this case, drawing on Hardy’s domestic tragedies, made a dramatic appeal to sentiments associated with the private family. The law of treason was interpreted through a domestic lens. Textual accounts of Erskine’s courtroom performance in both criminal conversation and state trials reveal a fundamental disjunction between sentimental and authoritarian emotional cultures. Erskine’s sentimental rhetoric was intended to convince juries and the British public that the very foundations of both society and the constitution were in danger. The ‘theatre of sympathy’ employed, however, had become suspect in the wake of the French Revolution. Erskine’s sentimental oratory was thus mocked and ridiculed by political opponents; it was also occasionally condemned as meretricious as well as politically subversive. Did Erskine’s courtroom performance of moral sentiments reflect genuine feeling, or was it a sham? Ultimately, Lemmings views Erskine’s performances ‘as the apogee of an emotional culture of sensibility around the family and the nation’ (212). This culture, he argues, was threatened by the conservative response to the French Revolution, which included an attempt to replace the theatre of moral sentiments with a less inflamed and inflammatory, and more authoritarian, affective style. Emotional as well as political liberty was at stake in this period of crisis.

Conclusion In Chapter 8 Hal Gladfelder dwelt at some length on the fact that the Malcolm and Picton cases he took as his subject engaged the imaginations of spectators and readers because they were exceptional. So too were most of the cases considered in this collection: trials of treason, rape and infanticide, adultery, the murder of husbands by their wives, or parents by their children, the execution for forgery of a respected and beloved clergyman. Such cases, as Gladfelder notes, attracted public interest ‘precisely because they deviated from the repetitive dullness of the dozen-an-hour, open-and-shut trials that constituted much of the courts’ business’ (00). While ‘the dramatic structure of the jury trial itself created the opportunity for emotional provocation’ (00), only exceptional cases had the power to evoke an emotional response in an audience. It is also striking that many of the cases considered here invoke familial and interpersonal relations, precisely the type of relations which elicit emotional responses in a way, for example, that a trial of someone accused of stealing from a shop or bleaching ground would not. Two further connecting threads run through these various discussions: contemporary differences of opinion as to whether emotives contributed to truth and justice, and anxiety about the theatrical tactics of victims, defendants, and lawyers in the courtroom. Uniting these concerns is the issue of whether the

Historicising Emotions  17 emotions expressed were genuine or contrived. Accusations of deliberate insincerity were made against the Reverend Dodd; barristers Thomas Erskine and Charles Phillips stood equally accused. While many of the chapters in this collection explore the role played by emotion in professional oratory, trial as a form of theatre, as Gladfelder reminds us, predates the coming of the lawyers. In the ‘amateur altercation’ form of the criminal trial, victims and those whom they accused performed emotions, and their performances may have been both suspect and suspected. But the transformation of the criminal trial into a professional adversarial contest, coinciding as it did with the emergence of a new emotional regime rooted in sympathy and sentiment, heightened reservations about the place of emotion in the courtroom. Was the theatre of sensibility compatible with law and order? Some believed that feeling could persuade audiences of reasoned decisions, whereas others were troubled by the potential for deception inherent in emotional appeals. Plu ça change, plus la même chose: the essays in this book reflect creatively and critically on the roles of emotion and theatre at critical points in the history of English and Irish criminal justice.

Notes 1 ODNB, sub. Dodd; G. Howson, The Macaroni Parson (London: Hutchinson, 1973); Gazetteer and New Daily Advertiser, 19 May 1777. 2 J.L. Austin, How to Do Things with Words (Oxford: Clarendon, 2nd edn., 1975). 3 William M. Reddy, The Navigation of Feeling (Cambridge: Cambridge University Press), 99, 105; Howson, Macaroni Parson, ch. 22. 4 See P. Lake and S. Pincus (eds.), The Politics of the Public Sphere in Early Modern England (Manchester: Manchester University Press, 2007); M. Knights, Representation and Misrepresentation in Later Stuart Britain (Oxford, 2005); D. Lemmings and C. Walker, Moral Panics, the Media and the Law in Early Modern England (Basingstoke: Palgrave Macmillan, 2009). 5 See D. Lemmings, ‘Introduction: Criminal Courts, Lawyers and the Public Sphere’, in Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham: Ashgate, 2012), ch. 1. Also, most recently, R.M. Ward, Print Culture: Crime and Justice in 18th-Century London (London: Bloomsbury, 2014). 6 Besides Austin, How to Do Things with Words; see J. Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997). For lawyerisation see J.H. Langbein, The Origins of the Adversary Criminal Trial (Oxford: Oxford University Press, 2003); J.M. Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law and History Review 9 (1991). 7 B. Rosenwein, Emotional Communities in the Early Medieval Ages (Ithaca, NY: Cornell University Press, 2006); Reddy, The Navigation of Feeling; A. Clark, Scandal: The Sexual Politics of the British Constitution (Princeton, NJ: Princeton University Press, 2003). 8 On emotions and power relations, see J. Harding and E.D. Pribram, ‘The Power of Feeling: Locating Emotions in Culture’, European Journal of Cultural Studies, 5 (2002), espec. 416–417.

18  David Lemmings and Allyson N. May 9 Erving Goffman, The Presentation of Self in Everyday Life (New York: Anchor, 1959). 10 S. Ahmed, The Cultural Politics of Emotion (Edinburgh: University of Edinburgh Press, 2nd edn., 2014), espec. 13, 92–100. 11 M. Scheer, ‘Are Emotions a Kind of Practice (And Is That What Makes Them Have a History)? A Bordieuan Approach to Understanding Emotion’, History and Theory, 51 (2012), espec. 209–219. 12 Cf. A.R. Hochschild, The Managed Heart (Berkeley, CA: University of California Press 1983); G. Walker, Crime, Gender and Social Order in Early Modern England (Cambridge: Cambridge University Press, 2003), espec. Ch.4. Cf. N.Z. Davis, Fiction in the Archives (Stanford, CA: Stanford University Press, 1987), 79–83. 13 See J. Mullan, Sentiment and Sociability (Oxford: Clarendon, 1988); G. Barker-Benfield, The Culture of Sensibility (Chicago, IL: Chicago University Press, 1992); J. Todd, Sensibility: An Introduction (London: Methuen, 1986); P. Goring, The Rhetoric of Sensibility in Eighteenth-Century Culture (Cambridge: Cambridge University Press, 2005); A.J. Van Sant, EighteenthCentury Sensibility and the Novel (Cambridge: Cambridge University Press, 1993). 14 M.L. Frazer, The Enlightenment of Sympathy: Justice and the Moral Sentiments in the Eighteenth Century and Today (Oxford: Oxford University Press, 2010). 15 S. Manning, ‘Sensibility’, in T. Keymer and J. Mee (eds.), The Cambridge Companion to English Literature 1740–1830 (Cambridge: Cambridge University Press, 2004), 80–99. 16 N.Z. Davis, Fiction in the Archives (Stanford, CA: Stanford University Press, 1987), 57–58. 17 See, e.g., ibid.; S. Maza, Private Lives and Public Affairs (Berkeley, CA: University of Califronia Press, 1993; J. Brewer, A Sentimental Murder: Love and Madness in the Eighteenth Century (New York: Farrar, Strauss and Giroux, 2004). 18 See D. Lemmings, ‘Emotions, Power and Popular Opinion about the Administration of Justice: The English Experience, from Coke’s “Artificial Reason” to the Sensibility of “True Crime Stories” ’, Emotions: History, Culture, Society, 1 (2017), 61–92. 19 See, e.g., Brewer, Sentimental Murder. 20 A. Smith, The Theory of Moral Sentiments (London: A. Millar, 1759), 403. 21 M. Gaskill, ‘The Displacement of Providence: Policing and Prosecution in Seventeenth- and Eighteenth-Century England’, Continuity and Change, 11 (1996), 341–374; see below, ch. 6. 22 W. Blackstone, Commentaries on the Laws of England (Oxford: Oxford University Press, 2016), i. 93, 204; iv. 11. 23 Harding and Pribram, “Power of Feeling”, 415–418, 420–421; L. Disch, ‘Judith Butler and the Politics of the Performative’, Political Theory 27 (1999), 554–557. 24 Barker-Benfield, Culture of Sensibility, xviii, 224. 25 Butler, Excitable Speech, 15–17, 147, 161; H. Sparkes, ‘Dissident Citizenship: Democratic Theory, Political Courage, and Activist Women’, Hypatia 12 (1997), 74–110.

Part I

Feminine Performances and the Criminal Trial Women’s Emotional Work in the Public Sphere

2 ‘It Will Be Expected by You All, to Hear Something from Me’ Emotion, Performance, and Child Murder in Britain in the Eighteenth Century Dana Rabin Speech Acts, Performativity, and the History of Emotion On Friday 9 August 1754 at Chelmsford in Essex, judge Dudley Ryder heard the case of Frances Cheek, accused of murdering her six-month-old child.1 A neighbour found Cheek ‘kneeling over the body of [her] child, cut plainly with a chicken hook lying by bloody’. When asked why she did it, Cheek ‘said nothing but that she should be hanged and knew nothing of the matter’. A clergyman who saw her after the crime testified that ‘she was then distracted’. In his notes on the case, Ryder concluded that ‘she was two days after clearly not out of her senses, nor now at her trial nor during the intermediate time, nor any evidence given of her having been disordered before, but one witness said she was a hasty passionate woman’.2 When he charged the jury, Ryder told them ‘they must consider whether she did the fact, and if so whether she was out of her senses when she did the fact, immaterial whether she was so afterwards when she reflected what she had done’.3 A disagreement between the judge and the jury ensued. The jury ‘first said they were satisfied she killed the child but doubted her sanity’, which would suggest an acquittal.4 Despite his own admission that Cheek ‘looked wild and disturbed’ during her trial, Ryder ‘explained again to them the nature of the case rather against the prisoner’ and sent them back to deliberate further. Ryder seemed concerned to distinguish between Cheek’s distraught emotional performance at the trial and her emotional state when she killed the child. An hour and a half later—a lengthy deliberation in the eighteenth century—the jury brought in a conviction. Ryder noted that he ‘told them I was very well satisfied’ and pronounced a death sentence to be followed by dissection.5 The conviction rate for infanticide had declined by the second decade of the eighteenth century, so this 1754 conviction stands out as unusual.6 When he handed down Cheek’s death sentence, Ryder reported that ‘I made a very proper speech extempore and pronounced it with dignity’. In his diary, he described his feelings as he spoke the sentence: ‘I was so affected that the tears were gushing out several times against my will’.7

22  Dana Rabin Self-conscious about the public nature of his emotional outpouring, Ryder noted gratefully that ‘it was discerned by all the company—which was large—and a lady gave me her handkerchief dipped in lavender water to help me’.8 The question of Ryder’s sovereignty as a subject—his control over himself and his representation of himself as coherent, masculine, and autonomous, a judge charged with upholding the law and pronouncing sentence—is not really in question here, but his performance in the courtroom that day certainly bears further consideration. And what about the women accused of the crime of infanticide? Although the crime of new-born child murder has drawn considerable attention from historians of crime and historians of women, an examination of the relationship between emotion and performance sheds new light on existing accounts of the crime.9 Beginning with Ryder is quite a deliberate choice for this article. Although women accused of infanticide are its main focus, there is no way to talk about them or to try to reconstruct their emotional lives without thinking through the courtroom as the site where their acts were detailed and judged. Throughout this discussion, we must bear in mind the spaces in which these exchanges took place. The English courtroom’s formality—hierarchical and staid—staged lines of power that clearly marked the presiding judge, wearing a robe and a wig, as the voice of authority in contrast to the female defendant in the dock. The gallows, where the speeches we’ll examine later purportedly took place, has a different feel entirely. Still choreographed, this less controlled setting involved an audience of onlookers, sobbing family members, hecklers, and gawkers that embedded contingency.10 As defined by J.L. Austin in How To Do Things with Words, Ryder’s sentence was a speech act: ‘a performative’ that accomplished an action by its very pronouncement. The example Austin cited most frequently was the wedding vow ‘I do’. Austin argued that rather than dividing speech into declaratives or constantive utterances and performatives, performativity is a characteristic of all utterance, and in order to analyse it one must locate it in ‘a total speech situation’.11 Austin’s project posited the power of language to construct and produce reality rather than just describing it. He tried to tease out ‘what makes the force of an utterance effective, what establishes its performative character?’12 To do this, he distinguished between illocutionary and perlocutionary speech acts, defining illocution as a speech act whose very utterance does something: pronounce a verdict, for example. Perlocutionary speech acts initiate a set of consequences, but the utterance and the consequences are separated in time. In the course of his book, Austin enumerates various ways in which speech acts fail, and as he analyses each of his categories, he concedes that the distinction between them often breaks down. Austin imagines a sovereign subject, coherent, masculine, and very much in control of his performance of himself.13

Emotion, Performance, and Child Murder  23 Austin’s influential work continues to generate scholarly criticism and debate, recognising and analysing the non-normative and the fragmented subject as well as issues of gender, sexuality, and race occluded in Austin’s discussion. Shoshana Felman’s Scandal of the Speaking Body delves into Austin’s distinction between illocutionary and perlocutionary acts from the perspective of what she calls ‘the irreducible scandal: the scandal (which is at once theoretical and empirical, [or] historical) of the incongruous but indissoluble relation between language and the body’.14 Words and speech acts always implicate the body: the broken promise, the object of Felman’s gaze, speaks to the disjuncture. In Excitable Speech, Judith Butler examined the unintended consequences of speech acts, reminding us that speech is not the emblem of mastery and control it purports to be. Thus a speech act always says more, or says differently, than it means to say.15 Her analysis introduces the other meaning of perform as ‘an act’ when she asserts that an act is not a momentary happening but a certain nexus of temporal horizons, the condensation of an iterability that exceeds the moment it occasions, so that any speech act can resignifiy prior context depending for its force and meaning on the gap between the originating context and intentions and affect it produces.16 Referencing Derrida, Butler asserts that performance relies on repetition and citation, and in the process it can interpolate its subject. Furthermore, the speaker ‘renews linguistic tokens of a community’ and history with these references.17 The excitable utterance is a speech act that is made under duress, or when the speaker is ‘out of control’. Such a speaker appears often when the focus is on crime and the courtroom. Untethering the speech act from a sovereign subject in this way allows us to seek an alternative to notions of agency and responsibility. It also allows us to see how the subject is constituted in and through language. Butler argues against her critics, who accuse her of demolishing sovereignty, instead asserting the ‘agency begins where sovereignty wanes’.18 What does this mean? Butler asserts that the linguistic domain over which the subject has no control creates the possibility for the subject to speak. Performativity then is a repeated, ‘renewable’ action without a clear beginning or end. It is defined by its social context and ‘enabled by contexts from which it breaks’.19 The very constraints on speech constitute the possibility of agency in speech.20 The force of the performative utterance is in its ‘capacity to rupture’. It is when a speech act fails that it is left ‘vulnerable to redeployment and appropriation in subversive future uses’.21 Butler concludes that when and if a speech act is successful, its success is not owed to its intentionality but rather to its ‘echo of prior actions that accumulate authority through repetition or citation of

24  Dana Rabin a prior and authoritative set of practices’.22 This citation or repetition creates linguistic community. Was Ryder oblivious to the irony of his claim to have cried against his will as he sentenced to death a woman, whom some jurors believed had acted against her own will? His use of the phrase ‘against my will’ implied his failure to distance his emotions from ‘his very proper speech’. Yet his feelings did not prevent him from performing his judicial duty. By leaving his show of emotion until the pronouncement of the death sentence, Ryder achieved what he deemed an appropriate balance of emotion and justice. When he rejected acquittal and directed the jury to convict Francis Cheek, he asserted his authority over the trial. He enforced justice by insisting on a conviction, and he displayed sensibility when he pronounced the death sentence, accompanied by a speech that attempted to reclaim his own authority and that of middle-class masculinity.23 Addressing jurors as fellow men of sensibility, he reconstituted the trial as the setting for the traditional masculine values of reason and self-control.24 Ryder’s verdict was clearly a speech act, but what about Ryder’s crying? The history of emotions can help us to parse its meaning. Ideas about the expression of emotion in the eighteenth century, especially the emotive lives of elite men, were significantly shaped by the emergence of the language and culture of sensibility. By the mid-eighteenth century, ‘sensibility’, which had referred to physical sensitivities, came to mean an emotional and moral faculty: it denoted a special and admirable susceptibility to one’s own feelings and the feelings of others. As Adela Pinch has remarked, this period was marked by a ‘fascination with trying to account for where feelings come from and what they are’.25 Sentiment and sensibility and the relationship between emotion and morality preoccupied the literature of sensibility at its most influential and widespread from the 1740s to the 1770s.26 Although novels are the best-known expression of the culture of sensibility, philosophical essays, newspapers, sermons, and crime pamphlets also shared these concerns. According to Pinch, ‘the era of sensibility defined relations between middle class British men and women and their social others: Indians, slaves, the poor, and the mad’.27 These relations were modelled in the literature of sensibility, built upon the assumption that life and literature were directly linked. In their capacity to teach, both fictional and true-crime texts ‘showed people how to behave . . . and how to respond decently to life’s experiences’.28 Ryder’s tears link the analysis of performativity we’ve traced so far and the history of emotion, in particular William Reddy’s emphasis on ‘emotives’, the process by which emotions are managed and shaped. Reconstructing a history of emotions relies on both prescriptive, ‘official’ sources about the appropriate way to feel, as well as utterances and gestures that allow the historian to situate the expression within its historical context. To move beyond the didactic, political realm and recover individual and group emotional experience, Barbara Rosenwein seeks out cultural norms

Emotion, Performance, and Child Murder  25 about emotional expression through the identification of emotional communities, social communities, families, neighbourhoods, parliaments, monasteries, parishes, and guilds. Reconstructing systems of feeling, this work seeks to discover ‘what these communities believed was valuable or harmful and the modes of emotional expression they expected, encouraged, tolerated, and deplored’.29 A person moved from one emotional community to another and adjusted his or her emotional displays and judgements accordingly. Rosenwein reminds us to listen for silences and observe seeming emotionlessness as well as exaggeration and irony. If the cultural, political, and social contexts are reconstructed with attention to multiple layers and historical complications, the history of emotion ‘might provide a bridge between individual aspiration and social expectation’.30 The historian must attend to the institutional dimensions of emotion embedded in daily life and recurrent patterns of behaviour in order to tease out a set of shared understandings among people and their mechanisms for cultivating and regulating emotion. While these expectations were often adjusted and revised, and they certainly changed over time, ignoring prescribed codes carried risks as well as opportunities for anyone involved in the courtroom proceedings. Rosenwein advises a methodology that does not concern itself with the actor’s authenticity or sincerity, unless these concerns were raised by the emotional community addressed. Instead, the historian’s task is to understand how these emotional displays interact with each other and what patterns of inclusion and exclusion they produce. She urges special attention to spatially defined emotional styles and how settings induce or invite specific emotions often through memory.31 These socially and culturally constructed emotions ‘sustained and endorsed cultural systems’ that in the mediaeval and early modern period structured the inherently relational social order. We can never access what people ‘truly’ felt, but we can reconstruct patterns of emotional expression, expectation, and regulation to uncover information about social mores, personal relationships, and political control. Eugenia Lean presciently advises historians of emotion to draw on the insights of imperial historians and their emphasis on networks of exchange, power, and multidirectionality—all portable concepts for the history of emotion.32 These ‘narratives of negotiation initiated by emotional expression’ can help us to think about what constitutes agency and subjectivity and to start to understand what cultural work emotion performs. Ryder’s tears at the sentencing may have signalled some limited exchange of emotion, perhaps even compassion, as appropriate only at the post-trial phase of the criminal legal process. Was the judge performing for the jury, the prosecutor, the defendant, those seated in the gallery, or a combination of audiences? The multidirectionality of affective performance leaves its object ambiguous.33 The disjuncture between Dudley Ryder’s harsh verdict and his sentimental display of emotion invokes for

26  Dana Rabin me Felman’s insight about the embodied nature of the speech act. Felman allows us to try to comprehend the incongruence between speech acts (Dudley Ryder’s sentence of death) and his bodily act of crying and requesting a handkerchief with which to cover (and at the same time call attention to) his emotional display.34

Explaining New-Born Child Murder What about the defendants? All historians of crime are drawn in to speculating about what the ‘voiceless’ or common people said and thought inside the courtroom and out. The defendants, or later those convicted, did not have the ability to make a clear speech act as Ryder did. Yet we must acknowledge and consider ‘the unspoken multilayered performative factors especially among socially marginalized populations who cannot be a speaking subject in Austinian sense’.35 In order to attempt to do so, one must use the theory of the history of emotion to connect emotion with performativity. Taking as its focus evidence left by and about women accused of infanticide, many of whom said very little at their trials, the remainder of this essay examines this generative intersection. By focusing on the last dying speeches ascribed to women accused and convicted of murdering their new-born children, we can see the significance accorded to the emotive comportment of the condemned in their final days and moments.36 Allegedly delivered at the gallows, such speeches were published and edited by anonymous authors who wrote for a public eager to read about the feelings and thoughts that had presumably led women to kill. Most of the cases examined here involved unmarried women accused of new-born child murder. The attitude of legal authorities toward women who committed infanticide was determined primarily by the marital status of the accused. Single women accused of infanticide in seventeenth- and eighteenth-century England were tried under the 1624 ‘Act to prevent the destroying and murthering of bastard children’, which presumed that any mother of an illegitimate child who concealed its death was guilty of murder unless she could establish by the oath of at least one witness that the child had been stillborn.37 The statute claimed to address the problem of ‘lewd women’ and asserted that they committed these crimes ‘to avoid their shame’ and ‘to escape punishment’. The statute and its enforcement suggest that in the seventeenth century, infanticide by an unmarried woman was considered a reasoned, premeditated (though immoral and criminal) act undertaken to preserve her reputation and her economic well-being. The statute was repealed in 1803, but research has shown that conviction for infanticide dropped in the eighteenth century.38 Scholars have suggested that the jury’s sympathy with the plight of the unwed mothers accused of the crime and the discomfort of legal authorities with the harsh statute of 1624 and its presumption of guilt accounted for this phenomenon.39 In

Emotion, Performance, and Child Murder  27 Scotland, women were tried under the ‘Act Anent Child Murder’ passed in 1690 largely based on the English law.40 A married woman accused of killing her child was not charged under the Act of 1624 because she was thought to lack the intent to conceal the birth; instead, married women were charged with murder, and they were often acquitted when they claimed to have suffered temporary insanity.41 Unmarried women seldom used the insanity defence when confronted with infanticide because a plea of insanity would entail some (even implicit) admission of guilt and, if unsuccessful, would lead to immediate conviction and possible execution. Instead, these women drew on the ‘loopholes’ in the statute of 1624: single women accused of infanticide testified that the baby was born dead, that the baby died immediately after birth because they were delivered alone, that they had not concealed the pregnancy, or that they had prepared for the delivery and the birth of the child. In the ‘preparation defence’ women cited the provisions they had made for the child during pregnancy as evidence of their intentions to nurture the baby after its birth. Their stories were usually confirmed by a woman in the community who told the court that she knew about the pregnancy and that the mother had made some arrangements for the lying in and had prepared necessary provisions for the child, such as items of clothing. Although these women experienced sex, pregnancy, and childbirth through their immediate emotional community, their speeches were addressed to a larger one—local and national—and as such related to the rhetorical and emotional performances anticipated of all convicted criminals.42 What is the record of affect in these sources? In the last dying speeches of these doomed women, we can see the significance of space and place: the site of the crime, the courtroom, and the gallows all made a significant appearance in accounts of infanticide trials and last dying speeches, and they elicited distinct emotional responses, both from the women accused and from the judges who ruled on their cases.43 Going beyond the flat and detached tone of most of the trial accounts, the pamphlets written after the trial deepen our understanding of emotion in the eighteenth century. These accounts of brutal crimes reveal the ways in which individuals and groups struggled to understand and to reconcile themselves to violence and its consequences. I have argued elsewhere that the greatest elaboration from the defendants themselves at trial came in their descriptions of their states of mind and that interest in these states of mind increased over the course of the eighteenth century. This heightened interest in states of mind grew out of the culture of sensibility and the concern to find the appropriate balance between reason and emotion.44 Our focus here will be on the emotional communities tracked in the pamphlets about the crime, which provide evidence about systems of feelings.45 The pamphlets cited are by no means comprehensive, but they show

28  Dana Rabin patterns in the representation of women’s emotional performances in such cases.46 The last words uttered by the women on the scaffold cannot be verified; however, the pamphlets that their anonymous editors or ghostwriters constructed can tell us about eighteenth-century systems of emotional exchange and the ways in which these shared systems of emotion constituted imagined communities. Because multiple emotional communities had to be satisfied by these texts, expectations clashed and emotional exchanges failed as often as they succeeded. These sources reveal changing expectations about what was considered an appropriate response in these highly emotional situations and what ‘labour’ these emotional texts ‘performed in the service’ of the rupture or the binding of their communities.47

Tracing Emotional Communities Bessy Turnbul was executed ‘for Murdering her own Child’ on 6 April 1709 in Edinburgh, as a broadside declaimed. On the same day an adjoining broadside announced that Margaret Inglis was hanged for the same crime. These two accounts, published together, were tellingly paired by the author or editor, and the explicit contrast exposes traces of the history of emotion. According to the broadside, Bessy had not been discovered during her pregnancy and had instead ‘voluntarily confessed the fact while none accused her or look’d upon [her] as Guilty’. She said that she murdered the child ‘and threw it into a holl (sic), and afterwards went to England’. The account attributed her confession to ‘the pricking of her Conscience’. The text allows us to examine the meaning of this phrase, which reveals the intersection of memory and emotion surrounding the crime. Bessy said that after she absconded to England, ‘still wherever she went, the innocent murdered Bab (sic) appeared before her’, which she reported had ‘troubled her so much that she came back again to the place where she committed the Murder’. Crucial to the account is the convergence of place and emotion. When Bessy came home, she went to the Minister, confessed, and ‘carried him to the place where she had buried the Infant’. Once apprehended, Bessy seems to have experienced a change of heart: she used the preparation defence claiming that she had delivered ‘without help of Women, tho several were at hand, and a medwife (sic) also hard by. And says the Child was Dead Born’. The narrative ends with an assessment of Bessy’s performance of those emotions expected of a condemned criminal at the moment of execution: grief, guilt, and repentance. The author pronounced that in comparison to ‘her Comrad’, Margaret Inglis, Bessy ‘seem’d much more Affected . . ., but not so much as could be wished’.48 Despite her show of remorse, Bessy’s expression fell short. The author’s words reinforce the idea that emotional performances were always tied to expectations. The pamphlet’s author found the detached demeanour of Margaret Inglis much more troubling. According to the pamphlet, Inglis ‘did not

Emotion, Performance, and Child Murder  29 seem to have any suitable concern about Death till within a few days before her Execution’. Her family worked tirelessly trying to secure a pardon for her, and only when her sister informed her that there was little hope that the efforts would succeed did Margaret begin ‘to be a little more concerned about her condition, but not to the degree that were to be wished’. In recounting her lack of an appropriate public emotional response, the pamphlet observes that despite overwhelming evidence (a dead child found in her house and her physical condition matching that of a woman who had just delivered a baby), ‘she never appeared to be duly affected and still denyed that she violently took away the Child’s Life’. The pamphlet circles around again to Margaret’s continued lack of repentance or performance of emotion: ‘even after all hopes of a Reprieve she was ever still continued little affected with her condition’.49 Although Bessy is not mentioned in the broadside about Margaret, the implicit comparison is unfavourable: Margaret disappointed her ghostwriter and those listening to her last words because she failed to exhibit a sufficient level of contrition and remorse on the scaffold. Various meanings about emotion might be discerned from these two short texts. Bessy and Margaret belonged to an emotional community of other single women whose information about sex, pregnancy, and childbirth was limited as fitting to their status, since unmarried women were not supposed to be sexually active. Laura Gowing has argued that their knowledge of childbirth would also have been extremely restricted, as those who attended births generally were married women who already had children.50 Their silence and detachment would be considered appropriate because they lacked a public way to speak about the failed sexual relationships, coerced by dishonourable masters or their sons or based on a promise of marriage that did not work out, and because they were burdened by the shame of an illegitimate pregnancy. In fact, their preoccupation during these prohibited experiences would have been to hide and conceal them.51 The content and tone of these texts, their gaps and contradictions, and their particular preoccupations indicate that they spoke to several audiences at once, trying to satisfy a range of sometimes contradictory social, cultural, political, and emotional expectations, not always successfully or completely. This may explain the frustration of their authors when the women did not perform as expected. At the scaffold condemned criminals, usually flanked by members of the clergy, generally sought forgiveness from their neighbours and from God, accepting execution as a just punishment for a sinful life. The prisoner often asked onlookers to join him or her in prayer, performing repentance and seeking religious reconciliation. For the purposes of the state, the legal authorities, and even those in attendance in the crowd, the last dying speech was supposed to render a performance of guilt and contrition that would conform to the anticipated ritual of execution and affirm the legal system, its findings, and its punishments.52 A good

30  Dana Rabin execution was necessary to vindicate the conviction and to affirm the truthfinding capacity of the legal system as a whole. But the scaffold speech was a contingent setting, the stakes were high, and as Andrea McKenzie has shown, so was the incidence of transgression in which the punished refused to follow the scripted format.53 And the women in question had already failed to perform as expected by becoming pregnant outside of marriage and being convicted of killing their infants. As she awaited her punishment, Margaret Inglis continued to deny her guilt, and ‘she did not seem to have any suitable impression of her condition or future state, and gave but a very indifferent account of the grounds of her faith’. Rather than confessing her guilt at the scaffold, asking the crowd’s forgiveness, and remonstrating against less serious sins such as swearing, drunkenness, and Sabbath breaking, Margaret’s recalcitrant attitude persisted: ‘she did not give full Satisfaction to the Ministers who attend[ed] her; neither with Respect to the grounds of her Hope, nor in a Confession of the Crime for which she Suffered’.54 Margaret’s speech act, her refusal to recite the usual cautionary tale from the repentant criminal, compelled the pamphlet’s author to articulate the warning to his readers to live a good and faithful life. While Austin would not have defined it as such, Butler’s critique and its emphasis on expectation makes clear that Margaret’s refusal constituted a speech act. In contrast to Margaret Inglis, Agnes Craig’s emotions were described in more detail, accommodating the expectations of a condemned prisoner awaiting execution. She confessed to fornication in 1717 with William Hiddelston, the father of the child, whom she said was born dead. The account of her trial and execution referred to a wide range of emotions that included desperation, shame, sorrow, and repentance. Agnes said she was ‘very Desperate’ when her mother discovered her second pregnancy outside of marriage and beat her for it. After she gave birth to her stillborn child, alone and outside on a snowy night, Agnes recounted that she ‘took her Napkin from about her Neck and wrapt it therein, and laid it betweixt two Stones, in her Mother’s Yeard Dike’. When asked why she did that, Agnes answered that ‘she did it for the shame of the World, and fear of her Mother’s Anger’. Duly convicted, she concluded her speech ‘Professing’ that she was ‘truly Sorrowful and Penitent for her sins’.55 Instead of the trope of the single woman, living in an urban setting, far from her family, and facing pregnancy out of wedlock and alone, this pamphlet prominently features the parents of both Agnes and William and their emotional responses to these events. Agnes’ mother ‘was so enraged at her’ about the pregnancy, while William’s father spoke at him ‘in a great passion’ when he discovered the pregnancy, along with William’s attempt to feed Agnes an abortifacient, which caused her immediately to become ‘sick and disordered’.56 This description of the parents’ involvement conveys the anguish of the families, similar to the parents and sister of Margaret Inglis, who feared the fatal consequences of their children’s transgressions. The rage of both sets of parents contributed to

Emotion, Performance, and Child Murder  31 and shaped the shame and despair that Agnes expressed in her confession. Her expansive expression of shame, grief, sorrow, and repentance indicates the stakes for her mother’s reputation in the community and the family’s capacity to command respect, and it may also have served as a sort of apology from a daughter to her mother. In the introduction to Margaret Millar’s scaffold speech in February 1726, the author of the pamphlet explained that even those crimes undetected by human investigation will be exposed by ‘the all-seeing Eye of the Almighty’. Once revealed, the offender’s public punishment served to provide ‘Terror and Example to others’. Here we see clearly the scaffold as a scene of emotional exchange; the performance of guilt, grief, and repentance by the convicted criminal was to elicit fear and terror as well as pity and sorrow among the witnesses in attendance. Margaret Millar’s ghostwritten scaffold speech addressed this expectation explicitly, situating these accounts as a genre: ‘Dear People, since I am by the Just Sentence of the Law, condemned to suffer this Day a shameful and cursed Death, for that unnatural and cruel Fact, it will be expected by you all, to hear something from me’. After recounting the story of her life and her crime, she counselled her listeners by her example: ‘Vice hath brought me to this unhappy and untimely End’.57 As Kristina Straub has asserted, popular texts and performances shaped social relations by conveying dominant ideologies about hierarchies of power. At the heart of many of these texts was the family, integral to ideas about the social order, normative behaviours, and values. Many of the young people, both the young women and their male partners described in pamphlets we have examined, worked as servants. Straub argues convincingly that servants were considered children, integrated into the families for whom they worked, their masters and mistresses charged with teaching and mentoring them. Servants were threatening for many reasons, among them their mobility and their autonomy, which destabilised the social order. While barred from having sex and even from matrimony while in service, the active, transgressive sexuality of both male and female servants was a constant source of discussion, debate, and anxiety for their masters and for cultural commentators.58 Given this context, the pamphlets may have served as a means of containing the danger attributed to women accused of infanticide. By attributing to them vulnerability and tenderness, regretfulness and remorse, the pamphleteers made the women seem less threatening and predatory. In an age of sensibility where emotional displays infused many texts, these pamphlets served a very specific purpose. Rather than asserting a regime of law aimed at adult males, these affective texts endeavoured posthumously to reintegrate the women into familial networks and affix them to their proper subordinate place in the social order through the performance of affective bonds. The pamphlets played a powerful role in restoring stability and reaffirming societal norms defied by sex outside of marriage and its results.

32  Dana Rabin The anguish, regret, and shame typical of the confessions of the single women convicted of new-born child murder contrast the anger, vengeance, and rage that animate Francis Parker in an Account from 1705. Unlike the other women discussed so far, Francis was married to a mariner, the father of her child. The marriage, however, did not work out as planned. Mr. Parker sailed for Leghorne and ‘the ship returning without him, [Mrs. Parker] had news that he had Married one of the natives of that country’. Upon confirming this rumour, Francis Parker ‘was resolved to Revenge her self of this for it’s (sic) Father’s folly; and so resolved to put it out of the World’.59 She returned home to Chatham in Kent on 5 July 1705, and immediately fetched her child, one and a half years old, from the neighbour. As the Account continued, ‘no sooner did she enter the Room, but she lock’d her Door to her, and afterward took out a Case-Knife and cut it’s (sic) Throat’. The author attributed feelings of revenge and rage to Francis and articulated them: at the moment of the murder, the offender was alleged to have pronounced that ‘since it’s (sic) Father had left her, she would destroy the seed, and not be plagued with anymore of his Blood’. By concluding that Francis ‘committed this Barbarous Fact, without any Remorse or Dread of either the Laws of God or Man’, the Account records an expression of the anger of a married woman wronged by a husband who has left her.60 It represents the murder as a planned but rageful response to a husband’s abandonment. The pamphlet does not condone, excuse, or justify Parker’s crime, but it acknowledges her emotional explanation for her violent act, balanced by her appropriate behaviour after her condemnation. Once convicted and imprisoned to await execution, ‘she behaved herself very well’, and at her execution she asked several ministers to pray with her and asked that the onlookers join her in prayer. She asked for ‘Divine Assistance: help me, O Father, and give me a Heart of Repentance’.61 A poem attributed to Parker, titled ‘Her Legacy to the World’, appends the pamphlet. In verse she warned other ‘tender Mothers’ and made reference to several emotions. Citing ‘discontent’ caused by her wayward husband, she explained that she was ‘in Passion’ when she killed her child. Although she repeated that she died ‘in shame’ and ‘in scorn’ with no pity from anyone, she mentioned her ‘Friends . . . who for me grieve’, attributing sadness to them.62 This poem and the wide range of feelings it expresses allows us to see the text’s capacity to speak to the different emotional communities. The despair and passion that drove Parker to murder seem to be directed as a warning to men, specifically married men, but they also address women and wives. The shame and scorn are those of a condemned and regretful criminal. The sadness of friends reminds us of Parker’s neighbours, who watched her child while she was away. Although short and unelaborated, this poem renders a picture of Parker nested in layered and complex networks of affective relationships.63 As a married woman, wronged by her husband, Parker may have felt entitled to a more expansive expression of this range of emotions.

Emotion, Performance, and Child Murder  33

Reading Silences The pamphlets purport to recount the words of those women convicted of the crime as they faced punishment. What about the women accused of infanticide who said nothing in court about their experiences or those who sat mute while the sentence was pronounced? Performance theory helps us to read their silences. In Touching Feeling: Affect, Pedagogy, Performativity, Eve Kosofsky Sedgwick raises the question about the two very different definitions of performativity. Its theoretical use ‘to carry out in action, execute, fulfill’ follows Austin and addresses the accomplishment of a speech act or acts. But the work of scholars in gender and cultural studies often draws on its theatrical meaning ‘to act or play a part or a role in a play; to represent a character on stage or to an audience’.64 These two very different uses point to contrasting realms of meaning: as an act, a performance falls within theatrical discourse that can signal the dramatic and non-referential; its use in speech act theory invites deconstruction. How can we keep both meanings at play and take our subjects and their courtroom contexts and stakes seriously? Sedgewick suggests that using the preposition ‘beside’ to replace or supplement the search ‘beneath’ and ‘behind’ provides a framework that allows for several different interpretations of a speech act to coexist.65 In pursuing further the study of performativity, Sedgwick reframes the conversation replacing the epistemological with an emphasis on phenomenology and affect. Shifting our gaze to structures of consciousness and intentionality and how they are directed allows us to attend to questions about what motivates performativity and performance and what affects are mobilised in their expression. Sedgwick introduces a new term, periperformatives, those that ‘allude to explicit performative utterances’. Although they are ‘not themselves performatives, they are about performatives and more properly they cluster around performatives’, ‘they are near them or next to them or crowding against them; they are in the neighbourhood of the performance’.66 This kind of periphery performativity is exemplified by the women accused of infanticide who stand in court, saying little or nothing. The periperformative allows us to read these silences within ‘the unspoken multilayered performative factors especially among socially marginalized populations who cannot be a speaking subject in Austinian sense’.67 Ann Arnold’s case from 1813 rings with echoes of Dudley Ryder’s notes with which we started. The judge in Arnold’s case advised the jury that in view of the circumstances and the prisoner’s confession, there was ‘little ground to doubt the truth of the charge’, and the jury brought in a guilty verdict. The judge then addressed the prisoner ‘in the most affecting manner’, after which he pronounced a sentence of death by hanging followed by dissection and anatomisation.68 The pamphlet concludes: ‘his Lordship was so much affected in passing sentence that he could not refrain from tears’. In contrast, ‘the prisoner appeared but little affected with her awful

34  Dana Rabin state’.69 By classifying the woman’s silence as periperformative, Sedgwick reminds us to consider what she calls ‘a spatialised and local performativity’ as a way to tack back and forth between the two meanings of performativity. The tools supplied by periperformativity allow for refusal, fracture, and dissonance—looking beside to open up our analysis. Sara Ahmed’s work on queer phenomenology helps us find what is absent, attending to ‘the background, the temporal, situational, and historic’. To see those excluded by the ‘sedimented histories’ of bodies oriented toward each other, created by repeated and habitual actions, Ahmed advises that one must be aware of contingency and look for moments of disorientation.70 To unsettle these familiar orientations and deviate from certain ‘conventional scripts’, Ahmed suggests disturbing the order of things to make the familiar strange in order to follow ‘alternative lines that cross the ground in unexpected ways’.71 The payoff for the history of emotions, performativity, and speech acts is that we will see those who are silenced and excluded, recognise them, and perhaps gain some insight as to how and who normative patterns include and exclude. These cases reveal the gendered affective impact of the courtroom and the power dynamics in the room.72 The male judges concerned to perform their heightened emotions inhabit a position of power that enables them to do so while still upholding notions of an objective justice that considers only ‘the nature of the case rather against the prisoner’. The female defendant, clearly subordinated and lacking the right of expression, masked her emotions and left the impression that she was ‘but little affected with her awful state’. If emotion and emotional performance was indeed a form of exchange among emotional communities, her apparent emotional detachment is unsurprising. In a courtroom with no one from her emotional community, no emotional exchange took place.73

Conclusion Barbara Rosenwein has encouraged us to see emotions as ‘narratives of negotiation’ that can inform us about what people valued in the past.74 The pamphlets and other legal documents of the long eighteenth century leave traces of these negotiations. The women at the centre of these events, the mothers, wed and unwed, accused and convicted of murdering their children, deployed their last dying words in complicated ways that served to uphold and affirm ideas about sin and redemption as well as the judicial system and its findings and also to express their shame, contrition, sorrow, and repentance. The words attributed to them convey apologies, expressions of faith, anger, resentment, sadness, grief, repentance, justification, excuse, and regret. Whether the women authored them or not, these sources represent an attempt by an individual and her communities to grapple with a violent rupture and to reconcile themselves to the implications of a violent transgression. In the words of Benno Gammerl, the

Emotion, Performance, and Child Murder  35 emotions expressed serve as ‘liminal’ ‘thresholds that separate and connect’.75 They distanced the criminal from the crime and simultaneously drew her closer to her emotional communities. In trial transcripts of infanticide cases, defendants typically appeared as isolated and solitary figures who rarely spoke, unless to utter a submissive and formulaic defence, and they stood accused, often correctly, of trying to hide and conceal from their families and households. In contrast the pamphlets allow us to imagine the affective lives of these women—or the men who ventriloquised them—within their multiple worlds of family, household, and village. The sudden outpouring of emotion from a seemingly detached speaker—whether an accused woman or a judge— confirms that the affective and unemotional realms should not be defined as opposites. Similarly, this evidence ‘unsettles the dichotomous distinctions’ between the private affective response as authentic and the public as instrumental.76 These interactions are multilayered and reveal the contradictory strands of these women’s lives and their attempts to resolve them in their final moments. The high stakes of such performances for both the individual and those interested in her fate is evidenced when we consider how much work these last words had to do. The emotional expectations, responses, and performances that surround these extreme cases may allow us to reconstruct the emotional histories of more ordinary people in less extraordinary situations. In this chapter we can see how certain emotions are performatively evoked and produced during and after the scaffold speech, whether by the convicted woman awaiting her execution or by the ghostwriters who edited and published the pamphlets. These ‘excitable speeches’, constrained by the restrictions of the genre and the very contingency of the scaffold as the setting, allowed for the possibility of agency. The emotions evoked sometimes contradicted each other and elicited a range of responses from those listening. They did not appeal to all of the emotional communities addressed, nor could they because the emotional communities addressed were neither uniform nor heterogeneous. While they succeeded in uniting some emotional communities around certain feelings, they failed when they excluded others or contradicted or ignored their expectations. This theoretical framework provides us with tools with which to consider the silence of women in the courtroom and their seeming emotionlessness. The periperformative countenances ‘a spatialised and local performativity’, especially when set beside the emotive scaffold speeches.

Acknowledgements The author would like to thank Allyson May and David Lemmings for their invaluable comments. In addition, this paper is enriched by the suggestions and insights of David Cressy, Onni Gust, Craig Koslofsky, Andrea McKenzie, and Carolyn Strange.

36  Dana Rabin

Notes 1 Ryder was on the Home Circuit at the time of the trial. Ryder presided at the Old Bailey sessions held in October 1754, April 1755, October 1755, and April 1756. Ryder’s Notes are in Lincoln’s Inn Library. His use of shorthand enabled him to record many of the trial’s details. John Langbein has written extensively about Ryder’s Notebook and his Assize Diary. For more on these sources, their reliability, and uses for legal historians, see ‘Shaping the Eighteenth-Century Trial: A View from the Ryder Sources’, University of Chicago Law Review 50 (1983), 1–136. 2 Notes made by Dudley Ryder on cases at the Home Circuit assizes, 1754–55, 4. 3 Ibid. 4 For more on insanity defences, see Joel Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995), Dana Y. Rabin, Identity, Crime, and Legal Responsibility in Eighteenth-Century England (New York: Palgrave, 2004), and Nigel Walker, Crime and Insanity in England. Volume one: The Historical Perspective (Edinburgh: University of Edinburgh Press, 1968). 5 Notes made by Dudley Ryder on cases at the Home Circuit assizes, 1754–55, 4. 6 Conviction rates were high in the early seventeenth century and even in the late seventeenth and early eighteenth century. By the middle of the 1720s, however, J.M. Beattie notes ‘a striking shift in attitudes’ toward the women accused of infanticide. Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press, 1986), 118–119, 122. Mark Jackson’s findings for the Northern Circuit qualify Beattie’s conclusions. Jackson suggests that the prosecution rate may not have fallen at the same rate all over the country. Jackson’s conclusion, based on depositions rather than indictments and trial transcripts, shows that suspicion of the crime persisted throughout the eighteenth century and undermines evidence of public sympathy for those women accused of infanticide. Mark Jackson, New-Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth-Century England (Manchester: Manchester University Press, 1996), 13–14. Garthine Walker argues that the number of successful prosecutions of women for infanticide in the seventeenth century was not as high as previously asserted. G. Walker, Crime, Gender and Social Order in Early Modern England (Cambridge: Cambridge University Press, 2003), 148–157. 7 Notes made by Dudley Ryder on cases at the Home Circuit assizes, 1754–55, 5. For an analysis of another ‘weeping judge’ in a slightly later period, see Thomas Dixon, ‘The Tears of Mr Justice Willes’, Journal of Victorian Culture, 17, 2 (2012), 1–23. 8 Notes made by Dudley Ryder on cases at the Home Circuit assizes, 1754–55, 4. 9 The term infanticide is, as Mark Jackson has argued, vague and anachronistic. Almost all of the cases discussed here involved the death of a new-born infant. Jackson, New-Born Child Murder, 5–6. For more on infanticide, see Mary Clayton, ‘Changes in Old Bailey Trials for the Murder of Newborn Babies, 1674–1803’, Continuity and Change, 24 (2009), 337–359; Laura Gowing, ‘Women’s Bodies and the Making of Sex in Seventeenth-Century England’, Journal of Women in Culture and Society, 37 (2012), 813–822; Frances Dolan, Dangerous Familiars: Representations of Crime in England, 1500–1700 (Ithaca, NY: Cornell University Press, 1994); Robert Malcolmson, ‘Infanticide in the Eighteenth-Century’, in J.S. Cockburn (ed.), Crime in England, 1550–1800 (Princeton, NJ: Princeton University Press, 1977), 187– 209 and Keith Wrightson, ‘Infanticide in European History’, Criminal Justice History, 3 (1982), 1–20. For a literary and cultural analysis, see Josephine

Emotion, Performance, and Child Murder  37 McDonagh, Child Murder and British Culture, 1720–1900 (Cambridge: Cambridge University Press, 2003). 10 For more on spatial considerations, see James Epstein, ‘Spatial Practices/Democratic Vistas’, Social History 24 (1999), 294–310 and Doreen Massy, For Space (London: Sage, 2005). For a cultural and social analysis of gallows speeches in early modern England, see Andrea McKenzie, Tyburn’s Martyrs: Execution in England, 1675–1775 (London: Hambledon, 2007) and J.A. Sharpe, ‘“Last Dying Speeches”: Religion, Ideology and Public Execution in SeventeenthCentury England’, Past and Present, 107 (1985), 144–167. 11 J.L. Austin, How to Do Things with Words (Cambridge, MA: Harvard University Press, 1962). 12 Judith Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997), 2. 13 Austin, How to Do Things, 94–109. 14 Shoshana Felman, Scandal of the Speaking Body: Don Juan with J. L. Austin, or Seduction in Two Languages (Palo Alto: Stanford University Press, 2003), 5. 15 Butler, Excitable Speech, 10. 16 Ibid., 14. 17 Ibid., 39. 18 Ibid., 16. 19 Ibid., 40. 20 Ibid., 41. 21 Judith Butler, ‘Burning Acts, Injurious Speech’, in Sara Salih (ed.), The Judith Butler Reader (Oxford: Wiley Blackwell, 2004), 214. 22 Ibid., 221. 23 On masculinity, see Karen Harvey, The Little Republic: Masculinity and Domestic Authority in Eighteenth-Century Britain (Oxford: Oxford University Press, 2012) and Tim Hitchcock and Michele Cohen, eds., English Masculinities: 1660–1800 (New York: Longman, 1999). 24 For more about ideas on sensibility and its relationship to masculinity and the change in these ideas over the course of the eighteenth century, see the literature on sensibility cited below as well as Rabin, Identity, Crime, and Legal Responsibility. 25 Adela Pinch, Strange Fits of Passion: Epistemologies of Emotion, Hume to Austen (Palo Alto: Stanford University Press, 1996), 2. 26 Janet Todd, Sensibility: An Introduction (London: Routledge, 1986), 9. The work on sensibility is tremendously rich and provocative. Some of the most helpful insights for this study emerged from Nancy Armstrong, Desire and Domestic Fiction: A Political History of the Novel (Oxford: Oxford University Press, 1987); G.J. Barker-Benfield, The Culture of Sensibility: Sex and Society in Eighteenth-Century Britain (Chicago, IL: University of Chicago Press, 1992); Barbara Benedict, Framing Feeling: Sentiment and Style in English Prose Fiction, 1745–1800 (New York: AMS Press, 1994); R.F. Brissenden, Virtue in Distress: Studies in the Novel of Sentiment from Richardson to Sade (New York: Barnes and Noble, 1974); Alan T. McKenzie, Certain, Lively Episodes: The Articulation of Passion in Eighteenth-Century Prose (Athens, GA: University of Georgia Press, 1990); John Mullan, Sentiment and Sociability: The Language of Feeling in the Eighteenth Century (Oxford: Clarendon Press, 1988); Pinch, Strange Fits of Passion; Todd, Sensibility; and Ann Jessie Van Sant, Eighteenth-Century Sensibility and the Novel: The Senses in Social Context (Cambridge: Cambridge University Press, 1993). 27 Pinch, Strange Fits of Passion, 11. 28 Todd, Sensibility, 2.

38  Dana Rabin 29 Barbara H. Rosenwein, ‘Worrying about Emotions in History’, American Historical Review, 107 (2002), 842. 30 Eiko Ikegami, ‘Emotions’, in Ulinka Rublack (ed.), Oxford Concise Companion to History (Oxford: Oxford University Press, 2012), 338. 31 Barbara Rosenwein, ‘Problems and Methods in the History of Emotions’, Passions in Context: Journal of the History and Philosophy of the Emotions 1 (2010), available online at www.passionsincontext.de/index.php?id=557, accessed 17 June 2013. 32 Barbara H. Rosenwein et al., ‘AHR Conversation: The Historical Study of Emotions’, American Historical Review, 117 (2012), 1519. 33 Dixon makes this point in a cautionary note against the interpretation of tears as merely indicative of ‘sentiment’. ‘The Tears’, 3. 34 Felman, Scandal of the Speaking Body. 35 Akiko Takeyama (Anthropology, University of Kansas), e-mail exchange with author, 12 October 2013. As Keith Jenkins has argued, ‘silence speaks volumes’. Our acknowledgement and consideration of this silence is not the same as giving voice to those silenced. ‘On History, Historians and Silence’, History Compass, 2 (2004), 1–4. 36 McKenzie, Tyburn’s Martyrs and Sharpe, ‘ “Last Dying Speeches” ’. For more on broadsides, see Ballads and Broadsides in Britain, 1500–1800, eds. Patricia Fumerton, Anita Guerrini, and Kris McAbee (Burlington, VT: Ashgate, 2010). 37 21 Jac. 1, c. 27. The statute is also known as the Concealment of Birth of Bastards Act.   I. Whereas, many lewd women that have been delivered of bastard children, to avoid their shame, and to escape punishment, do secretly bury or conceal the death of their children, and after, if the child be found dead, the said women do alledge that the said child was born dead; whereas it falleth out sometimes (although hardly it is to be proved) that the said child or children were murthered by the said women, their lewd mothers, or by their assent or procurement:   II. For the preventing therfore of this great mischief, be it enacted by the authority of this present parliament, That if any woman after one month next ensuing the end of this session of parliament be delivered of any issue of her body, male or female, which being born alive, should by the laws of this realm be a bastard, and that she endeavour privately, either by drowning or secret burying thereof, or any other way, either by herself or the procuring of others, so to conceal the death thereof, as that it may not come to light, whether it were born alive or not, but be concealed: in every such case the said mother so offending shall suffer death as in case of murther, except such mother can make proof by one witness at the least, that the child (whose death was by her so intended to be concealed) was born dead. 38 43 Geo. III, c. 58, Offences Against the Person Act, is known as Lord Ellenborough’s Act. The drop in convictions for infanticide is described in Beattie, Crime and the Courts, 113–124; Peter Hoffer and N.E.H. Hull, Murdering Mothers: Infanticide in England and New England, 1558–1803 (New York: New York University Press, 1981), 65–91; Jackson, New-Born Child Murder, 133–134; and Malcolmson, ‘Infanticide in the Eighteenth Century’, 196–198. Jackson points out that the drop in trial jury convictions accompanied a rise in grand jury dismissals of accused women and findings of natural death or still birth by coroner’s juries. Garthine Walker argues that historians have overstated the severity of the statute of 1624 and overlooked the opportunities for mitigation and pardon that it created. Crime, Gender and Social Order, 150.

Emotion, Performance, and Child Murder  39 39 Beattie, Crime in the Courts, 120–124, Jackson, New-Born Child Murder, 133–150. 40 For more on infanticide in Scotland, see Deborah A. Symonds, Weep Not for Me: Women, Ballads, and Infanticide in Early Modern Scotland (State College, PA: Pennsylvania State University Press, 1997). 41 Matthew Hale (1609–1676) treated the crime of infanticide as a special case within the category of insanity. History of the Pleas of the Crown, ed. Sollom Emlyn (2 vols., London, 1736), 1:36. 42 Rosenwein, ‘Worrying about Emotions in History’, and ‘Problems and Methods in the History of Emotions’. 43 On spatially defined emotional styles, see Benno Gammerl, ‘Emotional Styles—Concepts and Challenges’, Rethinking History: The Journal of Theory and Practice, 16 (2012), 161–175 and Doreen Massey, For Space (London: Sage, 2005) and ‘Places and Their Pasts’, History Workshop Journal, 39 (1995), 182–192. 44 Dana Y. Rabin, ‘Bodies of Evidence, States of Mind: Infanticide, Emotion, and Sensibility in Eighteenth-Century England’, in M. Jackson (ed.), Infanticide: Historical Perspectives, 73–92 and Rabin, Identity, Crime, and Legal Responsibility, ch. 4. 45 Rosenwein, ‘Worrying about Emotions’, 842. 46 Rosenwein et al., ‘Historical Study of Emotions’, 1503. 47 Ibid., 1504. For an analysis of women’s scaffold speeches, see Frances E. Dolan, ‘ “Gentlemen, I have one thing more to say”: Women on Scaffolds in England, 1563–1680’, Modern Philology 92 (1994), 157–178. 48 The confession and last words of Bessy Turnbul, who was execute [sic] at Edinburgh, April 6th. 1709; for murdering her own child (Edinburgh: University of Edinburgh Press, 1709), 1. 49 The last words and confession of Margaret Inglis, who was Executed at Edingburgh the 6th. of April 1709 (London, 1709). 50 Early modern understandings of pregnancy, the body, and childbirth are described as circulating in a sphere of female networks and knowledge. Valerie Fildes, ed., Women as Mothers in Pre-Industrial England: Essays in Memory of Dorothy McLaren (London: Routledge, 1990). Laura Gowing describes how knowledge about the birthing process was controlled by married women and suggests the impact this had on single pregnant women in ‘Secret Births and Infanticide in Seventeenth-Century England’, Past and Present, 156 (1997), 87–115 and in ‘Ordering the Body: Illegitimacy and Female Authority in Seventeenth-Century England’, in Michael Braddick and John Walter (eds.), Negotiating Power in Early Modern Society (Cambridge: Cambridge University Press, 2001), 43–62. In ‘Pregnancy, Childbirth, and the Female Body in Early Modern Germany’, Past and Present, 150 (1996), 84–110, Ulinka Rublack suggests that married men were often included and involved in their wives’ pregnancies and labour. 51 For more on illegitimacy, see Richard Adair, Courtship, Illegitimacy and Marriage in Early Modern England (Manchester: Manchester University Press, 1996). 52 Sharpe, ‘“Last Dying Speeches”’. 53 For more on the contingency of the scaffold speech, see Thomas Laqueur, ‘Crowds, Carnival and the State in English Executions, 1604–1868’, in A.L. Beier, David Cannadine, and James Rosenheim (eds.), The First Modern Society: Essays in English History in Honour of Lawrence Stone (Cambridge: Cambridge University Press, 1989), 305–355; Peter Linebaugh, ‘The Tyburn Riot Against the Surgeons’, in Douglas Hay, Peter Linebaugh, John G. Rule, E.P. Thompson, and Cal Winslow (eds.), Albion’s Fatal Tree: Crime

40  Dana Rabin and Society in Eighteenth Century England (New York: Pantheon, 1975), 65–117, and A. McKenzie, ‘Martyrs in Low Life? Dying “Game” in Augustan England’, Journal of British Studies, 42 (2003), 167–205 and McKenzie, Tyburn’s Martyrs. 54 The last words . . . Margaret Inglis. 55 The Confession of Agnes Craig, daughter to the deceased John Craig and Agnes Grierson, who lives at the bridge-end of Minnijve in the paroch of Glencairn when the said Agnes Craig was execute in Drumfries, on Wednesday being the 5th of June, anno 1717. For the murdering of hct [sic] own child (Edinburgh: University of Edinburgh Press, 1717), 1. 56 The pamphlet mentions that he gave her a concoction that included bullfist (OED) which is also known as a puffball and can be poisonous. The Confession of Agnes Craig, 1. 57 The last speech and dying words of Margaret Millar, coal-bearer at Coldencleugh who was execute 10 February 1726 at the Gibbet of Dalkeith, for murdering her own child (Edinburgh: University of Edinburgh Press, 1726). 58 Kristina Straub, Domestic Affairs: Intimacy, Eroticism, and Violence between Servants and Masters in Eighteenth-Century Britain (Baltimore: The Johns Hopkins University Press, 2009), chs. 1–2. Work on servants includes J.J. Hecht, The Domestic Servant Class in the Eighteenth Century (London: Routledge, 1955); Bridget Hill, Women Alone: Spinsters in England, 1660–1850 (New Haven: Yale University Press, 2001); D.A. Kent, ‘Ubiquitous but Invisible: Female Domestic Servants in Mid Eighteenth-Century London’, History Workshop Journal, 28 (1989), 111–128, Tim Meldrum, Domestic Service, and Gender, 1660–1750: Life and Work in the London Household (London: Longman, 2000), and Carolyn Steedman, Master and Servant: Love and Labour in the English Industrial Age (Cambridge: Cambridge University Press, 2007). 59 A full and true account of the tryal and condemnation, and execution of Francis Parker (a sea-mans wife) at Maidstone in Kent, on Tuesday the 24th of July, 1705 . . . Together with an account how she murdered her child, . . . (London, 1705), 3. 60 Ibid., 4–5. 61 Ibid., 6. 62 Ibid., 8. 63 Rosenwein et al., ‘Historical Study of Emotions’, 1519. 64 Eve Kosofsky Sedgwick, Touching Feeling: Affect, Pedagogy, Performativity (Durham, NC: Duke University Press, 2003), 4–7. 65 Ibid., 8. 66 Ibid., 68. 67 Akiko Takeyama (Anthropology, University of Kansas), e-mail exchange with author, 10/12/2013. 68 The Trial at Large of Ann Arnold, for The Wilful Murder of Her Infant Child, under Five Years of Age, by Drowning Him in a Pond at Spexhall, in The County of Suffolk (Bury St. Edmunds, 1813), 15. 69 Ibid. 70 Sara Ahmed, ‘Orientations: Toward a Queer Phenomenology’, GLQ: A Journal of Gay and Lesbian Studies, 12 (2006), 552. 71 Ibid., 570. 72 Rosenwein et al., ‘Historical Study of Emotions’, 1496 and Gammerl, ‘Emotional Styles’, 164–166. 73 Rosenwein et al., ‘Historical Study of Emotions’, 1504. 74 Rosenwein, ‘Passions in Context’, 11, 20. 75 Gammerl, ‘Emotional Styles’, 162. 76 Ibid., 169, 164.

3 The Prosecutorial Passions An Emotional History of Petty Treason and Parricide in England, 1674–1790 Andrea McKenzie Introduction Scholars have long emphasised the importance of words and appearances in defining, shaping, and circumscribing the experience of women in early modern and Hanoverian England. This is perhaps especially apparent in the highly discretionary world of the eighteenth-century criminal trial, where the credibility of defendants was explicitly linked to their character as perceived through both their own courtroom testimony and behaviour and that of witnesses. This essay examines the trials of women charged at the Old Bailey with petty treason, the murder of a husband, or (more rarely) a master or mistress, a crime which—at least ­theoretically—struck at the heart of the social and gender hierarchy, and was subject to the horrific aggravated punishment of death by burning. Parricide, often seen by contemporaries as an equivalent offence, was a still rarer crime, with no woman thus charged at the Old Bailey in my period. However, I will conclude by briefly comparing and contrasting two cases of men charged with matricide at the Old Bailey, in 1722 and 1735, with the famous case of Mary Blandy, hanged in Oxford in 1752 for poisoning her father.1 My aim is to explore the ways in which emotions expressed or enacted by (or attributed to) courtroom actors were reported in such trials for domestic lèse majesté—crimes which elicited (or should have but did not, as we shall see, always elicit) powerful feelings in regard to both perpetrators and victims. I am particularly interested in exploring the connections between exculpatory narratives—excuses—and ultimate verdicts, as well as the representation of both defendants and victims in the larger newspaper and pamphlet press. To what degree did the ‘accused speaks’ trial, revolving around the direct interrogation of the prisoner by the court, the format that dominated until the late eighteenth century, provide ordinary defendants with some measure of agency, as some scholars have suggested?2 Building upon recent work from scholars of the history of the emotions (or the ‘affective turn’), can we view a mid- to late eighteenthcentury ‘emotional regime’, which valorised sympathy and the keen identification with the sufferings of others, as furnishing an opportunity

42  Andrea McKenzie for ‘self-fashioning’ and ‘navigation’ on the part of female defendants who claimed to have been victims of cruelty and abuse?3 If courtroom speeches, gestures, and emotional performances—or ‘emotives’, to borrow William Reddy’s term—mattered, whose mattered most, and why? As we shall see, credible narratives of suffering and provocation could, and often did, make the difference between capital conviction and acquittal or manslaughter verdicts. Yet the testimony and non-verbal performances—from tears to swoons—of accused petty traitors were liable to be measured critically both against the prescriptive gender norms of wifely devotion and submission and the public transcript of their lives as presented by neighbours and acquaintances. This essay will argue that defendants who were active and vocal in portraying themselves as victims of abuse tended to elicit less sympathy than women who remained silent and allowed witnesses—including such witnesses’ reports of victims’ dying words—to testify in their defence. Nor was the cult of sensibility always benign: it also heightened the emotional power of legal rituals disadvantaging the accused, such as inflammatory prosecutorial speeches (a privilege not accorded to the defence, even for those few who had counsel). Judges and jurors may have been moved to pity the ‘Fair Parricide’ Mary Blandy or even the maidservant Henrietta Radbourne, the last petty traitor tried at the Old Bailey (in 1787), but such feelings lost out against a stronger, prosecutorial passion: sympathy for their genteel victims.

Old Bailey Husband-Murder in Context My main focus will be female petty traitors tried at the Old Bailey—the largest criminal jurisdiction in England, serving the city of London and the county of Middlesex—between 1674, at the beginning of the period for which we have systematic records of the Proceedings, until the abolition of the punishment of burning in 1790. The Old Bailey Proceedings are an invaluable resource, and complete from 1715, thus enabling us to situate the more famous and lurid cases, which have tended to attract the most scholarly attention in the context of more pedestrian and numerically representative cases of husband-murder, as well as homicide trials generally.4 (The vast majority of women tried for petty treason were accused of killing husbands; the one exception during this period is Henrietta Radbourne, charged with the murder of her mistress in 1787; her case will be discussed separately.) The majority of defendants charged with homicide, then as now, were men: 81% at the Old Bailey during the period in question.5 Husband-murder was a relatively rare crime, with men more likely to kill wives than women their husbands.6 From 1674 to 1790, 103 men were accused at the Old Bailey of killing their wives or common-law partners, compared to 25 women charged with killing spouses. Moreover, these defendants constituted only 6% of the 395 women charged with killing during this period, in comparison to 203 (51%) charged with infanticide, the largest single category of female homicide.

The Prosecutorial Passions  43 Despite the fact that husband- (or master/mistress-) murder was a species of treason—and thus not technically subject to extenuating circumstances— petty treason was in practice treated like any other homicide from the early seventeenth century, in that provocation and the absence of malice or premeditation were taken into account.7 Indeed, the sentences and fates of accused husband-murderers corroborate larger homicide trends in the period; that is, a steady drop in convictions and an increasing tendency on the part of juries to return partial (i.e., manslaughter) verdicts as the eighteenth century progressed.8 Seven (28%) of all accused husband-murderers tried at the Old Bailey from 1675 to 1790 were executed; two convicted but pardoned; six (24%) convicted of the lesser offence of manslaughter; one received a special verdict and seems to have been discharged; and nine (36%) acquitted. For reasons which are unclear, four out of the six women charged with husband-murder between 1749 and 1769 were tried for murder only.9 This could have reflected a growing trend toward lenience, or it may have been because petty treason, like high treason, required at least two prosecution witnesses.10 In 1787, Henrietta Radbourne, a maidservant charged with murdering her mistress, was acquitted of petty treason for this reason, but convicted and hanged for murder.11 If we use as a dividing line the conveniently Richardsonian date of 1740—the year of the publication of the epistolary novel Pamela, with its virtuous eponymous maidservant heroine, and a date as good as any to mark the advent of the cult of sensibility— we seem to be confronted with a striking contrast between two emotional regimes. Before 1740, six out of the twelve accused husband-murderers were put to death; after, only one out of thirteen defendants was executed—Elizabeth Herring in 1773—the others either being acquitted or receiving lesser punishments. However, while this story of declining convictions may point to a growing sympathy for women accused of killing cruel and violent husbands, it may equally suggest that petty treason, in its more squalid and pedestrian manifestations, excited comparatively little interest or outrage, particularly after the middle of the eighteenth century. Most studies of murderesses in the seventeenth and eighteenth centuries have focused on case studies (or ‘microhistories’) of notorious cases, and what they can tell us about contemporary mentalities and anxieties. Broadsides and pamphlets provide not only a tantalising glimpse into the lives of people who normally leave little trace in the historical record but also often seem to promise some sort of access—however mediated— to their voices. Such studies often reflect both what Frances Dolan has characterised as a ‘longing for voice’ (preferably subaltern and female ones) and a celebratory identification with figures viewed as marginal and/or transgressive on the part of modern scholars.12 From there it is often a short leap to seeing such sources as constructing female criminals as ‘active and effective, if atrocious, subjects’ whose ability (however circumscribed) to tell their own stories afforded them some measure of agency.13 However, many of these same writers acknowledge the difficulties criminal ‘heroines’ faced in terms of controlling the narrative:

44  Andrea McKenzie Margaret Doody notes the slippage between Blandy’s self-presentation as a sober, grieving daughter clad in mourning and a published portrait of her in gaudy attire, not to mention reports of her dining heartily on mutton chops and apple pie.14 Other scholars, such as Clare Brant, have argued that ‘for women, writing could inflame the very scandal it was meant to douse’, citing the ‘double-edged effect’ of Blandy’s published vindication, which contributed to a perception of her as both ‘unfeminine’ and disingenuous.15 The example of Mary Blandy, to which we will return, illustrates a dilemma as old as Pericles: a woman whose reputation had to be defended in public was already irreparably compromised. While obvious, it is worth reiterating that print sources were selective, and tended not only to overlook more pedestrian and representative trials but also to exaggerate the severity with which crimes were punished; as Frances Dolan has pointed out, some broadsides reported the burning of seventeenth-century petty traitors who were hanged only, and even some who were subsequently reprieved.16 It is interesting in this context to note that one early attempt to quantify the incidence of petty treason in Britain, 1551–1818, relying on later eighteenth-century printed sources, estimated that just over half of all 27 cases involved poisoning, and almost three-quarters featured a co-accused, usually a male lover; all but two cases ended in execution, none in pardon.17 The Old Bailey figures in regard to women charged with murdering husbands18 are not only dramatically different in the proportion executed but also in the kinds of homicides reported—the vast majority are crimes of passion committed in the course of violent but otherwise unremarkable domestic quarrels, involving weapons ready to hand (i.e., kitchen knives, household utensils, even teeth). Twelve defendants (almost half) are charged with stabbing their victims; five with bludgeoning or throwing objects at them; two are charged along with male accessories, two with biting, one strangling, one stomping, and only two with poisoning their victims (these two last cases end in acquittal, a reminder that not all accused female poisoners shared the fate of the notorious parricide Mary Blandy). These figures are roughly in line with John Beattie’s findings for Surrey in the same period;19 they suggest, moreover, that even outside the metropolis, many husband-murders involved a mode of killing which was less liable to be premeditated or to involve accomplices, and thus less likely to end in conviction and execution.

Provocation and ‘Barbarous Usages’: Old Bailey Petty Treason Defences Until the Old Bailey Proceedings expanded in length, first in 1729 and more dramatically after 1778, most trial reports consisted of short summaries in the third person.20 While it is often frustrating trying to infer who said what, these earlier abridged accounts sometimes have the advantage

The Prosecutorial Passions  45 of spelling out what seem to be the judge’s instructions to the jury, and often speak directly to the legal criteria. For instance, in the 1698 trial of Elizabeth Flower for killing her husband by throwing a poker back at him in the course of an argument, we are told that ‘no premeditated Malice appearing, but on the contrary great Love betwixt them; and she being greatly provok’d, she was found guilty of Manslaughter only’.21 A constant theme is the importance of character witnesses, especially in cases where evidence was inconclusive. Elizabeth Symbole, tried in 1695 as an accessory to murder when her husband was killed by another man in her presence, was acquitted after ‘divers very credible Persons . . . gave an Excellent Testimony of Mrs. Symbole’s Reputation’, religious upbringing, and ‘very modest Carriage and Behaviour’; moreover, witnesses testified that ‘her Husband and she had always lived very lovingly together’ and she ‘seemed to be in a great Agony’ when he was stabbed.22 Similarly, Parthenia Owen was acquitted of murder in 1695 after her husband died of an infection weeks after she had bit his finger during a quarrel, both because the injury was clearly neither premeditated nor intentionally fatal, and because witnesses testified ‘That the Husband spoke well of his Wife when he languished, and that she had nursed him very kindly’.23 Accused petty traitors had every interest in convincingly performing conjugal devotion and affliction so as to demonstrate that the killing with which they were charged was not premeditated or malicious. As legal historians have long acknowledged, the countenance of the defendant was viewed as having significant evidentiary value in itself, especially insofar as he or she could be seen as responding to charges spontaneously and without opportunity for dissimulation (hence the contemporary belief that the lawyer-free ‘altercation’ trial was ‘truth-promoting’).24 Yet, just as earlier providential beliefs in cruentation and spectral evidence served to corroborate what the community already suspected,25 observers saw in such performances what they expected to see. Catherine Hayes, upon first being apprehended as a suspect for the gruesome murder of her husband, was described as having passionately ‘entreated’ to see ‘her dear Husband’s Head’. This head, found bobbing in the Thames, had been exhibited on a pole in a St. Margaret’s Churchyard, Westminster, in order to be identified, before being preserved in a jar of spirits. Her feverish kissing of this jar, and then the head itself, was clearly seen as proof of her deep duplicity and wickedness. When she asked the surgeon who had charge of the head for a lock of hair, the latter, noting that she ‘seemed in great Confusion’, told her that ‘he was afraid she had had too much of his blood already’.26 At this, another account claimed, she ‘pretended to faint’.27 Pamphleteers noted that ‘the Consciousness of her own Guilt made Mrs Hayes very Assiduous in contriving such a Method of Behaviour as might carry the greatest Appearance of Innocence’, interpreting all of her fainting spells and fits of ‘violent Agonies’ during her trial and sentencing, where she appeared in ‘deep Mourning’, as further evidence of her culpability.28

46  Andrea McKenzie Seventeenth-century women laboured under not only legal disabilities (until 1692 female murder defendants were unable to claim benefit of clergy, and were thus ineligible for the partial verdict of manslaughter), but also gendered notions of female passion as ‘cold-blooded’ and hence inherently malicious and murderous.29 As Natalie Zemon Davis has pointed out in her work on pardon narratives, early modern women had difficulty fashioning their emotions to ‘acceptable’ supplicatory ‘uses’; passion, an extenuating factor for male petitioners, translated into ‘female jealousy and libido’.30 What we might see as evidence of insanity on the part of seventeenth-century petty traitors tended to be characterised in terms of their malignant and ungovernable passions. In 1675 Elizabeth Lylliman (‘50 years of age, old both in years and wickedness’) ‘behaved herself very strangely’ at her examination for killing her muchyounger husband, laughing and giving ‘silly answers’ (‘I wish my hands may never see my eyes, if I killed my husband’).31 When Lylliman ‘fell into a kind of passion’ at her arraignment, begging with seeming earnestness . . . of the Court that she might see her dear Husband before she pleaded . . . this appeared to the Court to be but a mad kind of Artifice, designed out of her feigned passionate Zeal to her Murthered Husband to take off the suspicion of her being instrumental in his death.32 Another petty traitor ‘stricken in Years’, Margaret Osgood (executed in Kingston in 1681) unsuccessfully claimed she was ‘not Compos Netis [sic] but Distracted’ when she killed her younger husband with an axe as he slept. In prison Osgood was described as acting both ‘stupefied’ and passionate, supposedly doing ‘what she could to be got with Child, thereby to respite her Execution’, but in vain.33 To contemporaries, Osgood’s ‘Distraction’ was the result of jealous passion and unbridled libido. The behaviour of Anne Mudd, reported as singing ‘obscene Songs’ and talking ‘indecently’ as she awaited her 1737 execution for the murder of her husband, a butcher’s assistant, was similarly seen as lewd and disorderly rather than as non compos mentis.34 Women who complained of their husbands’ ‘ill-usage’ and enumerated past injuries risked violating gendered prescriptions of female modesty and passive obedience, not to mention silence.35 Catherine Hayes claimed that her husband ‘commonly put her in hazard of Life . . . beating and mortifying her, and sometimes breaking her Ribs and Bones’; she also accused him of ‘having murder’d two new-born Children of her’s, and burying them’.36 She claimed that her two male co-accused acted alone, having ‘resolved to murder’ her husband after the latter ‘fell into a Passion and beat [her]’ in their presence.37 Such defences could easily backfire, as Garthine Walker has noted, in that they made a case for premeditated revenge. Contemporary accounts portrayed Hayes as an adulterous and grasping harpy,

The Prosecutorial Passions  47 speculating that this beating was the ‘Source of that Malice, which she afterwards vented upon him’.38 Mary Aubrey, executed in 1688, claimed that her husband’s ‘barbarous Usages had made me mad’, darkly accusing him of ‘Villainies contrary to Nature’, including a ‘most Unnatural . . . Violence upon her Body’ the night of the murder.39 But neighbours and ‘Acquaintances’ reportedly sided with the victim who, while ‘a Libertine and Debauchee’, was ‘Drunk or Sober, without any Malice’.40 Given that Mary had strangled her husband in his sleep and later dismembered his body, it is unlikely she could have escaped condemnation had she stood trial (she confessed to the crime, apparently to prevent her son from being convicted as an accessory), nor was she pardoned.41 While the frequency with which spousal abuse figured in the last dying confessions and execution accounts of petty traitors raises questions as to its efficacy as a defence, such stories suggest a certain level of community support for and even a willingness to intervene on behalf of battered wives, even if such sympathy stopped short of condoning retaliatory violence.42 Joyce Hodgkis, executed in 1714 after fatally stabbing her husband after ‘having Words about keeping his Mother’, complained to the Ordinary of Newgate that he had been ‘a very cruel Husband’ and ‘a wicked Person . . . who dealt very ill with her’. The Ordinary’s advice—that she should have ‘endeavour’d by some Proper Means (as having the Minister of their Parish, or some serious Person, to discourse him) to bring him to a better Temper’—may strike us as unhelpful, but reflected the critical role of community support in arbitrating marital violence, and may have been intended to underscore the fact that no defence witnesses had testified in Hodgkis’s defence; ‘No Person whatever’ had appeared on behalf of Catherine Hayes, either.43 Elizabeth Foyster has stressed the degree to which early modern and Hanoverian views of marital violence were characterised by continuity: while ‘excessive’ correction on the part of husbands was universally condemned, such attitudes were ‘always circumstantial, depending on the characteristics of the couple involved’.44 The support of witnesses was critical. Elizabeth Freeman does not appear to have spoken in her own defence in her 1743 trial for fatally stabbing her husband in the breast with a breadknife, but she was found guilty of manslaughter only after a number of witnesses claimed not only that the deceased had first cursed and slapped her and knocked her down, but that she was a ‘mild, meek’, ‘peaceable’, ‘modest, quiet, well-behaved’, ‘very industrious Creature’ who ‘really lov’d’ and ‘used to carry it very civil to her Husband’, only mildly reproving him when he asked her to pawn household goods to ‘support [his] Gaming and Drinking’.45 At her 1739 trial for fatally stabbing her husband in the leg, in contrast, Susannah Broom’s claims of domestic abuse fell on deaf ears. One witness cross-questioned by the accused acknowledged that the latter had claimed that the deceased had beaten her with a stick, but testified that

48  Andrea McKenzie she had seen ‘no Wounds upon her’; another, when asked if the victim were not ‘a naughty, bloody Man’, replied: ‘There was not a more quiet Man on earth than he was’. A barrage of hostile neighbours testified that on the night of the murder they had heard the deceased (‘an old Man, about Sixty’), begging for his life after his wife had violently dragged him from the room of a fellow lodger where he had sought refuge; that she regularly beat him with a poker and locked him out at night. The accused was described as ‘a very turbulent woman’, ‘a mighty Woman for carrying a Pen-knife with two Blades’, ‘the wickedest Woman on Earth’.46 But in cases where the accused was more sympathetic than Susannah Broom (and the victim less pitiable than her husband), juries seemed increasingly likely to err on the side of mercy as the century progressed.47 Catherine Lewis was found guilty of manslaughter only after fatally stabbing her husband, ‘a Butcher of Rag-fair’, in the belly in 1727. Defence witnesses testified ‘That the Deceased was very barbarous to the Prisoner, and used to beat her’; that she was ‘a careful industrious Woman, but weak in her intellectuals, and that she went in danger of her Life from the Deceased on every trivial Occasion’. They also testified that her husband had not only provoked his wife by kicking and shoving her, but that he had declared before dying that ‘he did believe she did not do it wilfully’.48 Reports of the dying testimony of victims carried undoubted weight. Elizabeth Fisher was acquitted of petty treason after her husband died several weeks after she had stabbed him while he was beating her. The interval between the wound and death was clearly a factor, but so too was testimony that the deceased had declared before his death that ‘he had misus’d and beat his Wife to a great Degree’ and given her ‘great Provocation’.49 At Anne Boswell’s 1747 trial for petty treason, witnesses claimed that the victim had thrown a knife and fork at the accused before the assault; that he had forgiven her before dying (‘I owe her no ill Will, ’tis as much my Fault as her’s’); that the couple had lived in ‘Love and Unity’ and ‘Harmony’ and the defendant ‘behaved extremely well’ in service. While Boswell was condemned, possibly because she had stabbed her victim in the back, inflicting a deep (4½-inch) wound, she subsequently received a transportation pardon.50 Elizabeth Roberts was condemned for petty treason in 1725 after having stabbed her partner in the heart, but later received a free pardon, possibly benefitting from evidence that the victim had cursed and threatened her, and that their relationship was violent. Interestingly, Roberts not only claimed that the deceased ‘beat me in a violent and barbarous manner’, but she was not married to him.51 She was one of three accused Old Bailey petty traitors who made this defence, perhaps out of fear of the penalty of burning, perhaps in hope of escaping the indictment altogether. In 1747 Anne Williams also denied having been married to her victim, despite having ‘had four Children by him’, and was convicted of manslaughter only, despite the fact that the fatal stab wound was six inches deep. Witnesses described her as an ‘honest industrious Person’ who ‘was very badly used’ by the deceased, often appearing ‘with black Eyes, and her Face bruised

The Prosecutorial Passions  49 some way or another’, one adding it was a ‘common Thing’ for her to ‘[cry] out Murder, but I can’t say I ever heard him cry Murder’.52 Elizabeth Herring, the last petty traitor burned at Tyburn, in 1773, also claimed to have been both a victim of domestic violence and unmarried (‘they say he is my husband, but he is not; I have lived with him eleven years, but never was his wife’). Several defence witnesses claimed that the deceased, a waterman, ‘was a violent bad husband’ and used to beat the defendant with a poker. Unfortunately for Herring, eyewitnesses testified that she had threatened and then stabbed the victim in the throat, none corroborating her claim that he had first thrown a pipe and a pint of beer in her face.53 Newspaper reports clearly attributed her conviction to the fact ‘she was not able to prove the first assault’ and seemed to credit her claims of ‘ill usage’, while simultaneously normalising working-class marital violence: ‘’Tis a base thing for a gentleman to strike his wife; a man had better receive ten blows than give one to a woman, tho’ the lower people may be excused upon extraordinary provocations’.54 This polite eighteenth-century association of domestic violence with ‘the inferiority and animality of the poor’ may have served to extenuate retaliation on the part of wives— perhaps especially common-law ones, whose victims would not have been seen as exercising the same legal authority over them.55 On the other hand, this high tolerance for plebeian domestic violence cut both ways. Not only was a comparatively small proportion of the men accused at the Old Bailey from 1674 to 1790 of killing their wives or common-law partners with ‘personal weapons’ (fists and feet) capitally convicted (4 out of 23), but this rate declined over the period in question (from 3 out of 12 before 1740 to 1 out of 11 afterwards).56 In the 1790 trial of William Cooper for beating and stamping his wife to death, the prosecution counsel William Garrow demonstrated a laudable ‘duty of restraint’ in informing the jury that, however ‘brutal’ and ‘unmanly’ the defendant’s behaviour, ‘the unlucky blow’ that had caused her death was not intentionally fatal.57 In summing up, the judge also lamented the brutality of the assault but directed the jury to acquit (as they did), dismissing the victim’s dying declaration that her husband had murdered her as ‘an expression very common with low people’.58 If many accused spouse-murderers benefited from lenience, and perhaps even pity, from the courts, especially after about 1740, this was in large part because both they and their victims were labouring poor, and their crimes neither elicited the same interest nor the same outrage as did the murder of genteel victims.

Spectacles of (In)sensibility The culture of sensibility was intimately connected with the novelistic gaze, and sympathy was above all excited by narratives—or ­performances— with which readers (or listeners) could identify.59 Nigel Walker has described how the emotional theatre of the late-eighteenth-century trial

50  Andrea McKenzie could redound to the advantage of the defendant, as in the pathetic case of the jilted society mistress Miss Broadric, acquitted on the grounds of insanity for having fatally shot her lover in 1795. Her appearance (in deep mourning) and comportment (‘greatly agitated and almost fainting’ but behaving with ‘great propriety’) swayed both the jury and Judge Kenyon, who summed up the case in ‘a very humane and affecting manner’. But ‘emotives’ could equally work against the accused, as in the case of the visibly ‘paranoid Bellingham’, convicted of shooting the Prime Minister Spencer Perceval in 1812 after the judge’s unfavourable, and tearful, address to the jury (‘sensibility was manly in those days’).60 Dana Rabin has argued that Old Bailey judges, jurors, and other courtroom actors became generally responsive to what she calls ‘the language of mental excuse’ after about the middle of the eighteenth century.61 This seems to be borne out in the cases of the two accused petty traitors who obtained acquittals on the grounds of insanity: Elizabeth Godden in 1758 (for striking her sleeping husband with an iron window pin) and Esther Monk in 1760 (for a fatal attack with a poker). As Joel Eigen has emphasised, neighbours and family members played a critical role in attesting that the accused were ‘disordered’ in their ‘senses’ and ‘not in [their] proper mind’.62 Age, which seemed to be an aggravating factor in the case of the earlier petty traitors discussed, now appeared to render the accused more inoffensive. Godden was identified as 60; Monk, 71, as ‘very old’.63 To what extent ordinary working-class defendants actively appropriated the language of sensibility is another question. Godden spoke briefly in her defence and crossquestioned some witnesses; Esther Monk is not recorded as speaking at all (one newspaper reported that, when asked why she had killed her husband, she ‘replied, that she did it to prevent his going to the Workhouse’).64 Both were poor; neither had counsel. Lawyers, who first appeared in a handful of cases at the Old Bailey for the prosecution and, after about the 1730s, also for the defence, only became relatively common at the Old Bailey in the later eighteenth century, and then largely in high-profile cases involving genteel victims. While the presence of defence counsel was a new development, it reinforced the wisdom of the longstanding strategy of relying on others testifying on one’s behalf (although—unlike the prosecution—defence counsel could not directly address the jury, they could advise clients and cross-question witnesses).65 Neither of the two accused Old Bailey petty traitors recorded as having legal representation was convicted. Mary Owen was acquitted in 1776 for what appears to have been a case of accidental poisoning, saying only ‘I leave my defence to my counsel; my witnesses can tell better than I can’.66 Jane Sibson, acquitted in 1762 for poisoning her husband, spoke briefly in her own defence, but also had counsel that vigorously cross-questioned witnesses to establish that she was ‘an affectionate and good wife’, was ‘in a great deal of grief’ during her husband’s illness, and had gone into the marriage with the ‘better

The Prosecutorial Passions  51 fortune’.67 Mary Anson, charged in 1769 with biting her husband’s finger during a quarrel, may also have had counsel, and seems to have been of a higher social standing than most Old Bailey husband-murderers: she is reported to have kept a hatter’s shop in Cripplegate.68 The jury returned the verdict special, and she seems to have been released. Only four Old Bailey trials of accused female petty traitors seem to have had prosecuting counsel: that of Elizabeth Symbole in 1695 as an accessory for the murder of her husband, a gentleman; Catherine Hayes, in 1726, whose husband was from a prosperous farming family; Jane Sibson (mentioned above) in 1762, and Henrietta Radbourne, for the murder of her wealthy mistress, in 1787. Most, however, were perfunctory affairs in which it is often difficult to distinguish witnesses for the prosecution from the defence. In the 1752 trial of Sarah Pool for killing her husband with a brick, Henry Fielding had to personally intervene so that ‘the Coroner might sit, and the Affair be examined’ as it ‘seemed in a very probable Way of being suppressed’ by ‘indifferent’ prosecution witnesses.69 Mary Sharpless’s 1749 trial for killing her husband with a hammer ended in acquittal because no prosecution witnesses appeared. A newspaper reported that he was a ‘Plaisterer’s Labourer’, she dealt in ‘old Cloaths’, and ‘They were both antient People’.70 The way in which such banal cases of petty treason were reported (or scarcely reported) reflects the gradual decline over the course of the eighteenth century of the older notion of the criminal as a kind of ‘Everyman’, and the account of his (or her) life and confession as a universal moral parable.71 Increasingly polite observers were less shocked at domestic lèse majesté—at least insofar as working-class husbands rather than propertied patriarchs were concerned—than they were at the horrific spectacle of women being burned at the stake; indeed, the London officials tasked with overseeing this punishment actively campaigned for its repeal, in 1790.72 Reports of the executions of petty traitors both in and outside the metropolis reflect a shifting focus from the details of the crime to the horror of the punishment. Accounts of Mary Norwood, burned at Ilchester in Somerset in 1765 for poisoning her much-older husband, included commentary on her extravagance, adultery, and her and her lover’s physical abuse of the deceased, but devoted more space to the gory details of the execution itself. Norwood was covered in tar (an accelerant) and rigged with a device so that she was strangled to death before the fire was lit, but the emphasis was on the ordeal of the spectators: [Although] the fire burnt with amazing fury . . . great part of her could be discovered for near half an hour. Nothing could be more shocking than to behold, after her bowels fell out, the fire flaming between her ribs, and issuing out at her ears, mouth, eyeholes, &c. In short, it was so terrible a sight, that great numbers turned their backs and screamed out, not being able to look at it.73

52  Andrea McKenzie If in the above case the reader was invited to identify with and share the suffering of the spectators, late-eighteenth-century respectable commentators increasingly displaced their discomfort with such spectacles onto the execution crowd itself, seen as brutish and hardened, incapable of real sympathy.74 This seems apparent in newspaper reports of the 1773 execution of Elizabeth Herring before a crowd estimated at 20,000. The horror of this ‘truly dreadful . . . spectacle’ was supposedly exacerbated by ‘the unpardonable murdering insults of such unfeeling inhuman monsters [i.e., spectators], who, although dressed in the shape of human beings, and even that of the softer sex’ were ‘the most shameful disgrace to human nature’.75 In theory, the culture of sensibility—which touted the universality of the sympathetic faculties, valorised natural and untutored innocence, and in which feminine ‘virtue in distress’ played a prominent role—was radically inclusive and potentially subversive.76 Sensibility was less about refinement than the capacity for genuine feeling; self-control and dissimulation (the older hallmarks of civilised courtly behaviour)77 was replaced by artlessness and authenticity. In practice, however, the capacity to feel true sympathy was often articulated or claimed as a mark of gentility, a means of differentiating oneself from social others: to quote Randall McGowen, ‘The presence or absence of sympathetic feelings became one more way of describing the gulf and valorizing the distance between classes’.78 And while Dana Rabin is more optimistic about the ways in which ordinary defendants could appropriate the language of sentiment, she acknowledges the danger that public ‘performances of emotion and sensibility’ could be themselves interpreted as evidence of ‘artifice and design’.79 A defendant who emoted too much risked being accused of cunning and insincerity; too little, of brutishness and insensibility. Randall McGowen and Vic Gatrell are surely right in emphasising the fact that the feelings that most interested eighteenth-century polite observers were their own, and that their sympathy was largely reserved for defendants with whom they could identify socially;80 it need hardly be added that such identification was all the more powerful in the case of victims who resembled them. This is vividly illustrated by the last trial of a petty traitor at the Old Bailey: the maidservant Henrietta Radbourne, executed for stabbing and bludgeoning her mistress to death in 1787. The victim was no drunken and loutish husband, but a genteel widow of ‘advanced years’, a ‘lone woman with money’. The prosecution counsel (there was no defence lawyer) was once again William Garrow; here, however, the latter’s ‘duty of restraint’ was conspicuous by its absence. His long and emotionally charged opening statement provided a seamless and seemingly authoritative narrative of the crime: ‘the most aggravated of all cases of murder . . . committed deliberately, in consequence of a foul and corrupt plan’ (Radbourne had hoped to use her mistress’s money to induce the man with whom she had once lived, and with whom

The Prosecutorial Passions  53 she had had a child, to marry her). Garrow commiserated with the jury’s painful task of choosing between their duties to the public and the victim and her family on the one hand and the claims of ‘humanity and compassion’ towards the unfortunate prisoner on the other.81 Contemporary newspapers similarly flattered the sensibilities of readers who were able to feel for a defendant so clearly incapable of feeling appropriately for herself. As Radbourne ‘approached the bar, every tongue was hushed into the most profound and awful silence; but the countenance of this unhappy female appeared insensible of the solemn scene; and during the course of the whole trial she stood unmoved’.82 Here the language of sensibility was above all a means of social differentiation. In the context of the eighteenth-century courtroom, some people’s emotions, like their testimony, were more compelling than others.

Parricide and Adversarial Trial In his 1771 Principles of Penal Law, the jurist William Eden noted that the objectivity of witness testimony ‘decreases in proportion to the aggravated atrociousness of the charge’, citing Cicero’s example of parricide— the most shocking crime Romans could imagine—the mere accusation of which tended to inflame the prosecutorial passions and undermine any presumption of innocence.83 When we examine parricide in the context of eighteenth-century English criminal justice, however, we again see a contrast between several well-documented notorious cases—such as that of Mary Blandy—and what may have been a more pedestrian reality. As Garthine Walker has noted in her recent study of parricide, far from being pathologised as an aberrant and insane act, the murder of close family members was in the seventeenth and early eighteenth century generally attributed to the same sinful and selfish impulses as other killings, such as financial greed and thwarted passions.84 The only possible patricide tried at the Old Bailey during this period, Thomas Billings, supposedly the illegitimate son of his victim John Hayes, was overshadowed by the notoriety of his accomplice and mother, Catherine Hayes, seen as the instigator of both the murder and their alleged incestuous affair.85 The two other Old Bailey cases of parent murder were both matricides. In his April 1722 trial, Robert Hicks is reported to have returned home drunk and quarrelled with his mother, whom he then struck and choked; she died shortly after accusing her son of having murdered her. ‘Several witnesses depos’d, that the Deceased was a very Quarrelsome and Malicious Woman, and would frequently cry out Murder, when no body touch’d her’, adding that the defendant ‘was very often Lunatick’. Two surgeons gave it as their opinion that ‘she died of Convulsions, which her violent Passion might have thrown her into’.86 Hicks was acquitted: his own disordered passions testified in his favour, while the more culpable and malicious passions of his mother are seen as

54  Andrea McKenzie provoking her own death. This squalid Old Bailey affair, with its lacklustre prosecution, made few ripples in the press.87 The second case was that of the ‘private Sentinel’ William Hughes, condemned by his own confession and hanged at Tyburn in June 1735 for the brutal murder of his mother. Upon returning home and finding his mother drunk, Hughes had doused her with water, beaten her, and later shot her in the head as she lay in bed. Hughes’s execution was reported in newspapers, along with those hanged at the same time, but similarly attracted little media interest as a crime in its own right.88 In stark contrast, the 1752 trial and execution of Mary Blandy for the murder of her father, an Oxfordshire attorney, was a cause célèbre which engrossed the attention of contemporaries and has since attracted the interest of many modern scholars. Nicholas Rogers and Richard Ward have recently re-examined the case of Blandy—as well as that of Elizabeth Jeffryes, executed the same year at Chelmsford, along with her lover and accomplice, for the murder of her uncle, a prosperous tradesman—in the context of a moral panic (a ‘bourgeois nightmare’), exacerbated by a crime wave and demobilisation crisis, leading up to the 1752 Murder Act.89 Other scholars have focused on the way in which public interest in the lives of such criminal ‘heroines’, ‘protagonists’, and ‘subjects’ reflected new cultural currents (implicitly reinforcing the established narrative of the emergence of modern individualist subjectivity), and provided a space for them to tell their own stories (enabling us to recover female voices from a traditionally masculine ‘jurisprudential narrative’).90 But, as Clare Brant has reminded us, such cases also illustrate how ‘the oxygen of publicity’ could interact with gender and class to the detriment of female defendants.91 Blandy was not without supporters: her gentility, the ‘plausible, or rather pathetic Strain’ in which she presented herself as the unwitting dupe of her unscrupulous lover and (unapprehended) accomplice, the Scottish fortune-hunter William Cranstoun, and the persistence with which she maintained her innocence created ‘a party in her favour’.92 It is at least possible that she was telling the truth when she claimed that she had only administered arsenic to her father’s gruel because her lover, who had supplied the poison, assured her the grains were harmless ‘Love-powders’ that would cause her father to look favourably upon their match (Francis Blandy disapproving of Cranstoun upon learning that he had a wife and child in Scotland).93 But Blandy’s character was blackened by newspaper reports and pamphlets published before her trial, impugning her girlish innocence (suggesting that Cranstoun was at least her second lover), depicting her as a wilful and ungrateful daughter to a ‘fond indulging Parent’, and claiming that she attempted to escape justice before her arrest and spent her time afterwards drinking tea, eating heartily, swearing, ‘reading Fables’, and playing cards.94 This case vividly illustrates how eighteenth-century criminal defendants not only laboured under legal disabilities, but were also disadvantaged by

The Prosecutorial Passions  55 the very ‘emotional regime’ (the culture of sentiment) within which such trials unfolded; this was especially true in those notorious cases in which the crown was actively involved in the prosecution.95 The Lord Chancellor had written to the Secretary of State in regard to Blandy that ‘it would be a Reproach to the King’s Justice . . . if such an atrocious Crime of Poisoning & Parricide should escape unpunish’d by means of the Prosecution being left in the hands of the Prisoner’s own Relations’, wondering ‘whether the Crime of the Daughter’ who ‘liv’d with & was maintain’d by her Father, may not be Petty Treason?’96 (In the end Blandy was charged with murder, but the moral equivalence was clear.) Although Blandy (and Jeffryes) had counsel, defence lawyers were not permitted to address the jury; Blandy’s long and impassioned speech in her own defence may well have been seen as indecorous and unfeminine. Not least, the prosecution was permitted to deliver opening and closing speeches. Alexander Welsh has noted the rhetorical power of the ‘didactic narrative’ of the prosecution, aligning itself with an avenging providence that had miraculously preserved or uncovered several key pieces of evidence and playing expertly on the language of sensibility.97 By invoking the imagined sorrow and pity of the deceased at the prospect of seeing his only child on trial, the prosecution seemed to condole with the jury’s hard, but necessary, duty of meting out justice, thus subtly shifting the sympathetic gaze from the ungrateful daughter to the finer sensibilities of jurors. The culture of sensibility, in which respectable observers constantly measured and congratulated themselves on their capacity for feeling, lent itself to invidious comparisons. Not only Blandy’s words and deeds but also her facial expressions were minutely and critically scrutinised. The composure which Blandy and her supporters presented as ‘Christian courage’ and consciousness of innocence was seen as callous insensibility by detractors. It was reported that, during her trial, Blandy ‘never once changed her Countenance, nor shed a Tear’ except once: during the testimony of her godmother for the prosecution (the implication is that Blandy’s emotion sprang from selfish passion rather than grief or distress).98 One newspaper claimed that Blandy visibly lost her temper upon hearing a witness testify that Cranstoun had courted her solely on account of her reputed fortune: ‘the unfortunate Woman who had seemed unmoved at all the rest, could not bear a Hint which seemed to reflect on the Power of her Charms’.99 While some witnesses acknowledged that Blandy was a dutiful and affectionate daughter who sought medical attention for her ailing father, others—particularly household servants—painted her as passionate, disrespectful, and impatient of restraint. Interestingly, testimony that Francis Blandy, upon discovering his daughter had poisoned him, had sought to excuse her behaviour (‘A poor, Love-sick Girl, but I forgive her’) only seems to have served to further inflame opinion against a defendant who could return paternal love and indulgence with ingratitude and treachery.

56  Andrea McKenzie Particularly damning was the chambermaid Susannah Gunnell’s account of the last interview between Francis and Mary Blandy. The latter supposedly prostrated herself before her dying father, begging him not to curse her; to which Francis Blandy replied: ‘I curse thee! No child I bless thee . . . and pray thou may’st live to repent and amend’, before dismissing her, ‘least thou shouldst say something to thy prejudice’.100 This account of paternal charity might have moved jurors to tears, but not to follow the father’s example. As the modern victims’ rights movement has illustrated, sympathy is a double-edged sword—as likely to arouse righteous anger on behalf of the victim as it is to inspire pity for the accused. Sensibility, like late-eighteenth-century trial itself (at least those trials featuring counsel, in which victims were middling or upper-class) was adversarial: it demanded emotional identification and, hence, taking sides.

Conclusion Scholars have identified a major shift in the way in which domestic murder was represented over the course of the so-called long eighteenth century (c. 1660–1800), from an emphasis on the dangers of female insubordination to those of male tyranny, culminating in a ‘cult of sensibility’ in which the early modern trope of the female temptress and heinous ‘home traitor’ was superseded by that of the male sexual predator and brute.101 This essay has largely reinforced this narrative but also highlighted some important continuities, most notably a persistent suspicion of women’s words and emotional performances as unreliable or duplicitous. It has also emphasised a critical element of the emotional history of trial that has received surprisingly little attention: the importance of the victim and the social class of that victim.102 I have suggested that the declining capital conviction rates for accused husband killers after 1740 may reflect not so much clemency for defendants, or the ability of the latter to appropriate the language of sensibility to excuse their actions (i.e., ‘agency’), as it did an indifference towards their largely working-class victims and a normalisation of plebeian domestic violence. If Mary Blandy’s case is in many respects exceptional, it also illustrates the correlation between the degree of prosecutorial passion and the socio-economic status of the victim, on the one hand, and the tendency to privilege the testimony of witnesses over the words of female defendants, on the other. The rise of adversarial trial in the second half of the eighteenth century seemed to change little for most defendants, even if several from the middling ranks, such as the two accused poisoners Mary Owen and Jane Sibsen, seemed to have benefited from access to defence counsel. Cases like that of Catherine Hayes, Henrietta Radbourne, and Mary Blandy—featuring both propertied (and relatable) victims and active and motivated prosecution counsel—were the exception, rather than the rule. They are nonetheless instructive in demonstrating the close connection between the history of the emotions and

The Prosecutorial Passions  57 questions about the presumption of innocence. One anonymous author of a pamphlet defending Blandy complained both of the publication of ‘scandalous’ reports and rumours that had served to ‘bias and prejudice’ the jury and of the long and inflammatory opening and closing prosecutorial speeches (‘eloquent harangues . . . exciting an ardour to condemn’) to which defence counsel was not permitted to respond. He went on to describe a phenomenon not unique to the eighteenth century: zeal to punish is sometimes encreased by the enormity of the offence, and it may happen that a less degree of evidence shall determine a jury against a culprit, whom they are zealous to punish, than against one whom they think it a matter of indifference whether they punish or not.103 Unfortunately for Mary Blandy, and unlike most of the unremarkable accused husband-murderers discussed here, she was a celebrity and a ‘subject’; her deeds, behaviour, and words—and, perhaps most importantly, her victim—were anything but a matter of indifference.

Acknowledgements The author is grateful to the editors, David Lemmings and Allyson N. May, as well as all the participants in the original symposium on Emotions in the Courtroom at the Huntington Library in 2013, for their valuable suggestions and encouragement.

Notes 1 Garthine Walker’s recent article, ‘Imagining the Unimaginable: Parricide in Early Modern England and Wales, c.1600-c.1760’, Journal of Family History, 41, 3 (2016), 271–293, provides a more comprehensive discussion of parricide, broadly defined to include the murder of close family members such as aunts or uncles. 2 Dana Y. Rabin, Identity, Crime, and Legal Responsibility in Eighteenth-Century England (Houndmills, Basingstoke: Palgrave Macmillan, 2004), 165–166. 3 David Lemmings and Ann Brooks, eds., Emotions and Social Change: Historical and Sociological Perspectives (London: Routledge, 2014), 3–4; 9; William M. Reddy, The Navigation of Feeling: A Framework for the History of Emotions (Cambridge: Cambridge University Press, 2001), 135; see also Catherine A. Lutz and Lila Abu-Lughod, eds., Language and the Politics of Emotion (Cambridge: Cambridge University Press, 1990), 14–15. 4 The statistical discussion that follows deals only with the 25 women accused of murdering their husbands or common-law partners; see Tim Hitchcock, Robert Shoemaker, Clive Emsley, Sharon Howard, and Jamie McLaughlin et al., The Old Bailey Proceedings Online, 1674–1913, available online at www.oldbai leyonline.org, version 7.0, accessed 24 March 2012, henceforth OBP; see also Simon Devereaux’s capital conviction database, ‘Execution and Pardon at the Old Bailey, 1730–1837’, available online at https://hcmc.uvic.ca/. 5 These figures are from the OBO statistical tool counting defendants whose gender can be identified.

58  Andrea McKenzie 6 J.A. Sharpe, ‘Domestic Homicide in Early Modern England’, Historical Journal, 24, 1 (1981), 29–48. 7 Matthew Lockwood, ‘From Treason to Homicide: Changing Conceptions of the Law of Petty Treason in Early Modern England’, Journal of Legal History, 34, 1 (2013), 33. 8 J.M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford: Oxford University Press, 1986), 111; J.A. Sharpe, Crime in Early Modern England (London: Longman, 1984), 58–65. 9 Mary Sharpless (January 1749); Mary Selby (April 1752); Sarah Pool (December 1752); Mary Anson (September 1769). 10 William Blackstone, Commentaries on the Laws of England (1793–5), 4:203; unless otherwise indicated, all printed sources before 1800 are printed in London. 11 Thomas Leach, Cases in Crown Law, Determined by the Twelve Judges (1789), 400. 12 Frances E. Dolan, True Relations: Reading, Literature, and Evidence in Seventeenth-Century England (Philadelphia: University of Pennsylvania Press, 2013), 116–117, 152–153. 13 Kirsten T. Saxton, Narratives of Women and Murder in England, 1680–1760 (Farnham: Ashgate, 2009), 57. 14 Margaret Anne Doody, ‘The Law, the Page, and the Body of Women: Murder and Murderesses in the Age of Johnson’, in Paul J. Korshin (ed.), The Age of Johnson, vol 1 (New York: AMS Press, 1987), 150, 154, 151. 15 Claire Brant, ‘Murder She Wrote? The Real and Imagined Letters of Mary Blandy’, Women’s Writing, 13, 1 (2006), 63, 69. 16 Frances E. Dolan, ‘Tracking the Petty Traitor across Genres’, in Patricia Fumerton and Anita Guerrini (eds.), Ballads and Broadsides in England, 1500– 1800 (Farnham: Ashgate, 2010), 151. 17 Shelley Gavigan, ‘Petit Treason in Eighteenth-Century England: Women’s Inequality Before the Law’, Canadian Journal of Women and the Law, 3, 2 (1989–90), 335–374. Gavigan’s list includes only three Old Bailey husband-murderers: Mary Aubrey (1688) and Catherine Hayes (1726), both sensational cases in which the victim was murdered while he slept and subsequently dismembered, and Lydia Adler, convicted of manslaughter in 1744 of killing her husband by stomping on his genitals. 18 This list may exclude individuals before the records of the Proceedings are complete from 1715. 19 Beattie, Crime and the Courts, 100–101. 20 Simon Devereaux, ‘The City and the Sessions Paper: “Public Justice” in London, 1770–1800’, Journal of British Studies, 35, 4 (1996), 466–503. 21 OBP t16980504‑11. 22 OBP t16950220‑18. 23 OBP t16950508‑12. 24 J.M. Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law and History Review, 9, 2 (Autumn, 1991), 221–267; William Hawkins, A Treatise of the Pleas of the Crown (1716–18), 2:400. 25 Malcolm Gaskill, ‘Reporting Murder: Fiction in the Archives in Early Modern England’, Social History, 23, 1 (1998), 8–13; Keith Thomas, Religion and the Decline of Magic (London: Weidenfeld & Nicolson, 1971), 261–262. 26 Lives of the Most Remarkable Criminals (1735), 2:219–220. 27 A Narrative of the Barbarous and unheard of Murder of Mr. John Hayes (1726), 10. 28 Lives of the Most Remarkable Criminals, 2:234, 219, Evening Post, 19–21 April 1726.

The Prosecutorial Passions  59 29 Beattie, Crime and the Courts, 424, 485; Garthine Walker, Crime, Gender and Social Order in Early Modern England (Cambridge: Cambridge University Press, 2008), 157; K.J. Kesselring, ‘Bodies of Evidence: Sex and Murder (or Gender and Homicide) in Early Modern England, c.1500–1680’, Gender & History, 27, 2 (August 2015), 245–262. 30 N.Z. Davis, Fiction in the Archives (Stanford, CA: Stanford University Press, 1987), 79, 81, 82n. 31 OBP t16750707‑4 ; A Compleat Narrative of the Tryal of Elizabeth Lillyman (1675), 5. 32 OBP t16750707‑4. 33 The True Narrative of the Confession and Execution of the Prisoners at Kingstone upon Thames (16 March 1681), 2–3. 34 Ordinary’s Account (29 June 1737), 5. 35 Cynthia Herrup, ‘ “To Pluck Bright Honour from the Pale-Faced Moon”: Gender and Honour in the Castlehaven Story’, Transactions of the Royal Historical Society, 6th series (Cambridge: Cambridge University Press 1996), 142. 36 Ordinary’s Account (9 May 1726) 2, 3. 37 Select Trials . . . at the Old Bailey (1742) 3:17. 38 Walker, Crime, Gender and Social Order, 141–142, 156; Lives of the Most Remarkable Criminals, 2:198. 39 A Hellish Murder Committed by a French Midwife on the Body of her Husband (1688), 28, 30. 40 Ibid., 31–32. 41 Publick Occurences Truly Stated, 28 February 1688. 42 See, for instance, Susan Dwyer Amussen, ‘ “Being Stirred to Much Unquietness”: Violence and Domestic Violence in Early Modern England’, Journal of Women’s History, 6, 2 (Summer, 1994), 76; Elizabeth Foyster, Marital Violence: An English Family History, 1660–1857 (Cambridge: Cambridge University Press, 2005), 108. 43 OBP t17140908‑35; Ordinary’s Account (22 September 1714), 4; A Narrative of the Barbarous and Unheard of Murder of Mr. John Hayes (1726), 20. 44 Foyster, Marital Violence, 123, 32, 8. 45 OBP t17430114‑19. 46 OBP t17391205‑2. 47 Lockwood, ‘From Treason to Homicide’, 40–41. 48 OBP t17270222‑11; Weekly Journal or British Gazetteer, 25 February 1727. 49 OBP t17140908‑41. 50 OBP t17470116‑1; St James’s Evening Post, 17–20 January 1747; General Evening Post, 2–4 June 1747. 51 Daily Post, 1 July 1725; OBP t17250630‑6. 52 OBP t17470113–38. 53 OBP t17730908–6; Daily Advertiser, 14 September 1773. 54 Lloyd’s Evening Post, 10–13 September 1773; Morning Chronicle, 29 September 1773. 55 Margaret Hunt, ‘Wife Beating, Domesticity, and Women’s Independence in Eighteenth-Century London’, Gender and History, 4, 1 (1992), 27. 56 The capital conviction rate for all men accused of killing wives and commonlaw partners, 1674–1790, was 54%: 59% before 1740 and 46% afterwards. 57 Allyson N. May, The Bar & the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), 101. 58 OBP t17901027–32. 59 John Brewer, ‘Sentiment and Sensibility’, in James Chandler (ed.), The Cambridge History of English Romantic Literature, Part 1: The Ends of Enlightenment (Cambridge: Cambridge University Press, 2009), 29.

60  Andrea McKenzie 60 Nigel Walker, Crime and Insanity in England. Volume 1: The Historical Perspective (Edinburgh: University of Edinburgh Press, 1968), 64–65, 83. 61 Rabin, Identity, Crime, and Legal Responsibility, 29. 62 OBP t17580913–49; OBP t17600116–26; Joel Eigen, Witnessing Insanity: Madness & Mad-Doctors in the English Court (New Haven: Yale University Press, 1995), 106. 63 OBP t17580913–49; London Chronicle, 4–6 July 1758; London Evening, Post 10–12 January 1760; OBP t17600116–26. 64 London Evening Post, 10–12 January 1760. 65 John H. Langbein, Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), 106. 66 OBP, t17750417–58. 67 OBP, t17620526–18. 68 London Chronicle, 21 September 1769. It is unclear whether the cross-questioning at Mary Anson’s trial was conducted by the judge or by counsel. 69 London Evening Post, 30 November–2 December 1752. 70 Ibid., 27–29 December 1748. 71 Andrea McKenzie, Tyburn’s Martyrs: Execution in England, 1675–1775 (London: Hambledon-Continuum, 2007), ch. 3. 72 Simon Devereaux, ‘The Abolition of the Burning of Women in England Reconsidered’, Crime, History & Societies, 9, 2 (2005), 73–98. 73 Gazeteer and New Daily Advertiser, 22 May 1765. 74 Randall McGowen, ‘A Powerful Sympathy: Terror, the Prison, and Humanitarian Reform in Early Nineteenth-Century Britain’, Journal of British Studies, 25, 3 (July 1986), 320; V.A.C. Gatrell, The Hanging Tree: Execution and the English People 1770–1868 (Oxford: Oxford University Press, 1994), 240. 75 General Evening Post, 11–14 September 1773; Morning Post and Daily Advertiser, 18 September 1773. 76 C.J. Barker-Benfield, The Culture of Sensibility: Sex and Society in 18th-Century Britain (Chicago: University of Chicago Press, 1992), xii, 224. 77 Norbert Elias, The Court Society, vol 2 of The Collected Works of Norbert Elias, ed. Stephen Menell (Dublin: University College Dublin Press, 2006), 121. 78 McGowen, ‘A Powerful Sympathy’, 324. 79 Rabin, Identity, Crime, and Legal Responsibility, 38–39, 62; see also 76–78. 80 McGowen, ‘A Powerful Sympathy’, 320; Gatrell, Hanging Tree, 280. 81 OBP t17870711‑1. 82 World and Fashionable Adviser, 16 July 1787. 83 Many eighteenth-century jurists cited the punishment for parricide prescribed by the infamous Roman Lex Pompeia: being ‘sewn in a sack with a dog, a cock, a viper, and an ape, and thrown into the sea, thus to perish by the most cruel of all tortures’ (Patrick Colquhoun, Treatise on the Police of London [1798], 191. 84 Walker, ‘Parricide’, 275, 279, 283, 286. 85 Catherine Hayes acknowledged that Billings was her son, but denied any ‘Criminal Conversation’ with him; The Last Speech, Confession and Dying Words of Mrs. Catherine Hayes (Dublin, 1726). 86 OBP t17220404–52. 87 Walker, ‘Parricide’, 276. Walker notes that a longer version of this trial was published in the 1734 edition of the Select Trials, but it is interesting to note that the case was dropped in the 1742 edition. 88 General Evening Post, 5 June 1735; the Ordinary’s Account with his entry has not survived.

The Prosecutorial Passions  61 89 Nicholas Rogers, ‘Parricide in Mid-Eighteenth Century England: The Cases of Mary Blandy and Elizabeth Jefferies’, paper presented at Law and Governance conference, University of Western Ontario, London, 25–26 October 2013, 5; Richard M. Ward, Print Culture, Crime and Justice in 18th-Century London (London: Continuum, 2014), 176–185. 90 Walker, ‘Parricide’, 287; Doody, ‘The Law, the Page, and the Body of Women’; Saxton, Narratives of Women and Murder, 19; Susan Sage Heinzelman, ‘Guilty in Law, Implausible in Fiction: Jurisprudential and Literary Narratives in the Case of Mary Blandy, Parricide, 1752’, Texas Journal of Women & Law, 1 (1992), 367. 91 Brant, ‘Murder She Wrote?’ 62. 92 Miss Mary Blandy’s own Account of the Affair between Her and Mr. Cranstoun (1752), 60; W.S. Lewis, ed., The Yale Edition of Horace Walpole’s Correspondence (New Haven: Yale University Press, 1960), 4:317. 93 Miss Mary Blandy’s own Account, 20. 94 A Genuine and Impartial Account of the Life of Miss Mary Blandy (Oxford, 1752), 4, 8; A Genuine Account of the most Horrid Parricide Committed by Mary Blandy (Oxford, 1751), 10, 14–15. 95 See J.M. Beattie, Policing and Punishment in London, 1660–1750 (Oxford: Oxford University Press, 2001), 384–390. 96 BL Add MS 32725, ff.388–9 (Hardwicke to Newcastle, 27 September 1751) f. 389. According to Coke, ‘some say that Parricide was petit treason by the common law’, although it was ‘out of this statute, unlesse the childe served the father or mother for wages, or meat, drink or apparel’ (Edward Coke, The Third Part of the Institutes of the Laws of England [1628–44], 20); according to Bacon, ‘late experience and opinion seemeth to sway to the contrary, against law and reason in my judgement’ (Francis Bacon, Works, vol. 4 [1730], 87). 97 Alexander Welsh, Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore and London: Johns Hopkins University Press, 1992), 25, 44; see also Susan Sage Heinzelman, Riding the Black Ram: Law, Literature, and Gender (Stanford, CA: Stanford University Press, 2010), 72–91. 98 Genuine and Impartial Account, 13, 8. 99 Covent-Garden Journal, 28 March 1752; see also Walker, ‘Parricide’, 284. 100 The Genuine Tryal at Large of Mary Blandy (Oxford, 1752), 14 6, 9. Francis Blandy’s testimony is subtly altered in the later version of the trial: i.e., ‘I bless thee, and hope God will bless thee and amend thy life’ (92), thus omitting any implication he hoped his daughter would go free (William Roughead, ed., The Trial of Mary Blandy [Edinburgh and London: W. Hodge & Co, 1914], 92). 101 Frances Dolan, Dangerous Familiars: Representations of Domestic Crime in England, 1550–1700 (Ithaca, NY: Cornell University Press, 1994), 18; Joy Wiltenburg, Disorderly Women and Female Power in the Street Literature of Early Modern England and Germany (Charlottesville: University of Virginia Press, 1992), 209–250; Barker-Benfield, Culture of Sensibility; Martin Wiener, ‘Alice Arden to Bill Sikes: Changing Nightmares of Intimate Violence in England, 1558–1869’, Journal of British Studies, 40, 2 (April 2001), 184– 212. See also Walker, Crime, Gender and Social Order, 278. 102 A significant exception is David Wilson, Serial Killers: Hunting Britons and their Victims, 1960–2006 (Winchester: Waterside Press, 2007). 103 An Impartial Enquiry into the Case of Miss Blandy (1752), 7–8.

4 Shame and Malice in the Eighteenth-Century Criminal Court and Community E.J. Snell

Introduction In his call for the abolition of the death penalty for rape, barrister Manasseh Dawes asked, ‘What are the ravished woman’s feelings?’1 His question was significant for several reasons. Dawes recognised that victims’ feelings (which he identified as scorn, resentment, and a desire for vengeance and justice) both emerged from the violent act committed against them and motivated their response to it, leading some to prosecute their assailants. However, his question also demonstrated that the victims’ feelings were not entirely their own to be nurtured and expressed as they wanted, but instead had broader social relevance and impact. As philosopher Francis Hutcheson had previously argued, passions and affections worked concurrently within the private, individual, and universal realms.2 Therefore, Dawes contended that rape victims should manage their feelings and behave in a way that enabled them and the community to move on from the violent act. For, he argued, to nurture and act upon such negative emotions by pursuing a prosecution not only failed to achieve justice but actually increased the victim’s misfortune, prevented her recovery, and displayed her as a casualty of violence. In arguing such, Dawes appears to claim that the validity and efficacy of the victims’ feelings could be contested and challenged within the greater social context. Dawes’s consideration of feelings was also an important one within the milieu of historical knowledge of the emotional impact of, and responses to, crime and victimisation. The centrality of emotions to historical action and change has experienced increased attention in recent years.3 Literary sources from past centuries are replete with representations of emotions in response to a diverse range of situations. Portrayals of anger, fear, lust, desire, humiliation, and despair expressed by victims of crime, as well as their assailants, and family and community members, can be found in newspaper reports, court narratives, and pamphlet accounts. This present study focuses on two emotions that were central to narratives of rape in the eighteenth century: shame and malice. It considers not

Shame and Malice in the Criminal Court  63 just the printed representation of the experiences of those involved, but also the possible political meanings of those expressions in terms of how shame and malice might have been used as performances to negotiate power, and achieve desired goals, within the context of the court trial. It is argued that the female plaintiffs were represented as experiencing and expressing shame for being raped, but that the defendants were not represented as using the discourse and actions of shame, but instead guilt. Emotions are complex, elusive, and their accepted expressions change over time.4 Their demonstrations are complicated interplays between numerous verbal and non-verbal behaviours,5 which can be dependent upon a range of variables such as gender, age, social roles, and status.6 Rather than ahistorical phenomena arising from physiological, genetically determined processes,7 emotions are understood to be learned habits, and subject to change over time and place. Constructionist interpretations, led by notable sociologists, anthropologists, and linguists, argue the origins, functions, and demonstration of emotions lie within social, cultural, and discursive practices, developed and expressed within understandings of acceptable behaviour in their specific time and discourse. Sociologist Arlie Hochschild proposed that society controls emotions through social rules, or ‘feeling rules’, to which people strive to conform by managing their emotions, as guided by cultural norms.8 Represented and disseminated in contemporary sources, these emotional standards can help historians approach the ‘sociocultural system of which the emotion is a part’,9 revealing ‘distinctive features of each period’.10 However, to account for historical change, William Reddy argues for the practice of ‘effortful navigation’ to achieve ‘approved states of feelings’.11 His theory regards emotions as two-way processes that can ‘alter what they “refer” to or what they represent’.12 ‘Emotives’ are self-exploratory and selfaltering in that their ‘effects on the self may intensify or attenuate the state “described” ’,13 and they can be utilised to achieve goals that might be only loosely connected to the claim actually made.14 Monica Scheer similarly contends that emotions are a ‘practical engagement with the world . . . conditioned by a social context’15 that has cultural and historical specificity: we do not have emotions as much as do emotions.16 So, ‘every age, every society, is characterised by a style (or styles) of management, aimed at exploiting the great potential of emotives to shape emotional life’.17 Understanding how styles of emotional management work, and for whom, can help historians access the political and social arrangement of a period and, crucially, the change that society experiences.18 To understand the emotions represented in the eighteenth-century narratives of rape, it is necessary to understand the constructions that were imposed upon the events and actions which ‘affect how [people] feel and how they think about how they feel’.19 Although the term ‘emotion’ existed in eighteenth-century England, understandings of feelings were shaped by the more commonly used and nuanced terminology of

64  E.J. Snell ‘passions’, ‘appetites’, ‘affections’, and ‘sentiments’. Grounded in perceptions of religion and morality, passions and appetites were regarded as violent, egocentric, and even evil, whereas sentiments and affections were considered milder, more virtuous, enlightened, and focused on the social good.20 It was a period guided by Enlightenment concepts of Reason, believed to be capable of overcoming the passions. But it was also characterised by sentimentalism: the belief that people had the capacity for moral good, evidenced by demonstrations of affection, generosity, love, pity, conscience, and sensibility. Nurturing such sentiments would, it was believed, enhance virtue:21 the softer, subordinate, feminine virtues such as amiability, compassion, and kindness that were located in domesticity; and the masculine, public virtues of authority, strength, and dignity.22 Expected gender roles are also significant construals within which representations of rape must be considered. Prescriptive literature presented society as dominated by men, who were regarded as intellectually, physically, and morally superior and consequently held political power within the public realm. Women were represented as inferior to men, with idealised femininity characterised by modesty, chastity, purity, piety, meekness, patience, tenderness, charity, and passive domesticity.23 These virtues were informed by medical and theological understandings.24 However, in reality such idealised notions of the natural distinctions between men and women were never that precise, and anyway were believed to be eroding during the eighteenth century. As men were thought to be effeminising, it was believed that women were increasingly emboldened, finding ways to have and demonstrate agency outside of the private sphere.25 This study is based upon 255 accounts of rape printed in the Proceedings of the Old Bailey between January 1700 and December 1799, 215 newspaper reports featuring completed and attempted rape printed in The Kentish Post or Canterbury Newsletter in ten sample years between 1729 and 1767,26 and a number of eighteenth- and seventeenth-century crime pamphlets, treatises, conduct books, and satirical works. Using these sources to access emotional navigations is not easy.27 The representations must only be a pale reflection of the actual feelings expressed by those involved, and as witnessed, utilised, and conveyed by third parties. Nevertheless, the analysis reveals a level of consistency in how the plaintiffs, defendants, and those who supported them revealed their feelings in the criminal court and the community.

The Shame of the Dishonoured The first part of this chapter examines the representation of shame and its associated emotion, guilt. Whilst the sources present the plaintiffs as experiencing and expressing shame, the discourse and actions reported of the defendants does not mention shame but often talks of guilt. Today there is a significant body of work on shame and guilt, which are both understood to be self-conscious, evaluative emotions that arise from

Shame and Malice in the Criminal Court  65 events that lead an individual to conclude that they have failed to live up to social norms in their thoughts, actions, or feelings.28 Scheff argues that the negativity of shame renders it taboo in modern society, but recognises that it might not have carried the same negativity in previous centuries.29 Indeed, Norbert Elias revealed how different generations adapted to different standards of shame and embarrassment.30 For Hutcheson, writing in the mid-eighteenth century, ‘that uneasy sensation called shame’ was connected with other people’s ‘dislike, condemnation, or resentment of injuries done by us’,31 and Samuel Johnson’s dictionary equates shame with disgrace, to discredit, to bring reproach, and ignominy.32 Shame was a central theme in accounts of sexual assault trials.33 Plaintiffs were often reported to have said the attack shamed them. Mary Brickinshaw and Amy Joels both testified that they were ashamed to tell others they had been assaulted,34 while Mary Currell said, ‘I was in such a pickle that I was ashamed to come home’.35 We might also read shame into the actions and bodily gestures the plaintiffs described as enacting after the assault. Thirteen-year-old Mary Martin washed out her bloodied shift because, as she told the court, she was ashamed others would see it.36 As can be seen in these cases, the plaintiffs were often depicted as internalising shame, in that they told of experiencing it even before the assault had been made public. It was their own negative self-judgement, and fear of the opinion of others, that influenced their attempts to keep the assault secret, a decision that caused many of them to suffer their injuries in silence. Nevertheless, shame was also shown to have been levied at the plaintiffs from family, local community members, and the court itself. The mother of prisoner Simon Frazier told the court that when she found her son having sex with Elizabeth Stone, she asked Stone, ‘G-D D-n you, you whore, are not you shamed?’37 The court’s use of intimate medical evidence, its invasive interrogation, and demand for personal artefacts such as bloody undergarments, were also shown to have brought shame on the plaintiffs and witnesses, making it difficult for them to meet the court’s standards of proof.38 In his discussion of shame in Puritan New England, John Demos describes the use of imagery featuring height (of sinking low in spirits and reputation) and measurement (of falling short of standards).39 In the accounts of rape utilised in this present study, discourse representing the victims as ruined, damaged, spoiled, or destroyed was prominent.40 Victim Ann Boss testified that one of her assailants ‘endeavoured to sooth’ her, saying ‘there was no harm done’. Boss retorted: ‘you villain you know you have ruined me’. She later told witnesses that she was ‘ruined and undone for ever’.41 Penelope Askew told her attacker that she would always rue the attack.42 The sense of being ruined was not presented as the same for all victims. For Elizabeth Harris and Elizabeth Banks, the ruin was of their bodies and health,43 but Elizabeth Midwinter stated the loss concerned her honour and character.44 The social stigma for women of engaging in illicit sex, even if it was the result of rape, was severe. One author claimed that victims were ‘render’d unfit for any Body else’ because they had lost

66  E.J. Snell their reputation and ‘everything that is valuable to her’.45 Similarly, Dawes argued that rape victims had lost their honour and virtue, and were forced into an existence ‘as a living death, [to be] avoided . . ., [carrying] a stain, and loathed for her contamination!’46 Many studies of seventeenth- and eighteenth-century sexuality agree on the centrality of notions of chastity to a woman’s worth.47 Keith Thomas’s seminal article argued that the eighteenth-century feminine ideal was ‘delicate, insipid, fainting at the first sexual advance, and utterly devoid of feelings towards her admirer until the marriage knot was tied’.48 Thomas located notions of chastity within understandings of female sexuality as men’s property.49 However, it is doubtful that there existed a consensus on how all women should behave. J. Catty contends the period viewed all female ‘unchastity’ as threatening and women as increasingly vulnerable to temptation.50 However, Anna Clark argued that while chastity constituted the primary source of middleclass women’s virtue, more lax attitudes prevailed for women of lower status.51 More recently, Faramerz Dabhoiwala claimed the eighteenth century witnessed an evolution in sexual freedom, which saw an increase in permissiveness and open-mindedness regarding sexual ethics and an end to ‘spurious notions of female delicacy’.52 Marriage, chastity, and virtue were increasingly regarded as invented and artificial traditions.53 However, for Hutcheson, ‘a life upon shameful terms’ was a vastly greater evil than an honourable death,54 and similarly shame and ruin were sometimes equated to, and presented by the plaintiffs as worse than, death. Elizabeth Worsley claimed that ‘villain’ Christopher Pearson had ‘killed and ruined’ her,55 and Sarah Green was reported to have told her assailants she would rather be killed than torn to pieces after her ‘barbarous rape’.56 Perhaps the most famous portrayal of the desire to disappear from the social gaze, and be removed from society, following sexual assault was Samuel Richardson’s 1748 tale of Clarissa. After her rape by Lovelace, the fictional heroine starts to disengage from and dismantle her life both socially and physically to achieve death. She stops reading, an act that serves to stop her mouth, disposes of all her clothes except a plain white dress, refuses to consume anything other than water and morsels of bread, and lives alongside her own coffin. Clarissa’s mental torment is evident in the discursive and physically fragmented letters written to her family and friends, as well as the text and emblems with which she covers her coffin. Her final disappearance from the epistolary engagement that had been so central to her life (but which had also been used to ensnare her), and the failing of her physical voice, signalled her imminent death.57 In death Clarissa finally becomes immune to, and achieves escape from, the cruel social system (‘patriarchy, upper-class licence, [and] middleclass individualism’)58 that had led to her violation and demise. At the time of its publication, Richardson’s novel met with only moderate success,59 but nevertheless it was instrumental in disseminating the highest ideals of sentimentalism, in which melodramatic and emotional tales presented human nature as possessing the capacity for moral good.60 Its

Shame and Malice in the Criminal Court  67 ‘astonishing social impact’ has been credited with reforming morals and manners.61 While we do not know whether any of the plaintiffs featured in the Proceedings read Clarissa, research suggests that such novels were consumed by the lower orders.62 Shame is the opposite of honour. It is interesting that despite the, often extreme, brutality the victims were depicted as suffering, and their efforts to prevent the assault, they were represented as perceiving themselves to have fallen into dishonour by failing to remain chaste.63 According to Hutcheson, modest people desire honour and have aversion to shame, both for themselves and others.64 Why, then, did these women draw attention to their shame and implicitly admit their own perceived failure and culpability? Their actions might be interpreted as attempts to emphasise to the court the severe, long-term impact of the offence upon their person and social standing, presented in the language and definitions understood by the court and society more widely. In this sense, their claims of shame might be interpreted as attempts to garner empathy and support and, ultimately, a guilty verdict. Such behaviour might also have been motivated by a desire to restore character and community position after the rape. Dawes argued that rape victims brought a prosecution ‘in the expectation of doing him [the offender] justice, and wiping away her own stain’.65 Elizabeth Stone’s husband warned her that ‘if she did not prosecute the prisoners, and clear up her character, he would not live with her; for he would not be made a cuckold of by a one-eyed boy’.66 Not only, then, could shame be transferred onto the plaintiff’s family, but also, it was believed a trial (presumably with a guilty verdict) could restore the plaintiff’s and her family’s damaged reputation. Could such discourse and demonstration of shame constitute, therefore, a performative script, enacted to restore the victim’s damaged reputation, which if successful would enable her to reenter her community with her standing intact? This might explain why some plaintiffs spoke of shame but acted in a way that drew attention to their victimisation, rather than reveal a desire to be hidden. Mary London was said to have ‘ran about, and rav’d, and tore like a mad Woman’,67 and accounts describing the wringing of hands, fainting, crying, begging, and general dishevelment were prominent.68 In his study of Early New England shame and guilt, Demos argued that shame brought feelings of scorn, contempt, and ridicule; that to experience shame was to feel weak and inferior and ‘To become good—or rather to obtain some prospect of “saving grace”—is to recognise one’s profound spiritual weakness’. Selfabasement was, therefore, ‘the way to improvement’.69 While we cannot say that eighteenth-century English women rationalised their situation in the same way as an inhabitant of early modern New England, it is an interesting notion that perhaps these women thought that admitting their role in the event and behaving in a contrite manner offered a chance of redemption. If this was true, such strategies often miscarried, with the prosecutrix having her reputation further disparaged. Frequent investigations into,

68  E.J. Snell and challenges and refutations of, the virtue and honour of these women are depicted in the trial reports and served to undermine the plaintiffs’ accusations. For example, it emerged in court that prosecutrix Elizabeth Harris had many ‘sweet-hearts’, and pretended to be married to one named Evans and shared a bed with him.70 Mary Ferril was said to have ‘own’d that she had lain with 40 Men’.71 Consequently, the sexual crime against the victim was turned into the sexual impropriety of the victims themselves, and the women were publicly denounced in the strongest terms. The condemnation of Sarah Matts as ‘a common vile woman’, who sold herself for sixpence to any man and had the character of ‘a Whore and a Thief’, was not unusual.72 Sexual virtue was considered a public good and the greatest happiness to the person who possessed it. Because the desire for virtue can ‘scarce be too strong’, it was argued that people naturally desired the virtue of others.73 But the plaintiffs were rarely represented as the ‘Excellent’ and ‘valuable’ virtuous women whose price was ‘far above rubies’ described in conduct books.74 Rather they were often portrayed as lascivious women who grew stronger with copulation and were like the ‘Jaws of hell and the grave, that are never satisfied’.75 The behaviour of such women was said to reflect as a scandal on all women.76 The prosecutrix were frequently denigrated for lacking sobriety as well as modesty. Whether they had been drinking alcohol before or at the time of the attack, and with whom, was a recurrent theme in the trials. Testimony that a plaintiff had been drinking undermined the credibility of her character and accusation. Elizabeth Midwinter was repeatedly subjected to such questions as: ‘Was you sober?’, ‘How much did you drink?’77 But identifying intoxication was not always easy. Sometimes, as in the case of Ann Boss,78 witnesses admitted that they confused the signs of distress for drunkenness. Just the reputation of being a drinker was enough to derail a prosecution. Elizabeth Stone was not thought to have been drunk at the time of her attack, but she was known to be ‘apt to drink’ and was condemned as a ‘very drunken woman’.79 Mary Bradley took the initiative and attempted to present herself as a prudent married woman who was offended when prisoner Ralph Cutler offered her a drink. But this image was repeatedly challenged, and she was denounced as an immodest drunk.80 Such disclosures destroyed any chance of a guilty verdict. According to one conduct book, there was nothing ‘so much beast as a drunken woman’ [sic].81 It was argued that this detestable vice, prodigious in all women, was linked to lust: ‘She who is first a prostitute to Wine, will soon be to Lust also’.82 Popular literature advanced the view that alcohol made women more amenable to men’s advances,83 and sexual impropriety and drinking were also presented as connected in the trials. One defence council stated: ‘I cannot think that a modest young girl would have gone about with this man if she was sober’.84 Witness Henry Williams explained to the court how it was necessary to get

Shame and Malice in the Criminal Court  69 women to drink before intercourse, because they needed to be ‘coax’d a little’.85 Some defendants used drinking as a form of defence to discredit the plaintiff: not only did Jeremy Yates claim that he and Mary Haddon had previously engaged in sex, but that Mary voluntarily went drinking with himself and fellow prisoner William Gossip before the alleged attack.86 Given that some prosecutrix were said to have been ‘so suddled she could scarce speak’,87 or stand,88 evidence of drunkenness must have raised questions concerning what she could remember and whether she withheld or gave consent. But this line of questioning went beyond the offence and cast doubt on the characters of the women,89 with the result that they were often publicly demeaned. Elizabeth Berry was castigated with being a ‘vile, sottish, drunken Woman, and a great lieprobate [sic]’ whose own husband had ‘upbraided with whoring and drinking’.90 It was within such narratives of failure that shame arose, and it is therefore perhaps understandable that many plaintiffs expressed fear in revealing their assault. Victim Hepzibah Dover implored her mother ‘don’t be angry’. Crying bitterly, she ‘fell upon her knees, and said, I could not help it, indeed, for he was stronger than I’.91 Dover was only 12 years old, and yet felt the need to beg for leniency for her own part in an attack in which she had no agency or choice.

Guilt and Restitution In contrast, the accused in rape trials were not represented as expressing shame. Although their characters were also under scrutiny, evidence of their sexual impropriety and drunkenness did not call into question their credibility and was sometimes used successfully as a defence. Edward Norton proclaimed in court that prosecutrix Anne May was ‘a very vile girl. . . . I have laid with her a great many times myself’ as evidence of her promiscuity, but not his.92 A witness claimed prisoner Thomas Belsenger had previously admitted to sleeping with Martha Gilbert, but whilst Gilbert was called a ‘naughty Girl’ and ‘common woman’, Belsenger was said to be ‘an Honest Man and a good neighbour’.93 The same attitude applied to drunkenness. Jacob Wykes denied raping Ann Cooper but said that ‘if he had done her any Harm he would ask her Pardon, saying indeed he was drunk’.94 Occasionally, drunkenness was even offered as a reason why victims should forgive their assailants. Elizabeth Worsley was advised to forgive Christopher Pearson for previous rude behaviour because he was ‘in liquor’ at the time.95 Such arguments were sometimes subject to mockery,96 but nevertheless these prisoners were acquitted. According to Dawes, ‘no horrors torment him [the assailant], because he is sensible of no crime’.97 There is evidence the women wanted their assailants to feel shame.98 Victim Ann Lowther asked rapist James Barrett, ‘if he was not ashamed of himself; he said no’.99 Elizabeth Jervis explained that she thought sending a lawyer’s letter to Richard Green would bring

70  E.J. Snell him to shame.100 But these attempts were presented as unsuccessful. One of Dawes’s primary contentions against the death penalty for rape was that these men were behaving naturally.101 Why should one be ashamed of what was natural and could not be controlled? It was believed that sexual violence proceeded from an overflow of passions—‘the agonies of lust or concupiscence’102—and this was echoed in the Proceedings’ and newspaper accounts.103 In his last dying speech, rapist Sam Williams ‘pathetically admonished the crowd to beware of an unrestrained indulgence of their brutal appetites’.104 Alternatively, evidence of the absence of sexual appetite was presented as proof of innocence. Thus sometimes the defence was made that the prisoner was innocent because he did not find the prosecutrix sexually appealing,105 or, that he had access to young, pretty females and had not shown them any ‘sauce’.106 Representations of the uncontrollable nature of lust can be found in many literary genres, including the trial reports.107 However, this view did not go unchallenged. Hutcheson considered lust to be a selfish passion that could be controlled through frequent reflection on admirable affections that worked for the public good.108 The newspapers also gave a more nuanced understanding of lust and rape. Whilst they recognised the power of lust, the only reports that featured men experiencing a complete loss of control concerned consenting adultery and not rape.109 Rapists might have been depicted as behaving out of desire, but they were also represented as exercising choice and, therefore, of being culpable. Moreover, the cases printed in the newspapers tended to be those where the of-age victim110 experienced what I term extraordinary rape: involving significant violence, gang rape, or additional offences such as robbery,111 and these were interactions that could not easily be described as normal sexual relations. Instead of shame, the prisoners were depicted as expressing guilt, as shown through reports of their evaluation of the situation and efforts to repair the damage. Reports indicate that many of the prisoners recognised the severity of the accusation against them. Edward Brophy was said to have ‘looked as white as death’, and apothecary Edward Bull told him that his countenance betrayed his guilt.112 Some of these reactions may have reflected anxiety over the trial, which would have been understandable given that defendants had few rights, met with challenges in presenting their defence, and faced a potential guilty verdict that carried a sentence of death.113 However, accounts of prisoners offering money, clothes, and marriage to their victims show them acting to repair the problem, and point to their guilt.114 John Sutton argued he had a legal right to have sex with Mary Swain because she got into his bed, but told her father that ‘he would make it up at any rate’.115 In several accounts the accused are said to have confessed.116 William Kite confessed and employed a surgeon to examine seven-year-old victim Elizabeth Berry in case he had injured her.117 Kite was found guilty, but fears that confessions had been obtained through threats or promises ensured that by

Shame and Malice in the Criminal Court  71 mid-century the court discounted them.118 Few of the prisoners, including those who confessed, were found guilty. Only 39 cases heard at the Old Bailey between 1700 and 1799 resulted in a guilty verdict. Of those, there is evidence that 12 of the men were executed, but a further two were recommended mercy, one was respited, and three received punishments of imprisonment, fines, and branding. Nevertheless, confessions reveal something of the prisoners’ emotional states. As do accounts of prisoners asking for forgiveness, which implied there was fault to be absolved.119 Some plaintiffs were encouraged to forgive their alleged rapists by their families.120 In being asked, and sometimes expected, to forgive, the plaintiffs were being re-positioned into the conventional female role of relationship building. Brody argues that women are encouraged—through emotions such as shame, fear, and sadness that promote helplessness and lower power—to promote relationships and social bonds.121 But in the cases that went to court we have, by default, women who refused to forgive and, indeed, conveyed their anger and determination to expose their assailant.122 Elizabeth Worsley declared that ‘hanging or burning was too good’ for defendant Christopher Pearson.123 Reddy reminds us of the political significance of emotions.124 Society expects its members to conform to accepted styles of emotional management,125 but emotions are also sites where a person can demonstrate resistance. The treatment of the women who brought prosecutions for rape suggest that their very decision to prosecute was possibly regarded as a demonstration of defiance. These women were not depicted as conforming to helplessness and working to facilitate social bonds. They were attempting to utilise their agency (such as it was) through the prosecution to make their assailant pay. So, the act of bringing a prosecution might constitute further proof of the plaintiff’s lack of virtue; for, as the conduct books argued, virtuous women forgive even the most serious offence and are never angry for long.126 The challenges of both maintaining virtue and attaining justice are apparent in Clarissa, where the heroine fails to achieve both. Eagleton observed that ‘to expect Clarissa and her kind to be saintly for its own sake is to deny them justice’ and that her lack of reparation was the ‘mark of a heartless society’.127 Even Hutcheson doubted the wisdom of prosecution, arguing that focusing on an offence only increased the victim’s sorrow and despair.128 At court some plaintiffs were subject to outright mockery as they were laughed at by the spectators and their testimony disparaged in the printed narratives.129 Simon Dickie’s examination of laughter and cruelty in eighteenth-century society and literature discusses the many ways in which rape, and the women who pursued a prosecution, were subjected to pitiless and dismissive humour. As Dickie explains, the humour largely focused on the legal treatment of rape and high standards of sexual modesty, possibly due to the ambiguities and contested meanings surrounding rape and sex. In an era when polite women refrained from expressing

72  E.J. Snell attraction and were expected to offer resistance to advances, sex was an arena of struggle in which it was expected that men needed to actively persuade women to engage in sexual relations. Consequently, acts that might today be labelled as rape were presented as natural behaviour between men and women and actually something that the women wanted. As Dickie argues, such levity served to put the ‘vocal and resistant women back in their place, to confirm old ideas that women never told the truth, especially about sex’,130 and ultimately reflected the reluctance of society to take a man’s life based on a woman’s word.131 In the Proceedings, plaintiffs who were presented as attempting to resist the role of the impure, contrite, and meek victim were subject to efforts to put them back in their place. Elizabeth Harris’s anger at defendant William Priddle was evident in her answers, and she was told by the court to answer seriously.132 Garthine Walker noted that in court the female victims omitted any reference to their own physical efforts to prevent or stop the assault. If the ‘language of true self-defence was male’, it could not be employed by women without undermining their femininity (and their honour and credibility in court) while also emasculating their assailants and negating their threat.133 In the newspaper reports, none of the rape victims was reported to have physically defended themselves. In reports of attempted rape where the woman did use physical violence, her actions were presented as either comical or a criminal over-reaction. In one such account where a young Irish woman threw her attacker into a river, the inverted gender stereotypes presented the would-be rapist as a comical fool.134 In another, a servant maid in Southwark was arrested when she stabbed an ostler who had entered the bedchamber where she was working and ‘offered great rudeness to her’.135 This stands in contrast to the newspaper’s representation of male sexual victimisation, where the victims are presented as successfully defending themselves and their efforts are praised. One report related how a potential victim ‘struck off his [the attacker’s] Hat and Wig, and strongly indorsed the marks of a crabbed Stick upon the old Lecher’s Back’. The intended victim was left brandishing his trophy: ‘The Sage’s Wig is in the Possession of the Conqueror’.136 However, emotions were also recognised to be functional. For Hutcheson, anger was a useful passion that helped remove uneasy and injurious sensations and obtain reparation and future security.137 Moreover, decisions to prosecute were often supported by the victim’s family and friends. Sources demonstrate the numerous positive emotions, and potential communal benefits, arising from such events: the affirmation of family and communal bonds, extension of kindness, support of the judicial system, and strengthening of moral standards through reasserted boundaries of acceptable and unacceptable behaviour. In expressions of empathy, friends and family revealed and reasserted their compassion and care for the victim. They displayed anger towards the assailants and distress for their loved one; soothed their anguish; offered advice; sought

Shame and Malice in the Criminal Court  73 medical help; located and arrested the suspects and took them before the magistrate; and supported and encouraged the decision to prosecute.138 Strangers put themselves in danger to protect the vulnerable and injured, and extended kindness to those in need. Elizabeth Small gave 13-year-old Mary Martin, whom she had never before met, a penny to run away from her master.139 The cases encouraged community unity as people came together to castigate those found guilty and support the victim. Rapist Benjamin Russen told the court, ‘the whole parish have been incensed against me’, due to the charges.140 Communal action is perhaps best demonstrated in the newspaper reports of the punishment of offenders found guilty of child abuse. There was a clear expectation that the heinous nature of the crime would provoke community anger. Commenting on the impending punishment of a heel-maker for attempted rape, one report said, ‘it is expected this Monster will meet with the usual Discipline from the People’, referring to punishment at the hands of the mob.141 For Hutcheson there was honour and virtue in helping others, which brought happiness and joy.142 But such assistance was not presented as effortless as the victims’ supporters were often forced to confront information that challenged their previously held opinions about friends and family. James Sharpe revealed his grief at the betrayal of James Craige, who had raped his daughter. Sharpe told the court: ‘as I was going to the justice he [Craige] turned his head about and look’d at me. I said, how can you look me in the face after you have used me so ill, though I have been a father to you’. Craige himself ‘said his heart was ready to break’.143 So there was also sorrow in these narratives: of precious, longstanding relationships lost.

Malice: Revenge of the Tyger Woman Despite these examples of familial and communal support, in most cases the plaintiff was found to be ‘false and feigned’,144 and the defendant acquitted or, worse, the prosecution declared malicious. When anger is used to harm another, and no good can come from it, we move into the territory of malice: described by Hume as hate and anger mixed.145 Malice has been described as a ‘weasel word’,146 meaning the intention or desire to hurt or cause mischief to another.147 Like shame, malice arises from an awareness of others; being the ‘desire of producing evil to another, in order to reap a pleasure from the comparison’.148 Only nine eighteenthcentury Old Bailey Proceedings trials for sexual assault use the term malicious prosecution, but many trial accounts, newspaper reports, and pamphlets describe or allege malice. As with rape more generally, malicious accusations of the crime, and the women accused of making such false claims, were often ridiculed with biting humour.149 In one satirical poem, the prisoner contends that the plaintiff brought the prosecution out of spite because she was menstruating: the ‘Times and Seasons/When

74  E.J. Snell Women are most horrid frightful’. The fictional prosecutrix is further portrayed as a lascivious ‘impudent . . . Slut’ whom the prisoner did not have the strength to satisfy.150 According to Simon Dickie, false rape charges offered another forum for contemporary humour; in particular, they were presented in fiction as a ‘first-class trick’.151 However, such jokes were grounded in more real fears that rape, an easy crime to allege, put men in danger of extortion by either an individual woman or an organised gang, and was a means to enact vengeance upon an enemy.152 Several prisoners tried at the Old Bailey, and their witnesses, claimed the prosecution was ‘intirely [sic] malicious’153 and brought to bring them misery.154 Christopher Pearson said he ‘look[ed] upon it all as spite and malice’,155 and rapist James Purse claimed Elizabeth Midwinter told him she would make him ‘suffer’ after he refused to marry her.156 The court heard malicious accusations designed to get plaintiffs out of compromising situations. One woman found in an ‘indecent Posture’ with a whipmaker was said to have attempted to protect her reputation by falsely claiming he intended to rape her.157 Many were presented as a means to extort money.158 Elizabeth Sanderson allegedly said if she did not get 30 Guineas from prisoner Alexander Reytown, ‘she would work him, and lead him a dance’.159 Some claims, however, were more complex and point to deep-seated communal and family unrest.160 The charge against Richard Newall was said to have been instigated by his wife, although her motivation was never explained.161 Penny Crofts emphasises early understandings of wickedness attached to malice, and that emotion was an integral part of its repertoire.162 Revenge and malice were declared by one author to be the ‘Offspring of Satan’ and that there was ‘no Monster so Deformed . . . [or] more Unnatural, or Odious than a Woman Tyger’: a revengeful creature with ‘Mischiefs and Miseries’ attending her.163 Interestingly, the newspapers featured more cases of malicious accusation for sodomy than for rape, with men constituting most offenders. Despite this, women were still presented as being more villainous; using deceit and their sexual wiles to lure men into seemingly safe and everyday situations to attack them.164 Attempts to extort money and to cover up their own criminality, including infanticide, were offered by the defendants as motivations for the women’s malicious accusations.165 The plaintiffs were often presented as tenacious liars,166 and some, such as Sarah Ellis, were accused of being serial offenders.167 Ann Cooper was said to be ‘a Common Woman, that made it her Business. . . . To Trap People, by pretending to . . . be ravished’. Five men testified against her and it was claimed she had ruined 50 families with her lies.168 Although Hutcheson declared malice to be an ‘absolute evil’, he argued that there was ‘nothing in our nature determining us to disinterested hatred towards any person’.169 Rather, seemingly malicious actions arise when a person feels threatened and attempts to protect themselves.170

Shame and Malice in the Criminal Court  75 However, narratives suggest that false accusations could ‘cast reflections upon’ both the accused and their family and friends171 and emphasised the potentially malignant control of women. In 1999 Bernard Capp argued that sexual reputation was more important for men than historians had previously recognised and observed that claims of sexual misdeeds provided ‘evidence of the power such allegations might bestow on a woman bold enough to make them’.172 Similarly, Joy Wiltenburg argued that women’s sexuality has always been emphasised ‘as an instrument of control over men’.173

Conclusion Emotion played a central role in narratives of rape trials. The courts provided the victims, prisoners, and witnesses with an opportunity to share their feelings arising from the crime, and these depictions provide valuable insights into the contemporary meanings of acceptable emotional interpretations of, and responses to, rape, its prosecution, and judicial outcome. The plaintiffs went to court to gain restitution for an offence in which they were the victims. It is possible that some also went in an effort to restore their character and reputation. However, many presented their assault within discourses of shame, and in so doing cast themselves as deviant. In portraying themselves as ashamed, they perhaps sought to communicate the severe and long-term social impact of the crime, conveyed within an acceptable framework of female status that rendered the impact of the offence relatable to the community and to the court. However, it also meant that they presented themselves as dishonourable and therefore questionable victims. Accusations of insobriety and licentiousness were compounded by contemporary notions, as characterised in the literature at least, of what it meant to be a virtuous, as well as a dissolute, woman. In this way, even a genuine prosecution could be interpreted as motivated by anger and vengeance, and a false prosecution evidence of wickedness. All scenarios represented the plaintiff, at some point, as behaving as a deviant and dangerous woman, so playing into possible judicial perceptions that all women were conniving and untrustworthy.174 Although the narratives indicate that plaintiffs often had the support of their family and the wider community, the trial itself, and the use of discursive frameworks that presented them as dishonourable (or even worse, malicious), meant a guilty verdict was unlikely. In contrast, the prisoners were represented as employing available discourses of guilt and actively eschewing labels of being ashamed. Guilt was a discourse that enabled them to be presented as potentially culpable, but ultimately redeemable, even in the face of a possible guilty verdict and death sentence. Any disreputable acts by the prisoner were pushed aside and even, at times, depicted as acceptable male behaviour.

76  E.J. Snell The court was a part of the society in which the rape occurred and the suspects tried. The emotional standards represented in the trial narratives reflected those of the wider society, and individual emotional states cannot be fully understood apart from the societal context within which appropriate emotional responses and expressions were defined, shaped, and portrayed. The narratives suggest that the emotional standards displayed in the prosecutions were representative of wider eighteenthcentury social attitudes towards women and their roles and status; and that these emotional standards made it difficult for plaintiffs to achieve successful prosecutions for rape. In this way, emotional obstacles set up within society were perpetuated in the courts, and then back out into the community again, as the plaintiffs were very likely left as shameful and dishonourable women having achieved no actual or emotional restitution in the court process.

Notes 1 M. Dawes, Essay on Crime and Punishments, with a View of, and Commentary upon Beccaria, Rousseau, Voltaire, Montesquieu, Fielding, and Blackstone (London, 1782), 89. Manasseh Dawes was a barrister of the Inner Temple, London, from 1776, and in 1789 was called to the bar. Being regarded as possessed of a ‘very strong mind’ and extensive legal knowledge, he authored many publications on legal topics such as libel and landed property, as well as letters on political events that argued from a whig perspective. Dawes also critiqued and offered observation on the work of several notable social commentators, including Jeremy Bentham, in his Essay on Intellectual Liberty and Tolerance (1780), and Cesare Beccaria, Jean-Jacques Rousseau, and William Blackstone in An Essay on Crime and Punishment (1782). He appears to have enjoyed poetry, both writing his own and editing that of others. Continuing to write and publish well into the nineteenth century, Dawes died at his home in Clifford’s Inn in April 1829. (H. Mooney, ‘Dawes, Manasseh’, Oxford Dictionary of National Biography (2004), available online at oxforddnb.com.) 2 F. Hutcheson, An Essay on the Nature and Conduct of the Passions and Affections upon the Moral Sense, 3rd ed. (Glasgow, 1769), 7 and 33. 3 F. Biess, A. Confino, U. Frevert, U. Jensen, and D. Saxer, ‘Forum, History of Emotions’, German History, 28, 1 (2010), 67–80; A. Wierzbicka, ‘The “History of Emotions” and the Future of Emotion Research’, Emotion Review, 4 (2010), 1; P.N. Stearn, ‘History of Emotions: Issues of Change and Impact’, in M. Lewis, J.M. Haviland-Jones, and L. Feldman Barrett (eds.), Handbook of Emotions (London: The Guildford Press, 2010), 18. 4 M. Scheer, ‘Are Emotions a Kind of Practice (and Is that What Makes Them Have a History)? A Bourdieuian Approach to Understanding Emotions’, History and Theory, 51 (2012), 212. 5 D. Matsumoto, D. Keltner, M.N. Shiota, M. O’Sullivan, and M. Frank, ‘Facial Expressions of Emotion’, in M. Lewis et al. (eds.), Handbook of Emotions (London: The Guildford Press, 2010), 211–234; L. Brody, Gender, Emotion and the Family (Cambridge, MA and London: Harvard University Press, 1999, this ed. 2001); J-A. Bachorowski and M.J. Owren, ‘Vocal Expressions of Emotion’, in M. Lewis et al. (eds.), Handbook of Emotions (London: The Guildford Press, 2010), 196–210; J. Haviland-Jones and P.J.

Shame and Malice in the Criminal Court  77 Wilson, ‘A “Nose” for Emotion’, in M. Lewis et al. (eds.), Handbook of Emotions (London: The Guildford Press, 2010), 235–248. 6 Brody, Gender, 25, 2. 7 W.M. Reddy, ‘Sentimentalism and Its Erasure: The Role of Emotions in the Era of the French Revolution’, The Journal of Modern History, 72, 1 (2000), 111; W.M. Reddy, ‘Historical Research on the Self and Emotions’, Emotion Review, 1, 4 (2009), 304. 8 A.R. Hochschild, ‘Emotion Work, Feeling Rules, and Social Structure’, The American Journal of Sociology, 85, 3 (1979), 551–575. 9 Reddy, ‘Historical Research’, 304; J.R. Averill, Anger and Aggression: An Essay in Emotion (New York: Springer-Verlag, 1982), 24. 10 Reddy, ‘Historical Research’, 302. 11 Reddy, ‘Sentimentalism and Its Erasure’, 113. 12 W.M. Reddy, ‘Against Constructionism: The Historical Ethnography of Emotions’, Current Anthropology, 38, 3 (1997), 327. 13 Reddy, ‘Sentimentalism and Its Erasure’, 116. 14 Ibid., 118. 15 Scheer, ‘Are Emotions a Kind of Practice’, 193. 16 Ibid., 194. 17 Reddy, ‘Sentimentalism and Its Erasure’, 119. 18 Ibid. 19 Wierzbicka, ‘The ‘History of Emotions’, 4. 20 T. Dixon, ‘ “Emotion”: The History of a Keyword in Crisis’, Emotion Review, 4, 4 (2012), 343; T. Dixon, From Passions to Emotions: The Creation of a Secular Psychological Category (Cambridge: Cambridge University Press, 2003). 21 Reddy, ‘Historical Research’, 306–308; Dixon, From Passions to Emotions, 66. 22 V. Jones, ‘Introduction’, in V. Jones (ed.), Women in the Eighteenth Century: Constructions of Femininity (London and New York: Routledge, 2006), 1–13. 23 R.B. Shoemaker, Gender in English Society 1650–1850: The Emergence of Separate Spheres (Singapore: Longman, 1998); H. Barker and E. Chalus, ‘Introduction’, in H. Barker and E. Chalus (eds.), Gender in Eighteenth-Century England (London and New York: Routledge, 1997), 2. 24 Shoemaker, Gender in English Society. 25 G.J. Durston, Wicked Ladies: Provincial Women, Crime and the EighteenthCentury English Justice System (Newcastle: Cambridge Scholars Publishing, 2013). Barker, ‘Introduction’. 26 Hereafter OBP and KP. The years analysed in KP were 1729, 1730, 1738, 1739, 1752, 1753, 1759, 1760, 1765 and 1766. 27 B.H. Rosenwein, ‘Worrying about Emotions in History’, The American Historical Review, 107, 3 (2001), 821–845. 28 M. Lewis, ‘Self-Conscious Emotions: Embarrassment, Pride, Shame and Guilt’, in M. Lewis et al. (eds.), Handbook of Emotions (London: The Guildford Press, 2010), 743; J. Scheff, ‘Shame and Self in Society’, Symbolic Interaction, 26, 2 (2003), 239–262; E.H. Erikson, Childhood and Society (New York: Norton, 1955), 223–224, cited in Lewis, ‘Self-Conscious Emotions’, 744. 29 Scheff, ‘Shame and Self’. 30 N. Elias, The History of Manners: The Civilizing Process, Vol. 1 (Worchester: Basil Blackwell, 1939, this ed. 2001); N. Elias, The Society of Individuals, ed. M. Schröter, trans. E. Jephcott (London and New York: Continuum, 1987, this ed. 2001), viii.

78  E.J. Snell 31 Hutcheson, An Essay on the Nature, 6. 32 S. Johnson, ‘Shame’, in Dictionary of the English Language: In Which Words Are Deduced from Their Originals, Explained in the Different Meanings, and Authorised by the Names of the Writers in Whose Works They Are Found, 3rd ed. (Dublin, 1768, Google E-Book). 33 E.J. Snell, ‘Trials in Print: Narratives of Rape Trials in the Proceedings of the Old Bailey’, in D. Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain 1700–1850 (Farnham: Ashgate, 2012), 23–41. 34 OBP, 13 April 1768, t17680413–30; 27 August 1725, t17250827–84. 35 OBP, 20 February 1771, t17710220–14. 36 OBP, 18 May 1774, t17740518–43. 37 OBP, 11 September 1771, t17710911–38. 38 Snell, ‘Trials in Print’; OBP, 2 March 1726, t17260302–17; 12 Septem ber 1733, t17330912–55. 39 J. Demos, ‘Shame and Guilt in Early New England’, in R. Harré and W.G. Parrott (eds.), The Emotions: Social, Cultural and Biological Dimensions (London: Sage, 1996), 74–88. 40 OBP, 27 April 1715, t17150427–43; 7 July 1773, t17730707–2; 6 December 1721, t17211206–67. 41 OBP, 7 July 1773, t17730707–2. 42 OBP, 25 April 1781, t17810425–47. 43 OBP, 18 February 1775, t17750218–1; 11 September 1717, t17170911–41. 44 OBP, 10 May 1780, t17800510–57. 45 Anon, The Confederacy: Or, Boarding-School Rape. Being the Tryal At Large, with all the Pleadings, Letters, Informations, etc, Between Abraham Magny, a Jew, John Crab and Others, In the Court of Common Please at Westminster, for Seducing from a Boarding-School, and committing a Rape on the Body of Mrs Mary King a Virgin, between 12 and 13 Years of Age, with the Arts made Use of to Decoy her, by the said Jew (London, 1741), 90. British Library: 1132.c.34. 46 Dawes, Essay on Crime, 88. 47 A. Clark, Women’s Silence, Men’s Violence: Sexual Assault in England 1770– 1845 (London and New York: Pandora Press, 1987); K.U. Henderson and B.F. McManus, Half Humankind: Context and Texts of the Controversy about Women in England 1540–1640 (Chicago: University of Illinois Press, 1985). 48 K. Thomas, ‘The Double Standard’, Journal of Historical Ideas, 20 (1959), 195–216. 49 Ibid., 215. 50 J. Catty, Writing Rape, Writing Women in Early Modern England: Unbridled Speech (Basingstoke: Palgrave Macmillan, 1991, this edition, Springer, E-Book 2016), 15–16. 51 Clark, Women’s Silence. 52 F. Dabhoiwala, ‘Lust and Liberty’, Past and Present, 207 (2010), 89–179. 53 Ibid. 54 Hutcheson, An Essay on the Nature, 67. 55 OBP, 3 September 1766, t17660903–70. 56 Anon, The True and Genuine Account of the Confession (whilst under sentence of Death) of Thomas Jones, and James Welch, or the Barbarous Rape and Murder of Sarah Green, As Taken from the Mouth of Nicholls (the Evidence against them) and by them attested to be the Truth (before several People) (London, 1751), 5. BL: P.P1349.a.42 9(13). 57 T. Castle, Clarissa’s Ciphers: Meaning and Disruption in Richardson’s Clarissa (Ithaca, NY: Cornell University Press, 2016), 114, 109.

Shame and Malice in the Criminal Court  79 58 T. Eagelton, The English Novel: An Introduction (Malden, MA, and Oxford: Blackwell Publishing, 2005), 77. 59 S. Dickie, Cruelty and Laughter: Forgotten Comic Laughter and the Unsentimental Eighteenth Century (Chicago and London: University of Chicago Press, 2011). 60 T. Eagleton, Sweet Violence: The Idea of the Tragic (Malden, MA and Oxford: Blackwell Publishing, 2003), 180; Reddy, ‘Historical Research’; Reddy, ‘Sentimentalism and Its Erasure’. 61 Eagelton, The English Novel, 76. 62 Ibid., 55. 63 K.P, 4328, 5 May 1759, p. 3; 1288, 26 December 1730, p. 1; 3739, 19 September 1753, p. 4; Anon, The True and Genuine Account of the Confession (whilst under sentence of Death) of Thomas Jones, 6. 64 Hutcheson, An Essay on the Nature, 64, 8. 65 Dawes, Essay on Crime, 89. Original emphasis. 66 OBP, 11 September 1771, t17710911–38. 67 OBP, 4 July 1730, t17300704–62. 68 OBP, 7 July 1773, t17730707–2; 20 February 1771, t17710220–14. 69 Demos, ‘Shame and Guilt’, 79. 70 OBP, 18 February 1775, t17750218–1. 71 OBP, 3 March 1720, t17200303–43. 72 OBP, 8 December 1731, t17311208–58. 73 Although Hutcheson also admits that the ‘desire for virtue may often lead men into very pernicious actions’, whilst the pursuit of honour can ‘run into enthusiasm and pernicious madness’ leading men to ‘destructive follies’. (An Essay on the Nature, 65, 88–89.). 74 T. Rogers, The Character of a Good Woman, Both in a Single and Marry’d State (London, 1697), 4. BL: Wing/R1846. 75 L. Lemnius, The Secret Miracles of Nature: In Four Books (London, 1658), 185. BL: Wing / L1044. 76 Anon, The Whole Duty of a Woman: Or a Guide to the Female Sex, from the Age of Sixteen to Sixty, 2nd ed. (London, 1696), 15. BL: Wing/W2054B. 77 OBP, 10 May 1780, t17800510–57. Female witnesses were also asked such questions. (OBP, 14 July 1762, t17620714–34.). 78 OBP, 7 July 1773, t17730707–2. See also OBSP, 7 July 1779, t17790707–49. 79 OBP, 11 September 1771, t17710911–38. 80 OBP, 10 September 1777, t17770910–21. 81 Anon, The Ladies Calling in Two Parts (Oxford, 5th Impression, 1677), 15. 82 Ibid. 83 T. D’Urfey, ‘The Enjoyment or No no changed to Ay ay’ (1684), in J. Wardroper (ed.), Lovers, Rakes and Rogues (London: Shelfman Books, 1995), 84–86. 84 OBP, 20 February 1771, t17710220–14. 85 OBP, 8 December 1731, t17311208–58. See also OBP, 1 May 1717, t17170501–67. 86 OBP, 31 August 1726, t17260831–39. 87 OBP, 4 July 1730, t17300704–62. 88 OBSP, 14 May 1719, t17190514–45. 89 Beattie discusses the importance of the character of the prisoner, and women in rape trials, in court decisions. (‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law and History Review, 9, 2 (1991), 231; Crime and the Courts in England 1660–1800 (Princeton, NJ: Princeton University Press, 1986), 126–127.) 90 OBP, 12 October 1743, t17431012–15.

80  E.J. Snell 91 OBP, 7 September 1748, t17480907–50. 92 OBP, 4 December 1751, t17511204–36. 93 OBP, 12 October 1720, t17201012–38. See also the justification of nobleman John Drummond’s behaviour in Anon, The Case of the Ld. John Drummond, In relation to a Rape Sworn to have been committed by Him on the 18th Day of May 1715, upon the Body of Elizabeth Galloway, a Common Prostitute (London, 1715). BL: 12316.bbb.38(1). 94 OBP, 9 July 1718, t17180709–37. 95 OBP, 3 September 1766, t17660903–70. 96 Anon, A Genuine Copy of the Tryal of Thomas Grimes, Esq: alias Lord S—, For a Barbarous and Inhuman Rape, Committed on the Body of Miss T.C.P a Young Girl of Thirteen Years of Age (London, 1748), 25. 97 Dawes, Essay on Crime, 89. 98 Moreover, occasionally the Ordinary’s Accounts referred to the ‘Sin and Shame’ of convicted rapists. (22 September 1735, OA17350922). 99 OBP, 7 July 1779, t17790707–49. 100 OBP, 10 May 1769, t17690510–15. 101 Dawes, Essay on Crime, 87. 102 Ibid., 86; Anon, Sad and Lamentable News from Rumford, Being and true and dreadful Relation of the sad and Dreadful end of one William Stapeler, A drover, who committed a Rape, or Ravishment, upon the Body of a young Girl, that lodged in his house (London, 1674), BL: Wing (2nd ed.)/ S244A; Anon, A Blazing Starre seen in the West, At Totneis in Devonshire, on the fourteenth of this instant November, 1642. Wherein is manifested how Master Ralph Ashley, a deboyst Cavalier, attempted to ravish a young Virgin, the Daughter of Mr Adam Fisher, inhabiting neare the said Towne (London, 1642), BL: Wing/B3182. 103 OBP, 14 March 1739, t17390117–11; K.P, 4335, 30 May 1759, 4; 5028. 104 K.P, 5196, 29 August 1767, 3. 105 OBP, 26 February 1746, t17460226–32. See also Anon, Capt Leeson’s Case: Being an Account of his Tryal for Committing a Rape Upon the Body of Mrs May, a Married Woman of 35 years of Age; for which he received sentence of Death, on the 30th of April 1715, but has since obtain’d his Majesty’s most Gracious Reprieve (London, 1715), 17. 106 OBP, 8 December 1742, t17421208–41; 2 March 1726, t17260302–17. 107 OBP, 9 July 1718, t17180709–37; 3 September 1766, t17660903–38. It was argued that sexual desire was biological, and some people were more prone to lust than others. Thus pale, leaner women were considered more lascivious than their rosy, larger counterparts. Additionally, those suffering from gout, men recovering from illness, and women during the summer were all considered more lustful. (Lemnius, The Secret Miracles, 152–153, 166, 184.). 108 Hutcheson, An Essay on the Nature, 27–28, 35. 109 K.P, 4337, 6 June 1759, 3. 110 Up to the age of 70; as elderly women, who were rarely represented as rape victims in the courts or the newspaper, were depicted in the press as sexually unappealing and therefore un-credible victims. 111 K.P, 5203, 23 September 1767, 2; 2169, 23 August 1738, 1. 112 OBP, 3 September 1766, t17660903–38. See also OBSP, 28 June 1769, t17690628–8; 10 May 1769, t17690510–15. 113 S. Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England’, Cornell Law Review, 75 (1990), 542, 526– 527; Beattie, ‘Scales of Justice’, 221–267. Although it should be noted that in the OBP reports of sexual assault, the women were presented as particularly subjected to this form of cross-examination.

Shame and Malice in the Criminal Court  81 14 OBP, 13 April 1768, t17680413–30; 15 May 1771, t17710515–6. 1 115 OBP, 24 April 1745, t17450424043. 116 OBP, 15 October 1777, t17771015–10; 27 April 1720, t17200427–38; 18 October 1780, t17801018–40. 117 OBP, 10 December 1707, t17071210–20. 118 Landsman, ‘The Rise’, 526–527. 119 OBP, 6 July 1774, t17740706–57. 120 OBP, 9 December 1778, t17781209–58. 121 Brody, Gender, Emotion, 4. 122 OBP, 10 May 1769, t17690510–15; 1 May 1780, t17800510–57. 123 OBP, 3 September 1766, t17660903–70. 124 W.M. Reddy, The Navigation of Feeling: A Framework for the History of Emotions (Cambridge: Cambridge University Press, 2001), 323. 125 Ibid. 126 Rogers, The Character, 17. 127 Eagelton, Sweet Violence, 221. 128 Hutcheson, An Essay on the Nature, 41, 42. 129 OBP, 10 September 1788, t17880910–46; 12 October 1743, t17431012–15. 130 Dickie, Cruelty and Laughter, 195. 131 Ibid. 132 OBP, 18 February 1775, t17750218–1. 133 G. Walker, ‘Rereading Rape and Sexual Violence in Early Modern England’, Gender and History, 10, 1 (1998), 8–9. 134 KP, 3633, 2 September 1752, 3. 135 KP, 5113, 5 November 1766, 2. 136 KP, 3756, 19 December 1753, 2. 137 Hutcheson, An Essay on the Nature, 48, 56–57. 138 OBP, 13 April 1768, t17680413–30; 10 May 1780, t17800510–57. It was usually the victim’s support network whose reactions were portrayed; however, in one account the mother of prisoner Richard Green was said to have been in a violent passion as she sought out the character of her son’s accuser. (OBP, 10 May 1769, t17690510–15.). 139 OBP, 18 May 1774, t17740518–43; K.P, 4336, 2 June 1759, 4. 140 OBP, 15 October 1777, t17771015–1. 141 KP, 2252, 9 June 1739, 2; See also KP, 4483, 22 October 1760. 142 Hutcheson, An Essay on the Nature, 48. 143 OBP, 3 July 1771, t17710703–33. 144 This could be for many reasons, including if the plaintiff was too slow to report the offence, tried to conceal it, or was of bad fame. These criteria were designed to help the jury decide the credibility of the accusation. (Anon, The Laws Respecting Women, as they Regard Their Natural Rights, or Their Corrections and Conduct (London, 1777), 311.) 145 D. Hume, A Treatise on Human Nature, Book II, Part II, Section IX (London, 1738–40), Kindle E-Book, 288; Hutcheson, An Essay on the Nature, 57. 146 E. Reid, ‘Malice in the Jungle of Torts’, Tulane Law Review, 87 (2013), 903; S. Eldar, ‘The Limits of Transferred Malice’, Oxford Journal of Legal Studies, 32, 4 (2012), 633–658. 147 Johnson, ‘Malice’. 148 Hume, A Treatise, 285. 149 Anon, The Confederacy: Or, Boarding-School Rape; Anon, Observations on S. W. ******K’s own Evidence, Relative to the Pretended Rape, as Printed on the Trial (London, 1768). BL: 6497.d.d.17. Roger L’Estrange, Cambridge Jests, or Witty Alarums of Melancholy Spirits, by Lover of

82  E.J. Snell Ha Ha He, featured two jokes of malicious accusation for sexual assault ­([London, 1674], 38 and 69. BL: Wing/C332). Satirical poems also featured this theme. Anon, The Rape of the Bride; Or, Marriage and Hanging Go By Destiny (London, 1723). BL: 1507/459; Anon, The Case of the Ld. John Drummond. 150 Anon, The Trial of Roger, for an Accident That Happened at a Game of Romps with Esther (London, 1744), 16, 6. BL: C.131.f.6. 151 Dickie, Cruelty and Laughter, 229. 152 Ibid. 153 OBP, 6 December 1721, t17211206–46. 154 Hutcheson, An Essay on the Nature, 59. 155 OBP, 3 September 1766, t17660903–70. Spite was described as ‘To mischief; to treat maliciously; to vex; to thwart malignantly’ and ‘to offend’. (Johnson, ‘Spite’.) 156 OBP, 10 May 1780, t17800510–57. See also OBP, 7 December 1715, t17151207–52. 157 K.P, 3617, 8 July 1752, 1. 158 OBP, 3 March 1720, t17200303–43; 25 February 1784, t17840225–19; K.P, 3616, 4 July 1752, 2. For some examples of extortion using malicious sodomy accusation see K.P, 5160, 18 April 1767, 2; 12 April 1729, 3. 159 OBP, 4 December 1730, t17301204–23. 160 OBP, 1 March 1721, t17210301–58; 8 December 1742, t17421208–41. 161 OBP, 11 April 1716, t17160411–42; K.P, 3603, 20 May 1752, 3. 162 P. Crofts, ‘The Poisoned Apple of Malice’, Griffith Law Review, 22, 1 (2013), 150–179. 163 Anon, The Whole Duty of Woman, 36. 164 K.P, 3616, 4 July 1752, 2. 165 K.P, 3617, 8 July 1752, 1; OBP, 3 September 1766, t17660903–70; OBP, 3 March 1720, t17200303–43; K.P, 3616, 4 July 1752, 2; OBP, 4 December 1730, t17301204–23; OBP, 8 December 1742, t17421208–41. 166 K.P, 3755, 14 November 1753, 4. 167 OBP, 8 December 1731, t17311208–58. See also OBP, 9 July 1718, t17180709–37. 168 OBP, 9 July 1718, t17180709–37. 169 Hutcheson, An Essay on the Nature, 94. 170 Ibid., 170. 171 Anon, The True and Genuine Account of the Confession; Anon, The Case of the Ld. John Drummond. 172 B. Capp, ‘The Double Standard Revisited: Plebeian Women and Male Sexual Reputation in Early Modern England’, Past and Present, 162 (1999), 97–98. 173 J. Wiltenburg, Disorderly Women and Female Power in the Street Literature of Early Modern England and Germany (Charlottesville and London: University Press of Virginia, 1992), 141–143. 174 J. Gammon, ‘Researching Sexual Violence, 1660–1800: A Critical Analysis’, in A. Greenfield (ed.), Interpreting Sexual Violence, 1660–1800 2013 (London: Pickering and Chatto, 2013), 27.

Part II

Emotional Communities and Sensibilities Truth, Theatre, and Blasphemy in Court

5 Sympathetic Speech Telling Truths in the NineteenthCentury Irish Court Katie Barclay

I feel persuaded that both you, and any juries to which you may send these cases for investigation, will approach them with unbiased feelings;—with minds like pure white paper, ready to receive those mere impressions, which it is the privilege of authentic evidence to stamp upon them. Whatever excitation there may be abroad—however natural and excusable under the circumstances it may be—nay, though ultimately it should turn out to have been a feeling founded in strict truth, we must in the meantime most carefully exclude it. We must guard scrupulously against those prejudices, which even honest and praiseworthy feelings may at once generate and conceal. They must not reach the Bench, or penetrate into Grand, and still less into Petit, jury-rooms. These are the asylums and sanctuaries of justice and the law. . . . Compassion must not be suffered monstrously to engender consequences repugnant to its very nature;—a sentiment of pity towards those who may have innocently fallen,—a sympathy with the afflicted friends or relatives who deplore their loss,—must not betray us into derogating into the most minute degree, from that liberal and ample justice, which is due, not as a favour, but as a right. . . . These principles are most humane, and favourable to human life. (Baron W.C. Smith, Speech to the Grand Jury, County Westmeath Assizes, 23 July 1831: Charges of Baron Smith: also, Addresses presented to him . . . (Dublin: Richard Milliken, 1834), 506–7)

Introduction The relationship between sympathy and truth was a key concern during the eighteenth century, spilling from philosophical debates into literature, society, and the courtroom. Mid-century Enlightenment thought, particularly in Scotland and Ireland, placed sympathy at the heart of a social order that relied on sociability. It was through the bond of sympathy that individuals within a society were connected, enabling people to engage with each other as a community and to put aside their own self-interest for the greater social good.1

86  Katie Barclay Sympathy was seen as the force that excited the listener and allowed the transfer of passion from speaker to audience as if it was a contagion.2 Through this transfer of passion, people were able to understand the perspective of ‘the other’ and encouraged to put aside their own personal desires. As such, sympathy was viewed as essential to successful communication. It was also a potentially dangerous force, as contagious passions threatened to overwhelm the inexperienced listener, allowing the selfish and even disorderly emotions of another to dominate.3 Within a legal context, sympathy acted as a challenge to concepts of truth and justice. As Baron Smith suggested, even ‘humane’ feelings, such as pity and compassion, might cloud judgement that was to be based on evidence; high-profile cases, like James Hackman’s murder of Martha Ray (in 1779), provided a stark warning to the public of the danger of the excess of sentiment to rational decision-making.4 More widely social commentators showed anxiety around the sympathy given to prisoners, especially during executions, and which might undermine the messages intended through such legal rituals.5 The speech made in legal forums found itself at the heart of this debate around the role of sympathy in the production of truth. As has been demonstrated through work on England, the advent of the Prisoners’ Counsel Act (1836)—which enabled felons to have speeches made on their behalf during trials, as was already the case for misdemeanours and civil suits— produced considerable public debate around the relationship between sympathy, truth, and speech-making.6 Some felt that truth was better accessed through the voice of the prisoner and that barristers’ speeches interfered with this process. Others believed that such speeches were necessary to balance those given by an increasingly professional prosecution team, acknowledging the power of effective oratory to swaying the passions. Others still considered this to be a problem—the law was to be rational and calm, not shaped by emotion.7 The English bar, in particular, was generally opposed to the introduction of the Act, both because of the practical difficulties raised by introducing lawyers into proceedings and as they worried that criminal suits (which were to be decided not by weighing the balance of probabilities, but on evidence that surmounted reasonable doubt) would become competitions of ability and eloquence.8 This concern was amplified by debate around whether the sympathetic effects of oratory could be produced in the listener by a good actor, or whether it required genuine belief in what was said—a question heightened during the Courvoisier trial (in 1840) when it emerged that the barrister Charles Phillips had vigorously defended a guilty client.9 Within the historiography, these debates and their implications have fed into a wider discussion about the ‘rise’ of the adversarial trial, where the truth-seeking practices of earlier courts were transformed into antagonistic confrontations between lawyers, whose primary interest was to win.10 John Langbein is particularly critical of this shift, arguing that it ultimately transformed the trial from an occasion to seek truth to an

Sympathetic Speech  87 adversarial process that placed winning ahead of justice.11 Others have tempered this argument. David Cairns has notably suggested that, at least in the early nineteenth century, the impact of adversarialism was reduced due to barristers’ commitment to gentlemanly norms of courtroom conduct.12 This chapter contributes to this discussion by highlighting that, at least in Ireland, a belief that sympathy was necessary to convey truth between actors reduced anxiety around the role of the lawyer in the trial. To make this argument, it explores the relationship among truth, sympathy, and the legal speech in the early-nineteenth-century Irish courtroom. It begins with an exploration of how the Irish constructed the relationship between rhetoric and sympathy (something that drew on ideas about rhetoric widely taught across the United Kingdom), before looking at how this was put into practice by lawyers. Ireland followed the English Common Law, restricting lawyers in felony trials (except treason), but by 1800, barristers were a common feature in most types of suit. The civil law had long featured counsel for both plaintiff and defendant; by 1800, most criminal suits were prosecuted by a Crown Solicitor, paid for by the state.13 The few private prosecutions—those that proceeded without Crown support—also generally used professional counsel.14 By the first decade of the nineteenth century, defence lawyers regularly appeared in criminal suits to cross-examine witnesses and argue points of law. Exceptionally, the opportunity to ‘argue law’ was used collusively by all in court to allow defence counsel to give speeches for their defendants in felony suits.15 From 1836, barristers’ roles formally extended to include speeches on behalf of clients charged with felony, and many took the opportunity this offered. The speeches made by barristers and judges during legal proceedings were often remarkable examples of rhetorical art, widely admired and printed in newspapers, trial pamphlets, and later compilation volumes of speeches.16 This chapter draws on such sources to access legal speechmaking. It is likely that many of the examples selected for publication were considered to be exceptional, either because they were well-constructed, artful forms, or because they were part of particularly highprofile trials. They may not provide a representative coverage of the more typical and mundane speeches found in most legal business (notably many speeches in criminal trials appear to be relatively short). However, legal speeches could also be recorded as they provided useful summaries of evidence for the public. This is particularly notable in newspaper reports, and this practice may provide access into more everyday examples. As importantly, and as explored herein, different types of legal speech often followed the same rhetorical structure, where the specifics of particular cases were developed through a common argumentative framework. This is suggestive that whilst some barristers may have been less talented than others, speeches may have been broadly similar in a range of contexts.17 It may also indicate that barristers were using published speeches as a model for their own, and it would have had the advantage of reassuring

88  Katie Barclay juries, clients, and the watching public that there was something akin to equality of representation across suits. In his charge to the Grand Jury (quoted as an epigraph to this chapter), following the highly politically charged Castlepollard massacre, where police fired on an assembly at a fair, killing 13 people, Baron Smith required his Grand Jury to put aside not only ‘party feeling’ (political bias), but the more humane emotions of compassion, pity, and sympathy, in order to make decisions based on ‘evidence’ and a ‘strict truth’. Yet, this request was not one made without emotion. Smith’s speech was a beautiful piece of rhetoric that used rhythm, hyperbole (‘monstrously’, ‘scrupulously’, ‘pure’), and artful word choice—‘the asylums and sanctuaries of justice and the law’—to compel his listeners to conform. Moreover, rather than locating the decision of juries to follow evidence as something reasonable or simply ‘right’, he thought it ‘humane’ and ‘favourable to human life’. In its humanity, this was a justice born of sympathy, compassion, and pity; temporarily putting aside some types of emotion was the most appropriate way to achieve the emotional ethical standard demanded by Irish society. Indeed, Smith specifically calls for the jury to approach the case with ‘unbiased feelings’, not with no emotion at all. This chapter explores this tension between the uses of sympathy to convey truth to the listener through speech and requests for judges and juries to restrain their emotion in the process of judgement. It begins with a discussion of the role of sympathy in oratory and its relationship to truth. Using examples from speeches by Irish judges and barristers, it then explores how this tension was articulated and managed in courtroom contexts.

Sympathy, Oratory, and Truth The purpose of oratory had long been understood in terms of moving the passions, but this aspect of oratory performance held particular relevance within the emotional context of the late eighteenth and early nineteenth century. Good rhetoric was particularly prized by Enlightenment thinkers for its ability to create sympathy between the author or orator and her or his audience. The Dublin-born politician and philosopher, Edmund Burke, argued that ‘eloquence and poetry are as capable, nay indeed much more capable of making deep and lively impressions than any other arts’. He saw this as a part of human nature, where ‘we take an extraordinary part in the passions of others, and that we are easily affected and brought into sympathy by any tokens which are shewn of them; and there are no tokens which can express all the circumstances of most passions so fully as words’.18 The Armagh lawyer, George Ensor, agreed: ‘Eloquence and figurative language are native effusions; they are the throes and agonies of the mind striving to inflict its sympathies and feelings’.19 For Enlightenment thinkers, language was seen as the ultimate vehicle for both expressing, and more importantly, directing emotion in the listener, where words allowed the feelings of the audience to be focused with greater accuracy

Sympathetic Speech  89 than other art forms.20 This required the orator to give particular attention to her or his choice and composition of words.21 It was also broadly agreed that oratory was most persuasive when it captured the natural voice of the speaker, where oration ‘flows from him without effort’.22 The Scottish minister and rhetorician Hugh Blair described this natural behaviour as ‘simplicity of style’, which ‘shows us a man’s sentiments and turn of mind, laid open without disguise’. This was particularly important, because it provided a glimpse of those ‘peculiarities which distinguish one man from another’ and so allowed access to a man’s character.23 Blair emphasised this point at length, arguing that simplicity was much like the French concept of naïveté, which ‘always expresses a discovery of character’. In this, he drew on both classical tradition and its modern formation in Adam Smith, locating moral character in ‘discursive propriety’ and, in turn, allowing such discursive propriety to constitute moral character in a performative sense.24 The audience gained a sense of the orator’s sincerity through engaging with his performance and were better able to judge his investment in his argument; or, in other words, simplicity helped to convey the ‘truth’ of the orator’s position, that in this context became aligned with the worth and character of the orator himself. This investment in the ‘truthfulness’ of the speaker reflected a particular anxiety of the era, where there was increasing concern, as Locke had suggested, that oratory had the ability to ‘move the Passions, and thereby mislead the Judgment’.25 Whilst Locke, like Blair and others, saw simplicity of expression as a mode to overcome this problem, locating dishonesty in figurative language, late-eighteenth and early-nineteenthcentury rhetoricians tended to read Locke with greater anxiety and went to lengths to educate men in how to recognise truth within powerful orations. George Ensor quoted Locke at length, before responding: ‘Rhetoric is not chicanery; it is an art which manages with greater effect the untaught transports of the soul’.26 He saw effective use of rhetoric as vital to ‘truth-telling’, noting that: if the advocates of truth will not employ eloquence (should they be capable) to abash the vicious, to sustain the suffering, to make virtue triumphant; they act even more absurdly than those fanatics who would not march against the Indians til [sic] they had diminished their force.27 Within a late-eighteenth-century context, perhaps conveniently, truth and rhetoric were quite closely connected, with the success of an oration almost becoming synonymous with its truthfulness. George Campbell outlined this in seven points under the heading, ‘The circumstances that are chiefly instrumental in operating on the passions’. The first ‘circumstance’ was ‘probability’, which ‘results from evidence and begets belief. . . . Belief raised to the highest becomes certainty’, and certainty arose from the ‘force of the evidence that is produced . . . or the previous notoriety of the fact’.28 Campbell’s second ‘circumstance’ was

90  Katie Barclay ‘plausibility’, that is ‘the consistency of the narration, from being what is commonly called natural and feasible’.29 Campbell thought these the ‘principal’ and ‘indispensible’ qualities of successful oration, followed by ‘Importance’, which may arise from the subject’s own nature or from its consequences.30 John Finlay similarly noted that: The speaker who addresses the judgment alone, may be argumentative, but never can be eloquent; for argument instructs without interesting, and eloquence interests without convincing; but oratory is neither; it is the compound of both; it conjoins the feelings and opinions of men; it speaks to the passions through the mind, and to the mind through the passions.31 As this suggests, to be successful orators were required to demonstrate the ‘truthfulness’ of their claims in a compelling but also empirical way, calming anxieties around the deceptive potential of the genre. Campbell followed up his central points with four other circumstances that operated on the passions: ‘proximity of time’, ‘connexion of place’, ‘relations to the persons concerned’, and ‘interest in the consequences’.32 These elements operated through engaging with the personal, where ‘bringing the object very near, most enlivens the sympathy which attacheth us to the concerns of others’.33 As he noted, ‘Self is the centre here, which hath a similar power in the ideal world, to that of the sun in the material world, in communicating both light and heat . . . in a greater or less degree, according to the nearness or remoteness’.34 These ‘circumstances’, designed to create sympathy in the listener, were viewed as rhetorical techniques, rather than a commentary on the ‘truthfulness’ of the oration, but Campbell’s explicit recognition of the subjective response of the audience reflected the continuing anxiety around this issue in a context where ultimately truth was not understood to be subjective. This was countered in the eighteenth-century imagination by the belief that sympathy with others acted to overcome self-interest and promoted greater objectivity and regard for society by the individual; yet, it still left an interesting tension where sympathy for others was created through an engagement with the self-interest of the listener. Moreover, whilst rhetoricians were at lengths to emphasise that oratory was a truthful form, the deceptive potential of oratory remained a very present concern in the early nineteenth century. This was heightened by the French and Irish Revolutions where powerful oratory, if truthfully reflecting the sentiments of the speaker, ‘deluded’ the peasantry, where the ‘composition of heated minds and disordered passions, . . . supersede[d] the judgement and annihilate[d] the understanding’ of the audience, particularly of those who could not employ reason such as women and the lower ranks.35 More problematically, and perhaps reflecting the expansion of theatrical productions into provincial areas as well as new modes of acting that

Sympathetic Speech  91 emphasised the creation of emotions in the watching audience, there was a growing concern that some people could ‘fake’ sincerity and so convey a truthfulness that was not present.36 This was an increasingly prominent concern in the context of the legal profession, where the growth of defence lawyers, who spoke passionately for guilty men, brought this issue to the fore.37 George Ensor condemned this practice, noting that Truth can be but one, and he who attempts to pervert it, for himself, or for another, by innuendo, argument, testimony, or any other means, at court, at the bar, or elsewhere, as a friend or advocate, for affection or for hire, acts a base part.38 Beyond this condemnation, he provided no solution. There was increasingly a division between those that believed that successful oratory was ultimately truthful and those who thought that truth could be undermined through rhetoric. Not least were the popular representations of barristers that portrayed them as greedy, conniving, and dishonest, playing on the homophonic relation between liar and lawyer.39 The lawyer and nationalist agitator Richard Lalor Shiel weighed up the two sides of this debate, observing: ‘It has often been said that true eloquence could not exist in the absence of good moral qualities. In opposition to this maxim of ethical criticism, the example of some highly gifted but vicious men has been appealed to’, but, Shiel thought, such men: were not engaged in the discussion of private concerns, in which, generally speaking, an appeal to moral feeling is of most frequent occurrence; and . . . there can be little doubt, that although a series of vicious indulgences may have adulterated their nature, they must have been endowed with a large portion of generous instinct. . . . Nay more: I will venture to affirm, that, in their moments of oratorical enthusiasm, they must have been virtuous men.40 Despite Shiel’s faith in the moral power of eloquence, the division of public opinion on this topic was not resolved during this period, other than through an expectation that lawyers and other orators conformed to rules of deportment around truth-telling. At least for the Irish social elite, those who lacked faith in oratory placed their faith in men.

The Rhetoric of Sympathy The influence of the rules of formal rhetoric discussed by men like Ensor and Campbell was evident in the speeches given by counsel, perhaps unsurprising given the professional training of most barristers.41 Notably, those that were selected for compilation volumes were often models of style, as well as content, suggestive that their value lay not only in their

92  Katie Barclay capacity to move audiences but in a display of technical skill. Take, for example, the barrister and politician John Philpott Curran’s speech in defence of Mr Patrick Finney, who was charged with treason following the 1798 Revolution. Throughout the speech was artfully written and rhetorically compelling: I am not now soliciting your indulgence to the inadequacy of my powers, or artfully enlisting your passions at the side of my client.— No! gentleman, but I rise with what of law, of conscience, of justice, and of constitution, there exists within this realm at my back; and, standing in front of that great and powerful alliance, I DEMAND a verdict of acquittal for my client!42 His language and imagery were carefully chosen, seeking to root his acquittal not in his skill as a barrister, but in shared values of justice and constitution. This was perhaps particularly compelling during a treason trial where the nature of the constitution, and what it allowed, was under discussion. He then continued to address what Campbell described as the ‘probability’ and ‘plausibility’ of the evidence, through addressing the witness testimony: Let me desire you again and again to consider all the circumstances of this man’s case, abstracted from the influence of prejudice and habit; and if aught of passion assume dominion over you, let it be of that honest, generous nature, that good men must feel when they see an innocent man depending on their verdict for his life. . . . [Account of evidence] . . . Common sense rejects the idea! . . . how then does Mr O’Brien’s tale hang together? . . . Do you think this a probable story?43 Perhaps Curran’s key rhetorical technique throughout was the attempt to personalise the jury decision, locating them not as external observers to events but implicated in the making of justice: ‘self is the centre here’. As Campbell notes, this could be done through connecting the listener in time, place, or to people, but, most notably in courtrooms, this was done through giving juries an ‘interest in the consequences’. This technique was widely used by lawyers. Curran does this by, first, repeatedly addressing the emotions of the jury—‘artfully enlisting your passions’ . . . ‘if aught of passion assume dominion over you’—which not only was a manly warning to manage emotion when making decisions but also reminded the jury that their emotions were those that mattered. This personalised the case by encouraging listeners to look inwards to their own emotional responses, as well as outwards to the evidence presented to them. It was an explicit reminder of the dialogic sympathy that was exchanged in the space of the court. The second technique was to drive home the larger implications of the court case for justice. Notably in Ireland, this was often done by arguing

Sympathetic Speech  93 the significance of the case to national identity. Charles Phillips, for example, would often comment during the breach of promise, seduction, and criminal conversation suits in which he made his name as an orator, that such behaviour was unusual in Ireland, a country of higher morals than England, and so deserved to be taken more seriously than elsewhere.44 During the 1798 and 1803 treason trials and for a decade afterwards, Curran used his speeches to explicitly demand that Irish juries rise to the level of English in giving just verdicts. In the Finney case, he commented that English treason needed two witnesses to be proved, whereas Ireland required only one: ‘If my client were to be tried by a jury of Ludgate-hill shop-keepers, he would ere now be in his lodging. The law of England would not suffer a man to be cruelly butchered in a court of justice’.45 This argument relied on a nationalist sentiment in his listener that could be provoked by a negative comparison to England. Curran coupled this with an emphasis on the watching eyes of that same Irish community: ‘See now in Dublin there are at this moment thousands and ten thousands of your fellow citizens, anxiously by, waiting to know if you will convict the prisoner on the evidence of a wilful and corrupt perjurer’.46 This was not just a technique used in cases of genuine national significance. In the seduction suit, Massey v. Headfort (1804), Curran similarly argued: I am addressing you as fathers, husbands, brothers. I am anxious that a feeling of those high relations should enter into and give dignity to your verdict. But I confess, I feel a ten-fold solicitude when I remember that I am addressing you as my countryman, as Irishmen, whose characters as jurors, as gentlemen, must find either honour or degradation in the result of your decision.47 Tying even ‘private’ cases into national identity drove home the importance of the trial, endeavouring to get juries and the public to invest in the outcome, and required that ‘the nation’ was a unit that juries identified with. It was a claim by lawyers to the existence of that nation— something that at times in Ireland had been contested—and to a nation that was interested in the performance of justice.48 This might not have been surprising from nationalist lawyers like Curran and Phillips, but it suggested a certain confidence, from these highly skilled professionals, that their politically diverse juries would respond as desired. It was also a technique used across the political spectrum, although conservatives like Abraham Brewster and William Saurin were more likely to refer to their ‘fellow countrymen’ than ‘Irishmen’.49 As a rhetorical technique, it extended the sympathy produced through directing juries to their own emotions into a network that extended to the nation. It was through recognising these horizontal bonds that sympathy’s sociable effects could be produced and individuals encouraged to set aside their self-interest

94  Katie Barclay and to make decisions for the public good. It was here that the value to the polity than men like Adam Smith placed on sympathy was realised. As this suggests, justice was produced through a complex rendering of sympathy in the listener through oratorical practices. The orator who skilfully blended argument and evidence with eloquent language engaged the sympathies of his audience. By acknowledging those sympathies, asking juries to recognise their feelings, and then redirecting them into common national bonds, juries were asked to make decisions that were based on evidence but felt as an emotional truth. This was sophisticated emotional management, where emotion was not removed from legal processes but appropriately directed to serve justice.

Prosecution and Defence If this strategy of emotional management was common across types of speech, rhetorical technique varied depending on whether the orator was speaking in a civil or criminal suit, or whether the barrister was the prosecutor/plaintiff or defence. As David Cairns notes for England, the adversarial nature of the trial was at least in part tempered by norms of respectable conduct in the courtroom, and these in turn were determined by the role being played by legal actors.50 The person most obviously limited by such informal rules was the criminal prosecutor, normally representing the Crown. Across the period, the Irish court was sensitive to actively performing justice for the public, and part of this was providing all opportunity for the defendant to demonstrate their innocence. It was therefore not gentlemanly for prosecuting barristers to actively attack or condemn men on trial for criminal cases. Instead, they engaged in a number of rhetorical techniques that come to shape the genre in the Irish court. As in England, on opening, prosecuting barristers typically alluded to their duty in performing this role.51 Sergeant Jackson, when prosecuting Thomas Reynolds for riot and assault (1835), noted: ‘Gentlemen it is my duty to state to you (which I will as briefly and temperately as possible) the circumstances’.52 Peter Burrowes, when prosecuting Robert Robinson for bigamy (1812), noted ‘It falls to my lot, very much by me regretted, to state to you a case as pregnant with circumstances of human woe, strongly appealing to the feelings of humanity, as ever appeared in a Court of Justice’.53 If both men drove home the seriousness of the offence, they also explained their role as a ‘duty’ or ‘my lot’—fate—rather than an active choice. Throughout barristers emphasised that their argument was based on evidence, not rhetoric—‘I shall not misrepresent or aggravate this transaction. I shall proceed briefly to state to you the facts of this case’, argued Burrowes; Jackson pointed to his ‘temperate’ style. Curran called this ‘a studied anxiety not to aggravate or strain its circumstances beyond a fair and liberal construction of that law’.54 Criminal prosecution was to be reserved and justified through necessity as for the larger social good: ‘Gentlemen, I have now stated what I conceive to have been due to public

Sympathetic Speech  95 justice and the family of this young Lady’, noted Burrows.55 In private prosecutions, like the Reynolds’ case, this could leave prosecutors open to criticism, with Woulfe for the defence noting: ‘It is not brought before you by any of the public conservators of the peace, whose official duty it is . . . this case is brought forward by persons deeply involved in the transactions, with strong political feelings and prejudices’.56 Prosecuting temperately required that barristers did not unduly speak ill of the defendant, rather focusing on giving factual evidence. Abraham Brewster, when prosecuting Mrs Byrne for murder, apologised for providing evidence of her drunkenness, noting that as it was vital for her defence: ‘I am not guilty of any unfairness towards her’.57 He continued: ‘Of course, you will understand that her habits or her general character are not in the slightest degree to prejudice her in your estimation’. Richard Shiel, when prosecuting William Perse for the murder of Paul Slattery, noted his duty to the defendant: it is with an emotion of melancholy sympathy, that at this moment I raise my eyes and see him occupying a place where guilty and misery are accustomed to stand. To him I owe it as an obligation that I should not abuse the advantage which I possess, as Counsel for the prosecution, of delivering a statement against a prisoner to which his own advocate cannot make a reply. . . . I ought not to make any appeal to your passions or prejudices against a man whose mouth is closed.58 Instead they located their rhetorical force in discussions of the poor policy of allowing crime to go unchecked. This generally enabled barristers to tie crime into questions of community and nationhood, which, as noted above, enabled them to direct the sympathies of their audiences to a just verdict. When prosecuting Henry Hayes for abduction (1801), Philpott Curran explicitly acknowledged the balancing act this required: It has been my most anxious wish to abstain, as far as was consistent with my duty, from every the remotest expression of contumely or disrespect to the unhappy prisoner at the bar; or to say or to do anything that might unhinge his mind or distract his recollection, so as to disable him from giving his whole undisturbed reflection to the consideration of his defence; but it is also a sacred duty, which every man placed in my situation owes to public justice, to take care, under the affectation of false humanity, not to suffocate that charge which it is his duty to unfold, nor to frustrate the force of that evidence which it is his duty to develop.59 In a beautiful piece of rhetoric, Curran uses his emotion—anxiety to be just to the defendant—to give force to his ‘sacred duty’ to prosecute with firmness. To not do so would not be justice but the ‘affectation of false

96  Katie Barclay humanity’, of the disorderly compassion and pity Smith criticised earlier. The effect was to both allow prosecutors to bring strong and rigorous prosecutions and to reassure the public in the fairness of trial, where the truth could not be said to have been disguised by an overly zealous prosecutor. As Henry Dean Grady noted in Birch v. Meredith (1818): when you strip this case of all metaphor, of all the flowery eloquence of my Learned Friend [Peter Burrowes], and, above all of that strong impressive zealous feeling which he exhibited in the course of the trial . . . you will find that this species of action is to be treated . . . according to a rational and fair, and becoming scale of remuneration.60 If prosecutors were to show restraint, the defence in criminal suits had much greater freedom. Charles Phillip’s defence for Courvoisier, and in particular the allegation that he tried to redirect attention to other suspects, was criticised by some in England.61 But the Irish press took a more conservative response, both defending his integrity and admiring his performance. The Wexford Independent did Mr Phillips ‘the justice to state that with that honourable zeal which always distinguishes him for his clients, he made the best of a very bad case; and although surrounded by difficulties, his speech for the prisoner was most energetic and impressive’.62 Two newspapers at opposite ends of the political spectrum, the Freeman’s Journal and the Drogheda Conservative Journal, argued that Phillips did his duty and even changed his defence strategy as a result of the confession.63 Providing a rigorous defence, particularly for felonies, was broadly considered to be a vital service provided by defence lawyers. Curran argued that: It is the privilege, it is the obligation, of those who have to defend a client on a trial for his life, to exert every force, and to call forth every resource, that zeal, and genius, and sagacity can suggest. It is an indulgence in favour of life—it has the sanction of usage—it has the permission of humanity; and the man who should linger one single step behind the most advanced limit of that privilege, and should fail to exercise every talent that heaven had given him, in that defence, would be guilty of a mean desertion of his duty, and an abandonment of his client.64 As this suggests, defence lawyers were expected to show greater vigour in court, both in examining witnesses and in their rhetoric. In the early part of the nineteenth century, most defence speeches occurred either for misdemeanours or cases of treason, providing a restricted sample of trials often produced in highly politically charged contexts. In many respects, they conform to the ordinary rules of legal rhetoric, combining affective

Sympathetic Speech  97 appeals with critical analysis of the evidence used to build a particular case. They also operated under a restraint of ‘truth’: though the zeal of the advocate to his client shall be as warm as his heart’s blood—though his love of liberty shall amount even to a passion— he ought never misstate the facts . . . he had still a higher and perpetual retainer on behalf of truth and justice.65 Where they vary from prosecution suits is that defence speeches are much more likely to criticise the prosecutor (but not the learned gentleman presenting the case) directly; in most cases, this was the state. Peter Burrowes, for example, questioned—‘I confess I was astonished’—what justice could be offered to his clients for breach of the Convention Act (a misdemeanour), when ‘no Roman Catholic was suffered to enter that box’. These and other irregularities ‘filled me with unqualified despair’, leaving him to ‘rest my hopes upon your known integrity, your deep interest in the welfare of the country, and the very disgust which yourselves must feel at the manner and motive of your array’.66 Curran displayed a similar despair during the trial of Napper Tandy for treason. An Act of Parliament had ordered the defendant to hand himself in before a particular date, but he was arrested previous to the deadline expiring. Your common sense, gentlemen, will show you, that where a man is to forfeit his life unless he complies with the conditions of an Act of Parliament—your common sense, your common humanity must show you, that a man ought to be suffered to perform the conditions on which his life depends. . . . Such is the barbarity and folly that must ever arise, when force and power assume the functions of reason and justice.67 As I argue elsewhere, the need for defence lawyers to provide full and rigorous defence required considerable freedom to criticise the state and the application of justice.68 In signalling despair, disgust, or anger at the state, defence lawyers not only demonstrated commitment to their clients but acted to undermine, not simply the prosecution’s case, but the possibility of justice in the current legal system. By then placing the responsibility for that justice into the hands of the jury, defence lawyers not only—like prosecutors—sought to produce a sociable, rather than selfish, sympathy, but to invest the jury equally in the case of the defendant. Not all legal suits, of course, had recourse to such rhetoric. Particularly as the century wore on, a fashion in overtly emotional rhetoric declined in legal speeches for a drier and sharper analysis of evidence, coupled with weighty warnings to the jury. Abraham Brewster, who was renowned for his abilities on cross-examination, had a very bloodless style of speaking.69 Rather than using long preambles, he went straight to analysis of the evidence, with directions to the jury on how to respond to it: ‘I . . . do think

98  Katie Barclay it the fairest conclusion for you to come to’ . . . ‘I confess it strikes me very differently’ . . . ‘I do not entertain a doubt’ . . . ‘Is it not strange that . . .’ He coupled this with a warning not to convict ‘if there be any doubt in your mind . . . you will not, without the most absolute certainty, bring in a [guilty] verdict’.70 This was a gentle form of persuasion designed to produce uncertainty in a jury, rather than to convince them of an alternative truth, and may suggest the growing influence of the doctrine of ‘reasonable doubt’ as the decades proceeded.71 But it generally was still given alongside a statement of the significance of the case for public policy. In the trial of Richard Jones, Brewster argued that the case was ‘singular’ in convicting someone under an Act that had not came into force when the crime was allegedly committed, and that this injustice had broader implications.72 It was perhaps not as dazzling a defence as those offered by Curran or Burrowes, but the rhetorical technique remained largely consistent. The rules of conduct in civil suits, where the outcome was less significant, were perhaps less pressing than in the criminal court, giving lawyers greater leeway in their performances. The artful possibilities of the speech are particularly evident there, where barristers had greater freedom to use not only emotional rhetoric, but also to draw on other arts, including humour, poetry, metaphor, and engagements with a range of literatures. Charles Phillips was perhaps the master of this in the early-nineteenthcentury Irish courts; his speeches, sometimes described as ‘extravagant’, were remarkable works of story-telling, with an uncanny ability to transform the personal into public crisis.73 Yet, these were discriminating performances designed to produce the appropriate sympathetic emotions in audiences and to invest them in the seriousness of the claims being made. Even very technical legal suits, such as Hincks and others v. Turnly (1848), which determined the validity of a will, could be made compelling through infusing them with human drama and pathetic appeals to the implications of jury decisions for the polity.74 Moreover, as with criminal suits, the rhetoric of the speech was not supposed to interfere with justice but to enable an appropriate, evidence-based sympathy that would enable truth to be produced by men who were free from selfish emotions. If the role of the lawyer in the Irish court expanded during the nineteenth century, the adversarial nature of the trial was tempered by wider rules of rhetorical conduct that shaped the dynamics of the suit. Importantly, in Ireland, the rights of the defendant were given greater force in criminal trials through prosecutorial constraint and vigorous defence, where available. In this way, if lawyers silenced the defendant, they also sought to give greater attention to her or his rights. For other suits, the greater equity of the parties provided barristers with more freedom to shape their rhetorical approach, but even there the rules of effective rhetoric and a commitment to the production of truth through sympathetic engagement gave significant uniformity to the legal speech. At least for lawyers and other members of society invested in the effectiveness of this

Sympathetic Speech  99 gentlemanly operation of justice, an increase in lawyers did not come at the expense of truth or justice.

Sympathetic Evidence: Conclusion If legal oratory was structured such as to produce and direct a sociable sympathy, and to reduce the influence of selfish passions, it was not designed to produce a courtroom where emotion was absent. Indeed, and as has been seen, discussions of evidence are often closely tied to appeals to sympathetic feeling. In Hincks and Others v. Turnly (1848), Mr Tombe argued for a general principle ‘of the deepest interest to every one’ but for the jury to ‘approach the consideration of the case with your minds in such a pure and unbiased state, as will enable you to give a fair consideration, and come to a just conclusion, upon the evidence, and the evidence alone’.75 Evidence here was understood to be something firm and objective—able to be known; it was how it was interpreted that was subjective. Interpreting evidence fairly, however, did not mean rejecting emotion in weighing evidence. Curran is particularly noted for his use of the language of an emotional truth, so that a ‘feeling of high relations [as fathers, husbands, brothers] should enter into and give dignity to your verdict’;76 ‘You will find your verdict flowing from conscious integrity and from the feelings of honourable minds’;77 or, when trying to dismiss the testimony of an informer, ‘would you dismiss the friend you regarded, or the child you loved, upon the evidence of such a witness? . . . You would not prejudge them’.78 Similarly, Sergeant Jackson argued: ‘you will pronounce such a verdict as you shall conscientiously feel to be demanded from the facts and circumstances of the case’.79 Emotion that was honourable and which arose from ‘higher’ relationships therefore played a vital role in enabling men to judge evidence. Judges’ charges could operate similarly. They were not opposed to long, emotional diatribes on the implications of particular crimes, if found to be true, or to displaying emotion during cases. As I explore elsewhere, many judges wept during the charge.80 Rather, like barristers, they often looked for emotion to be tempered. During Birch v. Meredith, Lord Chief Justice Norbury (known as the ‘hanging judge’) ‘appeared affected even to tears, and an incapability of articulation for some moments’. He then apologised to the jury, noting, ‘I beg that you will not be regulated by any feelings of mine . . . it is your duty to be peculiarly guarded not to let your feelings carry you too far’.81 Mr Justice Fletcher used his charge to ‘guard you against the effect of an able statement; if you have a doubt it must be one which would weigh with men of understanding’.82 Others went further, preferring to discuss jury decision-making through metaphors associated, today, with the mind: ‘thinking men’,83 ‘conscientiously’,84 to ‘a verdict as . . . will justify you to your own consciences’.85 Yet, this was not the same as asking juries to remove all emotion from their decision-making processes.

100  Katie Barclay Indeed, ‘conscience’ in this context was associated with ‘knowing one’s own thoughts and actions’,86 ‘moral sense’, and even ‘real sentiment; private thoughts; truth’.87 In the context of sympathetic communication, to act with ‘conscience’ was to weigh evidence with consideration for its socialemotional framing and to evaluate a truth that was evidence based but also felt. In doing so, juries relied on the speeches of barristers not to sway the passions—and so delude—but to transform personal emotions to higher, sociable feeling. If barristers could potentially exploit this, they were hopefully held in check by gentlemanly character, informal rules of courtroom conduct, and the structures of rhetoric that shaped speeches in particular ways. If it was a system that required lawyers to be adversarial in the pursuit of justice, it was also one that hoped that ‘truth’ could be found.

Acknowledgements I would like to thank Allyson May and David Lemmings, and the attendees of the symposium at the Huntington Library on this topic, for their helpful comments and advice. I would also like to acknowledge the ARC Centre for the History of Emotions (CE110001011) for their funding in supporting this research.

Notes 1 Michael Frazer, The Enlightenment of Sympathy: Justice and the Moral Sentiments in the Eighteenth Century and Today (Oxford: Oxford University Press, 2010). 2 Mary Fairclough, The Romantic Crowd: Sympathy, Controversy and Print Culture (Cambridge: Cambridge University Press, 2013), 24. 3 Katie Barclay, ‘Sounds of Sedition: Music and Emotion in Ireland, 1780– 1845’, Cultural History, 3, 1 (2014), 54–80. 4 John Brewer, A Sentimental Murder: Love and Madness in the Eighteenth Century (New York: Farrar, Strauss and Giroux, 2004). 5 Hal Gladfelder, Criminality and Narrative in Eighteenth-Century England: Beyond the Law (Baltimore: John Hopkins University Press, 2001); Randell McGowen, ‘A Powerful Sympathy: Terror, the Prison and Humanitarian Reform in Early Nineteenth-Century Britain’, Journal of British Studies, 25, 3 (1986), 312–334; Vic Gatrell, The Hanging Tree: Execution and the English People 1770–1868 (Oxford: Oxford University Press, 1996). 6 Allyson N. May, The Bar & the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), 214–228. 7 David J.A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800–1865 (Oxford: Clarendon Press, 1998). 8 For discussion see: May, The Bar & the Old Bailey, 187–192, 214–219; David Mellinkoff, The Conscience of a Lawyer (Eagan: West Publishing Company, 1973). 9 Simon Devereaux, ‘Arts of Public Performance: Barristers and Actors in Georgian England’, in David Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham: Ashgate, 2012), 93–119. 10 Stephen Landsman, ‘Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England’, Cornell Law Review, 74, 3 (1990), 497–609;

Sympathetic Speech  101 J.M. Beattie, ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law and History Review, 9, 2 (1991), 221–267; John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2005). 11 Langbein, The Origins. 12 Cairns, Advocacy; see also: May, The Bar & the Old Bailey, 214–218; Devereaux, ‘Arts of Public Performance’; Wendie Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom (New Haven: Yale University Press, 2015), ch. 2. 13 John McEldowney, ‘Crown Prosecutions in Nineteenth-Century Ireland’, in Douglas Hay and Francis Snyder (eds.), Policing and Prosecution in Britain 1750–1850 (Oxford: Clarendon Press, 1989), 427–458. 14 See for example, Authenticated Report of the Trial of Thomas Reynolds for Riot and Assault (Dublin: W. Warren, 1835). 15 See for example, The Trial of Sir Henry Brow Hayes, Knt. For Forcibly and Feloniously Taking Away Miss Mary Pike . . . (Cork: James Haly, 1801). 16 This paper draws on 14 Irish regional newspapers, supported by keyword searches of Irish papers in the British newspaper archive (www.britishnews paperarchive.co.uk/); 63 trial pamphlets; and around a dozen compilations of speeches. 17 See also May, The Bar & the Old Bailey, 101. 18 Edmund Burke, A Philosophical Enquiry into the Origin of our Ideas of the Sublime and Beautiful (London: J. Dodsley, 1767), 334. 19 George Ensor, The Independent Man: Or, an Essay on the Formation and Development of those Formation and Faculties of the Human Mind, Which Constitute Moral and Intellectual Excellence, 2 vols (London: R. Taylor, 1806), 2: 294. 20 James Beattie, Essays on Poetry and Music as they Affect the Mind (Edinburgh: Edward and Charles Dilly, 1788), 136; Barclay, ‘Sounds of Sedition’. 21 Hugh Blair, Lectures on Rhetoric and Belles Lettres (London: Charles Daly, 1839), 118–119; George Campbell, The Philosophy of Rhetoric, 2 vols (London: W. Strahan and T. Cadell, 1776), 2: 52. 22 Blair, Lectures, 244. 23 Ibid. 24 Thomas Anhert and Susan Manning, ‘Introduction: Character, Self and Sociability in the Scottish Enlightenment’, in Thomas Ahnert and Susan Manning (eds.), Character, Self and Sociability in the Scottish Enlightenment (Basingstoke: Palgrave Macmillan, 2011), 16. 25 John Locke, Essay Concerning Human Understanding, 3 vols (London: Thomas Tegg, R. Griffin and Co, Glasgow; and Dublin: J. Cumming, 1828), 2: 288. 26 Ensor, The Independent Man, 2: 294. 27 Ibid. 28 Campbell, The Philosophy of Rhetoric, 1: 209–210. 29 Ibid., 210–217. 30 Ibid., 220–221. 31 John Finlay, ‘Preface’, in Member of the Bar, the Speeches of the Celebrated Irish Orators Philips, Curran and Grattan (Philadelphia: Desilver, Thomas & Co, 1836), 6. 32 Campbell, The Philosophy of Rhetoric, 221–228. 33 Ibid., 227. 34 Ibid., 221. 35 William Ridgeway, The Trial of Robert Emmet for High Treason (Edinburgh: Peter Hill 1803), 18–19; Barclay, ‘Sounds of Sedition’.

102  Katie Barclay 36 Lise-Lone Marker and Frederick Marker, ‘Aaron Hill and Eighteenth-Century Acting Theory’, Quarterly Journal of Speech, 61 (1975), 416–427. 37 May, The Bar & the Old Bailey, 214–228. 38 Ensor, The Independent Man, 2: 297. 39 Éanna Hickey, Irish Law and Lawyers in Modern Folk Tradition (Dublin: Four Courts Press, 1999). 40 Richard Lalor Shiel, Sketches, Legal and Political, ed. M.W. Savage, 2 vols (London: Henry Colburn, 1855), 1: 36–37. 41 Joseph S. Meisel, Public Speech and the Culture of Public Life in the Age of Gladstone (New York: Columbia University Press, 2007), 12–13; Tania Sonia Smith, ‘The Lady’s Rhetorick (1707): The Tip of the Iceberg of Women’s Rhetorical Education in Enlightenment France and Britain’, Rhetorica, 22, 4 (2004), 349–373; Henry French and Mark Rothery, Man’s Estate: Landed Gentry Masculinities, 1660–1900 (Oxford: Oxford University Press, 2012), 40–42. 42 John Philpott Curran, ‘Speech of Mr Curran in Defence of Mr Patrick Finney, 16 January 1798’, in Irish Eloquence. The Speeches of the Celebrated Irish Orators Philips, Curran and Grattan . . . (Boston: Patrick Donahoe, 1857), 316–331. 43 Mr James O’Brien was a key witness in this case. Curran, ‘Speech . . . Defence of Mr Patrick Finney’, 318, 322, 323. 44 See, for example, ‘Speeches of Mr Phillips in the Case of Guthrie v. Sterne, delivered in The Court of Common Pleas, Dublin’, in The Speeches of Charles Phillips, esq, Delivered at the Bar, and on Various Public Occasions, in Ireland and England (London & Dublin: W. Simkin & R. Marshall, & Milliken, 1822), 76–78. 45 Curran, ‘Speech . . . Defence of Mr Patrick Finney’, 325. 46 Ibid., 229. 47 John Philpott Curran, ‘Massey v. Headfort [for Criminal Conversation]’, in Thomas Davis (ed.), The Speeches of The Right Honorable John Philpott Curran (London: Henry G. Bohn, 1847), 537. 48 For an extended discussion, see: Katie Barclay, Men on Trial: Performing Embodiment, Emotion and Identity in Ireland, 1800–1845 (Manchester: Manchester University Press, 2019). 49 For example, Brewster in Court of Queen’s Bench. The Right Hon. The Earl of Erne, plaintiff; John Grey Vesey Porter, esq., Defendant. Report of the Trial of an Action for Libel (Dublin: Goodwin, Son and Nethercott, 1859), 8–9; and Saurin in the Trial of John Magee, Proprietor of the Dublin Evening Post . . . (Dublin: John Magree, 1813), 60–71. 50 Cairns, Advocacy. 51 May, The Bar & the Old Bailey, 99–103. 52 Trial of Thomas Reynolds, 4; see also John Philpott Curran, ‘Against Sir Henry Hayes’, in Davis (ed.), The Speeches of . . ., 462. 53 A Report of the Trial of Robert Robinson for Bigamy . . . (Dublin: J. Shea, 1812), 1–2. 54 John Philpott Curran, ‘Against Ensign John Costley’, in Davis (ed.), The Speeches of . . ., 516. 55 Trial of Robert Robinson, 15. 56 Trial of Thomas Reynolds, 34. 57 Thomas R. Dunckley, The Trial of Ellen Byrne for the Murder of Augustine Byrne, her Husband . . . (Dublin, 1842), 3. 58 ‘Clonmel Assizes’, Dublin Evening Post, 1 September 1829. 59 Curran, ‘Against Sir Henry Hayes’, 477. 60 Arthur B. Mosse, Report of the Trial of an Action wherein John Birch, an Englishman, was Plaintiff and Joshua Paul Meredith, esq, of the City of Dublin, was Defendants . . . (Dublin: The Reporter, 1819), 16–17.

Sympathetic Speech  103 61 May, The Bar & the Old Bailey, 214–222; Cairns, Advocacy, 129–136. 62 ‘Courvoisier’s Confession of Guilt’, Wexford Independent, 27 June 1840. 63 Drogheda Conservative, 4 July 1840; ‘The Convict Courvoisier’, Freeman’s Journal, 30 June 1840. 64 Curran, ‘Against Sir Henry Hayes’, 464. 65 ‘The State Trials’, Dublin Evening Post, 25 May 1844. 66 ‘The Whole Proceedings, before the Court of the King’s Bench in Ireland, in the Cases of Edward Sheridan, M.D., and Thomas Kirwan, Merchant, for Misdemeanours . . .’, in T.B. Howell (ed.), A Complete Collection of the State Trials and Proceedings for High Treason and Other Crimes and Misdemeanours (London: T.C. Hansard, 1823), vol. 31, col. 685. 67 ‘Napper Tandy’, in Davis (ed.), The Speeches of . . ., 455. 68 Katie Barclay, ‘A Sectarian Middle Ground?: Masculinity and Politics in the 1820s Petty Session Courts’ (Forthcoming). 69 See also his prosecution of the Byrne case: Dunckley, Trial of Ellen Byrne; Katie Barclay, ‘Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland’, Journal of Legal History, 38, 2 (2017), 203–227. 70 Andrew Bourne, Report of the Trial . . . of Richard Jones, Who Was Charged with Being a Member of an Illegal Society (Dublin: Hodges and Smith, 1840), 96–108. 71 The language of reasonable doubt is used in court from at least the 1820s: ‘County Cork Criminal Court’, Dublin Evening Mail, 14 April 1824; ‘[Title obscured]’, Southern Reporter and Cork Commercial Courier, 31 October 1829; ‘Kilkenny Assizes’, Waterford Mail, 18 August 1827; Barbara Shapiro, ‘ “Beyond Reasonable Doubt”: The Neglected Eighteenth-Century Context’, Law and Humanities, 8, 1 (2014), 19–52. 72 Bourne, Trial . . . of Richard Jones, 95. 73 For discussion, see: Katie Barclay, ‘Emotions, the Law and the Press in Britain: Seduction and Breach of Promise Suits, 1780–1830’, Journal of Eighteenth-Century Studies, 39, 2 (2016), 267–284; Barclay, Men on Trial. 74 Edward Spencer Dix, Report of the Trial of the Issue . . . in the Case of Hincks and Others v Turnly (Belfast: Francis D. Finlay, 1848). 75 My italics. Dix, Case of Hincks and Others v Turnly, 5. 76 My italics. Curran, Massey v Headfort, 537. 77 My italics. John Philpott Curran, ‘For Oliver Bond [High Treason]’, in Davis (ed.), The Speeches of . . ., 437. 78 John Philpott Curran, ‘Henry Sheares [High Treason]’, in Davis (ed.), The Speeches of . . ., 411. 79 My italics. Trial of Thomas Reynolds, 11. 80 Katie Barclay, ‘Performing Emotion and Reading the Male Body in the Irish Court, c.1800–1845’, Journal of Social History, 50, 4 (2017), 1–20; see also Thomas Dixon, ‘The Tears of Mr Justice Willes’, Journal of Victorian Culture, 17, 1 (2012), 1–23. 81 Mosse, John Birch, . . . and Joshua Paul Meredith, 27. 82 Trial of Robert Robinson, 26. 83 Dunckley, Trial of Ellen Byrne, 60. 84 James Mongan, Report of the Trial of John Kennedy for the Murder of Edmund Butler . . . (Dublin: Milliken and Son, 1832), 47. 85 James Dowd, Report of the Trial in the Cause of Henrietta Anne Head v. Simon George Purdon, esq, . . . (Dublin: John Hoare, 1837), 34. 86 Johnson’s English Dictionary, as Improved by Todd . . . (Philadelphia: Jas. B Smith, 1858), 226. 87 Noah Webster, A Dictionary of the English Language, 2 vols (London: Black, Young and Young, 1828), 1: unpaginated ‘conscience’.

6 Swearing and Feeling The Secularisation of Truth-Seeking in the Victorian English Court Simon Devereaux Introduction Over the course of the nineteenth century, the English criminal law definitively abandoned its once seemingly literal-minded reliance upon the power of the testamentary oath to ensure truth-telling on the part of witnesses. The culmination of this pattern of change was the passage of the Criminal Evidence Act in 1898 (61 & 62 Vict., c.36), after nearly two decades of debate in parliament and the legal press. This measure at last allowed defendants to testify under oath on their own behalf. Where once, not so very long before, a defendant was explicitly forbidden even the (obviously irresistible) temptation to lie in his own self-interest, and thus (in theory) to imperil his immortal soul, by the turn of the twentieth century it appears to have been broadly accepted that the testamentary oath was entirely symbolic in character, rather than authentically compelling.1 This change has not received as much attention as other major transitions in criminal trial procedure, such as the full admission to a right to be defended by counsel in felony trials, a process which began in the eighteenth century and was at last formally sanctioned by the Prisoners’ Counsel Act of 1836 (6 & 7 Will. IV, c.114). This relative neglect has perhaps stemmed from a basic recognition that, for some time before 1898, the legal profession, as well as the larger public culture in which so many of its members played a prominent role, were already discussing the core issues surrounding the law of evidence in largely secularised terms.2 The basic arguments that underpinned the Criminal Evidence Act were, after all, the logical concomitant of the same arguments which had underpinned the passage of the Prisoners’ Counsel Act: the more evidence which the competing sides in trial could marshal and lay before a jury, the greater the chances of a trial arriving at ‘the truth’ of the matter. As historians have usually noted, the language of truth-seeking in the modern courtroom emphasises outcomes derived from an assessment of a balance of probabilities rather than a revealed certainty. The earlier measure of 1836 has been taken, with much persuasive force, as having already signalled a

Swearing and Feeling  105 theoretical transition from an era in which truth-seeking in the English courtroom remained substantively reliant on ‘revelation’ (in various forms) to one in which the driving force of the process was competitive argumentation.3 This chapter briefly explores two largely neglected strands in the debates which occasionally emerged, between 1836 and 1898, about the larger implications of the lawyerisation of criminal trial. The principal concern is reflected in the title. In the early Victorian era especially, many observers of the changing norms of criminal trial were deeply disquieted about how the extension and normalisation of the role of lawyers, particularly defence counsel speaking for defendants, might thwart the role of divine revelation in giving moral authority to verdicts. Second and relatedly, many commentators were also troubled by how counsel on both sides of a case might seek to distort a jury’s arrival at a truthful verdict through an appeal to feeling which might override the essential roles of argumentation and reason. On the face of it, both concerns might seem a little surprising: Victorian public culture obviously placed a superlative value upon both religiosity and feeling.4 The explanation for this apparent paradox lies in the differing sources of the two critiques. To judge by the commentary that modern historical accounts of the Victorian law of evidence have explored, a literal-minded belief in the compulsive religious power of the testamentary oath, as opposed to its purely symbolic value, may have been, from the outset of the Victorian era, already an at-best irregular and eccentric perspective amongst most legal authorities. Such commentators were more concerned with the second issue explored here: the potentially corrupting influence of emotionally manipulative counsel in the truth-seeking process. Both concerns were rooted, however, in a basic recognition, amongst legal, political, and other public commentators, that the criminal law derived its ultimate authority from public approbation. And the vast majority of that Victorian public which observed criminal proceedings, either in person or through the medium of the newspaper press, simply were not capable of the sort of impartial weighing of evidence that was now deemed to be central to a more extensively lawyerised criminal trial. This was even more true of the vast majority of the people who were actually put on trial in the criminal courts: the working classes and ‘the criminal residuum’.5 Such people, far less capable of submitting emotion to reason in their own lives (that was why they predominated amongst the accused), and more prone to primitive religious belief systems than their social betters, were thought still to require that blend of threat and assurance which the testamentary oath might provide.6 Only during the last phase of the Victorian era, when critical changes appeared to be underway in its public culture, did conventional wisdom at last become resigned to abandoning this last, already antiquated vestige of the ‘revelatory’ mode of criminal trial.

106  Simon Devereaux

The Courvoisier Case We can start with that case which so many have taken as marking the onset of modern understandings of a defendant’s right to a full defence by counsel, the trial at the Old Bailey in June 1840 of Swiss-born manservant François Courvoisier for brutally murdering his elderly employer, Lord William Russell. Immediately after the trial ended, it became generally known that Courvoisier had confessed his guilt to his defence counsel, Charles Phillips, before the end of the trial, but that Phillips had nonetheless continued to defend him as though he might still be innocent. This revelation triggered an immense and lasting controversy in the public press. Critics charged that Phillips’s conduct amounted to licenced lying on behalf of a vile criminal. Defenders of Phillips argued that a defence counsel was morally obliged to do all that he could to challenge the evidence against his client, and that it was for the jury to decide whether he or the prosecution side had made the more persuasive presentation.7 A striking amount of the press coverage of this controversy focused, not on the basic morality of vigorously arguing on behalf of a client whom one knew to be guilty, but rather on the specific charge that, in his closing remarks to the jury, Phillips had invoked the vengeance of God Himself upon those who might question his client’s innocence.8 ‘Whether Mr Phillips was justified in appealing so frequently and solemnly to his God in behalf of a man whose hands he knew were reeking with venerable blood, most savagely and inhumanly shed’, thundered the young Charles Dickens in a letter to the Morning Chronicle, ‘whether he was justified in doing this, and in plainly stating that the jury, in finding him guilty, endangered their eternal salvation, is a question in which I have no right or wish to interfere, but which I leave between that gentleman and his conscience’.9 Dickens chose to foreground Phillips’s specific arguments, and knowledge of the real facts, rather than the particular issue of whether Phillips was deliberately abusing any remaining power of revelation in criminal procedure. The bulk of Dickens’s letter can therefore be read in the light of what could be characterised as the mainstream legalofficial discourse on the question of barristers’ morality and the nature of criminal trial. Nevertheless, his invocation of the older religious question, however ostentatiously he then professed to set it aside, suggests some degree of belief in its continued importance to the larger sphere of public morality. More tellingly, Phillips quickly took steps to publicly deny that he had ever ‘made a solemn appeal to God of Courvoisier’s innocence’, a suggestion ‘which he said might injure him in the estimation of his brethren at the bar, as well as the public at large, if it were left uncontradicted’.10 This particular controversy proved to be a lasting one, however. One newspaper, revisiting the matter two months later, closed its commentary

Swearing and Feeling  107 on ‘The Licence of Counsel’ with a piece of doggerel entitled ‘The Lawyer’s Prayer’: Ordained to tread the thorny ground, Where few, I fear, are faithful found, Mine be the conscience void of blame, _ The upright heart, the spotless name, . . . Ne’er may my prostituted tongue Protect the oppressor in his wrong, Nor wrest the spirit of the laws To sanctify a villain’s cause.11 The following year, an article by Edwin Chadwick, who was already advocating an end to that ‘superstitious awe . . . forbidding the interrogation of the accused’ on oath, returned specifically to Charles Phillips’s abusive evocation of ‘the sanctions of religion’ on behalf of a guilty client.12 Both the case in general, and Phillips’s putative invocation of God’s wrath in his client’s cause in particular, were revisited, at greater length than ever, in both the public and the legal press (on both sides of the Atlantic) in the winter of 1849–50, with Phillips replying to the old charge in a pamphlet-length publication, as well as publication of Courvoisier’s trial in an edition of Modern State Trials.13 Indeed, both subjects continued to reverberate in legal literature through the turn of the twentieth century.14 It would be easy to exaggerate the attention that contemporaries gave this specific aspect of the case. Much, perhaps most, of the continuing controversy swirled around particular evidentiary aspects of Phillips’s defence of Courvoisier. But his reputed invocation of God’s justice in his concluding remarks was a regular and prominent feature of subsequent revisits to the case, and those historians who have mentioned it tend to lump it into a more general set of reflections on the ‘morality’ of defence counsel. In so doing, they effectively muffle, or altogether neglect, its deeper and longer-term significance in the history of truth-seeking in the English courtroom. Phillips’s invocation of God’s wrath was, in the words of the most detailed study of the case to date, ‘a trifle irreverent, but . . . nothing more than a figure of speech, not to be taken literally’.15 The scale, intensity, and persistence of the reaction to Phillips’s remarks does not justify so easy a dismissal of their perceived significance amongst Victorian commentators. All of this calls attention to the most prominent survivals of revealed religion in the Victorian English courtroom: the power attributed to the testamentary oath. Before the advent of modern rules of evidence during the nineteenth century, the main assurance that a trial might uncover ‘the truth’ was to be found in the proposition that a person who lied

108  Simon Devereaux under oath would be damned in the life to come after this one. Such a belief accorded well with the accompanying conviction that defence counsel in particular should be precluded from criminal trials for felonies because, as had generally been maintained during the eighteenth century, the greatest assurance of the guilt or innocence of an accused lay in his or her unmediated reactions to the presentation of the evidence against them.16 It was for this reason in particular that many commentators had resisted the increased admission of defence counsel from the late eighteenth century onwards. That concern was at first amplified, then finally undermined, by a growing appreciation during that same era that emotional authenticity was a quality which many people—actors, barristers, and finally perhaps defendants themselves—could learn to emulate.17 With the passage of the Prisoners’ Counsel Act in 1836, this latter component of the revelatory mode of criminal trial belief had in theory been abandoned.18 The most complete and forceful presentation of competing evidentiary claims, on behalf of the prosecution and the defence alike, was now deemed to be the most probable means of determining the truth of a criminal charge. This conviction must only have reinforced the desire, amongst some observers, for some elementary and plausible assurance as to the honesty of witness testimony. Hence the concerns of Dickens and so many other observers of Phillips’s apparent flouting of divine authority in the courtroom.

The Declining Force of the Testamentary Oath A declining belief in the literal power attributed to the testamentary oath, over two centuries, can be plausibly traced using the Old Bailey Proceedings. Figure 6.1 measures the frequency with which a witness’s understanding of the ostensible power of testifying under oath was tested. Historians of eighteenth-century trials, especially rape cases, are familiar with the most pathetic manifestation of this phenomenon: the court’s scrutiny of a child witness’s understanding of the significance of lying under oath. A typical exchange in such cases was as follows: ‘Q. Do you know what shall happen if you tell a lie? A. I shall go to the Bad Man’.19 Figure 6.1 searches the online version of the Proceedings for occurrences of the phrases ‘tell a lie’ (as in, ‘Do you know what shall happen if you tell a lie?’) and ‘tell the truth’. Figure 6.2 measures the frequency with which judges or counsel sought to reiterate the power of the testamentary oath in the minds of witnesses by pressing them on a particular aspect of their evidence. Here, the occurrence of the phrases ‘on your oath’ and ‘upon your oath’ have been measured. In both cases, each passage returned by the search has been reviewed to confirm that the phrase appears in these specific contexts, as well as to eliminate repeat occurrences in the same trial. Additionally, since the appearance of such phrases may conceivably be a function as much of the detail with which trials were reported at any

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Swearing and Feeling  111 given time, as of their actual occurrence, both results have been measured against the average length of each trial account during each decade under consideration.20 Figures 6.1 and 6.2 can be read in support of what might be characterised as a secularisation of truth-telling in the modern English courtroom. In the first place, we might note that reliance placed upon the power of the oath seemed to reach ‘peak’ levels during the late eighteenth century. Some caution is in order here, as it is also apparent that these years correspond with an early peak in the detail with which criminal trials were published in the Proceedings.21 These were also, of course, the decades in which defence counsel first began to appear in large numbers, so this apparent surge may also be the result of that more frequent and determined scrutiny of witness testimony which is associated with them.22 The moral pressure to examine witnesses more closely, especially those on the prosecution side, must also have been doubly reinforced during the 1780s because that decade saw Old Bailey defendants being hanged on a numerical scale not seen since the era of the Tudors.23 Second, and most important for the subject at hand, is the apparent decline in the incidence of both types of oath scrutiny from the 1810s onwards, and finally their disappearance by the 1870s–80s. The scale of the decline during the early nineteenth century might be an artefact of the sharp contraction in the scale with which trials were being reported in the Proceedings from the 1810s through the 1840s. More reassuringly, however, the apparent disappearance of such patterns of oath scrutiny during the second half of the nineteenth century coincides with a marked resurgence in the scale on which the Proceedings reported criminal trials. In other words, it is at least possible that this ‘old-style’ means of invoking (however nominally) the wrath of God in order to squeeze the truth out of a witness really may have been more or less vanishing by the end of the Victoria era. This is all the more surprising given that passage of the Criminal Evidence Act in 1898 might well have increased the number of people testifying on oath, and would especially have introduced a particular brand of testimony—that of the accused him- or herself—which was likely to be scrutinised especially closely. All of this seems doubly striking and suggestive in that it corresponds precisely with that era which many modern historians of religion in England see as most definitively marking the transition to a secularised English culture, a theme to which we will return in the conclusion to this chapter. It does not appear to have been the case, however, that either the judges and counsel who pressed such questions in court, or commentators in the legal press of the Victorian era, themselves entertained any literal belief that lying under oath was an assurance of damnation. Only a half century after William Paley, the preeminent conservative intellectual of the late Georgian era, had insisted that to take an oath was to call ‘upon God to witness, i.e., to take notice of what we say, AND it is invoking His

112  Simon Devereaux vengeance, or renouncing His favour, if what we say be false, or what we promise be not performed’, another commentator doubted the human capacity to call upon God’s revelatory intercession, certainly in the most literal and immediate fashion.24 He wrote, Considering that perjurers, instead of dropping down dead in court, walk out as lively as their truth-telling neighbours, a practical appeal to this particular chapter of divine interposition would have precisely the same tendency as the sceptical satire of Aristophanes in the Clouds.25 This author made his comic remark in an approving review of James Endell Tyler’s Oaths: Their Origin, Nature and History (1834). A basic evaluation of the early- to mid-Victorian position might sensibly begin with this influential work. Early modern Englishmen were oath-mad; virtually every office of trust required a man to swear one.26 Tyler’s point was that, at the dawn of the Victorian age, it was time to provide critical reinforcement for the significance—and, hopefully, the compulsory power—of the trial oath precisely by abolishing oaths in virtually all other areas of public life. ‘[B]y the very act of abolishing swearing in other cases’, Tyler emphasised in the introduction to the second edition of his book, published a year after the first, ‘the Oaths in Courts of Justice will be clothed with a more solemn and sacred character’.27 Only a decade earlier, the ageing William Wilberforce, one of the preeminent statesmen and moral figures of the age, had privately lamented his failure ‘to propose a bill for greatly lessening the number of oaths’ required in public life, presumably with just such a view in mind.28 And a similar recommendation was made by an 1867 Royal Commission on Oaths.29 Consider a more detailed example: the views of one writer (perhaps it was Tyler) in an 1832 issue of the Christian Examiner.30 Though he lamented the ease with which perjury was practiced in courts, he nonetheless acknowledged that we have some security in the open and public administration of justice, in the freedom and ability with which examination of witnesses is conducted in our judicial trials, and, above all, in the intelligence and fidelity of a jury, bound to exercise their best efforts to detect imposition and to prevent its effects. (p. 52) This sounds conspicuously like the sort of argument for rigorous scrutiny and consideration of the evidence, under the impartial gaze of the wider public as well as the judge in court, which underpinned the passage of the Prisoners’ Counsel Act only four years later. Nevertheless, this same commentator also sought reassurance for his desire to believe that ‘over the great majority of our people, surely the religious sanction of an oath may

Swearing and Feeling  113 be supposed to be truly felt and duly appreciated’ (p. 54). Like Tyler, Wilberforce, and so many others, he feared that ‘frequency, and the want of due solemnity in administering’ extra-judicial oaths diminished the seriousness with which oaths were viewed in that most crucial of public fora, the criminal trial. ‘Men take an oath almost without knowing it’, he lamented. The words pass over their minds without impression. The ceremony becomes a mere form, which hardly engages their attention; and after it is passed, they are left without any strong sense of the condition in which they stand [i.e., in peril of their immortal soul]. His solution was the same as that of all others cited here: ‘If judicial oaths should, for the security of the great ends of public justice and pure morals, be limited in their number, extra judicial oaths . . . ought to be, in a great degree, if not wholly, restrained’ (p. 55). The latter, after all, were ‘more than any others, . . . liable to be violated’, whereas an oath ‘taken in a court of justice . . ., before a commissioned magistrate’, ought to be ‘a solemn appeal to the Deity, an awful imprecation of his vengeance, a pledge in the face of man of all that religious and moral feeling which forms the cement of civil society’ (pp. 56–7). Like Tyler and the others, he concluded that the ‘diminution of the number and frequency of oaths would of itself magnify the solemnity of the occasion which still required them’, principally the criminal trial (p. 59). Underlying all of this appears to be a Victorian-era understanding of the distinction, familiar to readers of Peter Burke’s famous study of early modern cultural history, between an elite conception of the role of the oath in criminal trials and a putative popular alternative.31 The desire of Tyler, Wilberforce, and the House of Lords to restrict the attributed power of a public oath to the criminal courtroom suggests that, although the educated rulers of Victorian society understood themselves to be capable of more complex intellectual views of the truth-seeking process, they were by no means so comfortable in attributing such sophistication to the uneducated majority. The interests of truth-seeking in the English courtroom would be best served if such people continued to maintain a fearful belief in a more emotionally powerful, literal-minded idea of ultimate damnation for those who lied under oath.32 Complex understandings of the subtleties of faith and revealed religion were to be expected amongst the rulers of Victorian society, but it was best not to cloud the minds of the people at large with such sophisticated understandings. Better by far, for everyone, that the more primitive understandings of the latter should be preserved in that public arena in which they were likely to have both the most interest and the most frequent experience: the criminal court. ‘[W]hile ignorant men are only too commonly in the habit of telling lies’, one 1863 commentator on judicial oaths assured his no doubt well-educated and well-heeled audience, ‘they are generally very much afraid indeed of wilfully violating an oath solemnly taken’. Far

114  Simon Devereaux better, for the sake of the ‘ignorant’, to ‘retain the moral sanction of the oath’ rather than to fully embrace a world of ambiguous and contested truth-seeking. ‘It is well to remind men that there is a Judge above from whom we have reason to expect justice unperverted by the conventional rules, and the imperfections of mankind’.33 This distinction provides a sensible explanation for why so many legal commentators continued to adhere to the view that defendants in particular (the vast majority of whom, after all, came from the common people) should continue to be precluded from testifying under oath, despite the fact that many other observers probably understood the ultimate relinquishing of that position to be an inevitable component of the vision of trial embodied in the Prisoners’ Counsel Act of 1836.

Emotional Appeals by Counsel Another dimension of the Victorian criminal trial troubled those commentators who feared the declining plausibility of the testamentary oath, one which has proven to be more lasting. It features prominently in Agatha Christie’s most popular novel, And Then There Were None (1939). Says Lawrence Wargrave in that book’s conclusion, I have a reputation as a hanging judge, but that is unfair. I have always been strictly just and scrupulous in my summing up of a case. All I have done is to protect the jury against the emotional effect of emotional appeals by some of our more emotional counsel. I have drawn their attention to the actual evidence. Given that Judge Wargrave speaks these words in his confession to having murdered every other major character in the book, Christie presumably questioned his philosophy. A trial process entirely shorn of human feeling was not just unlikely: it was morally undesirable. Many legal commentators of the Victorian era, however, would have shared Wargrave’s concern with the impact of lawyers on criminal trial. They believed that a barrister should produce the maximum volume of evidence on his client’s behalf and scrutinise the evidence of the opposing side as closely as possible, all with a view to inspiring in the jury a conviction that the most dispassionate evaluation would favour his client’s case. As we will see, however, some of these commentators also appear to have been more comfortable than others with the inevitability—perhaps even the desirability—of directing the feelings of the jury towards their side of the argument. Indeed, it could be argued that the cultivation of a feeling reaction in a jury lay at the heart of the new profession of criminal barrister. The rise to professional respectability of actors and barristers was not only coincident but distinctly interrelated. Actors and barristers alike frequently attended one another’s performances—actors on the stage, barristers in the courtroom—and

Swearing and Feeling  115 many of them later recalled that they would hone their techniques by studying one another in action.34 The implications of this for an orderly and rational conduct of criminal trial were all-too-easily and quickly grasped, and it inspired disquiet and distaste in some observers. As early as 1811, Sir Richard Phillips, a writer, bookseller, and recent Sheriff of London, published a tract, On the Powers and Duties of Juries (1811), in which he warned jurors that the determination of barristers to prevail in any given case, and their ready resort to open tactics of emotional manipulation in order to do so, could easily thwart the larger cause of justice: It being the duty of Counsel on each side to gain a verdict for his client, . . . all arts of rhetoric and eloquence are exerted by these gentlemen, to move [a jury’s] feelings and direct their judgments. . . . Some of them are not even very scrupulous about the means, and there are no arts of affected feeling, of coaxing, flattering and wheedling, of persuasion, of insinuation, and of assertion, which they do not consider as part of their professional character, when pleading either a good or a bad cause. (pp. 136–7) All too soon and too easily, a barrister’s self-regard as a successful performer could hijack the trial’s fundamental purpose: the search for the authentic truth of the accusation. The barrister ‘may soon discover that justice is on the other side’, Phillips continued, but their reputation as advocates is at stake; they are in the presence of the public, and their practice and fortune depend on their show of ability, and on their unshaken zeal in the service of their client; they therefore persevere with dauntless pertinacity, and if they succeed in misleading the Jury, which is sometimes the case, their triumph as advocates is the greater! Justice and virtue may weep, but victory, exultation, and glory, are with them who have cajoled the Jury out of a [proper] verdict. (p. 138) What Phillips wanted and expected from juries specifically, and from criminal trials in general, was a reasonable and dispassionate evaluation of the evidence. Juries ought ‘to decide . . . according to their reason and conviction, and should, therefore, avoid becoming the dupes of feelings artfully raised by Counsel’ (p. 140). It can be little wonder, then, that the 15-year-long parliamentary debate surrounding the question of extending rights of full defence by counsel to felons, which began in 1821, was occasionally intensified by an anxious concern that lawyers, acting on behalf of defendants (many if not most of whom, after all, were guilty), would arouse the feelings of juries in ways

116  Simon Devereaux that might defeat the ends of justice. In helping to defeat the proposed bill of 1826, for instance, the Attorney General (and future Lord Chancellor) Sir John Singleton Copley maintained that the effect of allowing counsel to speak for the defence would be to convert the court into an arena, where opposing advocates might meet in professional conflict, and where, instead of endeavouring to elicit the truth by a reference to plain facts, or the real merits of the case, the time of the public would be wasted by contests between the counsel on either side, animated, as they would be, by all the excitement, zeal, and pertinacity, which such contests usually inspired. To those who might argue that the problem of excessive ‘excitement, zeal, and pertinacity’ in the courtroom was already posed by the absence of an equal proscription of counsel on behalf of the prosecution, Copley maintained that, in all instances where ‘the zeal of the advocate’ on the prosecution side had ‘induced [him] to over-step the strict line of his duty, and indulge in any vituperative or extraneous observations, he was liable to be immediately checked by the judge, who would caution the jury not to be influenced by such remarks’.35 This was one more dimension of that general argument on the conservative side which historians of these debates have noted: that the judge himself was ‘counsel for the defence’, and would uphold his or her interests far more reliably—and dispassionately—than would any striving barrister.36 Of course, many others had doubts about these idealised notions of a courtroom utterly shorn of aggressive feeling on either side of the case. Thomas Denman, a leading member of the opposition (and future Attorney General), dismissed Copley’s ‘picture of the propriety and decorum of our courts’ as ‘Utopian’ and ‘contrary to that which daily experience presented’. Nevertheless, the Conservative majority easily prevailed on this occasion, as it did throughout the 1820s.37 Similar arguments about both the possibility and probability of restraining undue displays of feeling, especially on the part of defence, informed the parliamentary debate at other stages. In proposing the 1824 bill, George Lamb (younger brother of Lord Melbourne) assured potential critics that, although ‘Much might be said about the danger of stirring and exciting the passions by the force of eloquence’, the evidence of misdemeanour trials—in which full defence by counsel was already permitted—suggested that ‘judges, counsel, and witnesses’ alike were more than up to the task of restraining ‘their feelings and passions’ as the circumstance of trial demanded. Lamb’s opponent on this occasion, the Irish MP John Henry North, did not think that counsel for an accused felon—contending, as he might well be, for his client’s very life—was capable of such self-restraint. ‘[H]e would make an animated appeal to the passions of the jury; and, where he could not persuade, he would endeavour to affect’. Such resort to appealing to a jury’s emotions was

Swearing and Feeling  117 inevitable given ‘the infirmity of human nature’ in the face of the hard fact that ‘the stake for which [counsel on both sides] played [was] nothing less than the life of [a] man’.38 North’s emphasis on the particular role of capital punishment is suggestive. When the parliamentary debate over defence counsel was renewed in 1833, the opposition had perhaps begun to lose much of its force because, by that time, the practical scope of the capital code had been much diminished, and its last vestiges (in cases other than homicide) were not long for the world.39 The stakes for which defence counsel could sensibly be expected to contend were no longer as high as once they had been. Perhaps this helps to explain why Copley, now Lord Lyndhurst, had changed his tune on the matter, coming out in 1836 in favour of the Prisoners’ Counsel Act. He still conceded ‘that in some degree something like warmth and zeal would make its appearance in the courts of criminal justice, were counsel on the one side and on the other permitted to argue criminal cases’. But now he believed that ‘the evils in this respect were greatly exaggerated’. True, in the year 1826 [he had] taken another view of this question. But he was satisfied that his former conclusions as to the evils and inconveniences that would arise from the proposed change, were exaggerations; and he was now persuaded that those evils would be of no great magnitude, and would be more than counterbalanced by that great rule of justice on which the change was founded—impartiality.40 In other words, Lyndhurst seems now to have become persuaded that reason could be trusted to prevail over passion so far as the conduct of a fully professionalised trial-by-lawyers was concerned. That was presumably the view entertained now by that majority of MPs which soon passed the Prisoners’ Counsel Act. The wider legal profession, however, may still have been more doubtful. Allyson N. May has complicated a once-straightforward narrative of the ‘modernisation’ of criminal trial by pointing out that, in fact, many barristers—perhaps most of them—were opposed to the full admission of defence by counsel in felony trials.41 One of the lasting residues of that opposition was that many members of the legal profession continued to insist that the presentation and scrutiny of evidence on trial was, and must ever be, scrupulously dispassionate. Agatha Christie’s Judge Wargrave, and no doubt many others like him, would have approved.

Emotions in the Service of Reason Some Victorians, however, sought to chart a more pragmatic and realistic course between the extremes of emotional rhetorical appeal, on the one hand, and rational consideration of the case, on the other. If it often seemed impossible to believe that a barrister could restrain himself from appealing to a jury’s feelings as much as (or more than) its reason, then

118  Simon Devereaux perhaps one could argue that such performative tactics nevertheless ultimately served the higher aim of dispassionate evaluation of the evidence. Such a perspective was adopted by an 1861 observer of ‘Advocacy and Advocates’.42 This author thought that the ‘moment has come for vindicating the character of the Bar’ against ‘popular prejudices’ and ‘popular jests’. True, he conceded, The aim of the law is the administration of justice; its ideal, the perfection of justice; and in no way is justice likely to be so surely attained, as when conscientious and able advocates put forth the strongest case that each can suggest for their respective clients, before an umpire of proved learning and capacity who distinguishes their solid from their plausible arguments, and pronounces judgment from a careful consideration of every conflicting circumstance and statement. This sounds like the dispassionate legal ideal, but this analyst then went on to acknowledge how far removed from it the conduct of many barristers appeared to be in the eyes of the public. ‘The populace sees a man flushed with passion, bursting with indignation. His eye flashes lightning, his lips curl with scorn, his voice trembles with emotion. They know he goes through these outward physical manifestations for a “consideration” ’. And he also acknowledged how such courtroom behaviour was obviously derived from the dramatic profession. ‘The client hires all these rhetorical arts’, he openly admitted, just as the theatrical manager hires the factitious emotion of the actor, but with this difference, that the actor puts off his individuality for a time, and is not accredited with the sentiments he expresses, while the public cannot believe that an advocate can roundly assert that which he has good reason to suspect to be untrue and unreal, without moral hurt, and a loss of delicacy of mind. In so doing, an unreasonable observer was mistaking a barrister’s means for the larger end of the trial overall. Provided that the judge remained able and willing to distinguish, for the jury’s benefit, between the passion of the barrister’s outward appearance and the validity of the argument that it was being deployed to reinforce or convey, the essential truthseeking function of trial was being served. A somewhat different rapprochement between reason and affect was proposed by no less a figure than lawyer Edward W. Cox, the founding editor of The Law Times, the preeminent legal periodical of the era. In 1852 Cox called the aspiring barrister’s attention to the importance of quick and powerful emotions in the Advocate. Without them he cannot feel strongly; if he does not feel strongly himself, by

Swearing and Feeling  119 no art can he excite through sympathy the feelings of his audience. If, on the contrary, his sense of right, his indignation at wrong, his emotions of benevolence, are enlisted in the cause he is advocating, they make themselves visible upon his face, they utter their own natural, and therefore appropriate, language; they kindle, even by their very presence, a sympathy in the minds of the audience, and thus by persuasion he is enabled to accomplish more even than by his appeals to their convictions.43 For Cox, a display of feeling on the part of a barrister was integral to making the most persuasive case on the part of his client. There was no contradiction between the ‘art’ which a barrister must display and the larger purposes which his advocacy ultimately served. He specifically advised barristers to remember that the manner in which they spoke to a jury— ‘men not learned in the law, [and] for the most part not well accustomed to the mental work of rapidly following a compact argument’—must necessarily differ from that with which he addressed the judge. Only in the latter instance did reason become the rule of the moment. ‘[W]hen you address the court’, Cox explained, ‘you appeal to intelligence greater than your own, to a mind or minds practised in argument, trained to its pursuit, comprehending instantly the meaning of every word you use, and the more technical your talk the more intelligible it is to the listeners’. Like all good actors, an effective barrister understood that different audiences were most effectively appealed to via different modes of performance. With the judge, ‘you need none of the arts required to win the ears of a Jury. You should condense your thoughts and language, devoting your entire attention to the logical array of your argument, and the precision with which you present it’. The effective barrister always remembered that The attention of the Judge is directed more to your argument than to you—to your matter rather than your manner; and, provided that the argument that you have constructed be sound and sensible, it will be heard and accepted, [even if] conveyed in broken phrases and inelegant language.44 Cox may have believed—or at least suspected—that the disinterested display of reason and argumentation which was the professed ideal of the legal profession may itself have been as much a ‘performance’ as was a display of emotion. About the same time as Cox, barrister William Johnston maintained that an emotional appeal in court was only appropriate insofar as its ultimate purpose was to spur the intellect. ‘Though the highest oratory is addressed to the intellect’, he wrote, yet the appeal is made through the emotions of the heart. I do not mean that it is to the sensibilities that the great orator merely or

120  Simon Devereaux chiefly addresses himself. That is an inferior style, which may find a wider though a less worthy audience. But there is a class of mental emotions connected with high effort, and the key-note of these emotions the gifted orator knows how to touch. He speaks of duty, honour, patriotism, glory; and his voice, like the sound of a trumpet, rouses the hearts of men, and fills them with lofty aspirations. Thence the orator proceeds to the intellect, and shows what is to be done that these noble desires of the mind may be fulfilled. On the whole, however, Johnston wondered whether such ‘high oratory’ had any place ‘At the bar’, where quibbling over minor points of detail risked leaving too little time ‘to spare for the loftier description of forensic eloquence’.45 How far such voices commanded acquiescence in the wider legal profession, however, may be open to doubt. By the turn of the twentieth century, any door that may once have opened to admit feeling as an ally to reason and rhetoric in the barrister’s armoury may now have been closing. In 1910 (and perhaps remembering Johnston’s lawyer whose voice had a ‘sound like a trumpet’), barrister Devereux Knowles insisted that The day of the advocate whose ‘voice of brass’ thundered questions at the witness is rapidly drawing to a close. . . . [C]ross-examination has become more than ever a trial of skill in which the keener weapon of the intellect has to be used. Although Knowles conceded that ‘It is obvious that the best advocate is something of an actor’, this was true ‘not in the theatrical sense, but [rather] in that he must learn to disguise his feelings’. An effective barrister ‘requires . . . an extensive knowledge of mankind, and of every phase of human passion and intelligence’; but in the courtroom ‘[h]e must have himself under complete control, and be prepared to meet rebuffs, as well as triumphs in the same imperturbable manner’. For Knowles, the better point of comparison for an effective barrister was ‘a chess-player’ rather than an actor.46

The Secularisation of the Defendant’s Testimony Knowles perhaps rejected this comforting compromise position—that a barrister could deploy feeling, not to override, but rather to reinforce the central role of reason—because, by the Criminal Evidence Act (1898), one of the preeminent safeguards against emotional and self-interested testimony had at last been abandoned. It was earlier suggested that the refusal to allow a defendant to testify on oath was inspired by a conviction, amongst many legal commentators, that the majority of the Victorian public was too uneducated and unsophisticated to be able to

Swearing and Feeling  121 conceive of a criminal trial procedure which could produce truth without the threat of perdition being held over false testimony. During the last decades of the Victorian era, the belief that the unpropertied public needed such reassurance was retreating in the face of secularisation, democracy, and education. All these modernising phenomena were complex, and their precise extent can be easily exaggerated. The brief account presented here must inevitably do violence to the nuance which most political, social, and cultural historians of the age would rightly prefer. We need not linger over the familiar developments—Darwinism, religious pluralism, and so forth—which underpinned the emergence of an ‘Age of Doubt’ amongst the propertied classes. Much of that ‘Doubt’ was already in place at the time that some commentators were asserting the need to maintain the putative power of the testamentary oath for the benefit of society’s less sophisticated majority.47 The rulers of late Victorian society, however, found themselves confronted with a more troubling and increasingly intractable problem: declining church attendance.48 That perception as applied to working people was not new, but many observers perceived the late nineteenth century to be an era of particular failure by the churches, after several decades of effort, to reach working people, especially in urban areas.49 Recent scholarship has cast doubt on the representativeness of the urban experience, as well as the assumption that attendance figures are any direct measure of actual belief.50 Yet the basic observable facts at the time must have seemed compelling to the propertied elites. Such ‘negative’ impetuses towards a definitive secularising of the testamentary oath were complemented and reinforced by more ‘positive’ developments. There is a striking coincidence between the appearance of parliamentary bills to allow defendants to speak under oath (1876–98) and bills to make provision for the education of working people. The Education Act of 1902 extended the provision of state-funded schooling— initially provided at only the grade school level by the (First) Education Act of 1870—to the secondary level. The earlier measure has often been understood by historians as addressing the anxieties of ruling elites to ensure that urban working people, an unknown proportion of whom had been given the right to vote by the Second Reform Act (1867), ought now to be educated to a sufficient level that they might exercise that power responsibly. That conviction must only have been reinforced by the Third Reform Act (1884), which extended the right to vote to many working people in rural areas. The Education Act of 1902 was born of a mounting anxiety amongst Conservatives about creeping secularisation in state-supported schooling, much of that anxiety presumably being fed by a consciousness of declining church attendance amongst the working class. In the short term, it aimed to shore up religiousbased schooling, at least for Anglicans and Catholics; it gave no state provision, however, for those nonconformist denominations amongst

122  Simon Devereaux whom the greatest proportion of working-class church attendance was to be found. Consequently, its longer-term impact was a vast expansion in non-denominational state schooling.51 The (Second) Education Act and the Criminal Evidence Act were both symptomatic of an emergent recognition, amongst the ruling elites of the late Victorian era, of a definitively secularising culture across all levels of the social spectrum. Passage of the Criminal Evidence Act in 1898 signalled the abandonment of the most rigid insistence upon ‘protecting’ the people at large from that more morally complex and ambiguous world of truth-seeking to which most of their rulers had started to acclimatise themselves more than half a century beforehand. One advocate of the Act clearly understood himself, and the rest of English society, to have reached a definitively secularising moment which ought now to be acknowledged in practical terms. ‘The blunt truth’, he wrote, in an article of 1896, is that we must rely more and more upon the severity of the temporal punishment which shall follow giving false evidence in a Court of Justice, than on an appeal to that personal providence, the probability of whose immediate active intervention in the actions of individuals was once thought to render trials by ordeal or by battle adequate modes of ascertaining the truth.52 The more traditional Victorian position was upheld in the House of Commons, in April 1898, by MP (and cricketer) Alfred Lyttelton, who maintained that advocates of the bill approached this question too much from the point of view of an educated man. . . . You are legislating for the poor, the miserable, the ignorant, the confused—almost the dumb, you may say—who are driven into a Criminal Court and have, probably for the first time in their lives, to endeavour to string together a few sentences against more or less skilled opponents.53 But the time in which such a view could be persuasively upheld was drawing to a close.

Conclusion It bears repeating that the two strands of concern raised by the lawyerisation of criminal trial which have been traced here were very decidedly secondary ones. A trial culture which placed a preeminent value on the maximisation and rigorous working through of evidence had already been substantively embraced by early Victorian legal commentators. In the larger history of English criminal trial procedure, the years between 1836 and 1898 seem a relatively short span of time in which to work

Swearing and Feeling  123 through its wider implications. If those commentators were occasionally distracted by the potential problems raised by a denuded testamentary oath or the ease with which an effective barrister might slide between argumentation and emotion, this was only a reminder that they were, inevitably and irreducibly, men of the Victorian age. By the same token, the concerns which they occasionally raised have never really been definitively resolved. Debates as to the respective places of reason and feeling, argument and emotional display, are still recurrent in commentary on criminal trial to this day, and they must surely reflect the inherent incompleteness of the transformation in the character of trial which we have been told took place during the nineteenth century. Before its lawyerisation, trial was essentially a personal confrontation between the victim and the accused. Was this not an indelibly emotional event to begin with, inherently fraught with the risk of dishonesty on the part of defendant, witnesses, and counsel alike? Whether or not we believe that judges acted as impartial mediators and ‘counsel for the accused’, they could scarcely have prevented the open expression—physically and physiognomically, if not verbally—of hostility between the accused and the victim. Nor could they ever, of course, truly rely on the oath to serve as a real block to dishonest testimony. Perhaps the whole ideal of a reliably honest, emotion-free presentation by lawyers was the real innovation of the Victorian era. Perhaps the legal-professional ‘narrative’, valourizing evidentiary production, as well as reasoned impartiality in its assessment, was (and remains?) a necessary, compensatory myth for a reality of criminal trial that has never fully met such standards beforehand, nor is likely ever to do so as long as criminal trial remains an arena of human interaction.

Acknowledgements My thanks to the editors and to Andrea McKenzie for their close reading and suggestions. Early versions of the major elements of this chapter were presented at two invitational meetings: Law and Governance in Britain (Western University, London, ON, 25–26 October 2013); and Criminal Justice during the Long Eighteenth Century (Huntington Library, San Marino, CA, 1–2 November 2013). I am grateful for all the helpful comments that I received, and for the generosity of the hosts, on both occasions.

Notes 1 David Bentley, English Criminal Justice in the Nineteenth Century (London: The Hambledon Press, 1998), chs. 15–18; John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), 51–53, 280. Langbein points out that even witnesses for the defence had been forbidden to testify under oath until 1702 (52).

124  Simon Devereaux 2 C.J.W. Allen, The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997); Jan-Melissa Schramm, Testimony and Advocacy in Victorian Law, Literature, and Theology (Cambridge: Cambridge University Press, 2000); Keith Smith, ‘Criminal Law’, in John Baker (gen. ed.), The Oxford History of the Laws of England—Vol. XIII: 1820–1914, Fields of Development (Oxford: Oxford University Press, 2010), 71–107; Wendie Ellen Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom (New Haven, CT: Yale University Press, 2015). 3 Stephan Landsman, ‘The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England’, Cornell Law Review, 75 (1989–90), 591–602; J.M. Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law and History Review, 9 (1991), 250–258; Bentley, English Criminal Justice, chs. 15–18 (esp. 156–157); David J.A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998); Langbein, Origins of Adversary Criminal Trial, 306–310; Allyson N. May, The Bar & the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), 178–180, 233–234, 241–242; John Hostettler, Fighting for Justice: The History and Origins of Adversary Trial (Winchester: Waterside Press, 2006), ch. 10. 4 Philip Davis, The Oxford English Literary History—Volume 8: 1830–1880, the Victorians (Oxford: Oxford University Press, 2002). 5 For the Victorian ‘criminal class’, see J.J. Tobias, Crime and Industrial Society in the 19th Century (London: B.T. Batsford, 1967), chs. 4–6; and Kellow Chesney, The Victorian Underworld (London: Temple Smith, 1970). 6 The survival of popular superstition and magical belief systems amongst Victorian working people (and some of their social betters) has been the special study of Owen Davies: see his Witchcraft, Magic and Culture, 1736–1951 (Manchester: Manchester University Press, 1999); and Cunning Folk, Popular Magic in English History (London: Hambledon and London Press, 2003). For the early Victorian view of crime as the outcome of emotional impulsiveness, see Martin J. Wiener, Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (New York: Cambridge University Press, 1990), ch. 1. 7 David Mellinkoff, The Conscience of a Lawyer (St Paul, MN: West Publishing, 1973); Cairns, Advocacy and Criminal Trial, 126–136; May, Bar & Old Bailey, 212–234. A full-scale cultural history of this famous case is forthcoming from Allyson N. May. 8 The crucial account which conveyed this impression appears to have been that which appeared the day after the trial’s end, in The Examiner, 21 June 1840. Albany Fonblanque (1793–1872), the Examiner’s editor from 1826 to 1847, was one of the most determined and persistent critics of Phillips’s conduct on this specific occasion, as well as the morality of the criminal bar in general. 9 Madeline House, Graham Storey and Kathleen Tillotson (eds.), The Letters of Charles Dickens: The Pilgrim Edition (Oxford: Clarendon Press, 1965– 2002), ii.88. 10 Caledonian Mercury, 25 June 1840. 11 Liverpool Mercury, 28 August 1840. 12 Edwin Chadwick, ‘Licence of Counsel: Criminal Procedure’, Westminster Review, 35 (1841), 1–23 (quotes at 18, 10). 13 William C. Townsend, Modern State Trials (London: Longman, Brown, Green, and Longmans, 1850), i.244–313. In addition to the extensive newspaper coverage, see Punch, or The London Charivari, 17 (1849), 223– 233; The Jurist, 13 (15 December 1849); Gentleman’s Magazine, 189/n.s.

Swearing and Feeling  125 34 (1850), 522–525; Law Magazine Quarterly, 12 (1850), 26–36; Legal Observer Digest, 39 (1850), 62–63, 137–138, 276–278, 296–298; Monthly Law Reporter, 12 (1849–50), 433–439, 536–551, 553–573; United States Monthly Law Magazine, 1 (1850), 485–495. And see particularly, Samuel Warren, ‘The Practice of Advocacy—Mr Charles Phillips, and His Defence of Courvoiser’, Law Review, and Quarterly Journal of British and Foreign Jurisprudence, 11 (1949–50), 376–436. 14 ‘The Ethics of Advocacy’, John Bull, 25 March 1865; William Nassau Molesworth, The History of England from the Year 1830 (London: Chapman and Hall, 1872), 50–51; ‘Scandal’, The Australasian (Melbourne), 25 October 1873; William Ballantine, Some Experiences of a Barrister’s Life (London: R. Bentley & Son, 1883), i.89–98; Richard Harris, Hints on Advocacy, Intended for Practitioners in Civil and Criminal Courts (London: Stevens & Son, 1884), ch. 10 (‘The Ethics of Advocacy’); ‘The Case of the Queen v. Courvoisier’, Criminal Law Magazine, 14 (1892), 189–191; George D. Watrous, ‘The Moral Right to Defend the Guilty’, Yale Law Journal, 2 (1892–3), 41–53; Ernest-Bowen Reynolds, Seventy-Two Years at the Bar: A Memoir (London: Macmillan, 1924), 314–319; Charles Kingston, A Gallery of Rogues (London: Stanley Paul, 1924), 9–15. 15 Mellinkoff, Conscience of a Lawyer, 224. In fact, the only concern with damnation that Mellinkoff’s account considers is that of the lying lawyer, rather than the more central concern of contemporaries for the eternal fate of the lying defendant (145–149, 247–257). 16 Langbein, Origins of Adversary Criminal Trial, 34–36, 168, 171, 253, 269, 273, n 96. See also Beattie, ‘Scales of Justice’, 223; May, Bar & Old Bailey, 20–21; and Hostettler, Fighting for Justice, 25–26. 17 Simon Devereaux, ‘Arts of Public Performance: Barristers and Actors in Georgian England’, in David Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Farnham: Ashgate, 2012), 93–117. 18 It very much survives, however, as a primitive and elemental conviction amongst many commentators on criminal trial, and undoubtedly many jurors as well (see Devereaux, ‘Arts of Public Performance’, 111–112). 19 Esther Snell, ‘Trials in Print: Narratives of Rape Trials in the Proceedings of the Old Bailey’, in Lemmings (ed.), Crime, Courtrooms and the Public Sphere 34–35. 20 In both Figures 6.1 and 6.2, the average length of trial has been multiplied by a factor which enables it to be sensibly related to the numerical occurrence of the measured phenomenon. 21 Simon Devereaux, ‘The City and the Sessions Paper: “Public Justice” in London, 1770–1800’, Journal of British Studies, 35 (1996), 466–503; Devereaux, ‘The Fall of the Sessions Paper: The Criminal Trial and the Popular Press in Late Eighteenth-Century London’, Criminal Justice History, 18 (2003), 57–88; Robert B. Shoemaker, ‘The Old Bailey Proceedings and the Representation of Crime and Criminal Justice in Eighteenth-Century London’, Journal of British Studies, 47 (2008), 559–580. 22 Landsman, ‘Rise of the Contentious Spirit’, 548–564; Beattie, ‘Scales of Justice’, 226–230; Robert Shoemaker, ‘Representing the Adversary Criminal Trial: Lawyers in the Old Bailey Proceedings, 1770–1800’, in Lemmings (ed.), Crime, Courtrooms and the Public Sphere, 71–91. 23 Simon Devereaux, ‘England’s “Bloody Code” in Crisis and Transition: Executions at the Old Bailey, 1760–1837’, Journal of the Canadian Historical Association, 24, 2 (2013), 86–89; Devereaux, ‘Execution and Pardon at the Old Bailey, 1730–1837’, American Journal of Legal History, 57 (2017), 464–469.

126  Simon Devereaux 24 Paley, Principles of Moral Philosophy (1785); as quoted in James Endell Tyler, Oaths: Their Origin, Nature and History (London: J.W. Parker, 1834), 9. 25 William Empsom, ‘Tyler on Oaths’, Edinburgh Review, 59 (1834), 446–474 (at 465). 26 Conal Condren, Argument and Authority in Early Modern England: The Presupposition of Oaths and Offices (Cambridge: Cambridge University Press, 2006). 27 James Endell Tyler, Oaths: Their Origin, Nature and History, 2nd ed. (London: J.W. Parker, 1835), viii. 28 Robert Isaac Wilberforce and Samuel Wilberforce, The Life of William Wilberforce (London: John Murray, 1838), v.231. 29 ‘Report of the Oaths Commission (17 May and 16 July 1866)’, House of Commons Sessional Papers 1867 (3885) xxxi.1–326. 30 Anonymous, ‘Oaths, Judicial and Extra-Judicial’, The Christian Examiner and General Review, 12, 7 (1832), 48–64. 31 Peter Burke, Popular Culture in Early Modern Europe, 3rd ed. (Farnham: Ashgate, 2009; original edition, 1978). 32 This had apparently been recognised as early as 1786, when three lines from Biblical scripture, warning of divine punishment against perjury, had been inscribed in gold lettering on the walls of the Old Bailey courtroom (May, Bar & Old Bailey, 28). 33 H.J. Wrixon, ‘Legalia—The Judicial Oath’, Dublin University Magazine, 61 (1863), 654–656 (quotes at 662–663, 666). 34 Devereaux, ‘Arts of Public Performance’, 95–100. 35 Hansard, 2/15 (1826), col.589–633 (quotes at 599, 598, and 631, respectively). 36 Randall McGowen, ‘The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England’, Buffalo Law Review, 32 (1983), 89–125 (at 118–120); Langbein, Origins of Adversary Criminal Trial, 28–33, 311–318. 37 For Copley and Denman, see The History of Parliament: The House of Commons, 1820–1832, ed. D.R. Fisher (Cambridge: Cambridge University Press, 2009), iv.740–748, 902–912. 38 Hansard, 2/11 (1824), col.180–220 (at 189, 190–191). For Lamb and North, see History of Parliament: Commons, ed. Fisher, vi.6–12, 504–508. 39 On the changing practice of execution and the letter of the criminal law alike, in the 1820s–30s, see: Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (London: Stevens & Sons, 1948–86), i.567–607, iv.303–353; V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994), passim; Devereaux, ‘England’s Bloody Code’, 92–101; and Devereaux, ‘Execution and Pardon’, 476–490. 40 Hansard, 3/34 (1836), col.760–778 (quotes at 768, 770–771). 41 Allyson N. May, ‘Reluctant Advocates: The Legal Profession and the Prisoner’s Counsel Act of 1836’, in May et al. (eds.), Criminal Justice in the Old World and the New: Essays in Honour of J.M. Beattie (Toronto: Centre of Criminology, 1998), 183–207; May, Bar & Old Bailey, ch. 7. 42 Anonymous, ‘Advocacy and Advocates’, The London Review, 3 (1861), 98. 43 Edward W. Cox, The Advocate: His Training, Practice, Rights, and Duties (London: J. Crockford, 1852), i.21 (emphases in original). 44 Edward W. Cox, The Arts of Writing, Reading and Speaking, in Letters to a Law Student (London: J. Crockford, 1863), 275–276. 45 William Johnston, England as It Is, Political, Social, and Industrial, in the Middle of the Nineteenth Century (London: John Murray, 1851), ii.164.

Swearing and Feeling  127 46 V. Devereux Knowles, Evidence in Brief: A Clear and Concise Statement of the Principles of Evidence (London: E. Wilson, 1910), 113–114 (emphasis added). 47 K. Theodore Hoppen, The Mid-Victorian Generation, 1846–1886 (Oxford: Clarendon Press, 1998), ch. 13; Christopher Lane, The Age of Doubt: Tracing the Roots of Our Religious Uncertainty (New Haven, CT: Yale University Press, 2011). 48 Hugh McLeod, Class and Religion in the Late Victorian City (London: Croom Helm, 1974); Alan D. Gilbert, Religion and Society in Industrial England: Church, Chapel and Social Change, 1740–1914 (London: Longman, 1976), ch. 8; S.J.D. Green, Religion in the Age of Decline: Organisation and Experience in Industrial Yorkshire, 1870–1920 (Cambridge: Cambridge University Press, 1996); Keith Robbins, England, Ireland, Scotland, Wales: The Christian Church, 1900–2000 (Oxford: Oxford University Press, 2008), ch. 2. 49 K.S. Inglis, Churches and the Working Classes in Victorian England (London: Routledge & Kegan Paul, 1963). 50 Callum G. Brown, The Death of Christian Britain: Understanding Secularisation, 1800–2000 (London: Routledge, 2009; original edn, 2001), chs. 2, 7. 51 G.R. Searle, A New England? Peace and War, 1886–1918 (Oxford: Clarendon Press, 2004), 329–334. 52 G. Pitt-Lewis, ‘A Bill for the Protection of Innocent Prisoners (in Reply to Sir Herbert Stephen)’, The Nineteenth Century, 39 (1896), 812–825 (quote at 821). 53 Hansard, 4/56 (1898), col.1009–10.

7 Irish Sensibilities and the English Bar The Advocacy of Charles Phillips Allyson N. May

Introduction Charles Phillips’s career as an advocate famously ended in scandal. In 1840 he had been employed for the defence of François Benjamin Courvoisier, a young valet charged with the murder of his employer, William Russell, a brother of the duke of Bedford. Halfway through the trial, on being confronted with evidence that linked him directly to theft from his master, Courvoisier lost his nerve and confessed his guilt to his counsel. After taking advice from both bench and bar, Phillips chose to continue in his client’s defence. That decision, and the content of his closing speech, resulted in public outrage, and a subdued Phillips left the bar two years later, accepting minor judicial appointments first in Liverpool’s Court of Bankruptcy and subsequently in the Insolvent Debtors’ Court in London. His professional reputation never recovered, and he is now remembered primarily in the context of the development of an ethics of advocacy.1 Largely forgotten or overshadowed is the fact that his early career was also marked by notoriety, albeit not positive scandal: Phillips’s oratorical style attracted censure within a few years of his call to the Irish bar in 1812, and by the time he joined the English bar in 1821, his talents had been subjected to extensive criticism. Twenty-first-century assessments of his career allude to but downplay these concerns. Phillip’s entry in the ODNB thus speaks of a ‘sensitive and imaginative nature’, which ‘inspired the romanticism of his writing, and the eloquence and exaggerations of his advocacy’. ‘[B]y English standards’, David Cairns writes, this barrister was ‘unusually passionate and rhetorical’. In Phillips’s own time the case was made more strongly. As this chapter will discuss, Phillips’s passion and perceived oratorical excesses were attributed directly to the fact of his Irishness; the division in opinion over his style, that is, tended to lie primarily along ethnic lines. ‘Irish eloquence’, deemed overly emotional, was not appreciated by the English or the Scots. Emotional performativity is generally acknowledged as culturally specific, and Phillips’s did not survive his transfer to England. After an almost instant failure in Westminster Hall, he retreated to the criminal courts where, until the Prisoners’ Counsel Act of 1836, his overly expressive tongue and

Irish Sensibilities and the English Bar  129 performative abilities were curbed by the prohibition forbidding defence counsel to address the jury.

The ‘Irish Style’ Despite having an English father, the Sligo-born Phillips would be identified throughout his career as an ‘Irish barrister’. This owed in part to the times in which he lived: in the first three decades of the nineteenth century, Ireland became something of an English preoccupation. Irish dissatisfaction with the 1801 union, which had occurred without the quid pro quo of Catholic emancipation, gave cause for alarm during the Napoleonic wars. A disaffected, hostile nation might enable invasion. A sense of crisis focused attention, and the ‘Irish situation’ was a particularly hot topic in the period leading up to and immediately following the Regency Act. Some, like James Mackintosh, also considered the issue from a moral standpoint: Ireland ‘is not the country where an Englishman is best entitled to be proud of the name’.2 One of the key forums in the debate was provided by the Edinburgh Review, founded in 1802 by Francis Jeffrey, Sydney Smith, Henry Brougham, and Francis Horner.3 This influential publication ushered in a new form of journalism. Published quarterly, it reviewed fewer items than its monthly eighteenth-century predecessors, and many of its reviews of literary and political works extended beyond the particular works in question to reflect upon their subjects more broadly. Unlike earlier reviews, it had no inhibiting connections with booksellers and was thus in a position to offer independent criticism. Politically, its sympathies were Whig. The journal, which supported Catholic emancipation, demonstrated from its inception a keen interest in Irish relations with England, and as Timothy Webb has described, ‘Irish matters’ received extended coverage from 1803. Webb singles out the tenure of Francis Jeffrey as editor (1802–1829) in this regard. While political and legislative issues predominated discussion, the Edinburgh reviewed biographical studies, Irish poetry, and Irish novels as well. It also considered collections of Irish speeches, made in law courts and elsewhere, subjecting them, Webb argues, to an analysis more painstaking than that accorded to purely literary works. In the process the Edinburgh was among the first to identify an ‘Irish style’ of oratory, which initially attracted praise but was later condemned for emotional oratorical excess.4 In 1808 Jeffrey, in a review of the second edition of a collection of the speeches of barrister John Philpot Curran, characterised Irish oratory as follows: There is something very peculiar, and very well worth attending to, in the character of Irish eloquence. More vehement, and figured and poetical than any that is now attempted in this country, it aims almost always at dazzling the imagination, or enflaming the passions

130  Allyson N. May at least, as much as at enlightening the understanding. On almost every subject, it aspires at being pathetic or magnificent; and while it adorns what is grand, or kindles what is interesting with the rays of its genius, is apt to involve in the redundant veil of its imagery, what is either too low or too simple to become such a drapery. Being the natural language of fearless genius and impassioned feeling, it will not always be found to express judicious sentiments or correct reasoning; but will generally lead to lofty principles, and glimpses of great theory. It is sometimes coarse, and frequently noisy and redundant; but it has usually strength in its coarseness; and, for the most part, fancy if not reason in its extravagance. Though the design and the drawing may frequently be faulty, the colouring is always brilliant, and the expression, for the most part, original and powerful.5 The characterisation is not entirely without censure, but nonetheless admiring. It also establishes what would become an entrenched distinction made between a perceived Irish inclination towards feeling and passion and an English attachment to temperate, reasoned speech. Looking back over the eighteenth century, Jeffrey commented that the wits of Queen Anne’s time practised a sort of polite writing, characterised by purity, smoothness, and a kind of simple and temperate elegance. Their reasoning was correct and luminous, and their raillery terse and refined; but they never so much aimed at touching the greater passions’. Their predecessors, ‘the Hookers and Taylors, and Barrows and Miltons’, likewise, in Jeffrey’s opinion, ‘had little of nature or rapid movement of passion about them’, while in the late-eighteenth-century Fox’s rhetoric was grounded in logic and Pitt’s eloquence originated in sarcasm: ‘Neither of them had much pathos,—and but little play of fancy’.6 The introduction of ‘inflamed fancy’ Jeffrey attributed to Burke and identified as of Irish origin. Jeffrey clearly welcomed the change and in discussing Curran’s speeches did not condemn the appeal to the emotions. Singling out ‘the best reported speech’ in the collection, made in an action for assault and false imprisonment, he quoted from it at length and concluded, ‘If it be the test of supreme genius to produce strong and permanent emotions’, the passages in question ‘must be in the very highest style of eloquence. There is not a subject of these kingdoms, we hope, that can read them, without feeling his blood boil, and his heart throb with indignation.’7 By the early years of Charles Phillips’s practice, concerns had been raised about a perversion of the Irish style and misuse of its emotional rhetoric. Despite his professed admiration for it, Jeffrey claimed that Burke’s style had subsequently been ‘defiled’ ‘by base imitations and

Irish Sensibilities and the English Bar  131 disgusting parodies’.8 And sympathetic as he may have been to the plight of Ireland, James Mackintosh had no time whatsoever for Phillips: Eloquence is the power of gaining your purpose by words. All the labored definitions of it to be found in the different rhetorical works amount in substance to this. It does not, therefore, require or admit the strained and false ornaments that are taken for it by some. I hate these artificial flowers without fragrance or fitness. Nobody ever succeeded in this way but Burke. Fox used to say, ‘I cannot bear this thing in anybody but Burke, and he cannot help it. It is his natural manner.’ . . . Plunkett, if he had come earlier into Parliament, so as to have learned the trade, would probably have excelled all our orators. He and counsellor Phillips (or O’Garnish, as he is nicknamed here,) are at the opposite points of the scale. O’Garnish’s style is pitiful to the last degree. He ought by common consent to be driven from the bar.9 Phillips would repeatedly be identified as a chief offender in ‘debasing’ the Irish style. It was not, however, a resort to emotional appeals per se which was rejected in early assessments of his advocacy; he was condemned instead for linguistic excesses in making such appeals. Similar criticisms can be found in Jeffrey’s review of Sir Walter Scott’s poem, ‘Marmion’, published in the same year as his review of Curran’s speeches, in which he identified ‘faults’ that were ‘inseparable from its expression’.10 Jeffrey’s ‘choice of the word “faults” ’, argued Michael Fry, ‘shows [his] lack of sympathy with, indeed incomprehension of, romantic sensibility. He remained in aesthetic matters a man of the eighteenth century’.11 The emotional rhetoric of Charles Phillips was unlikely to appeal to Jeffrey’s taste, and Scottish and English critics subsequently fell over themselves in citing instances of absurd hyperbole and linking ‘horticultural’ (flowery) oratory to the Irish. In the six years or so during which Phillips practised on the Connaught circuit, he became famous for ‘criminal conversation’ (‘crim. con.’) cases, civil suits in which a husband sued the seducer of his wife for criminal damages, and one of his speeches in just such a case occasioned his first professional controversy. In 1815 a pamphlet reproducing Phillips’s speech delivered in Dublin’s Court of Common Pleas in Guthrie versus Sterne was published—and quickly pounced upon and denounced by the Edinburgh Review. The review, which employed the generic running head, ‘Irish Oratory’, opened by observing, Whatever grievances the sister kingdom may have to complain of, at the hands of this country, we apprehend, she cannot accuse us of insensibility to the worth and genius of her people. On the contrary, there seems to exist a spirit of exaggeration regarding them—a disposition to make up for the evils occasioned by misgovernment and

132  Allyson N. May abuse, by a somewhat unlimited praise of Irish warm-heartedness, and Irish eloquence . . . we are not about to deny any such tenet; we only claim for ourselves the privilege of watching the attempts made to import the Irish article into this country; and, admitting it to be admirably fitted for home consumption, we think nothing can be clearer than its unsuitability to our market.12 In speaking ‘of the kind of composition usually denominated Irish Oratory’, the reviewer noted that ‘the better speakers’ who transferred to England engaged in it only sparingly, and for good reason. Again, imagination and emotion are identified as peculiarly Irish. Its characteristics are, great force of imagination, without any regularity or restraint; great copiousness of language, with little selection or propriety; vehemence of sentiment, often out of place; warmth of feeling, generally overdone; a frequent substitution of jingling words for ideas; and such a defect in skill (with reference to the object in view), as may be supposed to result from the intemperate love of luxuriant declamation, to which all higher considerations are sacrificed. The merits peculiar to this school of rhetoric we are far from denying; but they are of dangerous example, and at the best, of a subordinate cast. They are not, indeed, by any means of attainment; and even their excess, the fault they are principally liable to, is the vice of clever, not of dull minds. Yet no one, whose taste is not extremely faulty, or corrupted by the study of models from this school, can hesitate a moment in rejecting them, when offered as a sample of legitimate eloquence.13 Phillips, the reviewer assumed, in publishing his speech, thought it deserving of remembrance, and equally that it would appeal to an English as well as an Irish audience. The reviewer demurred: ‘with every sense of its merits as a piece of Irish eloquence, we think they are not such as can recommend it to the more severe judgment of this country’.14 He subjected the speech to a detailed dissection of the language used in its opening, which he found replete with ‘false ornament’, ‘laboured passages’, a borrowing from American usage, awkwardness of expression, and myriad absurdities.15 Phillips’s choice of individual words and expressions was examined and critiqued in minute detail. His detailing of the narrative of the case was admitted to be ‘less flowery’, but Phillips still ‘seasoned’ the simplicity of its telling. Singled out for especial ridicule was his reference to ‘the solace of an artery torn from the heart-strings’ when relating the death of the plaintiff’s mother before the case came to trial. Further passages were described as ‘in the worst style of florid and mawkish novel-writing’.16 A passage which had met with a burst of applause when delivered in the Irish courtroom would, the author said, in England either

Irish Sensibilities and the English Bar  133 have inspired laughter or found its audience utterly unmoved.17 Charles Phillips, the reviewer concluded, was ‘a man of undoubted talents, and even genius’. But he required ‘a severe control over his fancy, and a careful study of the chaster models of composition, to excel in oratory’.18 Phillips responded in print, making plaintive reference to his youth— ‘the first essay of a young barrister in a Court of Justice is scarcely a legitimate subject for criticism’,19 claiming the text published of his speech was unauthenticated,20 and observing that it was not entirely fair to single out a ‘high-wrought’ passage without referencing the preceding ‘dry detail which it was intended to relieve, to enliven, or to illustrate’. But his response to a perceived slight to his country of origin gives an idea of the style of rhetoric to which the Edinburgh objected: Oh, my loved country! denounced by the bigot—defamed by the foreigner—deserted by thy own apostate patriots; but still my loved, my native Ireland! long may the highest human virtues—the chivalry of spirit—the hospitality of heart—the grand, uncalculating generosity of character—the modesty of thy maids—the chastity of thy matrons—the innate hereditary heroism of thy sons, denote and dignify thy ‘imperfect civilization!’ Alas, alas! why should the enlightened page of Scotland pollute the fountain of its fine philosophy with the poison of an impure and impious prejudice!21 The Edinburgh was not alone in chastising Phillips. In the following year the Quarterly Review published a collective consideration of the barrister’s poem, ‘The Emerald Isle’, and four speeches which had been published individually: Guthrie versus Sterne; a speech made at the Roscommon Assizes; and two which touched on Irish political issues, Catholic emancipation and political relations between England and Ireland.22 The review began: We have really been at a loss in what light to consider the series of works before us; they are all planned and constructed on a scale of such ridiculous exaggeration, there is so little law in the pleadings, so little poetry in the poems, and so little common sense in the prose, that we almost suspected that they were intended to ridicule that inflated and jargonish style which has of late prevailed among a certain class of authors and orators in the sister kingdom. But . . . we have been reluctantly driven to conclude that Mr. Charles Phillips is not a censor, but a professor of the new school.23 Interestingly, the critic on this occasion was a fellow Irishman, John Wilson Croker.24 Croker belonged to the Quarterly’s inner circle of reviewers and was the most constant under William Gifford’s editorship (1809–24). Like Jeffrey at the Edinburgh, Croker was not by nature

134  Allyson N. May susceptible to romantic sensibilities (his review of Keats’s Endymion, Shelley famously claimed, hastened that poet’s death). Croker shared English views of Phillips’s oratorical style, characterising Phillips’s conception of English prose as ‘nonsense on stilts’; he also accused him of being a plagiarist who ludicrously embellished what he stole, ‘render[ing] either unintelligible or ridiculous every thing he touches’.25 Other criticisms were based on professional disdain. Croker had been called to the Irish bar, and the two published pleadings under review were condemned as demonstrating a ‘want of professional ability’: there is but one passage in the statement of the two legal cases in which there is the slightest allusion to the law, and that allusion only serves to shew the advocate’s ignorance of, and contempt for, the more serious parts of the profession he was exercising.26 ‘We may be sure’, Croker concluded his section on Phillips’s legal speeches, ‘that he has published every frantic speech he ever made; and they were but two, and both on subjects which the want of legal education and professional acquirement would be least observed’.27 But Croker’s grouping of the works considered for review is also pertinent; where criticism of Phillips’s advocacy in this period tended to focus on stylistic matters, much of the intense hostility in this particular review would seem to be rooted in Irish politics, the substance of the material causing Croker as much irritation as its style. Croker’s critique in this regard may have been unfair: although both his father and his wife were English, Phillips was passionately interested in Irish issues. He became deeply involved in the cause of Catholic emancipation, which eventually allowed Catholic Britons to participate in both local and national government, and he had a long, albeit increasingly exasperated, relationship with the mercurial Daniel O’Connell in this regard. He also reported with some despair, in correspondence with Henry Brougham, fellow Old Bailey barrister John Adolphus’s response to Phillips’s attempts to ‘palliate some of the enormities of the Irish peasants, on the grounds that their provocations were too great for the endurance of human nature’: ‘human nature, Sir, don’t talk such stuff—there’s no such thing as human nature in Ireland’.28 But Robert Portsmouth argues that Croker mistrusted his countryman and believed Phillips to be insincere in his politics, a ‘political opportunist’ ‘representative of selfpromoting . . . “demagogues” seeking to elevate themselves by exploiting popular disaffection’.29 Both Phillips’s beliefs and their expression were condemned in Croker’s review, which concluded with the observation, We have not noticed the particulars of the political tenets which Mr. Phillips has professed, or now professes [a number of reversals of opinion had been identified]; bad as they may be, they can do no

Irish Sensibilities and the English Bar  135 harm till his style shall become more intelligible and his character less ambiguous.30 Arguably—and unusually—a suspected political rather than emotional insincerity on Phillips’s part lay at the heart of Croker’s criticisms. The critical reception of his early efforts found in both the Edinburgh and Quarterly reviews did not deter Phillips from further publication of his orations; in 1817 the first edition of The Speeches of Charles Phillips, Esq. delivered at the Bar, and on various Public Occasions, in Ireland and England, edited by himself, appeared. Again the Edinburgh Review picked up the gauntlet. Two years earlier the magazine had expressed its ‘anxious desire to prevent the importation of . . . false eloquence from the country of Grattan, Burke and Plunkett’ as well as its hopes that the offending advocate would profit from the criticisms offered and mend his ways, devoting ‘his talents to the cultivation of genuine eloquence, under the discipline of sound taste’. The newly published Speeches showed no evidence of such a reformation. The reviewer was convinced that the Irish barrister had genuine talents and acknowledged that he concurred with most of the opinions expressed. It was the expression itself with which he found fault. Phillips was overly fond of imagery and excessively wordy. A perceived lack of sense is also a recurrent complaint throughout the review: ‘sense is the only source of excellence’.31 Even more severe criticism of Phillips’s oratory is found in the preface to a separate collection of his speeches published in America in 1817, which began by considering more broadly the roles to be played by reason and emotion in public addresses.32 ‘Genuine oratory’ has for its object two things, to convince and to persuade. The first is undoubtedly the most important; for generally speaking, when once convinced, we are more than half persuaded, and in many cases it is everything. It is therefore the most essential qualification of the orator. Here elegantly turned phrases, rounded periods, sparkling figures, rhetorical flourishes, are nothing more than squibs and crackers; we must have accurate information, good sense, clear reasoning, and a perspicuous mode of expression. The man who gives the best reasons, no matter how course [sic] his language may be, is the most likely to convince. But it is not always sufficient to convince merely, and very often after the speaker finds this already accomplished, there may be an irresolution, a waywardness which is to be counteracted. . . . Here the heart is to be spoken to as well as the understanding. . . . It is this part of oratory which has almost exclusively received the name of eloquence when successful, because its effects are more tumultuous and more visible to the eye, although in reality they may not be so great. The one is a blaze which cannot last long; the other is a continued fire. These two things are very different in their nature.33

136  Allyson N. May In considering ‘the finest models of eloquence’ the author cited both English and Irish orators, pointing to speeches of Pitt, Fox, Burke, Curran, and Erskine, and then placed Curran at the top of his list, despite acknowledging the Irishman’s fondness for ‘light ornament’. Curran’s declamation was ‘full of fire’, but he nonetheless demonstrated an ability to ‘be a close reasoner when necessary’. ‘Good sense’, the author commented, ‘must be the foundation of all good speaking and writing’.34 His assessment of Phillips was more qualified. ‘Every thing’ from Phillips’s pen had been eagerly received by Americans and reproduced in their newspapers; thus there was no question that a collection of his speeches would find a willing audience. It was unfortunate, however, that the value of these various reproductions had been inflated and that they had consistently been represented as masterpieces. Editors, he believed, had been seduced by Phillips’s manner of expression, which eschewed ‘nice discriminating accuracy’ and preferred ‘use of a kind of phrase which carries us beyond all extremes of probability and nature’.35 Phillips’s story-telling, moreover, had crossed a boundary and strayed into ‘the manner of modern novels’ rather than adhering to reality. Phillips’s ‘plaintiffs and defendants are like . . . heroes and heroines . . . more like creature[s] of an ideal world, than real personages’. In the crim. con. case of Guthrie versus Sterne, Phillips’s client and his wife had been portrayed as perfect, the wife’s seducer a monster, when ‘a little common sense’ would have revealed that such a perfect husband would not have been ‘suddenly forsaken by a most amiable wife in favor of a coxcomb’. Alternatively, the wife must have been ‘a most infamous wretch’ to abandon an adoring husband and her children for a ‘despicable stranger’.36 Common sense must not be sacrificed to extravagant caricatures. In 1819 Phillips sought to redeem not only his own reputation, but that of his countrymen, and in the preface to his Specimens of Irish Eloquence wrote that he had assembled ‘such materials as might give the impartial an opportunity for judging for themselves’. He offered the speeches collected as proof of ‘the oratorical equality of Ireland with either England or Scotland’ and attributed some of the hostility to the relatively recent union of the Irish and English parliaments, which had caused the English to reflect on the style of Edmund Burke and Richard Brinsley Sheridan and to consider them less as individuals and more as demonstrating an Irish ‘mental complexion’.37 He applied as an epigraph to the collection as a whole: ‘The curse of Swift was upon them: THEY WERE IRISHMEN’, a slight emendation of Henry Gratton’s observation on the reputation of Irish chemist and (very briefly) lawyer Richard Kirwan.38 How did Phillips characterise the Irish style? Commonalities included ‘lofty sentiment’, ‘wildness of imagery’, ‘impassioned declaration’, and, tellingly, ‘absolute mastery over the human heart, to which, indeed, rather than to judgment’, the Irish ‘frequently apply themselves’.39 Phillips continued to consider at greater length ‘the continual recurrence of

Irish Sensibilities and the English Bar  137 imagery’ often condemned in Irish speech. The abuse, he conceded, was ‘censurable’ but its exercise also ‘fascinating’—and effective. The ‘untutored heart speaks in imagery . . . it is the vocabulary of nature’ as well as ‘the first language of a nation’s imagery’. [Ireland] opens its infant eye upon the wildness of Creation, the romantic and the magnificent identify themselves with its imagination, the mind never can reject their association, and resorts for the illustration of its more matured ideas to the rock, and the torrent, and the mountain with which its childhood had been familiar.40 That Phillips believed the advocate’s task to be emotive story-telling is evidenced by the preface to the specimens of Irish oratory culled from Peter Burrowes, which included Burrowes’s opening speech in the prosecution of Robinson for bigamy: ‘The advocate’s detail of his conduct is a model of descriptive eloquence, calculated to excite the most powerful emotions without appearing to outstep, for a moment, the mere simplicity of narration’.41

Phillips in England The English remained unconvinced. As Britain entered the 1820s, English censure of ‘a certain kind of Irishness’ had become entrenched. Timothy Webb singles out comments made by an unidentified reviewer—possibly Jeffrey—which, in considering Irish playwright Charles Maturin’s Gothic novel Melmoth the Wanderer (1820), rebuked barristers as well: Their genius runs riot in the wantonness of its uncontrolled exuberance;—their imagination, disdaining the restraint of judgment, imparts to their literature the characteristics of a nation in one of the earlier stages of civilization and refinement. The florid imagery, gorgeous diction, and Oriental hyperboles, which possess a sort of wild propriety in the vehement sallies of Antar the Bedoween chieftain of the twelfth century, become cold extravagance and floundering fustian in the mouth of a barrister in the present age; and we question whether any but a native of the sister island would have ventured upon the experiment of their adoption.42 ‘Florid’ and ‘horticultural’ were two of the adjectives typically applied to Phillips’s advocacy. ‘Counsellor O’Garnish’ embellished; he was remembered posthumously as a ‘consummate master of gorgeous rhetoric’. The English looked askance at Phillips’s talent, condemning it as too Irish to allow for professional success in England: ‘the perfervid descriptions and resplendent imagery, so dear to the heart of the impressionable Celt, failed at the outset to have a corresponding effect on the more stolid

138  Allyson N. May juries of the English metropolis’.43 The Irish were more emotional, and thus more susceptible to emotional appeals, than the phlegmatic English. A number of contemporary opinions expressed in more private circumstances raised the same objections. The poet Samuel Taylor Coleridge denounced Phillips’s ‘tropophrenitic distemper’ and ‘vertiginous Waltz of stultification and derangement’, his ‘Masquerade-in-Bedlam’ style, while the index entry for Phillips in landscape painter Joseph Farington’s famous 16-volume diary reads ‘Phillips, Charles, Irish barrister: flowery and bombastic style’.44 In 1817 Farington recorded the views of one English barrister (Barrett), who said that Phillips was held very cheap by the members of his own profession, as a flowery unsubstantial pleader. Such oratory he said would not be suffered in the English courts, where it is necessary to keep to the point of proof. There is this difference, he said, between the English & the Irish people. The former are, speaking of them throughout, an employed people with whom time is precious, and their minds are intent upon facts with little indulgence of imagination. On the contrary, the Irish are, generally, of different habits, less accustomed to be diligently employed, & abounding in imagination: therefore the flower oratory has effect upon them. He, an Irishman, said, the English are a people accustomed to business and always looking to facts. This characteristic of the People is manifested in the courts of justice, in the advocates, whose object is to convince the understanding rather than to endeavour to work on the passions.45 Phillips is quoted in the diary in 1818 as acknowledging the criticisms of his extravagant style to be ‘in part right’, and told Farington ‘that he should not, if at the English bar, proceed in the same manner’.46 Extravagant, emotional appeals, it appears, were thought to have more resonance with the Irish than the English. Ultimately, English resistance to ‘the Irish style’ was demonstrated not merely in literary reviews but in Phillips’s reception in the English courts. He failed utterly in Westminster Hall. Having ‘laid himself open to a merciless attack’ by Brougham in an early appearance in the Court of King’s Bench, Phillips ‘collapsed under the punishment’ and rarely appeared in the civil courts again.47 Even on circuit his business would lay chiefly on the Crown side. His emotional oratorical style was not, as his critics had predicted, translatable. A bitter article published in various of the Irish newspapers laid the blame for Phillips’s reception in England squarely on the fact of his Irish birth: Mr. CHARLES PHILLIPS, a man of surpassing eloquence, and, at least, a lawyer of more than average ability—a man who, had he

Irish Sensibilities and the English Bar  139 remained in Ireland, might long since have adorned the bench, tried his fortune with a hundred others, in Westminster Hall. He failed, because he was an Irishman, and pressed by necessity, was forced to transfer his talent to the criminal courts of London; and this very necessity was made the pretext of long withholding from him that promotion, which, had he not been unfortunately an Irishman, he would have successfully attained. Phillips’s comparative failure in England, the author believed, was not unique, and owed in part to the 1801 political union of Ireland and England: We defy any advocate of the blessed Union to show us that a bitter hostility—the more bitter, because it is a hostility tinged with fear— does not exist in England against the Irishmen who devote themselves, in that country, to the study of law. The Irishmen who had been acknowledged as ‘great men’ and found success—including Sheridan and Burke, Grattan and Curran—all predated that union. [W]e had many great men when we had a country. . . . We solemnly, deliberately, and upon the best authority assert, that the Union, by degrading us as a nation in the eyes of England, degrades us as individuals in the same proportion.’48 Whether or not the Union was to blame for degrading Irishmen in the eyes of their English colleagues, in the early days of his appearances in the English courts Charles Phillips’s style was certainly censored as alien to and incompatible with English sensibilities. The Stanford Mercury denounced it emphatically in its report of Henry Brougham’s crushing defeat of Phillips in Shaw v. Williams in the Court of King’s Bench (1823): ‘the tawdry trash with which Judges and Juries, and all people of common sense and plain feelings who are obliged to be listeners, have been for some time by an Irish barrister named Phillips, was deservedly lashed and put down by Mr. Brougham’, who tore the barrister’s ‘blarney’ to shreds ‘and delighted the court with his masterly exposure of the un-English and wretched style’ of Phillips’s address.49 In England, Charles Phillips found success only—albeit considerable success—at the Old Bailey, his virtual stranglehold on business in that court between 1825 and 1840 mirroring that of his predecessor, William Garrow, in the 1780s. The Caledonian Mercury, although it asserted that ‘Irish Phillips’ was ‘not a man of the high stamp of Curran’ and had been ‘too florid in his rhetoric’, did not see the barrister’s retreat to the criminal courts as a mark of professional failure. Those courts simply offered

140  Allyson N. May a ‘more congenial sphere’.50 Other commentators despaired. An article published first in the short-lived News of Literature and Fashion and reproduced in the Carlisle Patriot argued that Mr. Charles Phillips should never have entered the Old Bailey. When he first came over to practice in the English courts, the wild Irish students of our law courts, as usual, apostrophized the sun and moon, and requested all the planets to stand still awhile to witness the stupendous effects that would be worked by ‘the impassioned oratory’ of ‘their talented countryman.’ The early days of Mr. Phillips’s oratory were in bad taste, certainly; but they were . . . precisely those which, in the days when Curran’s grandiloquism was mistaken for eloquence, would have procured him the loftiest reputation. His efforts were spirited and energetic; and they evinced much of the ardour and generous sentiment which are both honourable and graceful in young men. The neglect with which they were met in England was unjust; the ridicule that it was attempted to cast upon them was cruel; or only not cruel because it was unfounded. . . . Still, the reaction, however distressing, was mainly owing to the injudicious attempts which his Irish admirers in England had made to create or to turn the tide of popular approbation in his favour. With all his faults, Mr. Phillips is eloquent, unquestionably. The writer continued to lament the detrimental effect he perceived Old Bailey practice was having on Phillips’s style of advocacy and concluded his article with the hope that the barrister would reappear in the King’s Bench, ‘never to return to the Old Bailey’.51 That did not happen. At a later date, the Northern Whig offered a different, and more sympathetic, explanation for the trajectory of Phillips’s English career, in which the Irish barrister was portrayed as a victim of historical circumstance. ‘What is become of the eloquence of the bar? . . . How came it, that, at Westminster-Hall, Charles Phillips missed his market?’ In the English courts, orators had been eschewed for ‘men of business’ who shunned the ‘obsolete embroidery of rhetoric’ and ‘romantic eloquence’ in favour of quiet discussions of law and fact. In attempting to explain this change in fashion, the paper claimed that the ‘great constitutional questions’ which had inspired rhetorical flourish had been resolved. Barristers now had to work with the more limited subject matter at hand: ‘Would you have men oratorical over a bottomry bond? Demosthenes about an action of trespass on the case, or a rule to compose?’52 When Phillips died in 1859, the Law Times obituary reported that Mr Phillips was a man of exciteable temperament, and adopted at once, and to an extreme, the style of which pervaded the public speakers of Ireland. Indeed he almost originated a school of

Irish Sensibilities and the English Bar  141 eloquence, which has been both seriously and jocularly associated with his name. At times, no doubt, it had the character of being something outré, but there are passages in the speeches in Guthrie v Sterne and Bland and Wilkins and Judge and Berkeley, which we now may hope in vain, to see rivaled at the bar of either country. A little more of his style, perhaps, would not be lost on the interests of oratory, and possibly would make the bar more respectable, as orators, in the eyes of the advocates of Europe. When called to the English bar, Phillips’s reputation preceded him, the paper noted, so that the majority of the legal profession were prejudiced against him, ‘prepared to receive him with disparagement’. Phillips gained verdicts, but even this triumph proved a double-edged sword where reputation was concerned: where a case was ‘plain sailing’, attorneys called upon their connections; where ‘there was nothing for it but a speech’, they sent for Phillips.53 Although the critics of Phillips’s defence of Courvoisier in 1840 tended to concentrate on the fact that the speech was made at all, and on its content rather than expression, one notable parody published in Punch in 1841 drew together adverse commentary spanning the course of his legal career. The fictitious case reported merged his Irish crim. con. work with the infamous criminal trial and made sly reference to the phrasing ridiculed in Guthrie v. Sterne with respect to aortas and heartstrings: Mr. CHARLES PHILLIPS, having successfully struggled with his feelings, rose to address the court for the plaintiff. The learned gentleman said it had been his hard condition as a barrister to see a great deal of human wickedness; but the case which, most reluctantly, he approached that day, made him utterly despair of the heart of man. He felt ashamed of his two legs, knowing that the defendant in this case was a biped. He had a horror of the mysterious iniquities of human nature—seeing that the defendant was a man, a housekeeper, and, what in this case trebled his infamy, a husband and a father. Gracious Heaven! when he reflected—but no; he would confine himself to a simple statement of facts. The learned counsel said he would call witnesses to prove the blissful atmosphere in which the parties lived, until the defendant, like a domestic upas-tree, tainted and polluted it. . . . The lady was a native of Switzerland—yes, of Switzerland. Oh, that he (the learned gentleman) could follow her to her early home!—that he could paint her with the first blush and dawn of innocence, tinting her virgin cheek as the morning sun tinted the unsullied snows of her native Jungfrau!— that he could lead the gentlemen of the jury to that Swiss cottage where the gentle Félicité (such was the lady’s name) lisped her early prayer—that he could show them the mountains that had echoed

142  Allyson N. May with her songs (since made so very popular by Madame Stockhausen)—that he could conjure up in that court the goats whose lacteal fluid was wont to yield to the pressure of her virgin fingers—the kids that gambolled and made holiday about her—the birds that whistled in her path—the streams that flowed at her feet—the avalanches, with their majestic thunder, that fell about her. Would he could subpoena such witnesses! then would the jury feel, what his poor words could never make them feel—the loss of his injured client. On one hand would be seen the simple Swiss maiden—a violet among the rocks—a mountain dove—an inland pearl—a rainbow of the glaciers—a creature pure as her snows, but not as cold; and on the other the fallen wife—a monument of shame! . . . [T]he plaintiff . . . had violated the sacred bonds of human society—the noblest ties that hold the human heart—the sweetest tendrils that twine about human affections. . . . ‘Gentlemen of the jury (said the learned counsel in conclusion), I leave you with a broken heart in your hands! A broken heart, gentlemen! Creation’s masterpiece, flawed cracked, SHIVERED TO BITS! See how the blood flows from it—mark where its strings are cut and cut—its delicate fibres violated—its primitive aroma evaporated to all the winds of heaven. Make that heart your own, gentlemen, and say at how many pounds you value the demoniac damage. And oh, may your verdict still entitle you to the blissful confidence of that divine, purpureal sex, the fairest floral specimens of which I see before me! May their unfolding fragrance make sweet your daily bread; and when you die, from the tears of conjugal love, may thyme and sweet marjoram spring and blossom above your graves!’ Here the emotion of the court was unparalleled in the memory of the oldest attorney. Showers of tears fell from the gallery, so that there was a sudden demand for umbrellas. The learned counsel sat down, and, having wiped his eyes, ate a sandwich.54 Hearts and stomachs were also contrasted in the report of the response of John Adolphus—the English barrister employed for the prosecution in the Courvoisier trial—but stomachs predominated. Mr. ADOLPHUS addressed the court for the defendant. He had not the golden tongue—no, he was not blessed with the oratory of his learned friend. He would therefore confine himself to the common sense view of the question. He was not talking to Arcadian shepherds (he was very happy to see his own butcher in the jury-box), but to men of business. . . . ‘Gentlemen of the jury’, continued the learned counsel, ‘it must appear to you, that on the part of the plaintiff this is not an affair of the heart, but a matter of the breeches’ pocket. He leaves his wife—a fascinating, versatile creature—with

Irish Sensibilities and the English Bar  143 my client, I confess it, an acknowledged man of gallantry. Well, the result is—what was to be expected. My learned friend has dwelt, with his accustomed eloquence, on his client’s broken heart. I will not speak of his heart; but I must say that the man who, bereaved of the partner of his bosom, can still eat six plates of alamode beef, must have a most excellent stomach.’ John Adolphus, Phillips’s chief rival at the Old Bailey, would be described on his death as quintessentially English: ‘his idiom, purely and unaffectedly English, was never chargeable with a false or vicious taste . . . he had neither fancy nor imagination’.55

Conclusion: Passion and Truth The author of the News of Literature and Fashion article made a telling observation of an aspect of Phillips’s endeavours that would eventually condemn him in the eyes of the public: One merit he certainly possesses in an eminent degree—he feels for his client. He fights every inch of ground for him; he rallies after defeat; he returns to the charge; he quarrels with the judge; he breaks with the adverse counsel; he scowls at an ill-disposed jury (emphasis added).56 A brief assessment published in Blackwood’s Magazine and reproduced in the Staffordshire Advisor three years later commented similarly, ‘There were frequent flashes of fine imagination, and strains of genuine feeling in his speeches. . . . In the midst of his most tedious and tasteless exaggerations, you still felt that Charles Phillips had a heart.’ That heart, and his capacity for feeling, were again linked to his nationality: ‘he was a fine, bold, open, generous Irishman’.57 Feeling, however, could be dangerous. In considering the role of emotional appeals in the courtroom, rhetorical excess was not the only issue. While lauding Curran’s emotional speeches, Francis Jeffrey had significantly made the point that their eloquence lay ‘in the facts which they recite’.58 Passion should be grounded in and not deviate from truth.59 Persuasion was the advocate’s job, but he must not persuade juries of a bad cause. It was his perceived disregard of the truth of Courvoisier’s guilt that would leave Charles Phillips’s professional reputation in ruins. Public unease with paid advocacy is of course a much larger issue than differences in Irish and English style and has a much longer history.60 But the relationship between appeals to feeling rather than reason considered in comparisons of those styles raised

144  Allyson N. May questions where truth and justice were concerned. The author of the preface to the Baltimore edition of Phillips’s speeches had maintained that conviction is always founded on truth and justice; persuasion is very often at war with both. . . . Persuasion is produced as often by flattery, by awakening fear, kindling hope, or exciting hatred, as by appealing to a sense of justice, honor, patriotism, or philanthropy; conviction simply establishes what is right or wrong, fit or unfit, according to the dictates of wisdom.61 Phillips believed that ‘persuasion rather than conviction’ constituted the ‘usual object’ of public speeches. Both, he argued, were ‘legitimate means of oratory’, but perhaps if one was compelled to decide between them, the first would be considered both as the more effective and the more natural—much of course depends on the occasion, but on every human topic, man will be found most defenceless on the side of his passions.62 Croker had condemned Charles Phillips as a political opportunist, and some of the criticisms made of his oratory suggest that he was seen as an opportunist in the courts as well. The accusation was not new where barristers were concerned. William Godwin asked Thomas Erskine following Erskine’s defence of Tom Paine in 1792: What sort of exhibition of himself does an orator make who employs himself for four hours as you did, in a pretended attempt to persuade an audience into the truth of a proposition, which in his personal opinion is confessedly false? What must mankind think of this purchased fatigue of the lungs, and eloquence that is dealt out to every purchaser at so much an hour?63 Godwin, argues Judith Pascoe, was accusing Erskine of being ‘an emotional fake’.64 In certain circumstances, we might allow Phillips sincerity. What appeared to some contemporary critics, and certainly appears to twentyfirst-century readers of his speeches, as mawkish sentimentality on the subjects of domesticity and female chastity may, for example, have been genuine: Phillips was a thoroughly domestic man.65 And the same sentimentality would become evident in the novels of his English contemporary, Charles Dickens. By the time Charles Phillips embarked upon his legal career, however, emotion available for hire had been identified as suspect. Phillips’s performance of emotion was also stigmatised as foreign: English oratory had traditionally privileged reason. The English

Irish Sensibilities and the English Bar  145 style, it was believed, might have benefited from the example of late-eighteenth-century Irishmen such as Burke and Sheridan, Grattan and Curran. But in the early nineteenth century the Irish style had been perverted almost to parody, passionate speech overly enflamed by Irish advocates of lesser stature. To many English commentators, Charles Phillips personified this perversion, and he paid a steep price for it, professionally; confined to the criminal courts, he lost prestige as well as income. For the bulk of his career in those courts he also lost his voice, restricted until 1836 to examining and cross-examining witnesses. Phillips’s success in England’s criminal courts may in fact have owed precisely to the strictures placed upon his tongue by the law, which effectively prevented the emotional excesses routinely condemned by English critics. Four years after this prohibition was lifted, a speech would bring about his professional ruin. Charles Phillips’s emotive tongue embroiled him in the scandal that ended his career. Phillips was uncharacteristically slow to defend himself against the opprobrium incurred by his defence of Courvoisier. Only after enduring nearly a decade of abuse in the Examiner, which, particularly under the editorship of Anthony Fonblanque, carried out a sustained attack on both the ethics of advocacy in the criminal courts and the conduct of Phillips specifically, did he break his silence over the Courvoisier trial.66 On 20 November 1849, he undertook to refute the charges against him, publishing his correspondence with legal writer Samuel Warren on the subject in The Times. Not only was this attempt largely unsuccessful, it resurrected older assessments of his early career. The Irish press, as discussed in Chapter 5 of this volume, remained loyal, defending both Phillips’s integrity and performance.67 But the Fife Herald found the Examiner’s response to Phillips’s attempt to defend his actions compelling and crushing: He has, during his whole career as a barrister, been justly sneered at by critics as a wretched caricature of the eloquent Curran. From every sentence of his speeches the best specimens of mock oratory could be culled, for every word of his is a balloon mounting upwards, the idea within it looking very small downwards. Phillips was, the paper concluded, ‘the most grotesque and absurd pleader of modern times’.68 Prejudice and ethnic stereotyping clearly coloured the English response to Charles Phillips’s career at the bar. Some of the criticisms raised, however, were rooted in a more general anxiety about the relationship among feeling, truth, justice, and courtroom performativity. As discussed earlier, those who defended the role of emotion in advocacy repeatedly argued that feeling must be sincere, and harnessed to truth, if justice was to be achieved. Yet Phillips expressed serious reservations as to whether

146  Allyson N. May advocates adhered to these beliefs. Famously and surprisingly, he had resisted the provision of the Prisoners’ Counsel Act that allowed defence counsel to address the jury. His objection speaks volumes with respect to his personal beliefs about truth, emotion, and advocacy; perhaps, paradoxically, it also provides the most damning indictment of his career, one that transcends contemporary perceptions of ethnic differences where emotion in the courtroom was concerned. While ‘persuasion’, with its appeal to the passions, was in Phillips’s view the most effective oratorical tactic, he was equally of the opinion that ‘passion should never enter’ the criminal courts.69 Allowing counsel to speak for their clients, he warned, would ‘make life & liberty subjects of a trial of skill. Verdicts will often depend, not on innocence but on eloquence. Those who are employed as advocates must act as advocates—and the most awful of considerations may become victims of sophistry’.70 This particular legal practitioner, and not merely his critics, thus cast serious doubts on the contribution played by emotional lawyerly performativity to the production of truth. Advocates ‘acted’ in every sense of the word, and their performances were not necessarily sincere.

Acknowledgements This chapter is dedicated to the memory of J.M. Beattie (1932–2017), doktorvator and friend. My thanks to David Lemmings and Andrea McKenzie for their perceptive comments on earlier drafts.

Notes 1 On the Courvoisier trial scandal, see David Mellinkoff, The Conscience of a Lawyer (St Paul, MN: West Publishing Co., 1973); David Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Oxford University Press, 1998); Jan-Melissa Schramm, Testimony and Advocacy in Victorian Law, Literature and Theology (Cambridge: Cambridge University Press, 2006); and Allyson N. May, The Bar & the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), and The Russell Murder Revisited (forthcoming). See also Phillips’s entries in both the DNB and ODNB. 2 ‘Wakefield's Ireland’, Edinburgh Review 20 (November 1812), 355. 3 On the history and significance of this review, see: John Clive, Scotch Reviewers: The Edinburgh Review, 1802–1815 (London: Faber and Faber, 1957); George Pottinger, Heirs of the Enlightenment: Edinburgh Reviewers and Writers 1800–1830 (Edinburgh: Scottish Academic Press, 1992); John O. Hayden, The Romantic Reviewers, 1802–1824 (Chicago: University of Chicago Press, 1968), Part I; Joanne Shattock, Politics and Reviewers: The Edinburgh and the Quarterly in the Early Victorian Age (London: Leicester University Press, 1989); Massimiliano Demata and Duncan Wu, eds., British Romanticism and the Edinburgh Review: Bicentenary Essays (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2002). 4 ‘A “great theatre of outrage and disorder”: Figuring Ireland in the Edinburgh Review, 1802–29’, in British Romanticism and the Edinburgh

Irish Sensibilities and the English Bar  147 Review, 58. On Jeffrey’s tenure as editor, see Henry Cockburn, Lord Cockburn, Life of Lord Jeffrey, with a Selection from his Correspondence (1852; Philadelphia: J.R. Lippincott & Co., 1856); James A. Greig, Francis Jeffrey of the Edinburgh Review (Edinburgh: Oliver and Boyd, 1948); Clive, Scotch Reviewers, ch. 2; Pottinger, Heirs of the Enlightenment, ch. 11; Philip Flynn, Francis Jeffrey (Newark: University of Delaware Press, c1978) and ‘Francis Jeffrey and the Scottish Critical Tradition’, in British Romanticism and the Edinburgh Review, 13–32. 5 ‘Art. IX. Speeches of the Right Honourable John Philpot Curran, Master of the Rolls in Ireland, on the late very interesting State Trials, &c. Second edition, with additions.’ Edinburgh Review 13 (1 October 1808), 136–148 at 136. Contributions to the Edinburgh were published anonymously; Jeffrey’s authorship of this review is identified in Cockburn, Life, 329. For Curran (1750–1817), see William O’Regan, Memoirs of the Legal, Literary and Political Life of . . . John Philpot Curran (London, 1817); W.H. Curran, The Life of the Right Honourable John Philpot Curran (London, 1882); Leslie Hale, John Philpot Curran: His Life and Times (London: Jonathan Cape, 1958); and Charles Phillips’s own affectionate portrait, Recollections of Curran and some of his contemporaries, five editions of which were published between 1818 and 1857. 6 Curran, Speeches, 136. 7 Ibid., 144. 8 Ibid., 137. 9 Quoted in Alexander Hill Everett, ‘Sir James Mackintosh’, Critical and Miscellaneous Essays, to which are added a few poems (Boston: J. Monroe & Co., 1845), 302. 10 Edinburgh Review, 7 (1808), 278. 11 ODNB. On Phillips and the rhetoric of Romanticism, see Jan-Melissa Schramm, ‘ “The Anatomy of a Barrister’s Tongue”: Rhetoric, Satire, and the Victorian Bar in England’, Victorian Literature and Culture, 32, 2 (2004), 285 at 290–291. 12 ‘Speech of Mr. Phillips, delivered in the Court of Common Pleas, Dublin, in the case of Guthrie versus Sterne, with a short preface’, Edinburgh Review, 25 (1 October 1815), 389–398 at 389–390. The reviewer has not been identified. 13 Ibid., 390. 14 Ibid. 15 Ibid., 392. 16 Ibid., 395. 17 Ibid., 396–397. 18 Ibid., 398. 19 A Letter from Charles Phillips, Esq. to the Editor of the Edinburgh Review in defence of his speech in Guthrie v. Sterne, for Adultery, 7th ed. (London, 1817), 4. 20 Subsequent print versions of the speech omitted the reference to aortas and heartstrings. Authenticity of the reproduction of his speeches is an issue which would come back to haunt Phillips in the furore over his final speech on behalf of Courvoisier. 21 Letter from Charles Phillips, 7. 22 The Quarterly, published by John Murray, had been founded in 1809; the express intent of the new periodical was to counter, politically, the views of the Edinburgh. Webb distinguishes the essays and reviews on Irish issues in the Quarterly Review as both less extensive and ‘less generous’ than the coverage found in the Edinburgh Review; it was also less consistent. Some

148  Allyson N. May of the journal’s principal contributors opposed Catholic emancipation, but the review took no sides on the issue. On the history and significance of this periodical, see: Hayden, Romantic Reviewers, ch. 1; Shattock, Politics and Reviewers; Jonathan Cutmore, ed., Conservatism and the Quarterly Review (London: Pickering & Chatto, 2007); and Cutmore, Contributors to the Quarterly Review: A History, 1809–25 (London: Pickering & Chatto, 2008). 23 ‘Counsellor Phillips’s Poems and Speeches’, Quarterly Review 16 (Octo ber 1816), 27–37 at 28. 24 Reviews in the Quarterly, like those in the Edinburgh, were published anonymously. The attribution for this review is found at Hill Shine and Helen Chadwick Shine, The Quarterly Review under Gifford: Identification of Contributors, 1809–1824 (Chapel Hill: University of North Carolina Press, 1949), 53; Cutmore, Contributors to the Quarterly Review, 144. For Croker see Myron Franklin Brightfield, John Wilson Croker (London: Allen and Unwin, c1940) and Robert Portsmouth, John Wilson Croker: Irish Ideas and the Invention of Modern Conservatism 1800–1835 (Dublin: Irish Academic Press, 2010). 25 ‘Counsellor Phillips’s Poems and Speeches’, 29, 30. 26 Ibid., 31. 27 Ibid., 32. 28 Brougham Papers, UCL, 28,449 (?1836). 29 Portsmouth, John Wilson Croker, 33. 30 ‘Counsellor Phillips’s Poems and Speeches’, 37. Phillips responded in print to this attack as well, in a pamphlet entitled Calumny Confuted: Speech, &c for the purpose of Refuting the Remarks of the Quarterly Review on the Character and Conduct of an Eminent Barrister. This response only served to incite ridicule, and he was mocked at length in Blackwood’s Magazine as a conceited young puppy. ‘Speech Delivered by an Eminent Barrister’, Blackwood’s Magazine, 4 (1818), 213–217. The article opened, ‘This is by far the best of all Orator Phillip’s [sic] orations, and perhaps the chief cause of its excellence is, that the sole subject of it is himself. He keeps his eye steadily fixed on that great personage, and the language of self-adoration becomes sublime’ (213). 31 ‘Speeches of Mr Phillips’, Edinburgh Review (November 1817), 52–70 at 52–53. 32 Two separate collections of Phillips’s speeches appeared in America, both in more than one edition. The Speeches of Charles Phillips, Esq.: Delivered at the Bar and on Various Public Occasions in Ireland and England, edited by himself, published in New York (Kirk & Mercein, 1817) and Philadelphia (Edward Earle, 1818) essentially duplicated the English edition and included the original, laudatory, preface by John Finlay. The other, published in Baltimore (James Kennedy, 1817) and reprinted in Cincinnati (Williams, Mason & Co., 1818), is a slightly different compilation titled The Speeches of Charles Phillips, Esq: to which is added The Emerald Isle; A poem: With an Appendix, Comprising a Criticism, By the Edinburgh Review, and the Rejoinder of Mr Phillips: and the characters of Napoleon Bonaparte and Charles Curran Esq. By Phillips. It contains an anonymous and more critical preface. The Americans followed the Courvoisier débâcle as well, see, e.g., ‘Mr. Charles Phillips and the Courvoisier Case’, Monthly Law Reporter, 2, 11 (March 1850), 553–571. See also Phillips’s entry in S. Austin Allibone, A Critical Dictionary of English Literature and British and American Authors, Living and Deceased, from the Earliest Accounts to the Latter Half of the Nineteenth Century: Containing Over Forty-six Thousand Articles (authors), with Forty Indexes of Subjects (Philadelphia: J.B. Lippincott Company, 1874), 2:1581–1582.

Irish Sensibilities and the English Bar  149 33 Phillips, Speeches (Baltimore edition), 4–5. 34 Ibid., 6, 8. The author also believed the United States to have become ‘the country of true eloquence’. Americans, he claimed, excelled in ‘manly reasoning’, and ‘in the great essentials, ‘in the talent of convincing by just views, and by clear and forcible language’, had no superiors. He acknowledged that they might be deficient with respect to the ‘ornaments of oratory’ and ‘stage tricks’ of European orators (7, 8). Americans, like the English, appear to have preferenced reason over emotion. 35 Ibid., 9. 36 Ibid., 11. 37 Specimens of Irish Eloquence, now first arranged and collected, with biographical notices, and a preface (London, 1819), [ix]. It is certainly possible that the political change created a heightened sensitivity to perceived cultural differences, and the relationship between criticisms of Irish oratory and Anglo-Irish politics in the early nineteenth century is a subject worthy of further investigation. As discussed later, in considering Phillips’s own career, other Irish commentators would argue that the only Irish orators valued by the English predated the political union. 38 (1733–1812). ‘The curse of Swift is upon him to have been born an Irishman’. Irish House of Commons, 19 January 1792. 39 Ibid., xiii. 40 Ibid., xiv. 41 Ibid., ccxlv. 42 Edinburgh Review, 35 (July 1821), 356. 43 Bernard W. Kelly, Famous Advocates and Their Speeches: British Forensic Eloquence, from Lord Erskine to Lord Russell (London: Sweet & Maxwell, 1921), 81. 44 The Notebooks of Samuel Taylor Coleridge, vol. 5, 1827–1834 (eds.), Kathleen Coburn and Anthony John Harding (Princeton, NJ: Princeton University Press, 2002), 5872; The Diary of Joseph Farington, eds., Kenneth Garlick and Kenneth Mackintyre (New Haven: Yale University Press, 1978–84), vol. 14, 5034. 45 Farington, Diary, 14:5034. 46 Ibid., 15:5170. 47 William Ballantine, Some Experiences of a Barrister’s Life, 8th ed. (London: R. Bentley, 1883), 58. 48 ‘Social Inequalities of the Union—Irishmen in England’, The Vindicator (Belfast), 18 November 1840; ‘Irishmen in England’, Dublin Weekly Nation, 27 December 1845, and Galway Mercury and Connaught Weekly Advertiser, 3 January 1846. 49 27 June 1823. 50 22 November 1849. 51 ‘The Old Bailey’, 8 October 1825. Gerald Griffin, Irish novelist, playwright, and journalist (1803–1840), seems a likely candidate for authorship of this piece. He wrote a number of sketches of London life for the News and viewed one of his tasks in life as in interpreting—in this instance, defending—his countrymen to the English. On Griffin, see John Cronin, Gerald Griffin, 1803–1840: A Critical Biography (Cambridge: Cambridge University Press, 1978) and Robert Bernard Davis, Gerald Griffin (Boston: Twayne Publishers, 1980). 52 8 April 1843. 53 33 (1859), 55–56. 54 ‘Bonbon v. Punch’, vol. 1 (4 December 1841), 246. On Punch’s mocking of Phillips, see also Schramm, ‘ “Anatomy of a Barrister’s Tongue” ’, 294–295. 55 Evening Chronicle, 23 July 1845.

150  Allyson N. May 6 ‘The Old Bailey’, 8 October 1825. 5 57 20 December 1828. 58 ‘Speeches of . . . Curran’, 144. 59 John H. Langbein argues that professional advocacy and the adversarial form of the criminal trial hinders rather than promotes discovery of the truth. See The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2005), especially his comments on what he terms ‘the truth deficit’. 60 See May, Bar & the Old Bailey, ch. 4. 61 ‘Preface’, Speeches of Charles Phillips, 5–6. 62 Specimens of Irish Eloquence, xiii. 63 Quoted in Judith Pascoe, Romantic Theatricality: Gender, Poetry, and Spectatorship (Ithaca, NY: Cornell University Press, 1997), 47–48. 64 Ibid., 49. The same language of persuasion, and the potential dangers or risks it poses, persists today in discussion of the role of the advocate, and across a wide range of forums Thus, for example, a human rights lawyer in one of Ann Cleeves ‘Shetland’ novels, admits to a police inspector, ‘sometimes . . . I lose sight of the truth. I’m a weaver of stories. A persuader’, while Sir John Chilcot, chairman of the inquiry into the 2003 Iraq war, commented in an interview with the BBC’s political editor: ‘Tony Blair is always and ever an advocate. He makes the most persuasive case he can. Not departing from the truth but persuasion is everything.’ Dead Water (London: Pan Books, 2013), 234; ‘Chilcot: Tony Blair was “not straight with the nation” over Iraq war’, The Guardian, 6 July 2017. 65 Frequent testimonials to his love of family and family life can be found in Phillips’s correspondence with Brougham. See, e.g., UCL Brougham Papers 28,449 (1836); 28, 479 (1851). 66 See May, Bar & the Old Bailey, ch. 8. 67 See Katie Barclay, ‘Sympathetic Speech’ (96). 68 29 November 1849. 69 Prisoners’ Defence Bill. Minutes of Evidence taken before the Select Committee of the House of Lords etc. (1836) Lords’ Papers 119. 70 UCL, Brougham Papers. 26,364.

Part III

Emotional Regimes and the Legal Process Stories of Terror, Sensibility, and Patriotism in the Representation of Criminal Trials

8 Theatre of Blood On the Criminal Trial as Tale of Terror Hal Gladfelder

Introduction In the 1795 preface to the second edition of his novel Caleb Williams, William Godwin recalled the political climate prevailing at the time of the work’s first publication, in May 1794. Two weeks before, Pitt’s government had suspended habeas corpus; days later, a dozen leading members of the London Corresponding Society and the Society for Constitutional Information (including a number of Godwin’s friends) had been arrested for high treason. Alarmed at these events, Godwin’s publisher entreated him to remove a short introductory note in which he had written that his aim in the novel was to expose ‘the modes of domestic and unrecorded despotism’ that in his view characterised ‘the existing constitution of society’ in late-eighteenth-century Britain. Hence the novel’s original, deliberately provocative, title: Things As They Are. Describing Pitt’s anti-reformist crackdown as a ‘sanguinary plot . . . against the liberties of Englishmen’, Godwin wrote, ‘Terror was the order of the day; and it was feared that even the humble novelist might be shown to be constructively a traitor’.1 Clive Emsley has argued that ‘[fewer] than 200 prosecutions for treason and sedition over a decade hardly constitutes, of itself, a reign of terror, especially given the haphazard way in which most of these prosecutions were arranged’, but while parallels with the Terror in France may have been overdrawn, Emsley acknowledged ‘the fury of [the Pitt administration’s] onslaught’; and, in a way, ‘haphazardness’ was a crucial, constitutive part of the terror at which Pitt’s ‘sanguinary plot’ aimed.2 The English Jacobins to whom Godwin was affiliated may have been prone, as Emsley and E. P. Thompson have alleged, to ‘self-dramatization’ and an exaggerated sense of their own martyrdom, but an exaggerated emotion of fear is precisely what terror is, and what terrorists seek.3 The terrorist aims to elicit an extreme, pervasive fear out of proportion to the isolated, singular incident(s) that triggered it. And in eighteenth-century Britain, those who aimed to provoke such emotional effects among the general population were not the criminals and seditionaries whom the law was intended to suppress but the agents of law itself—including those, lawyers, judges, and reporters alike, who told the law’s stories.

154  Hal Gladfelder In an oft-cited essay of 1975, Douglas Hay characterised ‘the old criminal law’—that is, British law before the reforms of the 1820s and ’30s— as ‘a system of selective terror’; and while of course ‘most of the law and the lawyers’, as Hay noted, ‘were concerned with the civil dealings which propertied men had with one another’, the terror of criminal sanctions was an essential part of the law’s hold over its subjects.4 As Henry Fielding put it in his Enquiry into the Late Increase of Robbers (1751), regarding public executions, ‘The Terror of the Example is the only Thing proposed, and one Man is sacrificed to the Preservation of Thousands’.5 On this point, Fielding cited Sir Matthew Hale’s dictum that the end of punishment is ‘to deter Men from the Breach of Laws, so that they may not offend, and so not suffer at all’; but he also acknowledged what to us might seem a startling paradox: that in pursuit of this benevolent aim, the law punishes its victims out of all proportion to the crimes of which they are convicted. As he put it, No Man indeed of common Humanity or common Sense can think the Life of a Man and a few Shillings to be of an equal Consideration, or that the Law in punishing Theft with Death proceeds . . . with any view to Vengeance.6 The disproportion between punishment and crime, which outraged the legal reformers of the late eighteenth and early nineteenth centuries, was integral to the machinery of terror, as was the uncertainty or haphazardness of punishment. It was generally held, by such defenders of the ‘bloody code’ as Archdeacon William Paley, that pardons, as an expression of the prerogative of mercy, were crucial to the operations of the law, and that not every defendant found guilty of felony should be hanged. (Fielding, of course, held a different view.)7 What Hay has called the ‘fat and swelling sheaf of laws which threatened thieves with death’ in the period were never, according to Paley, ‘meant to be carried into indiscriminate execution’. Instead, the prerogative of mercy ensured that ‘few actually suffer death, whilst the dread and danger of it hang over the crimes of many’.8 It is that dread and danger I want to stress here. While Hay, V.A.C. Gatrell, Peter Linebaugh, and other scholars have emphasised the role of mercy in reinforcing bonds of deference, and its strategic value in regulating the number of deaths, so that overuse would not breed either indifference or rebellion among the populace, the very fact of not knowing whether, or how hard, the hand of justice would fall could give rise to that more general sense of danger and dread that Paley and his fellow defenders of the code wished to induce. The very uncertainty of punishment, in other words, might magnify the fear it aroused. The stage management of executions so as to produce suitably overwhelming emotions of terror and awe, without allowing either admiration

Theatre of Blood  155 or pity to dilute the effect, was a challenge with which numerous eighteenth-century commentators grappled. As early as 1725, Mandeville had contended, in his Enquiry into the Causes of the Frequent Executions at Tyburn, that ‘the Terror we would have [executions] strike’ was completely undermined by the spirit of carnival or jubilee that prevailed among the crowd on hanging days, so that ‘instead of giving Warning, they are exemplary the wrong Way, and encourage where they should deter’.9 Fielding, similarly, complained ‘that instead of making the Gallows an Object of Terror, our Executions contribute to make it an Object of Contempt in the Eye of a Malefactor; and we sacrifice the Lives of Men, not for the Reformation, but for the Diversion of the Populace’.10 Accordingly, in a section of the Enquiry to which I will return later, Fielding lobbied for a form of execution-in-private modelled on the offstage murder of the king in David Garrick’s version of Macbeth, by which ‘Terror hath . . . been carried higher . . . than by all the Blood which hath been spilt on the Stage’ in other, cruder productions.11 But if the creation of terror has long been recognised as the chief aim of the spectacular public rites of execution under the bloody code, it is less clear that criminal trials were designed to elicit a similar emotional response, or any emotion at all. Ostensibly, the criminal trial is and was a procedure for determining truth—that of the innocence or guilt of the accused—and might best be examined in light of the problems of knowledge, evidence, and interpretation it raises. So, John Langbein, in The Origins of Adversary Criminal Trial, interrogated the history of ‘the movement from lawyer-free to lawyer-dominated criminal trial’ in the period, starting from the premise that ‘most of what a criminal trial is about is deciding matters of past fact’, and concluded that the adversary system in place in Britain by the end of the eighteenth century was one that created incentives for distorting or suppressing the truth in order to win the contest.12 Of course, truth was also distorted or suppressed before lawyers took part in criminal trials, as when juries chose to downgrade the value of goods stolen to mitigate the penalty faced by the accused. Such pious perjury, like benefit of clergy and other forms of downcharging, allowed jurors to achieve what they believed to be a just verdict even when this deviated from a strict determination of truth; and lawyers would later encourage such forms of prevarication.13 Indeed, this might lead us to reflect on Langbein’s premise that what criminal trial is ‘about’ is deciding matters of fact. At first and even second glance, this seems obvious. Evidence is brought, both against and on behalf of the accused; it is, if doubtful, tested under examination by the court, by the accused, or by counsel; under the court’s instruction, the jury weighs the evidence heard and pronounces the defendant’s innocence or guilt. The jury’s verdict does constitute a judgement as to matters of past fact; in routine cases these may not even be open to much doubt. But without giving undue weight to cases for which the evidence is murky, partial, contradictory, or hard to interpret, it is open to

156  Hal Gladfelder question whether the determination of fact is the only or even the primary object of the criminal trial as a highly ritualised and emphatically theatrical performance of legal authority carried out in public view. J.M. Beattie has warned of some danger of exaggerating the dignity and order of the eighteenth-century courts and perhaps of overemphasizing their success as theatre—taking the robes, full-bottom wigs, and black caps as guarantees . . . that the solemnity and hushed seriousness the judges would have wanted was in fact always achieved.14 Beattie’s caution is useful, and I want to return in due course to the limitations of, and problems with, the courtroom-as-theatre idea, but there is no question that, taken as a whole, from the ceremonial processions of the assizes, to face-to-face confrontations of accusers with accused, to the ritual donning of a black cap when the court pronounced sentence of death, the eighteenth-century criminal trial was designed not only to proclaim the truth but to dramatise the majesty of the law, to reinforce the bonds joining state power (in the person of the judge) to local communities (in the persons of the jury), and to teach moral lessons with the power to draw tears. Rather than aiming to determine the truth, the trial is a kind of re-enactment whose aim is to stage that truth. Before the coming of the lawyers, especially, the role of the jury was not so much to ascertain as to confirm the ‘truth’ presented at trial, usually as directed by the court. If anything, the introduction of lawyers gave the jury a more active role, as competing narratives could be advanced with equal (at least in principle) force, and jurors really had to weigh the merits of the cases on either side. In most eighteenth-century trials, by contrast, the matters of past fact were presumed to be known from the start; the trial’s purpose was largely to represent them as theatre. Not that the conclusion was always foregone: even if much of what juries heard were, as Langbein writes, ‘hopeless cases of persons manifestly guilty’, one-third of defendants in felony cases were acquitted.15 But whether or not there was genuine uncertainty as to the guilt of the accused, the theatrical format of ‘the “accused speaks” trial’ allowed for the possibility of dramatic confrontations or ‘altercations’ in the courtroom, the theatrical staging of justice.16 In the remainder of this chapter I want to begin to map a poetics of the eighteenth-century criminal trial, focusing on some of the ways in which judges, lawyers, and reporters appealed to listeners’ and readers’ emotional receptivity, notably through the arousal of terror, horror, and other overpowering feelings. What was the place of such emotions in the apparatus of the law? As the passages I have cited from Mandeville and Fielding suggest, legal commentators often drew on aesthetic theory (notably Aristotle’s Poetics) and dramaturgical practice to inform their work on criminal law and its outward, spectacular representations.

Theatre of Blood  157 To Aristotle’s emphasis on the tragic arousal of pity and terror, Burke’s model of the sublime and Radcliffe’s theory of Gothic added a concern with the relation among terror, power, and obscurity, which echoes some key eighteenth-century trials. Terror could signify both the depravity of the criminal and the majesty of the law, so its meanings were open to contestation. By the 1790s, the authors of the Godwin circle adapted the anti-reformist discourse of terror as an expression of the law’s majesty and power to subversively portray law itself as a species of terrorism. When the protagonist of Mary Wollstonecraft’s Maria responds to her estranged husband’s legal action for crim. con. against her lover and herself, Wollstonecraft writes ‘the dogs of law were let loose on her’—likening the rituals of law to the ravening of beasts: creatures devoted to the physical and moral annihilation of their victims.17 Wollstonecraft’s radical-Gothic fiction is, then, a tale of terror in two senses: it is both a melodramatic shocker, with its devious villains and labyrinthine prisons, and a Jacobin-feminist attack on a social order underpinned by the terrorist violence of a class- and gender-biased legal apparatus. Wollstonecraft used the vivid, even lurid imagery of popular fiction to add emotional force to her polemical assault on the law, not unlike Godwin’s adoption of adventure-story and detective motifs to carry his anarchist critique of eighteenth-century society in Caleb Williams. But in what sense can criminal trials of the period also be read as tales of terror? That remains for the rest of this chapter to answer, but I should explain, before proceeding, how I am using the term ‘trial’ itself. In a strict sense, the trial is what takes place in the courtroom, from the reading of the indictment and the defendant’s plea, to the announcement of the verdict and, as a coda, the sentencing. What happens before and after—from the discovery and investigation of the crime, through pre-trial examinations and commitment of the prisoner to jail, all the way to the carrying out of the sentence—is usually treated separately from the trial proper. To do this, however, is to lose sight of the narrative and ideological continuities that tie the distinct stages of the legal process into a continuous narrative whole. Not only does the trial proper often largely consist of witnesses telling and retelling what led up to the crime and what has already been said under examination, but the judge’s sentencing speech—at which, in Martin Madan’s words, ‘every heart shakes with terror—the almost fainting criminals are taken from the bar—the crowd retires—each to his several home, and carries the mournful story to his friends and neighbours’—points ahead to the scene of the criminal’s death, the culmination of the trial as a narrative of the law’s power.18 Madan’s idealised imagining of the judge’s last speech also points to a crucial way in which the trial-as-narrative extends beyond the temporal and spatial confines of the courtroom procedure itself: by being retold to others who were not present. Just as those in Madan’s courtroom audience ‘carr[y] the mournful story to [their] friends and

158  Hal Gladfelder neighbours’, so the shorthand writers of the Old Bailey Sessions Papers, the various newspaper or pamphlet hacks, pundits like Madan and, in due course, the Ordinary of Newgate, reproduced, embellished, ironed out, and moralised upon the courtroom events, creating a kind of polyphonic text through which the story of the trial was broadcast to an ever-wider audience. This multi-strand text, too, is the trial—and it is by way of such intertwined retellings that the criminal trial as tale of terror produced its most lasting emotional effects. To test this claim, I want to focus here on two trials that in different ways captivated the imaginations of eighteenth-century audiences: the 1733 trial of Sarah Malcolm for a grisly triple murder and the 1806 trial of the colonial Governor of Trinidad, Thomas Picton, on charges of torture. Neither of these trials was typical; indeed, a poetics of the eighteenth-century trial will of necessity be based on atypical cases, trials that stood out for their power to elicit strong feelings. But if in different ways both trials were designed to provoke horror, terror, pity, or fear in their audiences, their emotional meanings were not always stable or clear. The law court was in many ways like other eighteenth-century theatres—raucous, tumultuous, partisan—and the reports that have come down to us are often fragmented, partial, and opaque. The Malcolm and Picton trials were unusually fully documented, but they still left much for the reader to imagine or surmise, and their most dramatic dialogues and coups de théâtre called on the reader’s emotional engagement in order to produce a conviction of innocence or guilt. The Malcolm trial, in which the accused conducted her own defence, pulls the reader between two irreconcilably conflicting narratives, and Malcolm’s defiant interventions admitted radically opposed readings of her actions and character. Seventy years later, the Picton affair exhibited the lawyer-driven adversarial trial in full flower, with well-organised cases for prosecution and defence and Picton himself a shadowy, inscrutable figure. But here, too, an unscripted coup de théâtre from the histrionic lawyer William Garrow produced a sensation that acted more effectually on spectators than the voluminous debates over precedents and jurisdiction on which the case ‘officially’ turned. Taken together, the two cases show that the adversarial model did not introduce theatricality to the English trial, but built on established forms of dramatic conflict to incite emotional convictions in jurors and readers alike.

The Courtroom as Theatre The conceit of the criminal trial as a form of theatre was already commonplace in the eighteenth century. In theatrical terms, the trial could be regarded as an agon, a struggle for power among contending players. Before the coming of the lawyers, the accused stood alone at the bar and spoke in a single voice against all those ranged on the side of the prosecution. He or she had the right to call witnesses, but lacked the resources of wealthy

Theatre of Blood  159 prosecutors or the state to do so. The oral presentation of evidence; the face-to-face meeting of accuser and accused; the dialogic, contentious format of cross-examination; the visible, vocal, partisan presence of an audience looking to be entertained; the life-and-death stakes of the outcome: all contributed to the charged, electric atmosphere of the eighteenth-century theatre of trial, with the defendant its tragic hero, villain, or victim. Such at least was one model of the trial as theatrical performance, culminating, as in the passage cited earlier from Martin Madan, in the judge’s last speech: He addresses, in the most pathetic terms, the consciences of the trembling criminals. . . . He acquaints them with the certainty of speedy death, and consequently with the necessity of speedy repentance—and on this theme he may so deliver himself, as not only to melt the wretches at the bar into contrition, but the whole auditory into the deepest concern—Tears express their feelings. . . . The dreadful sentence is now pronounced—every heart shakes with terror—the almost fainting criminals are taken from the bar.19 And so the penultimate act of the drama ends. Emotion is certainly to the fore in this imaginary scene: an emotional compound of terror and sympathy, felt alike by criminal, judge, ‘auditory’, and reader. But as Madan complained, such edifying scenes were rare in ­eighteenth-century courts. Spectators could be unruly, courtrooms chaotic and stinking, judges sarcastic, jurors inattentive, and witnesses drunk. Even after the arrival, in select cases, of counsel for defence and prosecution (but before passage of the Prisoners’ Counsel Act, 1836), Thomas Wontner estimated that the average time per trial at the Old Bailey was 8 ½ minutes. In his idiosyncratic 1833 diatribe Old Bailey Experience, Wontner offers this memorable description of the court’s practice: The rapidity with which the trials are despatched throws the prisoners into the utmost confusion. Fifty or sixty of them are kept in readiness in the dock under the court, to be brought up as they may be called for. These men, seeing their fellow-prisoners return tried and found guilty in a minute or two after having been taken up, become so alarmed and nervous . . . that in their efforts . . . to re-arrange their ideas . . . and put the strongest feature of their cases before the court as speedily as possible, they lose all command over themselves, and are then, to use their own language, taken up to be knocked down like bullocks, unheard. . . . [T]he prisoners, on their return from their trials, cannot tell of anything which has passed in the court, not even, very frequently, whether they have been tried; and it is not, indeed, uncommon for a man to come back, after receiving his sentence . . . saying, ‘It can’t be me they mean; I have not been tried yet’.20

160  Hal Gladfelder Such speed and confusion hardly allowed for the sympathy and terror Madan extols, nor would they conduce to narrative coherence or theatrical vividness. As late as 1738, Old Bailey juries would hear ‘as many as a dozen cases one after the other’ before retiring to deliberate.21 Given such a process, they cannot have paid very nuanced attention to the details of each case; and after the court changed to a system in which the jury reached a verdict at the end of each trial, the pace of deliberations actually increased, the jurors huddling in open court and, according to Charles Cottu, returning their verdicts in two to three minutes.22 Pope was not being over-cynical when he wrote that ‘hungry Judges soon the Sentence sign,/And Wretches hang that Jury-men may Dine’.23 Beattie is surely right that in these conditions, ‘solemnity and hushed seriousness’ were seldom to be found. And indeed the entertainment spectators sought may not have been of the solemn kind. Beattie writes that starting in the 1780s, in the Garrow era, auditors took pleasure ‘in the inherent drama of the courtroom when the confrontation between two versions of the truth took the form not of a squabble but of a game, a contest with rules, played by clever, skillful, and evenly matched opponents’.24 Even before the era of duelling lawyers, however, spectators may have taken pleasure in uneven contests, in a sort of boisterous theatre of cruelty. In a scene from Fielding’s 1749 novel Tom Jones, for example, the dim-witted but good-natured Partridge tells a story featuring the very real hanging justice Sir Francis Page, in which Page thus addresses an accused horse thief whose only defence is that he merely happened to chance across the horse in question: ‘ “Ay!” answered the judge, “thou art a lucky fellow; I have travelled the circuit these forty years, and never found a horse in my life; but I’ll tell thee what, friend, thou wast more lucky than thou didst know of; for thou didst not only find a horse, but a halter too, I promise thee” ’.25 At Page’s quip, Partridge recalls, ‘everybody fell a-laughing, as how could they help it. Nay, and twenty other jests he made, which I can’t remember now. There was something about his skill in horseflesh which made all the folks laugh. . . . It is indeed charming sport to hear trials upon life and death’. Tom Jones, of course, is a comic novel, and one might wonder whether Page’s mockery of his victim has been exaggerated for satirical effect. By all accounts, however, Page’s rhetorical brutality matched the severity of his sentences. In one well-known case, the trial of Samuel Johnson’s friend the poet Richard Savage for murder, Page countered Savage’s defence—which turned on the denigration of the moral and social characters of his accusers and victim and, by contrast, his own good character as a (supposed) man of means—with withering sarcasm: Gentlemen of the Jury, you are to consider, that Mr. Savage is a very great Man, a much greater Man than you or I, Gentlemen of the Jury; that he wears very fine Clothes, much finer Clothes than you or I, Gentlemen of the Jury; that he has abundance of Money in his

Theatre of Blood  161 Pocket, much more Money than you or I, Gentlemen of the Jury; but, Gentlemen of the Jury, is it not a very hard Case, Gentlemen of the Jury, that Mr. Savage should therefore kill you or me, Gentlemen of the Jury?26 In this instance it is tempting to side with Page, given the blatant appeal of Savage’s defence to class prejudice, but Page was no liberal, and in making sport of those on trial for their lives, he elicited emotions not of pathos and solemn terror, as in Madan’s account, but rather of cruelty and contempt. There may be none of the ‘solemnity and hushed seriousness’ Beattie associates with the idea of courtroom-as-theatre, but it is important to remember that eighteenth-century playhouses were extremely boisterous and disorderly sites, with audiences chatting through performances, calling out to the players, punctuating scenes with booing and huzzahs. Punch-and-Judy shows, with their slapstick mayhem, were also, after all, a variety of eighteenth-century theatre, and in his sport with overawed defendants, Page was likely appealing to a rough spirit of humour, which was one prominent mode of feeling in audiences of the time. Actually, Page’s treatment of the accused horse thief in Tom Jones, in Partridge’s telling of the story, pulls in two different directions at once, yielding both laughter and a kind of pity. ‘One thing I own I thought a little hard’, Partridge recalls: that the prisoner’s counsel was not suffered to speak for him, though he desired to be heard only one very short word; but my lord would not hearken to him, though he suffered a counsellor to talk against him for above half an hour. I thought it hard, I own, that there should be so many of them; my lord, and the court, and the jury, and the counsellors, and the witnesses all upon one poor man, and he too in chains. Well, the fellow was hanged, as to be sure it could be no otherwise.27 Here, the emotional effect, of sympathy and a sense of grievance at the disproportion of power, is presumably not what Page intended; and following immediately on the laughter in which Partridge has shared, it has a jarring, discordant quality, as if Partridge is not sure how to feel. Such mixed emotions may well have been common in those who attended eighteenth-century trials, but in most cases it is impossible to know—first, because spectators left few records; and second, because unlike the Savage trial or that in Tom Jones, which are told in some detail, most felony trials were conducted in haste and only summarily reported. Although reports in the Old Bailey Sessions Papers increased in length and detail across the second half of the eighteenth century, especially after 1775, in the vast majority of cases before that, little of what was said in court was published.28 The reasons for this were

162  Hal Gladfelder twofold: practical constraints on how much material could be included in each issue of the OBSP; and calculations of what might be of interest to readers. Hence what Langbein has called ‘the bleaching out of legal detail’, along with the disproportionate space given to sensational, alarming, horrific, or otherwise disturbing crimes of violence and passion.29 By definition, such cases are unrepresentative. Most trials held at the Old Bailey or elsewhere were for crimes of scant interest to anyone not directly involved: routine or open-and-shut cases with neither theatrical nor narrative appeal. Such cases would have had no emotional valence at all. Those trials that took emotional hold of spectators and readers were rare, but rarity made them memorable and thus, paradoxically, exemplary of the intense theatricality that could sometimes be found in the eighteenth-century courtroom.

‘In Her Own Blood’: The Trial of Sarah Malcolm If the cases on the back of which a ‘poetics’ of the eighteenth-century criminal trial can be formulated are necessarily exceptional, this is not to say they are of only marginal interest: the very fact that contemporary reporters, booksellers, and readers found them worthy of close and unusual attention suggests that they had a kind of emotional intensity or resonance worth reflecting on. Why did one trial among so many invite multiple tellings, competing versions, and inclusion (sometimes for decades after) in the Select Trials or Annals of Newgate? Such cases could trigger a kind of media frenzy, as bubbled up around the 1733 trial of Sarah Malcolm for the murders of three women: an 80-year-old widow, Lydia Duncomb; her now ‘very infirm’ maidservant, Elizabeth Harrison, ‘who had grown old in her service’; and the 17-year-old Ann Price, whom Duncomb had hired three months earlier to do the actual household work.30 Sarah Malcolm had at one time worked as Duncomb’s charwoman, and so was in a position to know that Duncomb had about £300 worth of money and valuables in her rooms. One day, two friends who came to look in on the victims grew uneasy when there was no answer to their knocking at the door, and with some effort managed to get it open—whereupon, as prosecution counsel put it in his opening statement, They entered: But the Surprize, the Horror they were in, is not to be express’d, when the first Object they fix’d their Eyes on was the poor unhappy young Maid murder’d! inhumanly murder’d! and lying weltring in her own Blood, her Hands clench’d, her Hair loose, and her Throat cut from Ear to Ear! A terrible Spectacle! But this was not all, the tragical Scene did not close here; the honest old Servant lay strangled on her Bed, and a little farther, her good old Lady robb’d of her Life in the same Manner.31

Theatre of Blood  163 An intricate chain of circumstances, notably the discovery of a bloody shift and apron in a flat nearby where Malcolm worked as laundress, led to her arrest the next day, when she was found to have a bag of money hidden in her hair; and so she was brought to trial. Opponents of allowing counsel for the defence in felony cases argued that one reason it was unnecessary was that judges, as Beattie writes, ‘would simply not allow prosecuting counsel to lead the jury too obviously, to appeal to their emotions, or to engage in rhetorical trickery’;32 and Allyson N. May has examined in some detail how informal rules of professional conduct imposed a ‘duty of restraint’ on counsel so that they would neither presume the defendant’s guilt nor appeal to their listeners’ passion.33 Indeed, the danger of emotional appeals was central to the anti-reformist cause, one speaker in the parliamentary debates of 1833 warning that if counsel were allowed to ‘make a display’ in court, ‘passion would be excited, calm judgment disturbed, and justice biased and impaired’.34 The prosecution’s opening statement in the Malcolm case abided, to a degree, by this ‘duty of restraint’, in refraining from demonising Malcolm herself, and in concluding with a modest claim about the evidence on which the case rests: if ‘these Things’ (a silver tankard, money, linens) ‘were found upon her, and . . . she own’d them to be hers; and if we prove that they were not hers, but Mrs. Duncomb’s, I believe the Jury will have no Difficulty to find her guilty’.35 Such evidentiary claims entailed no appeal to the jurors’ passions, especially as they focused not on the violated bodies of the three murder victims, but on emotionally neutral ‘things’. But prosecution counsel’s opening statement clearly did make emotional appeals, and of several kinds. First, it elicited sympathy for the victims by stressing their vulnerability and good natures, as when we are told, of the former maid Elizabeth Harrison, that ‘tho’ she was now past her Labour, the good Lady [Duncomb] (who was Bed-rid herself) retain’d her still, in respect to her former faithful Services’. Second, as in the excerpt I cited earlier, when the three bodies are discovered, it lingered, in exclamatory, vividly gruesome language, over the witnesses’ horror at what counsel called the ‘terrible Spectacle . . . the tragical Scene’ that greeted them. The rhetoric of horror was not unwarranted, but in soliciting us to identify with the sensations felt by the victims’ friends, it undoubtedly disturbs ‘calm judgment’—inducing instead, as the words ‘tragical Scene’ suggest, the pity and terror Aristotle identified as the emotional wellspring of tragedy.36 Third, it intimated that the terror of such a spectacle was neither alien nor remote, but touched on the everyday fears of respectable listeners. ‘Those [like the victims] who lodge in the Temple’, counsel averred, just after describing the bloody scene, ‘must be under a particular Consternation on this Account, when by their Manner of living they are obliged to trust their Keys, their Chambers, their Properties, and even their Lives to others’. Householders’ fears of apprentices and servants were a pervasive undercurrent in

164  Hal Gladfelder eighteenth-century criminal narrative, and were only magnified when, in the disordered, demographically unstable metropolis of London, the respectable were brought into daily, intimate proximity with an itinerant, socially uprooted labour force. The prosecution’s opening statement, then, provided a kind of emotional framework or context for the trial-to-come in a way that might well have made a jury more passionately intent to see justice done and the guilty punished. Interestingly, nothing in this preamble had anything much to do with Sarah Malcolm herself: neither the victims’ good nature, the terrible spectacle of the crime scene, nor the vulnerability of London’s householders to the potentially wicked strangers in their midst had any bearing on her specific innocence or guilt. But they lent a raw emotional urgency to the case that could be hard to disentangle from the evidence linking Malcolm to the crimes. That evidentiary case was on all but one point uncontested, Malcolm admitting that the money, the silver tankard, and some linens found on her had been taken from the widow’s rooms, and that the bloody apron and shift found with the loot were her own. But whose blood was it that soaked her garments? In the tale the prosecution told, the blood was that of Ann Price, the young maid found with her throat cut; and it proved Sarah Malcolm her murderer. In the tale Malcolm told, for no counsel spoke on her behalf, the blood was her own, ‘the free Gift of Nature’, and could not ‘be the Blood of the murder’d Person’. For as she asked, with impressive forensic precision, ‘If it is supposed that I kill’d her with my Cloaths on, my Apron indeed might be bloody, but how should the Blood come upon my Shift? If I did it in my Shift, how should my Apron be bloody, or the back Part of my Shift? And whether I did it dress’d or undress’d, why was not the Neck and Sleeves of my Shift bloody as well as the lower Parts?’37 Neither prosecution nor court ever tried to answer or even to dismiss her questions: menstrual blood was likely regarded as unworthy of the court’s notice, or distasteful, or taboo. Indeed, as Jane Magrath has argued, that Malcolm brought such a subject up might not only have seemed a breach of decorum, but a sign of female monstrosity or unruliness, undermining her claim of innocence.38 However it is interpreted, the bloody shift was both a key, contested piece of evidence and an image that haunts the trial, metonymically standing for either the murder victim Ann Price or, in the defence case, the wrongly accused Sarah Malcolm. In the agon staged in the Old Bailey on 23 February 1733, Malcolm, although lacking the resources of the state to call witnesses or conduct pre-trial inquiries, cross-examined the witnesses against her with rigour and offered a counter-narrative compelling enough that a week after the trial, the London Evening Post reported that ‘the Temple will speedily issue a Reward of 100 l. to any Person that shall discover the Murderers of Mrs. Dancomb &c. in the Temple, People now thinking Sarah Malcolm did not do that horrid Fact herself’.39 In brief, her counter-narrative

Theatre of Blood  165 was that Malcolm had ‘contriv’d’ the robbery of Duncomb’s flat with another woman, Mary Tracey, but that she had stood guard in the stairwell while Tracey and two accomplices, Thomas and James Alexander, went inside, gagged the victims (as she supposed), and stole the goods. Tracey and the Alexanders, in fact, were in custody while Malcolm was on trial, but are nowhere mentioned in the prosecution case, nor were they ever arraigned in relation to these crimes, ‘there being not the least Colour’, as the Post put it a week before the trial, ‘to ground Indictments against’ them.40 Whether there was any basis to Malcolm’s allegations or not, the trial as drama turned on the struggle between two conflicting but evenly matched plotlines, which unfolded through a series of confrontations between Malcolm and the witnesses lined up against her. But after all the witnesses had spoken—neighbours, watchmen, locksmiths, prison trusties, forensic specialists—there was sufficient room for doubt that the jury, instead of going into a quick huddle, asked to retire, and needed a quarter hour to arrive at a guilty verdict. Not long, but longer than might have been expected for a case where the circumstantial evidence was so voluminous. In fact, it was the evidence that appeared to cry out loudest against her, the bloody shift, that prompted most doubt as to Malcolm’s role in the killings, for the blood was not where it should have been, had it come from Ann Price’s throat. For all its materiality, the bloody shift reminds us that the crime itself cannot be known, only more or less convincingly reconstructed. Evidence is needed to compensate for the invisibility of the action that produced it, but it can never fully compensate. Instead, that original action—in the Aristotelian sense of a perfect and entire plot with beginning, middle, and end—needs to be reconstructed in the imaginations of listeners, or, perhaps more importantly in the long run, readers. This imaginative realisation of the truth of an only circumstantially accessible crime was at stake in the eighteenth-century trial; and it accounted for the role played by emotion in the courtroom and its textual offshoots. In cases of doubt, the story that prevails under trial is the one that induces emotional conviction. So, in the Malcolm case, the prosecution played on the listener or reader’s fears, evoking the ‘terrible Spectacle!’ of the murder scene to paint the accused as a monster of ingratitude. But the awkward pattern of blood on Malcolm’s shift—as she insistently queried, ‘If I had this Apron and did the Murder in it, how is it possible that my Shift should be bloody both behind and before?’41— was enough to sow some nagging doubt as to the prosecution’s tale, although not enough to overcome it, either in the courtroom or later. For her part, Malcolm had no story to touch the heart, only an unsettling charisma. She was no innocent, for she agreed to the robbery, and lied when found with the loot, even conspiring to have two key witnesses shot when she still believed she could brazen her way out of the charges. Only when caught with Duncomb’s money in her hair did she admit to any involvement in

166  Hal Gladfelder the robbery, although she consistently denied any part in the murders. Since robbery was a hanging offence, she maintained in court that ‘I have no Occasion to murder three innocent Persons [i.e., Tracey and the Alexanders] by a false Accusation; for I know I am a condemn’d Woman’, but the claim was disingenuous: she might have obtained a reduction of sentence for the robbery, but never for the murders, so she had every reason to solicit doubt.42 Yet even if she sowed them in her own interest, the doubts Malcolm raised about the bloody shift cannot be dismissed. Indeed, they suggest their own tale of terror: that an innocent young woman could be murdered at the scaffold. So powerful was the fascination Malcolm aroused that she was visited in Newgate by the artists James Thornhill and William Hogarth after her conviction, and the portrait that Hogarth produced has become an icon of female criminality in the period.43 He was reported to have said later, ‘This woman, by her features, is capable of any wickedness’;44 and in the engravings that circulated after her execution, she signally lacks the soft features of virtue in distress (see Figure 8.1). From an initial sketch Hogarth painted an oil portrait, later bought by Horace Walpole and now displayed in the Scottish National Gallery; on the day after her hanging, 8 March 1733, he advertised that his own engraving would be published two days later, to sell for sixpence a copy. His engraving, in turn, was widely pirated, and it was through such competing, often counterfeit, versions that Malcolm’s features circulated publicly: yet another strand in the text of her trial. In the version reproduced here, the engraver has added one notable detail to Hogarth’s original: a knife dripping with blood on the table near Malcolm’s hands. (In the oil portrait, it was a rosary that lay there.) The bloody knife compels a criminalising reading of Malcolm’s face, but it is not obvious from the features that Malcolm was ‘capable of any wickedness’; what stands out instead is a certain impassiveness or unreadability that may be even more unnerving. In the narrative of Malcolm’s last days by James Guthrie, Ordinary of Newgate, we are told, sometimes she wept bitterly, and was in violent Commotions; which made the Generality of them who saw her, think, that there were some inward Thoughts in her Breast, at which she was frequently perplex’d: But this she would by no Means be perswaded to communicate to others.45 Like the crime she would die for, the heart of the accused was invisible; and whether she wept ‘for Fear of Death, or the Shame she was to be expos’d too, or the Remorse of her Conscience, upon Account of her being really Guilty of Murther, and a due Sense of her Guilt, is what we cannot decide’.46 Malcolm had a tortured soul, but despite the evidence against her, the cause of her terror or guilt remained hidden.

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Figure 8.1 ‘Sarah Malcolm’ (1733). Anonymous, after William Hogarth. {{PD-old100}}, via Wikimedia Commons.

‘A Sort of Scenic Display’: The Trial of Thomas Picton ‘Because of the atrociousness of her Crimes’, Sarah Malcolm was sentenced, by special order, to be executed in Fleet Street near Temple Gate, ‘for Terror to other wickedly disposed People’.47 Her ‘trial’, in which I include the events in court, the Old Bailey Sessions Paper, the newspaper

168  Hal Gladfelder reports and Ordinary’s Account, her letter on the eve of execution,48 Hogarth’s portrait (in all its iterations), and reports of the hanging, thus produced, at least in theory, the terror of the example that Fielding and his ilk desired. The prosecution’s tale, as we have seen, also elicited pity and fear in other ways: pity for the victims, horror at the bloody tableau, terror at the hidden malevolence of those to whom we entrust our properties and lives. Other terrors may also have been evoked, at least in some versions of the trial: fear of the criminal Irish (Malcolm was dubbed ‘the Irish laundress’ in some papers, albeit not in court); of women’s bodies (Malcolm called her menstrual blood a ‘disorder’); or, most imponderable terror of all, the secret depravity of a sinful heart. This unilluminable darkness at the centre of the criminal text is one key point on which the poetics of criminal trial diverges from that of Aristotelian tragedy. In Aristotle’s Poetics, the tragic character is, even if criminal, worthy of admiration; and even if overmastered by passion, is legible in motive and stable in identity.49 In trials, by contrast—at least in those that can be said to make emotional or aesthetic claims on their audience—the character of the defendant is, almost by definition, in doubt. The prosecution and defence set out contending readings of the evidence, which amount to contending judgements on the character of the accused. Or rather, this was the theory: in practice, before the coming of the lawyers, the only story told at trial and the only judgement of the accused were generally those put forward by the prosecution, while the defence made what response the accused could to the evidence as they heard it for the first time, bolstered at most by some character attestations. Since it was almost entirely reactive, the defence had little chance to formulate a coherent or emotionally compelling case. One of the points of interest of the Malcolm trial is that she managed to draw up a lawyerly case without lawyers, cross-examining tenaciously and even sarcastically, keeping the details of the circumstantial evidence in mind, telling as clear and unified a story as Aristotle could have wished. But ‘the inward Thoughts in her Breast’, in Guthrie’s phrase, remained opaque. That opacity gave Malcolm, like such other compelling eighteenthcentury defendants as Elizabeth Brownrigg, Mary Blandy, and Thomas Picton, a kind of sublimity. They cannot, finally, be rationalised or explained away.50 In her 1826 article ‘On the Supernatural in Poetry’, Ann Radcliffe built on Burke’s idea of terror as ‘a source of the sublime’51 to draw a suggestive distinction between terror and horror, superficially so similar: Terror and horror are so far opposite that the first expands the soul, and awakens the faculties to a high degree of life; the other contracts, freezes, and nearly annihilates them. . . . And where lies the great difference between terror and horror, but in the uncertainty and obscurity, that accompany the first, respecting the dreaded evil?52

Theatre of Blood  169 The visible horror of a mangled corpse will shock or dismay those who discover it, but in the retelling, in the hearing or reading of an audience, the obscure but imagined scene creates terror, ‘the strongest emotion which the mind is capable of feeling’.53 The persistent hold of a case like Malcolm’s over the eighteenth-century imagination hinged on the uncertainty of her ‘inward Thoughts’, the finally unresolved mystery of what transpired in Lydia Duncomb’s rooms. ‘Obscurity leaves something for the imagination to exaggerate’, Radcliffe notes,54 and in that sense the Malcolm trial, shadowed by doubt, operated in a manner analogous to the offstage hanging that Fielding advocated in the Enquiry. ‘A Murder behind the Scenes, if the Poet knows how to manage it’, Fielding argued, ‘will affect the Audience with greater Terror than if it was acted before their Eyes’.55 The mind, inflamed by passions, magnifies what it does not see. Or rather what it does not directly see: for obscurity, in Burke’s and Radcliffe’s models, is not invisibility but partial, impaired, or indirect visibility, what is seen through a glass darkly. In the case of Garrick’s Macbeth, terror at the offstage murder was elicited by a combination of stage darkness, ‘terrifying whispers’, and ‘the wonderful expression of heartful horror, which Garrick felt when he shewed his bloody hands’.56 The audience, through what is partially heard and seen, ‘sees’ what is not seen all the more powerfully. Sarah Malcolm’s ‘inward Thoughts’, too, were unseen, but also partially, obscurely seen in her ‘violent Commotions’ and in Hogarth’s rendering of her ‘features’, which aimed to make manifest her otherwise invisible ‘wickedness’. Such was also the case with the crime of which Thomas Picton was accused in his 1806 trial: the torture of Luisa Calderon, which he had ordered in 1801, during his tenure as colonial Governor of Trinidad. Although this was only a misdemeanour charge, the trial attracted much greater attention than most felonies, in part because behind this one charge loomed 29 counts of unlawful death for which Picton was then under investigation by the Privy Council. In the end those other charges were dropped, but the Calderon case was a kind of synecdoche for an array of horrific crimes that raised troubling questions not only about Picton’s ‘cruelty’ and ‘tyrannical disposition’, as prosecution counsel William Garrow put it, but also about British colonial practices more generally.57 The facts of the case were not disputed.58 Luisa Calderon, a mixed-race girl of uncertain age, was believed by a magistrate in Trinidad to have been complicit with one Carlos Gonzalez in the robbery of Pedro Ruiz, with whom Calderon lived as Ruiz’s ‘mistress’ (she was believed to be ‘engaged in an intrigue’ with Gonzalez as well). As Calderon refused to turn on Gonzalez, the magistrate asked Picton to order her torture with the aim of forcing a confession, and Picton did so. The chosen form of torture was ‘piqueting’, an established mode of military punishment in which the subject is suspended by one wrist from a rope, the other wrist being tied

170  Hal Gladfelder to its opposite ankle. By means of a pulley the body is lowered so the free foot, which takes almost all the body’s weight, ‘rests’ on a sharpened picket or spike (if it did not, the subject’s arm would be pulled out of its socket). Forced to stand like this for an hour, Calderon was in such pain that she repeatedly fainted. In this state she did give up Gonzalez, but as she claimed not to know where the loot was secreted, she was tortured again the next day, after which she was confined in irons for eight months without trial. As the preceding sentences may suggest, to define ‘piqueting’ in words alone is difficult: a procedure so fantastical in its disfiguring of the body requires illustration to be fully grasped. Accordingly, when Garrow questioned Calderon about the torture she had undergone, instead of leaving her to formulate it in words, he asked her to perform the pose, to ‘plac[e] herself in the attitude she so described’, in a kind of balletic re-enactment for the jury.59 This performance was followed up by Garrow’s production of ‘a drawing in water colours . . . representing in striking manner her situation with the executioner and his attendants’ at the torture, which he showed to both Calderon and the jurors, asking her if it was ‘any thing like’ what she had undergone.60 It was, she said; but more than her verbal confirmation, Garrow called the court’s attention to her (unseen) bodily response to the image. ‘I wish’, Garrow told the presiding judge, ‘the position of your Lordship could have enabled you to have seen the involuntary expression of the sensation of the witness on the inspection of the drawing’.61 This ‘involuntary expression’, though invisible to judge, jury, and, by extension, reader, anticipates the cinematic close-up in giving us access to the affective truth of Luisa Calderon’s distress. Garrow called attention to the fleeting expression, and the emotion it betrayed, by voicing his regret that we were unable to see it. From the written reports it is unclear what the jurors may have seen, or what Calderon’s physical reaction was to the drawing—a shiver, a wince, or nothing at all?62 What matters more is the way Garrow, like Garrick, used the simplest means—Calderon’s pose, a watercolour, a hint of ‘heartful horror’ in Calderon’s face—to elicit the audience’s pity and terror, creating an indelible theatrical moment whose emotional power far exceeded its evidentiary function. In fact, nothing Calderon said had much bearing on the trial’s outcome, as the fact of her torture was not in doubt. In legal terms, Picton’s innocence or guilt turned on a single question, as James Epstein has shown: did Spanish law, which remained in effect on Trinidad even after Britain’s takeover of 1797, sanction judicial torture (as British law did not)?63 That question proved to be anything but simple, and the trial was taken up by debates on colonial law codes and historical precedents, complicated by the prosecution’s recurrent hints—legally off-topic, but emotionally and ethically resonant—that Picton should have acted according to ‘the mild, benign, and equitable spirit of British jurisprudence’.64 But if the legal case turned on arcane points of historical practice, there is strong reason to conclude that the

Theatre of Blood  171 jury was moved to their verdict of guilty not by these, but by the ‘sort of scenic display’65 Garrow made of his examination of Calderon, a display that lived on for later audiences in the images of Calderon’s piqueting that circulated throughout Britain. It is impossible to know how much the image reproduced here (see Figure 8.2) corresponds to the watercolour and sketch Garrow produced in court, although it was evidently marketed as a faithful replica.66 As it is monochromatic, it would seem to be a reproduction of the ‘mere pen and ink sketch’ Garrow was allowed to show to the jury, rather than the watercolour drawing he showed Calderon, whose ‘colouring’ the judge held might ‘produce an improper effect’ on the jurors.67 Yet if Garrow was permitted to show the jurors the sketch ‘merely’ as ‘a description of the position’ in which Calderon was placed, the image as reproduced for public circulation was clearly designed to excite pity for Calderon and terror for her plight and thus to corroborate the story Garrow told in court of virtue in distress. Calderon’s white dress and ‘white’ complexion, a kind of halo around her, a poignant expression of suffering evocative of Christian martyrdom, her diminutive form and graceful contrapposto are all set against the shadowy, racially ‘othered’, and bodily dominant male figures that surround her. As Epstein notes, the image thus drew on

Figure 8.2 ‘Louisa Calderon on the picquet’. From The Trial of Governor T. Picton, for Inflicting the Torture on Louisa Calderon (1806), published by B. Crosby. Courtesy Rare Book Collection, Lillian Goldman Law Library, Yale Law School.

172  Hal Gladfelder Gothic conventions as well as the iconography of Christian piety in suffering, and in doing so it countered the characterisation of Calderon by Picton and his supporters as ‘a common Mulatto prostitute, of the vilest class and most corrupt morals’.68 The image also served as a reminder of Calderon’s balletic performance in court, her likeness to a dancer en pointe only accentuating the brutality of her torture. Like the image, Garrow’s choreography of the courtroom spectacle excited, or coerced, an emotional response that overbalanced the evidentiary case. Although he agreed to Garrow’s request to show the ‘sketch’ to the jury, the defence lead Robert Dallas complained of the likely effect: a case of this kind, stated and proved as it has been, with prints and drawings and acting, which I have now seen for the first time introduced in support of a criminal charge, must . . . have occasioned sensations unfavourable to the gentleman for whom I appear.69 This ‘sort of scenic display’ set out in court was portrayed by Dallas and others as a dangerous innovation (‘the first time’), but we might instead regard it as only one degree more ‘theatrical’ than the prosecutor’s opening statement in the Malcolm trial, which used grand guignol rhetoric to create a horrifying picture in the listener/reader’s imagination. Like his contemporary Thomas Erskine, who was originally to have taken the prosecution lead, Garrow was renowned for his eloquence and for his skill in constructing a case that told an emotionally compelling story.70 Complimented (albeit ironically) by Dallas for his ‘florid representation . . . always ardent, always glowing’, Garrow could also be attacked as a grandiloquent showman, as when Picton’s supporter Edward Draper jeered at Garrow’s pictorial display: The effect was so sudden, so unexpected, so electric, so full of all the necessary qualities to call forth surprise, astonishment, and ‘delightful horror’, that Burke himself, if he were alive, would have gone to school again, and taken a lecture from him to add to the next edition of his ‘Sublime and Beautiful’.71 The subtext here, of course, was that such electrifying sensations of ‘delightful horror’ had no place in a court of law, nor in the ancillary retellings that circulated through the culture at large. But by Garrow’s time they had long been an established, even necessary part of the theatre of law—vital, especially in difficult or emotionally fraught cases, to securing a spectator’s or reader’s conviction of the truth of the story produced by the agonistic struggle of the trial. Picton never spoke during the proceedings, so his thoughts remained obscure, but through Garrow’s canny staging of Luisa Calderon’s torment, the trial’s readers came to see him as a ‘subject of horror and detestation’, a dark-hearted oppressor.72

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Conclusion One of Garrow’s innovations in the Picton case was to engineer an intensely theatrical restaging of the defendant’s crime in the absence of the defendant, without recourse to the ‘accused speaks’ format that produced such dramatic effects in the Malcolm trial. Indeed, it is unclear if Picton was even present in the courtroom: in several reports he lurked just offstage. According to one, ‘Governor Picton walked the Hall of the Four Courts, during the trial. He is a tall man, of a very sallow complexion, apparently about fifty years of age, and was dressed in black’.73 The contrast of this figure to Calderon, as portrayed in the popular press, could hardly be more stark, indebted as both figures were to Gothic or Christian narrative and iconographic traditions. Like the widely circulated image of Calderon in extremis, this glimpse of the accused pacing the halls of court—sallow, silent, in black—was designed to produce, in reader or viewer, an emotional conviction independent of the complex evidentiary case on which the verdict should have turned. In this respect they reproduce, in their own media, the emotionally suasive effects of Garrow’s ‘scenic display’ in the courtroom. Garrow’s elaborately stage-managed tableau exemplified, to contemporary critics, all the dangers of the lawyer-led trial: histrionic displays, appeals to passion, the sleep of reason. But as I have argued here, he was merely exploiting the potential for theatricality that had always been implicit in the agonistic, confrontational form of the English jury trial. This potential underlies the claim that one can formulate a poetics of the eighteenth-century trial, even if such a poetics only pertains to the exceptional case. The Malcolm and Picton cases, like others that took hold of the imaginations of spectators and readers, did so precisely because they deviated from the repetitive dullness of the dozen-an-hour, open-and-shut trials that constituted much of the court’s business. Of course, the outcome of even the most routine trial mattered very much to those directly involved, but only exceptional cases could elicit powerful emotions in a wider audience—pity and terror as in the Aristotelian model, but also the cruel mirth of Justice Page’s listeners or the sympathy Garrow invited the judge to feel for Luisa Calderon’s distress. Only the exceptional case could find a place in the Annals of Newgate and public memory, but the dramatic structure of the jury trial created the opportunity for emotional provocation.

Notes 1 William Godwin, Caleb Williams [1794; rev. 1831], eds. Gary Handwerk and A.A. Markley (Peterborough, ON: Broadview, 2000), 55–56. 2 Clive Emsley, ‘An Aspect of Pitt’s “Terror”: Prosecutions for Sedition during the 1790s’, Social History, 6, 2 (1981), 155–184, on 174–175. 3 Emsley, ‘Aspect’, 173; E.P. Thompson, The Making of the English Working Class (Harmondsworth: Penguin, 1968), 134.

174  Hal Gladfelder 4 Douglas Hay, ‘Property, Authority and the Criminal Law’, in Douglas Hay et al. (eds.), Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975), 17–63, on 26, 22. 5 Henry Fielding, An Enquiry into the Causes of the Late Increase of Robbers and Related Writings, ed. Malvin R. Zirker (Middletown, CT: Wesleyan University Press, 1988), 166. 6 Ibid., 166. 7 Ibid., 163–167. 8 Hay, ‘Property’, 18; William Paley, Principles of Moral and Political Philosophy [1785], quoted in V.A.C. Gatrell, The Hanging Tree: Execution and the English People 1770–1868 (Oxford: Oxford University Press, 1994), 202. 9 Bernard Mandeville, An Enquiry into the Causes of the Frequent Executions at Tyburn (London: J. Roberts, 1725), 36–37. 10 Henry Fielding, Covent-Garden Journal, ed. Bertrand A. Goldgar (Oxford: Clarendon Press, 1988), 416. 11 Fielding, Enquiry, 169–170. 12 John Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), 2, 1. 13 On ‘pious perjury’, see John Hostettler, A History of Criminal Justice in England and Wales (Hook: Waterside Press, 2009), 127–130. 14 J.M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press, 1986), 399. 15 Langbein, Origins, 65, 14. 16 Ibid., 47–48; see also 62–63 on the accused’s performance of innocence or guilt. 17 Mary Wollstonecraft, Maria, or the Wrongs of Woman [1798], intr. Anne K. Mellor (New York: Norton, 1994), 129. 18 Martin Madan, Thoughts on Executive Justice [1785], quoted in Hay, ‘Property’, 17–18. 19 Ibid. 20 Thomas Wontner, Old Bailey Experience: Criminal Jurisprudence and the Actual Working of our Penal Code of Laws (London: James Fraser, 1833), 59–60. 21 Beattie, Crime, 395. 22 Ibid., 397. 23 Alexander Pope, ‘The Rape of the Lock’ [1714] III, 21–22, in John Butt (ed.), The Selected Poems of Alexander Pope (New Haven: Yale University Press, 1963), 227. 24 J.M. Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’, Law and History Review, 9, 2 (1991), 221–267, on 247. 25 Henry Fielding, Tom Jones, eds. John Bender and Simon Stern (Oxford: Oxford University Press, 1996), 397–398. 26 Samuel Johnson, Life of Savage, ed. Clarence Tracy (Oxford: Clarendon Press, 1971), 34. (Johnson, of course, may also have exaggerated Page’s rhetoric.) 27 Fielding, Tom Jones, 398. 28 On changes in trial reporting after 1770, see Simon Devereaux, ‘From Sessions to Newspaper: Criminal Trial Reporting, the Nature of Crime, and the London Press’, London Journal, 32, 1 (2007), 1–27; and ‘The City and the Sessions Paper: “Public Justice” in London, 1770–1800’, Journal of British Studies, 35, 4 (1996), 466–503. 29 John H. Langbein, ‘Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources’, The University of Chicago Law Review, 50, 1 (1983), 1–136, on 15–16.

Theatre of Blood  175 30 ‘The Trial of Sarah Malcom [sic]’, in The London Magazine, or Gentleman’s Monthly Intelligencer, March 1733, 139–150, on 139. This is a slightly abridged version of the text from the Old Bailey Proceedings for 21–24 February 1733, available online at www.oldbaileyonline.org. 31 Ibid., 139. 32 Beattie, ‘Scales’, 253. 33 Allyson N. May, The Bar & the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), esp. 99–105. 34 Quoted in Beattie, ‘Scales’, 253–254. The speaker was John Sayer Poulter. 35 ‘Trial of Sarah Malcom’, 139. 36 Aristotle, Poetics, chs. 6, 9, 13, 14. 37 ‘Trial of Sarah Malcom’, 147. 38 Jane Magrath, ‘(Mis)Reading the Bloody Body: The Case of Sarah Malcolm’, Women’s Writing, 11, 2 (2004), 223–236. See also Kirsten T. Saxton, Narratives of Women and Murder in England, 1680–1760: Deadly Plots (Farnham: Ashgate, 2009), 74–78, 81–84. 39 London Evening Post, 1 March 1733. 40 London Evening Post, 17 February 1733. One can follow the whole arc of the case in the Post: the discovery of the crime (6 February), Malcolm’s suicide attempt in jail (8 February), the arrest of Tracey and the Alexanders (10 February), the decision to try Malcolm alone (17 February), arraignment (22 February), trial (24 February), doubts that Malcolm was guilty (1 March), her protest of innocence (3 March), Hogarth’s visit to draw her (6 March), and the report of her execution (8 March). 41 ‘Trial of Sarah Malcom’, 145. 42 Ibid., 148. 43 One example of the portrait’s iconic status is its presence on every page of the London Lives 1690–1800, available online at www.londonlives.org. 44 John Nichols, Biographical Anecdotes of William Hogarth, 3rd ed. (London: John Nichols, 1785), 173. 45 James Guthrie (Ordinary of Newgate), Account for 5 March 1733, 17–18; also available online at www.oldbaileyonline.org 46 Ibid., 22. 47 Ibid., 16. 48 This is A True Copy of the Paper, she delivered the Night before her Execution, to the Rev. Mr. Piddington (London, 1733), reprinted in The London Magazine (March 1733), 149–150. 49 Aristotle, Poetics, ch. 15. The key terms in Aristotle’s analysis are goodness, propriety, verisimilitude, and consistency. 50 On Brownrigg and Blandy see Saxton, Narratives, 55–84, 115–126. 51 Edmund Burke, A Philosophical Enquiry into the Origin of our Ideas of the Sublime and Beautiful [1759], Cambridge Library Collection facsimile (Cambridge: Cambridge University Press, 2014), 58. 52 Ann Radcliffe, ‘On the Supernatural in Poetry’ [1826], in Gothic Documents: A Sourcebook 1700–1820, eds. E.J. Clery and Robert Miles (Manchester: Manchester University Press, 2000), 163–172, on 168 (emphasis added). 53 Burke, Enquiry, 59. 54 Radcliffe, ‘Supernatural’, 169. 55 Fielding, Enquiry, 169. 56 Thomas Davies, Dramatic Miscellanies (London, 1785), ii, 150, qtd. in Fielding (ed. Zirker), Enquiry, 169, n 6. 57 B. Crosby, The Trial of Governor T. Picton (London: B. Crosby, 1806), 6. The best analysis of this trial and its cultural and political implications is James Epstein, ‘Politics of Colonial Sensation: The Trial of Thomas Picton

176  Hal Gladfelder and the Cause of Louisa Calderon’, The American Historical Review, 112, 3 (2007), 712–741, on which I have relied for information about the trial’s contexts and Picton’s legal travails. See also James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (Cambridge: Cambridge University Press, 2012). 58 By ‘facts of the case’ I mean the facts of Calderon’s torture under Picton’s orders. Many other ‘facts’—from Calderon’s age (stated by the prosecution to have been 11 at the time of torture) to precedents for torture in Trinidad under Spanish law before Picton’s appointment—were very much in dispute, both in court and in the press. 59 Trial, 13. 60 John Fairburn, Inhuman Torture!! Fairburn’s Edition of the Trial of Thomas Picton (London: John Fairburn, n.d. [1806]), 9. 61 Edward Alured Draper, An Address to the British Public, on the Case of BrigadierGeneral Picton (London: J. Budd, 1806), x. 62 According to the Edinburgh Advertiser for 28 February 1806 (quoted in Epstein, ‘Politics’, 728, n 81), ‘when the drawing was shewn to her . . . she shrunk from it with a look of horror which excited the most lively sensations’; but other reports lack this theatrical detail. 63 Epstein, ‘Politics’, esp. 719–723. 64 Trial, 9–10, qtd. in Epstein, ‘Politics’, 720. 65 Trial, 51. 66 Draper, Address, x–xi; Epstein, ‘Politics’, 727. 67 State Trials, col. 458. 68 Thomas Picton, Evidence Taken at Port of Spain [1806], qtd. in Epstein, ‘Politics’, 725. On the ‘Gothic’ aspects of the trial reports, see Epstein, 727–733. 69 Trial, 34. 70 Garrow took over the lead from Erskine when the latter was appointed Lord Chancellor—see Epstein, ‘Politics’, 719, n 38. On Erskine’s theatricality, see Gillian Russell, ‘The Theatre of Crim. Con.: Thomas Erskine, Adultery and Radical Politics in the 1790s’, in Michael T. Davis and Paul A. Pickering (eds.), Unrespectable Radicals? Popular Politics in the Age of Reform (Aldershot: Ashgate, 2008), 57–70. 71 Draper, Address, xi. 72 Fairburn, Inhuman Torture!! (quoting Garrow’s opening statement), 4. 73 Ibid., 20.

9 Doctor Dodd and the Law in the Age of the Sentimental Revolution Randall McGowen

Introduction Few criminal trials in eighteenth-century England aroused the intensity of emotion that surrounded the trial and execution of the Reverend Doctor William Dodd. ‘May it not be said’, an author in the London Magazine wrote soon after his death, ‘that his case was unparalleled, and that history doth not afford an instance of a criminal executed, who was so greatly beloved, so highly esteemed, and so deeply lamented as the Doctor was?’ He was ‘executed, in opposition to the inclinations and prayers of such a vast number of respectable petitioners as probably never appeared before on a like occasion’.1 Henry Angelo, the celebrated fencing master, was equally emphatic in his Reminiscences that ‘never, perhaps, did the history of civilization afford so general an instance of public feeling in behalf of the fate of an unfortunate individual as in the case of Dr. Dodd’.2 Dodd was a wellknown figure in the London of his day, a clergyman and popular preacher, a supporter of numerous philanthropic causes, and a minor celebrity in the fashionable world of the West End. In February 1777, he was detected passing a forged bond for £4200 in the name of his former pupil, Philip Stanhope, Earl of Chesterfield. His guilt was never in doubt. His conviction, however, produced an unprecedented petitioning campaign, one that mobilised both aristocratic and corporate influence, in an effort to secure him a pardon. The question of his fate left no one untouched. Forgery was a much-feared crime, one the authorities were determined to punish with maximum severity. Yet as the two quotations suggest, public feeling rose to an extraordinary pitch in an effort to divert the course of justice. Given Dodd’s social class and extensive connections, there can scarcely be any surprise that this case became the focus of powerful emotions. The prospect of the gallows was meant to produce a spectacle that both aroused and channelled a spectrum of feelings ranging from anger and fear to sorrow and commiseration. Yet the trial and execution of Dodd occurred at a time when the conventions surrounding emotion were in flux, and the Doctor was both an exemplar of and advocate for the new cultural values. This coincidence helps to explain why the performance of and appeal to emotion figured so largely in the contest over Dodd’s fate. ‘The third quarter of the eighteenth century’, Paul Langford has

178  Randall McGowen written, ‘witnessed a revolution in manners which had a profound effect on the way that contemporaries conducted and saw themselves’. He has called this moment ‘the sentimental revolution’.3 Long before his trial, Dodd was an important figure in the sentimental movement. He was a translator and populariser of attitudes central to the cause. He was the ‘man of feeling’ whose display of sensibility in his sermons moved his congregation to tears. He was a champion of efforts to help those suffering and in distress. He gave money to many worthy causes, volunteered sermons to assist with others, and helped to create several philanthropic organisations that would prosper later in the century. His sermons drew pathetic portraits of people in desperate circumstances, eliciting tears and financial contributions from his well-heeled audience. People flocked to his performances. The American Loyalist, Samuel Curwen, touring the sights of London, made a point of hearing Dodd preach. ‘The Doctor’, Curwen wrote, ‘gave us a most devout, sensible, serious and pathetic discourse, enough to have warmed an heart not callous to the impressions of pity’. ‘I own’, he concluded, ‘my eyes flowed with tears of compassion’.4 Dodd’s arrest and conviction had the effect of turning him from a sponsor of sentimental campaigns into the object of one. Dodd performed his role as the suffering victim of the callousness of others with considerable success. His supporters appealed to the picture of his distress, to his display of injured sensibility, to support their demand for mercy on his behalf. They warned of a miscarriage of justice and condemned as hard and unfeeling those who spurned their appeal for a royal pardon. Dodd’s tears, as well as those of his supporters, represented, Dodd’s friends asserted, a claim that could not be ignored.5 The newspapers of the day took up the cry. Correspondents pressed the case for pardon with unembarrassed fervour. Few could or did stand out against this rising tide of feeling. Emotion invaded the courtroom and threatened to overwhelm the deliberations of the king and his council. Serious questions arose: should the new emotional regime have a place in the courtroom? Did the culture of sensibility propose new terms for judging guilt or innocence? No doubt it was the exceptional circumstances of Dodd’s own career that brought the tension between the two cultural attitudes, the legal and the sentimental, into the open. To the few conservative voices who expressed unease with the movement to assist Dodd, the terms the Doctor used to defend himself, and the widespread willingness of his supporters to endorse his arguments, threatened the integrity of the court of law and the moral order upon which it relied. The increasingly critical tone employed by Dodd’s defenders to characterise the gallows and the judicial establishment only served to reinforce the notion that more was at stake in the deliberations over Dodd’s punishment than the fate of one man.6

The Sentimental Preacher If we are to understand the meaning of his trial and death for contemporaries, we need to see them in the light of Dodd’s career as an active

Doctor Dodd and the Law  179 promoter of sentimental causes. In many ways he came to embody both the contradictions and the creative potential contained within this cultural movement. He was born into a clerical family in 1729 and graduated from Cambridge in 1749. From an early date he displayed the qualities that were to shape his life, restless intellectual activity combined with an avid pursuit of social success. From his youth he turned his back on provincial life, setting his sights upon London as the proper stage upon which to realise his ambitions. Lacking the family connections that might have smoothed his path, he was forced to seize the many opportunities the Metropolis offered to put his name before the public. He hoped that visibility and popularity would compensate for his modest origins. Like his contemporary, Samuel Johnson, he took advantage of the expanding market for print.7 He experimented with many different literary forms. He wrote poetry, a novel, and a play. He offered a scholarly translation of a classical text. He wrote quickly and possessed a talent for sensing the direction of popular taste. His Beauties of Shakespeare, an assemblage of passages from the playwright, was a frequently reprinted success. Between 1760 and 1767 he edited the Christian Magazine, often composing the bulk of the articles that appeared there. He published his sermons and books of moral instruction. The pace of his publication was frenetic, which often led him to crib from other authors. Dodd cultivated a close relationship with the printers responsible for the major London papers, and so his works were extensively advertised in the press. He planted in the papers favourable comments on his sermons as well as rumours of his advancement. The notes were short, but they guaranteed that Dodd’s name was familiar to the reading public. Dodd’s greatest success, however, came as a preacher. ‘In the pulpit’, one paper suggested, ‘he was enabled to exert his talents with the greatest success’.8 He was personable, a master of the elegant if facile phrase. ‘His person’, one author wrote, ‘was well calculated to command respect, his voice harmonious, and his manner of delivery elegant and convincing’.9 ‘He was then’, the London Chronicle recalled of his career in the 1760s, ‘and justly, the foremost on the list of popular preachers; nor is it credible, what crowds of the most splendid company attended his preaching’. He was appointed a chaplain to the King; the ‘Royal Chapel was never so crowded as when he preached’.10 Dodd’s unique attributes went beyond mere attractive appearance and pleasing delivery. He offered a particular flavour of religious experience, a distinctive blend of liberal theology and sentimental performance. ‘It was at all times’, one observer remarked, ‘in his power to convince, to persuade, to amuse, and to instruct’. Most remarkable of all was his ability to move an audience: He seemed to have an uncontrollable authority over the human breast, and could, when he pleased excite such passions he wished to draw forth; inasmuch, that he has been known frequently to melt his hearers to tears, and those hearers persons of the first name in the kingdom.11

180  Randall McGowen Dodd’s sermons often addressed some contemporary issue. His treatment of the topic was general and unoriginal. Yet the response on the part of the audience was always the same and most often applauded. His sermon recommending inoculation, for instance, was praised by one author for abounding ‘with those affecting descriptions which he so frequently introduced into his Discourses, and which never failed to melt his audience into tears’. ‘It cannot be denied’, the author concluded, ‘that in this particular he excelled the most celebrated preachers of the times’.12 As these passages demonstrate, Dodd was a master of the sentimental style. His sermons were occasions for the exhibition of polite sensibility and the indulgence of fine feeling. ‘He addressed himself to the heart’, one paper observed, ‘and was skilled to interest the passions, to which his appeals were powerful, and his solicitations were strong’.13 He was occasionally accused of enthusiasm, but for the most part he kept his distance from John Wesley and his adherents. Dodd, in his sermons and writings, expressed a latitudinarian theology that was widely accepted at mid-century. He emphasised God’s benevolence and the goodness latent in human nature. Sympathy infused all of creation. Christ displayed ‘disinterested benevolence’, providing a model for human activity. There was, Dodd announced, something irresistible about the good man, ‘glowing with the love, and anxious for the welfare of his fellow-creatures’. Moral consequences flowed from these theological beliefs, both in how one viewed the sinner and one judged one’s own responsibility. The benevolent man, Dodd remarked, ‘considers not so much the merit, as the necessities of the object: human nature and distress are always sufficient titles to his pity and relief’. God created the human heart so that the duty of charity was easy and brought instant gratification. ‘Only think if the benevolent heart feels such a gust of joy in relieving the present anguish of such plaintive sufferers’.14 Dodd was not a deep thinker. He had a casual familiarity with the major philosophical currents of his day. He accepted the basic claim that emotion represented a privileged realm of experience, an appeal beyond reason, though not at odds with it, and against crass interest. Not all emotions were equal, certainly; rather, Dodd espoused the social emotions. Violent passions were greeted with alarm, while sympathy and fellow-feeling inspired his applause. Dodd’s sermons became an occasion for celebrating this happy view of social life.15 There was more, however, than a style of emotional expression in play here. ‘A feeling heart’, Samuel Richardson wrote in Sir Charles Grandison, ‘is a blessing that no one, who has it, would be without; and it is a moral security of innocence; since the heart that is able to partake of the distress of another, cannot willingly give it’.16 The culture of sensibility was not simply about feeling good; it was also about doing good. Nothing excited the sentimental hero like a picture of a person in distress. The feeling of sympathy achieved its most intense and certainly its most moral expression in the moments when it focused upon a worthy object. Eighteenth-century London abounded in philanthropic organisations. If the age did not invent

Doctor Dodd and the Law  181 charity, its proponents spoke as if a spirit of philanthropy uniquely characterised their society. Dodd became associated with numerous causes. Even as his financial troubles increased in the 1770s, he redoubled his activity and ‘placed himself foremost in the support of some newly-instituted charities’. He supported the Society for the Relief and Discharge of Persons Imprisoned for Small Debts. ‘He had been the first promoter of, and now became the zealous and able advocate for the benefit of it’. ‘He regularly attended the meetings of the Society; he solicited subscriptions for the benefit of it, and preached a sermon before the Governors, which he soon afterwards printed’.17 He founded the Society for the Resuscitation of Persons Apparently Drowned (later it became the Humane Society). He was chaplain to the Freemasons. His activity, no doubt, sprang from a mixture of motives. Philanthropy enjoyed the support of the rich and powerful. It revealed a growing sensitivity to the ills that afflicted urban life, especially as the Metropolis expanded in size and wealth. Voluntary associations were a creative response to the challenges of social evils. For one like Dodd who lacked the patronage that might secure him preferment, philanthropies put him in contact with wealthy city merchants and leading aristocrats. He was, in Langford’s phrase, an ‘entrepreneur of charity’.18 ‘He was ever found ready’, one biographer explained, ‘when called upon, and often as a volunteer, to forward the designs of the benevolent’.19 The Doctor’s most famous association was with the Magdalen Hospital, one of the more popular causes of the day. The institution was set up as an alternative to the simple punishment of prostitutes. Instead, it sought to save them by a careful regime of moral reform and instruction, which would prepare them to lead useful and honest lives.20 Dodd gave frequent and well-advertised sermons to aid the Hospital. These occasions helped to publicise the charity and to raise funds for it. ‘In Charity Sermons he shone conspicuously’, one author wrote, ‘being continually, at the Request of those who conducted them, solicited to preach for them, which his Humanity never refused’.21 His theology and speaking style accorded perfectly with the expectations of the occasion. From the pulpit Dodd offered pathetic tales of the fallen women and the misfortunes that led them into such misery. He did not condemn them; rather, he called upon his audience to sympathise with their condition, to forgive them, and to assist them to become virtuous again. He spoke in the most affecting terms of the joy a parent would feel at being reunited with a daughter who had strayed. And he praised those who rushed to offer assistance in such a noble undertaking. ‘The benevolent Man immediately obtains the warm approbation of every sympathetic heart’. ‘He feels, he compassionates’, with the injured woman. The tears he said he saw in his congregation spoke ‘the heart good as well as great’. He called upon his listeners to comfort the afflicted, a task called for by religion but even more by the dictates of the heart.22 While many of the causes Dodd supported were uncontroversial, there was an undeniable critical edge to some of the positions he assumed. In

182  Randall McGowen identifying with the victims of society, such as debtors or prostitutes, and in seeking to aid them, he implicitly condemned the existing state of things and spoke in support of measures to ameliorate their condition. Occasionally he addressed potentially more controversial subjects. In 1772 he published a sermon, one he had not been able to deliver at court, on the death penalty. The issue had begun to stir the public in recent years. An English translation of Cesare Beccaria’s Of Crimes and Punishments had been published in 1767 to considerable acclaim. William Blackstone, in volume four of his Commentaries, had embraced many of Beccaria’s complaints about excessive reliance on capital punishment. Dodd hastened to take up a cause that had created such a stir in the intellectual circles in which he travelled. In his haste Dodd borrowed his themes from easily recognisable sources. He saluted Beccaria, who ‘breathes the true spirit of humanity’, and he quoted long passages from Blackstone. Dodd presented himself as the humble spokesman of a ‘worthy’ cause; he wanted to ‘awaken attention’ to the existence of a crying evil. His attack upon the gallows was largely grounded in the same humanitarian principles to which other reformers appealed. His goal, he wrote, was ‘to raise a single compassionate thought in any superior breast’. He appealed to a portrait of liberal progress that was widespread at the time. He argued: To those who are acquainted with the nature of our constitution, the mildness of our government, the temper of our people, and particularly the humane and benevolent spirit which characterises the present times; to such, it may well seem strange, if not wholly incredible, that the evil just referred to [the frequency of executions] should be found amongst us, and that of all nations upon earth, the laws of England perhaps should be the most sanguinary. He appealed to ‘the voice of humanity, of Christian charity and benevolence’ to reject the ‘Barbarism’ that claimed a life for so many minor offences.23 Here were the themes Dodd took up in support of whatever cause he advanced. And his audiences never seem to have tired of his performances. The papers overwhelmingly agreed that Dodd was a fine example of the sensibility he endorsed. ‘He possessed a benevolent heart’, one paper suggested in 1777, ‘which could feel for, and sympathize in the distress of his fellow creatures, and an active zeal ever ready to alleviate and remove them; in short, Providence seems to have intended him as a pattern for mankind to imitate’.24 Or as another writer argued, in proposing an epitaph suitable for the Doctor, he was ‘the minister to woe, that taught the heart to feel—the eye to flow’.25

Desperate Measures Dodd, by the mid-1770s, enjoyed considerable support in metropolitan circles, even if this praise never quite secured for him the advancement

Doctor Dodd and the Law  183 he so desperately desired and increasingly required if he was to be saved from financial ruin. ‘He was seen everywhere, and known to everybody’, Angelo wrote. Still, rumours constantly circulated about his moral conduct and monetary difficulties. ‘His habits of dissipation’, Angelo added, ‘did not square either with the moral precepts which he enforced from the pulpit and recommended from his pen’.26 Dodd played many roles— preacher, writer, philanthropist, and fashionable man about town—and they did not all fit easily together. Like so many who scrambled up the slippery slope of London social life, much of the time he lived beyond his means. His hopes of securing royal or aristocratic patronage that would finally remove the cloud of financial difficulty were constantly disappointed. He spent large sums on clothes and entertainment. His name appeared on many subscription lists for popular charities. Debt haunted his waking hours, though he rarely let it provide a check to his busy social life.27 Even as he pursued the pleasures that constituted the fashionable life of London, he exploited some of the more dubious financial expedients prevalent in the Metropolis. He engaged speculative builders to construct a chapel that he hoped would draw a wealthy audience to his sermons. When this plan failed, he resorted to other, even more questionable schemes. ‘This made him hunt after every occasion of making money’, one author wrote, ‘and rendered [him] not so scrupulous as he ought to have been, as to the means by which he might obtain it’.28 The mysteries surrounding the attempt by his wife to bribe Lady Apsley so that her husband, the Lord Chancellor, would appoint the Doctor to the wealthy living of St. George’s, Hanover Square, brought Dodd public condemnation, especially after Samuel Foote made him the target of his satire in The Cozeners (1774). His life presented an opportunity for several moralists, after his death, to repeat the familiar London tale of extravagance, ambition, and failure. One pamphleteer remarked: A mode of living far above the bounds of his income, a fondness for splendour and gaiety, and a total inattention to all the maxims of worldly prudence, united together, had contributed to embarrass his circumstances, and oblige him to have recourse to almost any means of getting rid of the difficulties which pressed upon him for the present moment’. Inexorably he lost a proper sense of duty and honour as he resorted to precarious expedients to remedy the situation. He came to see ‘a slight departure from his word as trifling’.29 What is perhaps most surprising is that Dodd’s spirits never sank in the face of so many reverses or the mounting ruin that threatened him. Neither did he seem to learn from his troubles. By 1777 he had been dismissed as a royal chaplain, and he had lost his position at the Magdalen Hospital. Dodd responded by redoubling his efforts, giving yet more charity sermons, seeking the attention of the press, and finding many within the city

184  Randall McGowen still ready to celebrate him for his activity. In the short term, however, he desperately needed funds in order to avoid arrest for his debts. He came up with the idea of borrowing the reputation and credit of his former pupil, Chesterfield, to raise the funds to meet his most pressing needs. Such a scheme was scarcely unusual. The papers were full of advertisements offering loans raised on the security of bonds.30 One author complained: The facility with which money may be obtained on written securities, has by many speculative persons been thought more injurious than beneficial to the community, as being an inducement for some men to extend their schemes, pleasures, and expenses beyond the proper bounds, and a temptation to others to obtain money by counterfeit names and signatures.31 Dodd presented the bill for £4200 to Lewis Robertson, a bill broker. Robertson in turn offered it to a banker who was inclined to accept it, but noticing a peculiar blot on the note, carried it to Chesterfield to be redrawn. The Earl denied all knowledge of the instrument. The subsequent story is confusing, but Dodd and Robertson were carried to the Guildhall. Dodd hoped to explain away his conduct and threw himself on the mercy of Chesterfield. Sadly for him, Chesterfield, for whatever reason, declined to intercede, and the Lord Mayor, Sir Thomas Halifax, pressed for a prosecution.32 Forgery, by the 1770s, was a crime that produced considerable alarm. It did so for two quite opposed reasons. The authorities saw in the offence a threat to the integrity of the financial system. By the time of the Dodd trial, one pamphlet noted, no one needed to be told of the ‘magnitude’ of the danger involved in the crime: It is to a man’s property what poison or pestilence is to his body; acting with the subtlety of the one, and the merciless ravages of the other: and as no caution can sufficiently guard against it, so no bounds can be prescribed to its ruinous effects, among which a transition from a state of affluence to poverty may be as sudden as dreadful. Several authors expressed the opinion that the scale of forgery was far greater than the number of detected cases suggested, and that this ‘secretly working iniquity of the most pernicious kind to society’ was wide-spread and increasing. Forgery required the gallows, or so the judges and advisors to the Crown agreed.33 As one author explained, it was ‘a crime of such extensive consequences to society, since it hath been rendered a capital one, hath scarce ever been known to receive a pardon’.34 Yet for those who sat on juries, as well as for the wider public who read accounts of these episodes in the press, forgers, in many instances, appeared people of a similar social class to themselves, whose plight, faced with the gallows, excited sympathy rather than disgust. The cases received

Doctor Dodd and the Law  185 much fuller treatment in the press than that accorded to most offenders. The author of one account of the Dodd affair mentioned the names of earlier celebrated forgers in the expectation that his readers would be familiar with them all: ‘Baker, Gibson, Rice, Ayliffe, the Perreaus, and Davies, are all striking examples’, he wrote, ‘of the melancholy fate that attends’ the crime.35 Even though such cases revealed widely different degrees of culpability, the details of the crime receded before the description of the situation of the condemned. The portraits emphasised the respectability of the background of the offender, as well as offering an appealing portrait of his domestic situation. Indeed, the narratives of the suffering of the offenders were cast in sentimental terms. The accounts lingered over descriptions of last meetings, of tears and fainting, of painful partings from loved ones. The melodramatic tales of the agonised last days of the condemned, and of the feverish measures taken by family, neighbours, and employers to secure mercy, made for compelling reading.36 In the Dodd case, however, this tension between the fear of the crime and sympathy for the offender reached its extreme. After the first report of the forgery, discussion of the offence scarcely appeared in the lengthy and dramatic coverage of the judicial deliberations. The focus shifted to Dodd, his character, sensibility, and contributions to public welfare. The Dodd case raised the stakes for everyone, for while the lives of other offenders had been shaped and presented in sentimental terms, Dodd had been the sponsor of that narrative and seemed the embodiment of the man of feeling. The contest became all the more pressing because the issue of emotion figured so prominently at the trial, in the press reports, and in the contest over whether Dodd deserved mercy. Even those who emphasised the responsibility to uphold the law as a bulwark against the crime found themselves obliged to acknowledge the claims of sentiment. ‘His sudden and untimely fate’, Angelo wrote, ‘moved almost every bosom to sorrow or sympathy’.37

Emotion on Trial Dodd, at each stage of the judicial process, performed the role of the sentimental victim. He offered a description of his conduct which, if accepted, drastically mitigated his guilt. He presented himself to the court as a figure caught up in a tale filled with melodramatic intensity. As he said at one point in his defence, ‘were I to give a loose to my feeling, I have many things to say, and I am sure you would feel with me in respect of them’. He hoped to move judges and the jury as he had moved his congregations by his portrait of an individual in distress. He spoke of being pursued with ‘oppressive cruelty’. He described how he had been betrayed after he had made restitution and offered apologies. ‘I have been’, he said, ‘prosecuted, after the most express engagements, after the most solemn assertions, and after the most delusive and soothing arguments’. He appealed to the spectacle of his poor despondent wife, whose

186  Randall McGowen conduct ‘would draw tears of approbation, I am sure, even from the most inhuman’. ‘Oppressed . . . with ignominy’, ‘loaded . . . with distress’, ‘sunk under the weight’ of abuse, he suggested death would come to him as a relief. All of these terms presented him as a passive victim whose suffering was the key to understanding his situation. He insisted that he had no ‘intention’ to defraud, while proof of such intention was required by the statute under which he was charged. His offering the forged note was the act of a harried man who was so preoccupied with business that he did it without thinking. He explained: If any unhappy man, at any time deviates from the law of right, yet if in the first moment of recollection, he does all he can to make full and perfect amends, what, my Lords and Gentlemen of the Jury, can God and man desire more. He concluded his defence by appealing to the ‘kindness, humanity, and protection of my country’.38 Here Dodd completed his transformation from the sympathiser who sought to relieve the suffering of others to the victim who aroused sympathy by the extremity of his circumstances. In each posture he revealed his worth by the intensity of the emotions he felt. His body confirmed the truth of his claim to innocence. He fainted away at moments of crisis during the judicial deliberations. He was overcome, unable to speak, frequently dissolved into tears and sobs. ‘His countenance’, one paper reported, ‘indicated the bitter, weighty sorrows of his mind’.39 These bodily displays were offered as evidence at his trial and during subsequent deliberations on his fate. They were meant to offer an authentic emotional truth about Dodd and his situation that transcended the dry details of the financial transaction and the judicial proceedings. When James Mansfield rose to present the prosecution case, he began by acknowledging the extraordinary nature of the trial. Dodd’s reputation had earned the episode much press attention. Mansfield admitted: As this prosecution, and this transaction, and the subject, has been made so much the topic of general discourse, and has been so circulated in the papers, that there is scarce any man, that is at all acquainted with what passes in this City, but supposes himself to know very much about the crime imputed to Dr. Dodd. A peculiar danger lay in all this publicity. ‘From the stories that have been circulated, and from the representations at the time, that judgements are very apt to be formed prejudicially to the person in whose case you are now to determine’. Mansfield, at much greater length than usual in criminal trials, warned of the inevitability of ‘prejudices’ arising out of its becoming a ‘topic of public talk’. Mansfield said he would be sorry if

Doctor Dodd and the Law  187 Dodd suffered in any way from this notoriety. He called upon the jury to judge as if ‘the present was the first information that ever reached your ears about the matter’.40 Mansfield’s opening remarks at Dodd’s trial, however, made clear that the conundrum presented by the transaction went beyond the danger of rumour and press reporting contaminating the jury deliberations. He not only acknowledged the powerful emotions that operated in the case, but he bowed his head before them. ‘It would be a great pleasure to me’, he said in a surprising aside, ‘and I am sure it would be to those who prosecute this case, if you should find the evidence should be such as would in your judgement warrant you to pronounce Dr. Dodd not guilty of the crime imputed to him’. He conceded as well how difficult people might find it to resist deciding the case on the basis of feelings of sympathy for the Doctor. One sentence in particular seemed to capture the tangle of sentiments and the clash between emotion and duty that afflicted everyone associated with the trial. Mansfield offered: If the evidence should be so full, as beyond all doubt to evince the guilt imputed to him, however you or any man may lament a gentleman of his function and character should descend to such a crime, yet uneasy and distasteful as the office is, however disagreeable to perform, it will be your province to pronounce him guilty, though I sincerely wish it may be in your power to acquit the doctor. As he presented his argument, he several times repeated that the case was clear ‘beyond a doubt’, as if he was trying to convince himself. ‘From the few plain facts I have to state to you’, he summed up, ‘I believe it will be utterly impossible for any man that hears the story proved to think him’ innocent. Still, Mansfield admitted that the office and contributions of the man gave him pause. His evident embarrassment, combined with a sense of the power of the sentimental appeals, led him into fresh ambiguity. The dramatic swings in mood continued even after his blunt statement regarding Dodd’s guilt: If you see no room upon the evidence to doubt of his guilt, you will pronounce him guilty: but, if you are not perfectly convinced that he is guilty, to be sure you and every person concerned, will be glad to find there should be a reason for giving a contrary verdict, and saying he is not guilty.41 It fell to Baron Perryn, the presiding judge, to seek to limit the emotional effect of Dodd’s statement and performance in the courtroom. He took a noticeably harder line in describing the crime and its consequences. The judges, as much as anyone, were responsible for the general opinion that the offence was so dangerous to the survival of a commercial nation that

188  Randall McGowen it had to be met with unbending severity. Perryn’s summation was long and detailed, but the thrust of it went to hem Dodd in. He evidenced none of Mansfield’s ambivalence. He emphasised the ready negotiability of the instrument, ‘a bond for the absolute payment of a sum of money . . . [in] good lawful money of Great Britain’. He made light of Dodd’s claim that he had not intended to defraud anyone. It was the kind of plea that any criminal might offer after being caught, in hopes of avoiding punishment. He was equally dismissive of the claim that John Manly, the solicitor for the bankers, had held out the offer of mercy if the funds were restored. At every point, the judge sought to bring the attention of the court back to the facts of the transaction. Dodd, the judge pointed out, provided no evidence that gave anyone cause to doubt his guilt, and he called no witnesses. Instead, he offered a ‘very pathetic speech’, which the judge hoped would ‘have its due weight’. Having dismissed Dodd’s emotional display, Perryn instructed the jury, in the lugubrious language judges usually employed, to do their duty without being distracted by passing sentiments. He concluded with the stern warning that ‘whatever may pass in your own minds upon that question, if they [such offenders] do those acts which the law considers as illegal, they must take the consequences’. After such a charge, it was scarcely surprising that the jury took only half an hour to convict the Doctor.42 Judge Perryn may have succeeded in sustaining the conventional emotional order of the courtroom in securing a guilty verdict, but the immediate response of those present suggested how insecure the triumph was. At both the trial and at the later announcement of the decision of the 12 Judges upholding the correctness of the trial proceedings, contemporaries reported an explosion of sympathetic emotion. The German visitor, M. D’Archenholz, who attended both the trial and the later sentencing, reported that ‘the judges, the jury, the counsel, the spectators, all the world was bathed in tears. The prisoner also wept’.43 The newspapers too focused on the wave of feeling that swept through the courtroom. ‘The verdict being demanded’, the Morning Post announced, ‘Mr. Elliot, the foreman, was a few moments unable to speak; tears prevented his utterance, but he was obliged at length to pronounce the fatal word! The rest of the jury was equally distressed’.44 There were no expressions of disapproval at this outburst. On the contrary, the Public Advertiser applauded the jury, not for its decision, but for its reaction to its duty: ‘For though the Rigour of constructive Law infers the intention from the Act, which appeared to them an Obligation to pronounce him guilty, yet their keen Sensibility and Tears deeply testified their Reluctance’.45 What is clear is that both those in attendance and the press expected the tears that followed the verdict, and that they were gratified at their appearance. Tears, as we have seen, were the most characteristic and potent expression of the sensibility cultivated by the middle and upper classes.46 They testified not only to a depth of feeling, but also to the simple, uncomplicated truths of emotion. The space devoted to the descriptions of these

Doctor Dodd and the Law  189 cathartic moments suggests how much importance they assumed in the eyes of contemporaries. Tears at such moments spoke of the virtue of those who experienced them as well as the worthiness of the one who provoked them. No one with any claim to sensibility could long hold out against or resist the demand they represented.47

The Press, the Public, and the Fate of Doctor Dodd Dodd’s conviction, as was often the case with capital sentences, but especially in the instance of forgery, inaugurated a new chapter, one devoted to the agitation on behalf of Dodd and motivated by the hope that the Crown would pardon him. The conversation in every circle was of ‘poor Doctor Dodd’, Angelo remembered long after the event. The press teemed daily with minute descriptions of every act of his sad hours; meetings were held to consult upon measures to avert the severity of justice; and petitions were framed everywhere, to lay at the foot of the throne, on behalf of the unhappy delinquent.48 The scale of the campaign was unprecedented, as was the frankness of those who argued on his behalf. ‘His numerous friends’, D’Archenholz wrote, ‘interested themselves for this purpose with the same warmth as if the safety of the nation depended upon his life’. The press seized upon and amplified the sensation which the case created. Letters to the papers were overwhelmingly in favour of the Doctor: The jury who tried him recommended him to the mercy of the sovereign; whole corporations, the city of London itself presented a petition in his favour; the newspapers were every day filled with the good actions he performed, and quoted the most interesting passages in his sermons. The campaign was well-orchestrated with influential figures recruited to the cause. ‘His writings were collected and reprinted; the poets sung his praises, and in fine every thing was practiced to excite the sympathy of the nation for a criminal so much beloved’.49 The author of a pamphlet, published before Dodd’s execution, set out the melodramatic narrative which it was hoped would save the Doctor’s life. To him the quality of the man’s life was more important than the details of the crime. ‘In the whole of his appearance’, this author wrote of Dodd, ‘he discovers not one indication of a callous, criminal mind’. He was guilty of little more than ‘a momentary lapse of virtue’. ‘The character which Dr. Dodd has hitherto sustained, as a clergyman of no inferior class, as a man of parts, as a scholar, and gentleman, intitled him to all the indulgences the law could allow’. A careful examination of

190  Randall McGowen Dodd’s conduct after the forgery was detected supported this interpretation. ‘From first to last he is candid, undisguised, and penitent, swerves not a single instance from the truth, apart from that one deed for which he is capitally convicted’. The author argued that everyone was now convinced that the forgery was ‘intended as a temporary resource’, and ‘did no injury to any one’.50 The author of the pamphlet, however, offered a darker account of the prosecutor and judges involved in the case. He indicted them for failing the test of sensibility. Dodd gave ‘proof of a much better heart than any of those concerned in his prosecution: and takes not half the precautions for his own safety that they do to complete his destruction’. Dodd’s misfortune was to be confronted with a prosecution of ‘much unrelenting severity’. Promises had been made and then broken. The Doctor had suffered cruelties rather than the delicacy he deserved. Faced with ‘the mortifying prospect of public infamy, vulgar insults, and the horrors of prison’, he was ruthlessly questioned. The conduct of the judges came in for particular attack. ‘It is singular and astonishing’, this author argued, ‘to find on this occasion the very bench tinctured with harshness, and the conduct of all indirectly censured who had shewn the prisoner any marks of humanity’. ‘The heart only that is a stranger to sympathy’, he added with the judges in view, ‘can be wanton with the sufferings and misery of others’. Fortunately, Dodd’s situation had aroused a counterweight in the feelings of the public. It was the ‘one flattering circumstance to a feeling heart, that his case, at last, effectually exerted the sympathy of his countrymen, who universally pity him in proportion as they detest the stratagems that have been adopted for accomplishing his ruin’.51 Dodd, the champion of feeling, the minister to the distressed, the advocate for healing sympathy, had, by contrast, been met with coldness, rigid moralism, and unrelenting severity. This author was outraged at the injustice of the proceedings with respect to the ‘unfortunate’ man. These themes appeared frequently in the press coverage of the case. From the first report of the crime, the papers supported a sentimental portrait of the Doctor and his situation. ‘A man of his unlimited sensibility’, the General Evening Post declared immediately after Dodd’s detention, ‘must feel the unfortunate stroke with a poignancy of distress that is not in the power of language to form a description’. ‘Dr. Dodd’s evident perturbation of spirits almost deprived him of those shining faculties of speech, which in the pulpit have so often been listened to with astonishment’.52 Words, the papers explained, constantly failed to do justice to the emotions aroused by Dodd’s situation. The most they could do was to paint a picture for people of sensibility. Only feeling could guide one to a correct appreciation of the merits of the case. ‘The situation of the unhappy Divine now in Newgate’, the Morning Chronicle announced, ‘call for the assistance of every one, who has a heart to feel the woes of others’.53 As he had throughout his career,

Doctor Dodd and the Law  191 Dodd conducted himself with an eye to the papers. He had remarkable confidence in the ability of the press to deliver an outcome favourable to himself. As the date for his execution approached, the tone of the letters on his behalf became shriller and their attitude towards the legal authorities more cutting. ‘Poor Dodd!’ a correspondent wrote to the Public Advertiser in May. ‘How much and how severely he had suffered! He has met, I believe, with less Pity and Commiseration, as well as with more Bitterness of Reproach, and more inhumanity, than ever Criminal in his Circumstances experienced’.54 On the eve of his execution, the St. James’s Chronicle argued that ‘whatever may be said of the Doctor’s Demerits, those who are for the Rigour of Justice are actuated by no very laudable Principles’.55 ‘Dodd may suffer justly’, the Morning Post opined, ‘but the law of England will by his death be irreparably disgraced’.56 Most philanthropic causes in mid-eighteenth-century England employed a polite language to describe their mission. Their proponents, like Dodd himself, sought to avoid the bitter passions that marked political contests. In the midst of the Dodd episode, however, sentimental language took on a harsher edge as it was mobilised in defence of the Doctor. ‘Foreign and future historians will’, the editor of his trial wrote, ‘in all probability, quote it [the trial], in opposition to the idea of clemency and generosity which in this country are vainly affixed to the administration of legal authority’. Some letters even criticised the king for refusing Dodd mercy.57 Dodd, in his sermons, usually congratulated his country for its benevolence. His supporters found in his fate evidence that the law was unfeeling, cruel, and the weapon of a negligent power.

Defending Justice Against the Claims of Emotion As the struggle over Dodd’s fate went on, comments critical of the Doctor and his supporters were infrequent. The stern words of the Recorder of London at Dodd’s sentencing in May stood out for the unbending attitude he adopted towards Dodd. ‘There is one thing I would wish you to avoid’; he said addressing the clergyman, that is, every attempt to palliate or extenuate a crime of such magnitude. Your education, abilities, rank in life, and above all, your sacred function, are the circumstances that aggravate the matter, and spread the pernicious effects of the bad example among mankind.58 Such bald criticism of Dodd was rare. Only after his execution did several pamphlets appear which sought to cast the entire episode in a different light. In these works we get a better sense of how contemporaries came to view the nature of the contest and how they estimated what was at stake. There was something prickly and self-defensive about these efforts,

192  Randall McGowen as the authors acknowledged the strength of feelings they confronted. They were indignant at the charge of being unfeeling. They felt justice was being misrepresented. The counter-attack focused on Dodd, but it also took aim at the principles he was held to represent. For some it was a matter of giving shape to vague feelings of unease with the sentimental movement. For others it was a convenient occasion for lambasting principles whose influence was seen as all too pervasive. Dodd’s life provided much ammunition for those who disparaged the sympathy the Doctor’s fate aroused. Some authors presented his history as salutary warning about the dangers that haunted those who participated in the life of fashionable London and surrendered to its charms. One pamphlet writer observed: Having ingratiated himself with the fashionable world, by which he was caressed to excess, he became intoxicated with its pleasures; and these plunged him into unbounded extravagance, to which he was naturally too much addicted. A long round of dissipation ensured, equally prejudicial to his temporal affairs, and incompatible with his sacred character. No embarrassment could check his ‘wild career’. His doom was simply the inevitable outcome of the choices he made.59 A few authors pointed out how partial was the sympathy expressed for this one offender, despite the appeal to a sensibility that was supposedly natural and universal. A strong letter to the Morning Chronicle took up this line: Hence it is that many a man who merits the halter is held up to the ill-judging public as a proper object of benevolence, while another who is actually entitled to a better fate, hath his neck stretched under the gallows, without either pity, ceremony or consideration. This writer called it a ‘bastard kind of compassion’. Why did Dodd’s advocates, the author argued, not find time to feel for the other men who suffered at Tyburn? Thus, a felon without education, without friends, without fame, ought, in the strict sense of natural justice to command the tears of tender sympathy to flow as copiously, as the most popular culprit that ever invaded the sacred barriers of property, or violated those social restrictions by which a commercial country are regulated. Poor criminals, it seemed, deserved less attention and concern. ‘The whole of the argument amounts to this; our feelings are our best ornaments, but they should not betray us into a partial compassion’.60

Doctor Dodd and the Law  193 Others took issue with the campaign to save Dodd, especially with the criticism levelled at the prosecutor, judges, and even the Crown. ‘A Citizen of London’ took it upon himself to oppose a movement that was ‘highly prejudicial to Society’. ‘Between the time of the Doctor’s being found guilty’, he wrote, ‘and the Judge’s decision on the plea he had put in, in respect to Mr. Robertson’s evidence, the utmost industry was used to represent Dr. Dodd’s as a hard case, and his conviction as supported by influence, unwarrantable, illegal, and unprecedented evidence’. He complained: The greatest pains have been taken to extol him to the skies, and inflame the passions of mankind in his favour, to lessen or palliate, as it were, his crime; and thereby the most inveterate and scurrilous abuse has, without the least cause, been thrown on his Majesty and his Council for not stopping the course of justice in his favour. He singled out the ‘impropriety’ of the petition from the Common Council of the City of London. The Council had the audacity to offer ‘a plea for diverting the course of justice’ even after the 12 judges had ruled against Dodd’s appeal. Here was an effort to coerce the Crown and to confuse the public that was pernicious in its consequences. ‘The supporting of Dr. Dodd in so unprecedented a manner, tends also to inculcate erroneous notions of right and wrong, and to extinguish real virtue: it tends to promote a shew of goodness without the reality’.61 At moments such as this some commentators argued that the contest was not simply over the fate of one man, but rather involved a wider cultural struggle, one whose outlines were seldom so clear. The more serious charge against Dodd and his defenders was the accusation that the emotions and tears which flowed so freely among them were fraudulent; they belonged to a world of pretence and fabricated sentiments, and were thus not true feeling. One critic called for the ‘Doctor’s exalted humanity and benevolence’ to be ‘repudiated as spurious’.62 These authors attacked Dodd, not for his hypocrisy, but for his principles. They traced the problem to the religious ideas he espoused. The divide thus tracked religious tensions that convulsed the Protestant community at mid-century. One pamphleteer complained of the ‘false picture’ of Christianity Dodd presented in his sermons. His religious values, the author charged, were wrong. ‘It is not a crying, Lord, Lord; it is not calling evil good; it is not pleading foreign merit; it is not setting up a Savior to introduce every scoundrel and profligate into the kingdom of heaven’, that represented true religion. Dodd might have a feeling heart, the author conceded, but that did not mean he espoused virtuous principles. ‘May not every man involve his neighbour and friend in the greatest distress and ruin’, the author asked pointedly, ‘and all satisfy themselves by the example and doctrine of the pious Dr. Dodd, that they have done no harm, for their intentions were pure; nay, flatter themselves that they are, notwithstanding, the peculiar favorites of God’. This sounded to

194  Randall McGowen the author like the doctrine of the Methodists, who promised even the worst offender salvation on the basis of a hasty, last-minute repentance. It amounted to no more than making salvation depend on ‘crying out for mercy’ and ‘shedding tears’. The danger of such beliefs was evident. ‘It seems’, this author warned, ‘to have a tendency to destroy all care and vigilance in regard to a Christian life among the people’. It inculcated ‘among the people . . . that they but cry out for mercy, and lay hold of the merits of a Savior, and the like, even tho’ they have been offenders against the eternal and immutable laws of justice, virtue, and goodness, and all the precepts of Christ, their whole lives’.63 There seemed, to these authors at least, a revealing connection between the kind of life Dodd lived and the message his sermons and causes advanced. These reflections drew upon the wider disquiet which the preoccupation with the spread of luxury and fashionable values aroused. Dodd’s life and death, one writer observed, spoke ‘too much’ of ‘the Spirit of the times’. Charitable acts could not overbalance a life founded on wrong principles. ‘Strict integrity is not of a nature to be constitutional; nor can it be feigned. It must therefore proceed from a real sense of duty and excellency’. Dodd’s history of living beyond his means, abusing his credit, scrambling for preferment without regard for morality or decency, charted the path that led to the gallows.64 Dodd’s indulgence of emotion had left him vulnerable to the shifting currents of the fashionable society of the Metropolis.

Dr. Dodd and the Contest Over the Gallows Dodd died at Tyburn, before a largely orderly crowd, where the silence of those in attendance, it was said, spoke of the intensity of the emotions felt by observers. His death, at least superficially, conformed to the usual Tyburn script, of the penitent offender praising the law and the justice of his sentence, while calling upon his audience to learn from his death and praying for forgiveness from God. Executions were supposed to arouse emotions and produce identification with the condemned. There were supposed to be sighs, groans, and tears. It was meant to be an edifying spectacle. Yet Dodd was not the usual ‘Tyburn martyr’, and this not simply because of his social class.65 The emotional response occasioned by Dodd’s death refused to remain confined within the conventional channels. Rather, emotions flowed in new directions. Henry Angelo sought to capture the peculiar quality to the passions surrounding the Dodd case: ‘There is, moreover, sometimes a sort of fashion in feeling, when sorrow, as it were, becomes a national epidemic’.66 The intensity of emotion that circulated around and through the Dodd case was generated in large part by the cultural conflict over the values he represented and so consistently invoked. Indeed, the crime of which Dodd was guilty was swallowed up in this wider debate.

Doctor Dodd and the Law  195 One way of seeing more clearly what was at stake in the struggle between the claims of feeling and justice is to see that each represented a different way of thinking about the situation of the criminal in the hands of the law. The opposition between these two principles was clearer in the Dodd case than it more typically was. It was less easy to sympathise with criminals of the lower classes. Still, the potential danger represented by the arguments used to defend Dodd was clear. The alarmed supporters of the traditional legal order argued that private feeling should not overrule the demand for the rigorous infliction of punishment. ‘Whatever humanity bids the heart feel for the sufferings of criminals’, a ‘Citizen of London’ wrote, ‘the interests of virtue and society require we should lock it up in our own breast, and in our language and outward behavior cast a due ignominy on them’.67 Another Londoner complained more bitterly about the influence of sentimental culture: Too true it is already that since our refinement, or false virtue, has taught us to think it inhumanity to treat the perpetrators of crimes with the infamy and detestation they merit, since we have grown so humanely polite as to treat criminals with the same respect as is due only to virtue, the commission of crimes has increased in a rapid degree among us and will go on to increase whilst we continue to have such refinement.68 To these defenders of eighteenth-century justice, the cult of feeling threatened to overturn the moral order upon which justice relied for its legitimacy. It was held to place too high a value on emotions, and it took too lenient or uncritical an approach to their expression. There was the suspicion that adherents took too much pleasure from feeling while ignoring the obligations that arose from duty. Sentimental culture appeared to coexist too comfortably with a secular culture centred in fashion and display, vanity and self-satisfaction. Dodd’s defenders appealed to a different standard for judging the appropriateness of punishment. The character of punishment should, they believed, take account of the sensibilities of the offender as well as the feelings of the public. ‘There is something in suffering sensibility’, one defender of Dodd wrote, ‘even under the heaviest imputation, and strongest presumption of guilt, that wonderfully interests the most hardened of the human kind’. This impulse instinctively led benevolent people to seek to ameliorate the pain such a person endured. The law should be brought into harmony with the finer instincts in humanity, or it would lose popular support.69 Nevertheless, Dodd was executed; the movement on his behalf failed. Yet sympathy for Dodd produced discontent with the capital code, and it thus contributed, in some measure, to the demand for reform of the criminal law. To the German visitor, D’Archenholz, looking back from 1790, the lesson was clear: ‘the unfortunate Dr. Dodd . . . was

196  Randall McGowen sacrificed to the laws of his country’.70 The culture of sensibility slowly came to authorise criticism of penal arrangements and to demand that they be restructured so as to appear humane. Dodd had been skilled at employing the repertoire of sentimental gestures and expressions in order to aid particular groups—debtors, prostitutes, orphan children—deemed worthy of sympathy. When he became a sentimental cause, despite having committed a feared offence and possessing a compromised character, this campaign revealed the force contained within the sentimental appeal. Even those who struggled against it acknowledged its strength. The tears for Doctor Dodd had not been without effect.

Acknowledgements I would like to thank Michael Meranze, Donna Andrew, and Andrea McKenzie for their comments on this essay.

Notes 1 London Magazine, 1777, 415. 2 Henry Angelo, Reminiscences of Henry Angelo (New York: Benj Blom, 1969), I, 354. 3 Paul Langford, A Polite and Commercial People: England 1727–1783 (Oxford: Oxford University Press, 1989), 463. 4 Samuel Curwen, The Journal of Samuel Curwen, Loyalist, ed. Andrew Oliver (Cambridge, MA: Harvard University Press, 1972), I, 154–155. 5 For a discussion of the changing conventions for displaying emotion, see David Solkin, Painting for Money: The Visual Arts and the Public Sphere in Eighteenth-Century England (New Haven: Yale University Press, 1992), especially Ch. III, “Exhibitions of Sympathy”. 6 For a rather different portrait of the ways in which sentimentalism influenced another criminal case, see John Brewer, A Sentimental Murder: Love and Madness in the Eighteenth Century (New York: Farrar, Strauss and Giroux, 2004). My interpretation will differ from that of V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994), esp. 292–294. See my review, “Revisiting the Hanging Tree: Gatrell on Emotion and History”, British Journal of Criminology (1999), 1–13. 7 Alvin Kernan, Samuel Johnson and the Impact of Print (Princeton, NJ: Princeton University Press, 1987), esp. ch. II. The standard biography of Dodd is that of Gerald Howson, The Macaroni Parson: A Life of the Unfortunate Dr. Dodd (London: Hutchinson, 1973). John Money has written of the Dodd case as a useful moment to observe how ‘the moral problems of a commercial society were negotiated.’ ‘The Masonic Moment; Or, Ritual, Replica, and Credit: John Wilkes, the Macaroni Parson, and the Making of the MiddleClass Mind’, Journal of British Studies, XXXII (1993), 360. 8 London Evening Post, 26–28 June 1777. 9 Isaac Reed, An Account of the Life and Writings of William Dodd (London, 1777), 19–21, 35. 10 London Chronicle, 1–3 April 1777. 11 London Evening Post, 26–28 June 1777.

Doctor Dodd and the Law  197 12 Reed, An Account of the Life and Writings of William Dodd. 13 General Evening Post, 3 July 1777. 14 William Dodd, A Sermon Preached at the Anniversary Meeting of the Governors of the Magdalen Charity (London, 1762), 3–7, 23. 15 There is an extensive literature on sentimentalism and the culture of sensibility, much of it by literary scholars. Janet Todd, Sensibility: An Introduction (London: Methuen, 1986), 77, and more generally 7–78; John Mullin, Sentiment and Sociability: The Language of Feeling in the Eighteenth Century (Oxford: Oxford University Press, 1988); R.F. Brissenden, Virtue in Distress: Studies in the Novels of Sentiment from Richardson to Sade (London: Palgrave Macmillan, 1974); G.J. Barker-Benfield, The Culture of Sensibility: Sex and Society in Eighteenth-Century Britain (Chicago: University of Chicago Press, 1992). See also, Isabel Rivers, Reason, Grace, and Sentiment: A Study of the Language of Religion and Ethics in England, 1660–1780, 2 vols. (Cambridge: Cambridge University Press, 1991, 2000). 16 Quoted in Todd, Sensibility, 77. 17 An Account of the Life, Death, and Writings of the Rev. Dr. Dodd, by a Citizen of London (London, 1777), 23. 18 Langford, Polite, 485, 463–467, 481–487. 19 Reed, An Account of the Life and Writings of William Dodd, 37. 20 Donna Andrew, Philanthropy and Police: London Charity in the Eighteenth Century (Princeton, NJ: Princeton University Press, 1989), 119–127. 21 Reed, An Account of the Life and Writings of William Dodd, 3. 22 Dodd, A Sermon Preached at the Anniversary Meeting of the Governors of the Magdalen Charity, 4–5, 30. 23 William Dodd, The Frequency of Capital Punishments Inconsistent with Justice, Sound Policy, and Religion (Dublin, 1777), 13, 14–19. 24 Morning Chronicle, 2 May 1777. 25 General Evening Post, 26–28 June 1777. 26 Reminiscences of Angelo, I, 354. 27 Money, ‘Masonic Moment’, 381–383. 28 Authentic Memoirs of the Life of William Dodd (Salisbury, 1777), 8–9. 29 Reed, An Account of the Life and Writings of William Dodd, 51. 30 In the Morning Post, 12 February 1777, there appeared an advertisement offering ‘private Money Negotiations with People of Fashion’. 31 Authentic Memoirs of the Life of William Dodd, 12. 32 Howson, Macaroni, 105–121. 33 See my essays, ‘From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution’, Past and Present, 165 (1999), 107–140; ‘Forgers and Forgery: Severity and Social Identity in Eighteenth-Century England’, in Moral Panics, the Media, and the Law in Early Modern England, eds. David Lemmings and Claire Walker (Basingstoke: Palgrave Macmillan, 2009), 157–175. 34 Reed, An Account of the Life and Writings of William Dodd, 86. 35 Observations on the Case of Dr. Dodd (London, 1777), 5–8, 10–14. For the Rudd-Perreau episode, see Donna Andrew and Randall McGowen, The Perreaus and Mrs. Rudd: Forgery and Betrayal in Eighteenth-Century London (Berkeley: University of California Press, 2001). William Baker was tried in 1750, John Ayliffe in 1759, John Rice in 1763, James Gibson in 1766, Daniel and Robert Perreau in 1775, and William Davis (not Davies) in 1776. 36 Paul Baines, The House of Forgery in Eighteenth-Century Britain (Aldershot: Ashgate, 1999), 86. 37 Reminiscences of Angelo, I: 354.

198  Randall McGowen 38 A Full and Circumstantial Account of the Trial of the Rev. Dr. Dodd (London, 1777), 30–31. 39 General Evening Post, 8–11 February 1777. 40 A Full and Circumstantial Account of the Trial of the Rev. Dr. Dodd, 8. 41 Ibid., 9–13. 42 Ibid., 32–41. 43 M. D’Archenholz, Picture of England (Dublin, 1790), I: 145. 44 Morning Post, 24 February 1777. 45 Public Advertiser, 25 February 1777. 46 Robert Markley, ‘Sentimentality as Performance: Shaftesbury, Sterne, and the Theatrics of Virtue’, in The New Eighteenth Century (New York: Methuen, 1987), 218–221. 47 Todd, Sensibility, 77–78. 48 Reminiscences of Angelo, I:354. 49 D’Archenholz, Picture, I: 354. 50 A Full and Circumstantial Account of the Trial of the Reverend Doctor Dodd, 51–55. 51 Ibid., 51–54. 52 General Evening Post, 8–11 February 1777. Precisely the same sentence appeared in at least four other papers. 53 Morning Chronicle, 26 February 1777. 54 Public Advertiser, 20 May 1777. 55 St. James’s Chronicle, 24–26 June 1777. 56 Morning Post, 18 June 1777. 57 A Full and Circumstantial Account of the Trial of Reverend Doctor Dodd, 51. Boswell wrote, upon hearing his first account of the execution, that he ‘was shocked and angry against King.’ And he added, with that characteristic Boswellian touch of exaggerated self-importance, that he ‘thought I’d take no office from him’. Boswell in Extremes, eds. Charles Weis and Frederick Pottle (New York: McGraw-Hill, 1970), 132. 58 London Chronicle, 15–17 May 1777. 59 Observations on the Case of Dr. Dodd (London, 1777), 34. Samuel Curwen, perhaps forgetting his earlier praise for Dodd, once he was in custody, identified him as the ‘Maccaroni Doctor’, who ‘figures in the Tete a tetes in the Magazines and unless defamed is a worthless character noted for some vicious publications in the common rout.’ Journal of Curwen, I: 301–302. 60 Morning Chronicle, 4 March 1777. ‘Six men have died at Tyburn within six days—I have not heard six syllables about them since’. 61 An Account of the Life, Death, and Writings of the Rev. Dr. Dodd, by a Citizen of London (London, 1777), 30, 38. 62 Observations on the Case of Dr. Dodd, 15. 63 Thoughts of a Citizen of London on the Conduct of Dr. Dodd (London, 1777), 3–5, 20, 35–43. 64 An Account of the Life, Death, and Writings of the Rev. Dr. Dodd, by a Citizen of London, 58. 65 Andrea McKenzie, Tyburn’s Martyrs: Execution in England, 1675–1775 (New York: Continuum, 2007). 66 Reminiscences of Angelo, I: 354. 67 Thoughts of a Citizen of London on the Conduct of Dr. Dodd, 30. 68 An Account of the Life, Death, and Writings of the Rev. Dr. Dodd, by a Citizen of London, 61. 69 A Full and Circumstantial Account of the Trial of Rev. Dr. Dodd (London, 1777), 51–54. 70 D’Archenholz, Picture of England, I: 145.

10 Thomas Erskine and the Performance of Moral Sentiments The Emotional Reportage of Trials for ‘Criminal Conversation’ and Treason in the 1790s David Lemmings Introduction Thomas Erskine, barrister and later lord chancellor, was at the height of his fame in the 1790s. In 1794 he had become a national hero because of his leading part in the successful defence of the radical leaders Thomas Hardy and John Horne Tooke, who had been prosecuted by the government for constructive treason; and his name and image were thereafter popularly associated with British liberty and independent advocacy. He was also a prominent Whig member of parliament and the acknowledged leader of the common law bar, celebrated for his eloquence and remarkable ability to persuade juries in cases of seditious libel and ‘criminal conversation’, as well as treason.1 However, even before his courtroom triumph on behalf of the English Jacobins, Erskine’s style of public address had been parodied as overly rhetorical and falsely sentimental. Most famously, a pamphlet published in 1793 mocked him as ‘Counsellor Ego’, for his tendency to excessive self-representation, and in 1791 James Boswell had lampooned him as ‘The Oratorical Swooner’, for his habit of affecting to be overcome ‘by the exquisite sensibility of his feelings’.2 These caricatures were politically inspired and specifically anti-Erskine, but they serve my purpose here by drawing critical attention to broader contemporary appreciations of the alleged flaws and potential moral and political dangers in what I might call, after Adam Smith, ‘the performance of moral sentiments’. Thus, in this chapter I intend to consider the trial literature generated by Erskine’s performances in court as a dramatic discourse that was commonly deployed in newspaper and pamphlet reportage during the 1790s to constitute public emotions around moral issues associated with patriotism and fear of Jacobin influence spreading from the French Revolution. In that sense I am regarding reportage of Erskine’s courtroom performances as a social discourse of performance in the press. By this I mean textual accounts of spoken language and embodied postures designed to circulate and engage readers’ feelings sympathetically around human

200  David Lemmings characters, identities, and ideals that were normally loved or hated, honoured or feared, just as in the contemporary theatre.3 At the same time, I am also on the look-out for anti-theatrical accounts, like those already mentioned, that attempted to break the spell and disrupt the narrative by deconstructing Erskine’s oratorical style. It is my hypothesis that the conflicted reportage of Erskine’s appearances in trials for adultery and trials for treason constituted a ‘crisis of moral sentiments’. On the one hand, Erskine constructed sentimental stories about morally deviant threats to nation and family to persuade sympathetic juries and the public generally that the foundations of British society and the constitution were in danger. This kind of theatre of sympathy was becoming politically problematic, however, in the context of the French Revolution, with its emphasis on universal rights and the communication of sentiment as the foundation of society.4 As I have suggested, Erskine’s sentimental rhetoric attracted occasional sarcasm and ridicule among his political opponents, and was sometimes openly challenged as meretricious, inauthentic, and potentially subversive.5 In addition to the substantive political differences, I am arguing that the legal politics of the 1790s evidenced a fundamental clash between sentimental and authoritarian emotional cultures that was represented in contemporary newspapers by selective reporting and differential commentary. My analysis compares the different forms and assesses the relative weight of theatricality and anti-theatricality in newspaper representations of Erskine’s performances in ‘crim. con.’ cases and state trials during the 1790s.

Moral Sentiments and the Reportage of Criminal Conversation Cases, 1789–99 Besides the state trials for treason, the 1790s were also remarkable for the frequency and high public profile of trials for adultery, whereby husbands sued men who allegedly had seduced their wives, claiming substantial damages. As the late Lawrence Stone pointed out over 20 years ago, this decade experienced a peak in the number of these actions for ‘criminal conversation’, rising from just under 40 each year in the 1770s and 1780s to over 70 in the 1790s.6 At the same time, he argued, these cases were the focus of a moral panic around ungoverned sexuality and the family. Thomas Erskine was one of the principal protagonists in this law and media panic, along with Lord Kenyon, Lord Chief Justice of the court of King’s Bench, where most of the cases were held.7 The newspaper press regularly reported these trials, especially the speeches of Erskine, who was normally leading counsel for the prosecution brought by the husband, and the summings-up of Kenyon as presiding judge. Accounts of the speeches were frequently peppered with pointed expressions intended to persuade auditors that adultery was a growing social problem and that the appropriate legal authorities were required to take corrective action. For example, in 1792, prosecuting in

Thomas Erskine and Moral Sentiments  201 Leverington v. Edwards, whereby a surveyor accused a sheriff’s officer of adultery with his wife, Erskine reportedly ‘commented upon the nature of the offence, and its great prevalence at present among all ranks of society’, and reminded the jury ‘They were the guardians of the public morals’.8 And in 1798, in a long account of Ricketts v. Taylor, a case involving the seduction of a peer’s daughter by a libertine MP, Erskine was quoted as bemoaning ‘the vices and dissipations of the present age (arising from the great wealth and prosperity of the country)’.9 For his part, Kenyon, in his summing-up of this trial, described the defendant as ‘hackneyed in the ways of vice, who kept a house for the seduction of tradesmen’s daughters, and other men’s wives’.10 The corrective action demanded by these loaded phrases was the award of exemplary damages, monetary awards sufficient to deter other potential adulterers and to label the offence as substantially criminal. Indeed, although suits for criminal conversation were formally civil cases, where damages were intended to be proportionate to the injury suffered, Kenyon was insistent that the public was concerned, because in his view adultery was a serious offence corrupting the morality of the nation. He therefore encouraged damages in the thousands of pounds. As reported in Ricketts v. Taylor, he said: if the defendant ‘was not able to pay in his purse, he must pay in his person, in order to prevent others from being guilty of like delinquencies’.11 In another case he reminded the jury that under the Protectorate, adultery had been punishable by death.12 Thus, as reported in these cases and on many other occasions, the Chief Justice’s words effectively converted a civil action into a criminal one, by fixing gross moral opprobrium upon the offender and legitimating penal retribution in the form of imprisonment if the damages were not paid. By highlighting the alarmist comments of Erskine and Kenyon, reportage of actions for criminal conversation during the 1790s contributed to a classic moral panic about threats to British society in the context of the disorder associated with the French Revolution.13 But while the comments I noticed a moment ago certainly stoked anxiety about adultery, effectively demonised offenders, and duly demanded official retribution; taken in isolation they were relatively benign examples of a discourse of emotional commentary on trials for criminal conversation that was thoroughly theatrical in its tenor and persuasive potential. Emotive labelling words like ‘vice’, ‘dissipation’, and ‘seduction’ were surely designed to mobilise fear by conjuring a sense of the nation in danger from corrupting sexual habits. But their full dramatic potential depended on the lawyers’ ability to construct a sustained narrative of love and hate, which represented the suffering and dishonour of individuals as a tragic consequence of moral deviance, and placed them in the larger context of the epic patriotic struggle between Britain and Revolutionary France.14 As we shall see, Erskine demonstrated consummate skill in fashioning these dramatic performances, and the newspapers normally reported them approvingly; but it is also important to understand that trials for criminal conversation provided ideal material

202  David Lemmings for art of this kind because they allowed for sentimental appeals based on threats to the ideal of the family. As reported in the newspaper accounts, Erskine invariably instructed the jury that their judgement about the injury done to the plaintiff depended on the circumstances of the marriage, and particularly the extent of love and affection which existed between the husband and his wife. Thus in Hodges v. Wyndham (1791), he insisted that the seduction of a wife who was previously ‘chaste, innocent, and affectionate’ deserved the highest damages, because that ‘peace and . . . happiness’ which was the basis of a good marriage had been disrupted.15 In other cases too he drew attention to the normal expectation of a husband upon marriage ‘to look forward to all the blessings and comforts which it was the end of marriage to procure’, and complained that by adultery ‘His domestic comfort was . . . violated, his strongest attachment broken, and all his plans for happiness destroyed’.16 As it had developed in the course of the eighteenth century, the action for ‘crim. con.’ recognised affective marriage as the norm of respectable British family life, a form of marriage characterised by affection between the parties, wherein husbands were ‘fond’ and ‘doating’ [sic] on their wives, while in return their spouses provided them with ‘comfort and society’.17 The articulation of this ideal of ‘conjugal affection’, and consequent loss of happiness at the hands of a seducer, or of a sexually incontinent wife, provided the prosecution counsel with the opportunity to tell moving and dramatic stories about the unhappiness wrought on families by adultery.18 For example, in Campbell v. Addison (1799), as reported by The Times, Erskine informed the jury that the plaintiff, a medical doctor in the service of the East India Company at Bengal, had four children with his wife, the daughter of a Scottish baronet, who were ‘the great joy and comfort of his life’. Mrs. Campbell was described as ‘singularly beautiful’, simply educated, and well brought up, so the prospects for achieving domestic bliss were very promising. But Dr. Campbell felt obliged to send his wife home with the children to oversee their education, and there her sister’s husband, in whose house the family was living, seduced her. From this evidence Erskine constructed a pathetic tale of feminine virtue and innocence betrayed: It was natural that this young and affectionate mother of children, and wife of an affectionate husband, should think herself safe under the roof of her own sister, protected by that sister’s husband, and the subject of that horrible cause he was then stating to them. . . . But by a systematic plan of debauchery and seduction; he deprived this unfortunate Gentleman, the husband of this Lady, of all his hopes, and comfort and happiness in the world.19 This moving account was echoed by Kenyon on the bench, who pitied the plaintiff, and said of his wife, ‘She was young, and had lived in the

Thomas Erskine and Moral Sentiments  203 profusion of the east, but her mind was pure till it was tainted and her ruin consummated by Mr. Addison, her brother in law, and the husband of her sister’. The jury, artfully interpellated by Erskine as ‘men of honour and of feeling’, awarded £5000 damages. As Judith Pascoe has suggested, around this time the image of the suffering wife and mother as innocent victim carried enormous dramatic power, and it is surely no coincidence that sentimental vignettes like this were particularly important in Erskine’s speeches as a means of persuading the jury.20 Another example is the case of Duberley v. Gunning, tried in 1792, and reported in The Times on 23 February. The report primed its readers’ emotions at the beginning by relating that Erskine’s ‘powerful address . . . drew tears from many of his hearers’; and he certainly told a sad tale, whereby the husband, an army contractor, had married the daughter of a magistrate in ‘a match purely of affection’, but she was subsequently seduced by General Gunning, an aged army officer and a family friend, whose duplicitous behaviour Erskine condemned as ‘unparalleled in the annals of villainy and iniquity’. But the climax of Erskine’s performance, and the centre-piece of The Times’ report, was his reading of a letter written by Mrs. Duberley to her husband, confessing the crime, and referring pathetically to their children. The letter read: ‘Dear James, take care of our mutual offspring, the pledges of our former love, and do not teach them to despise me, although I am unfortunate—’. Here, according to The Times, Erskine broke off, being overcome by emotion, and could only quote some lines from Shakespeare, relating to Othello’s revelation that he has killed his wife because of a trusted friend’s treachery.21 As reported in the newspapers, therefore, Erskine’s speeches in Campbell v. Addison and Duberley v. Gunning dwelled on the emotional suffering of fallen mothers and abandoned children for their dramatic impact. As I will show by analysis of his performances in the treason trials of 1794, these theatrical appeals to familial sensibility were central to his courtroom practice during the 1790s. Just as his vignettes of suffering women and children emphasised the vulnerability of the family to villainous sexual libertines, so too he took the opportunity, when circumstances were appropriate, to paint the affective family as the positive foundation of British national identity in the context of the struggle with Revolutionary France. For example, according to The Sun’s report of Ricketts v. Taylor (1798), after reminding the Jury that he addressed them as ‘husbands, or if not, children sprang from the marriage bed, and who could not but know what waste and havoc this crime [i.e., adultery] had made in the happiness of mankind’, Erskine pointed out that the plaintiff in this case was a near relation of the naval hero Earl St. Vincent, whom he described as ‘a man whose gallantry and skill had contributed to the salvation of his Country’.22 He also noted that the earl had no children, and therefore his title and honours might pass ultimately to the plaintiff’s children. These facts formed the basis for a further discourse on the importance of maintaining honour and dignity among the families of

204  David Lemmings ‘illustrious men’. The emotional subtext here must have been crystal clear to the readers of The Sun: masculine honour was fundamental to the nation’s military strength in the current war with France, and adultery was therefore a blow to the nation in arms, as well as the domestic family. Lord Chief Justice Kenyon took the patriotic hint, and instructed the jury that in their assessment of damages they should consider ‘The Plaintiff was a man of great family connections, and nephew to a man whose exploits would grace even the present splendid period of our Naval History’. They awarded the plaintiff £5,000.23 In an earlier crim. con. case, Cadogan v. Cooper, tried in June 1794 and reported in lengthy instalments by The Times during August, Erskine had been quite explicit in claiming the affective domestic family as the basis of national power and masculine honour. On this occasion he insisted that ‘domestic life’ was ‘the foundation of all that is noble among men’. As conveyed in detail by The Times, he carefully reconstructed the circumstances of this adultery case to represent Lord and Lady Cadogan as the principals in a longstanding and affectionate marriage which produced seven children, but which was disrupted when Lord Cadogan extended the charity and comfort of his home to his neighbour Mr. Campbell, whose own family was impoverished by a financial disappointment. As usual when depicting scenes of domestic decline, his account of the situation faced by Campbell’s wife and children dripped with moral sentiment: ‘The family fell into melancholy. The house which they inhabited was obliged to be sold, and they were about to retire, objects of compassion, into the country, on a very small pittance, to enjoy that comfort which it could supply’. According to Erskine, however, Cooper allegedly returned Lord Cadogan’s friendship and hospitality by seducing his benefactor’s wife, thereby betraying his own family, as well as destroying the harmony of the Cadogan household. Since preservation of the family was essential to the prosperity of the nation, he maintained the case was one of signal public significance, appealing to the jury for a verdict and heavy damages against Cooper ‘for the protection of society, and . . . the preservation of the moral order of the world’. Moreover, as with Ricketts v. Taylor, he deliberately made the naval war with France a patriotic backdrop to the trial, but in this case he was able to make an even clearer connection between the nation in arms and the domestic family because the trial took place just after news of Lord Howe’s victory of the First of June had reached Britain. He was reported as declaring: at the present moment, when the country is rejoicing in the success of our arms, and when the heart of every Englishman beats on viewing how bravely and how ably our brethren in arms, have been defending the prosperity and honour of the country, I am persuaded that every man who hears me, will admit, that all that valour, that all that fearless courage, that all those bold and manly exertions, arise

Thomas Erskine and Moral Sentiments  205 from the habits of virtuous life, and from the different relations of a family. There has not a man bled, or exposed himself to bleed in that glorious action, which will make a figure in the history of this country, who did not first feel how his mother, his sisters, and all his other relations would think of him, and then he expands his views to the world and to domestic happiness. This is the foundation of all that is good, of all that is great, and of all that distinguishes the most illustrious nations, from nations that are the most barbarous.24 Thus, according to this sustained public performance, by turns pathetic and heroic, and duly reproduced and circulated by the newspaper press, British success in the war with Revolutionary France depended on protecting the family against criminal adulterers like Cooper because masculine courage and honour were nurtured in loving family relations. As Pascoe has suggested, sentimental arguments like this used the ideal of the loving family to transform the public trial into a ‘private moment’ of affective reflection.25 As personified in Erskine, here was courtroom theatre working in the service of patriotic moral sentiments. As I suggested at the beginning, Erskine’s political opponents attempted to disrupt his populist theatricality with a campaign of satiric ridicule. This raises a question as to whether such anti-theatre was also deployed against him in these law cases and in their reportage by the press. The opposing counsel in Cadogan v. Cooper was Edward Law, who was a much more conservative advocate. Law had mocked Erskine’s dramatic style with success in court before, but in his speech for the defence on this occasion he too deployed sentimental appeals that depended on narratives of familial suffering, although naturally the focus of his attention was the defendant Cooper, and especially his wife, given the prospect of their ruin.26 This relative uniformity of approach suggests that the motif of the family in distress was virtually indispensable to the style of advocacy practiced in crim. con. But there was some anti-theatre, nevertheless. According to The Times’ report of Duberley v. Gunning (wherein Erskine was represented as being overcome by emotion upon reading Mrs. Duberley’s last letter to her husband), counsel for the defence Edward Bearcroft opened his speech by commenting acidly ‘the Jury had been fascinated by the exertions of those endowments for which his Learned Friend was so deeply indebted to nature’. Moreover, Bearcroft introduced evidence that suggested the plaintiff had been a willing participant in sexually risqué games of blind man’s bluff in his house, involving Mrs. Duberley, General Gunning, and another house guest, the Hon. Mrs. Gardiner, in the course of which the lights were turned out and the parties groped each other on the floor. On the basis of these domestic charades, he remarked critically: ‘If this was true, where were the feelings of the plaintiff so pathetically described by his Learned Friend? The Jury would not have much feeling for a man who had none for himself’. In the event the jury seems to have preferred Erskine’s

206  David Lemmings theatricality to Bearcroft’s sarcastic cynicism, however, since they awarded £5,000 damages to the plaintiff.27 Did the newspapers favour theatre, too? Observing the performances of the radicals at the time of the 1794 treason trials, Judith Pascoe has remarked that an overly theatrical style of public address risked undermining its aims by signalling that the protagonists were simply playing a role to attract sympathy, rather than communicating authentic feelings.28 It is true that the True Briton and The Sun, which both supported the government, referred to Erskine as ‘Counsellor Ego’ when they described his role in the treason trials.29 Moreover, reporting a 1797 adultery case, the True Briton commented sarcastically, ‘Mr. Erskine replied with his usual animation’.30 Newspaper commentary on his performances in cases for criminal conversation was overwhelmingly positive, however. The Times’ ‘Law Report’ column was certainly very approving. In Hutchinson v. Burford (1789), its report commented: ‘Mr. Erskine, counsel for the plaintiff, displayed his much admired abilities in opening the cause’; in Duberley v. Gunning (1792), it endorsed his moral judgement against the defendant, declaring ‘The learned Counsel made an admirable commentary . . ., in order to paint in the most glowing colours the villainy of the defendant’; and on several other occasions his speeches were described simply as ‘very eloquent’, or ‘most eloquent’.31 The Times was complimentary about other counsel too, but this paper usually reported Erskine’s speeches more fully than those of the other barristers. For example, in its first brief report of Cadogan v. Cooper, on 13 June 1794, The Times concluded with the approving comment: ‘This cause was conducted with very great abilities by Messrs. Erskine, Mingay, Garrow, and Baldwin for the Plaintiff; and Messrs. Law and Gibbs made an eloquent defence for Mr. Cooper’.32 However, while Erskine’s speech was covered very fully in its next report, the paper excused itself from relating Law’s ‘very ingenious observations’.33 Given the rather different styles of the two advocates, this discrepancy might well indicate an editorial preference among the newspapers to report dramatic rhetoric, rather than unembellished analysis. We know, moreover, that Erskine always made copies of his speeches for publication, and it is therefore highly likely that he was sending the texts himself to the newspapers.34 Whatever the reason for The Times’ preference, the result was that Erskine’s sentimental theatricality was magnified by the press.35 By commenting approvingly on Erskine’s performances, newspapers asserted their own participation in the theatre of these law proceedings, and affirmed their power as critical mediators of moral sentiments.

Moral Sentiments and the Treason Trials Newspaper reportage of Erskine’s speeches in the 1794 trials for treason provides a useful comparative perspective to the trials for criminal

Thomas Erskine and Moral Sentiments  207 conversation. As Gillian Russell has pointed out, some contemporaries connected the growth of popular radicalism in politics with the apparent increase in adultery as two signs of national decline.36 The increase in crim. con. cases was read as evidence of collective moral deviance that had allegedly forfeited the upper ranks of society their respect among the common people. According to this view, the experience of France showed that social revolution was the likely consequence of such a failure of moral leadership.37 The moral crusade staged by Erskine and Kenyon in their conduct of trials for criminal conversation represented a sympathetic response to such fears. By contrast, as leading counsel for the radicals in the 1790s treason trials, Erskine was a central character in a campaign which we might describe as an antipanic designed to counter attempts to demonise the radicals as protorevolutionaries.38 It is important to realise, however, that like the accounts of trials for crim. con., the reportage of the treason cases often featured similar emotional narratives of good and evil, or love and hate; essentially they communicated tales of moral sentiment, which frequently represented real people and families as well as idealised heroes and victims. I only have space here to consider reportage of the trial of Robert Hardy, secretary of the London Corresponding Society, who was tried for treason at the Old Bailey in October–November 1794. This was the first, and arguably the most important, of a series of treason trials by which the Pitt government sought to decapitate and discredit the popular movement for political reform. It was a titanic struggle, both in court and in the press. The trial lasted eight days and was prosecuted by the attorney and solicitor general, along with several other Crown counsel. On the other side was Erskine, together with Vicary Gibbs, both leading barristers in the court of King’s Bench. A team of junior counsel also supported the defence, but it is clear the government threw all its professional weight behind this prosecution, and in retrospect some of the opposition newspaper reportage represented the contest as one of David and Goliath proportions. For example, the Morning Chronicle commented: ‘there have been thirteen crown lawyers embattled against Mr. Erskine and Mr. Gibbs in this great trial’, although it was careful to pay lip service to the authorities by adding, ‘We do not mean to say that the odds were thereby against the Prisoner’.39 The prosecution case consisted of a great mass of carefully assembled written and oral evidence, which sought to portray Hardy as a closet revolutionary who was coordinating a movement designed to result in a popular insurrection on the French model. It was a juggernaut. The attorney general, Sir John Scott, took nine hours to open the case, while the Solicitor General spoke for six hours; at the end, the Lord Chief Justice’s summing-up had to be interrupted at 11.30 pm on the penultimate day because ‘he was so much exhausted’ and ‘what he had to say must necessarily run into inconvenient length’. But he resumed and spoke for a few more hours the next

208  David Lemmings morning.40 In response, Erskine’s speech for the defence lasted over six hours, and it was reported that when he sat down he was ‘so perfectly exhausted, that his last accents were hardly audible’.41 Indeed, although he spoke for half that time, Gibbs reportedly fainted at the beginning of his speech, ‘sunk under the pressure of the arduous duty he was compelled to perform’.42 Despite the government’s efforts, Hardy was acquitted by the jury, and subsequently he and his counsel were mobbed by the London crowds. Here was plenty of material for dramatic representation in the newspaper press.43 All the newspapers carried extensive and detailed reports of the trial. Coverage had to be very selective, however, and naturally accounts of the treason trials were more politicised than those of crim. con. The Attorney General’s speech consisted of 100,000 words, but the standard four-page newspaper printed 16 columns, allowing space for only around 15,000 of them.44 In these circumstances it is possible to identify the influence of political partisanship among some of the titles. Erskine’s speech, for example, was reported by the Morning Chronicle, which supported the radicals, in four pages and 16 columns, meaning that it took over the whole of one edition.45 By contrast, the True Briton and The Sun, both of which supported the government, covered it in just over two pages.46 Longer accounts of the proceedings in pamphlet format were sold every day, according to advertisements in the newspapers. Interestingly, these publishers’ announcements frequently highlighted the speeches of the principal lawyers, Attorney General Scott and Erskine,47 although Erskine was clearly regarded as the main commercial draw-card, since his speech for the defence was advertised as a separate pamphlet on 1 November, the day when it was delivered, and it was available just a few days later, ‘Reported with the greatest attention to accuracy and impartiality’.48 Whatever their political slant, all the papers devoted significant space to Erskine’s defence of his client, and thereby communicated some of his performance to their readers. The most sympathetic represented the occasion as a dramatic historical moment, whereby ‘a more than uncommon anxiety manifested itself in the Court’ as Erskine rose to speak on the sixth day of the trial.49 As suggested, the prosecution had apparently left no stone unturned in constructing its case and resorted to emotional intimidation, too. In his speech for the prosecution, the Attorney General was reported as using heavily loaded words: the government had acted decisively to prevent one of the most dangerous Conspiracies that possibly could enter the heart of man, of which the object was no less than to dethrone the King and to subvert the British Constitution, under which this Country had enjoyed more prosperity . . . than any system of Democracy that could be pointed out in history ever yet afforded to any Nation living under that species of government’50

Thomas Erskine and Moral Sentiments  209 As reported in the conservative True Briton, the prosecution’s central argument that the radicals’ discussions about parliamentary reform tended towards overturning the constitution depended on Attorney General Scott’s lurid representation of them as adherents of the rights of man, a system he painted as threatening ‘the miseries that have flowed in such plenteous streams from the democracy and consequent anarchy of France’.51 By marked contrast with this terror and panic-mongering, the highly dramatic reports of Erskine’s speech, as published in the opposition papers Oracle and The Morning Post, singled out his declamations on ‘popular love’ as the distinguishing feature of the British constitution, and characterised Hardy and Erskine as its flesh and blood champions against a brutal government machine that intended to roll back the advances of British constitutional history. Thus, in the Oracle, Erskine represented Hardy as ‘a mild and amiable character’ rather than a murderer, and sentimentalised himself as ‘feeble and exhausted, worn out by the attention already paid, and afflicted by disease’, but determined to stand up for truth and freedom against ‘a barbarous state necessity, by which all the law for the protection of the subject was repealed, and no man’s person was secure’.52 Significantly, although these reports carried his extensive arguments on the law of treason, rather than dwelling on law, their dramatic emphasis was on Erskine as a man distinguished by his ability to feel for humble but respectable people like Hardy and care about their rights and freedoms as Englishmen. As reported in the Morning Post, he insisted ‘I feel for the care of humanity; . . . if this man is deprived of life, all that remains of our boasted constitution is lost for ever’.53 In an echo of his patriotic framing of the danger represented by adultery, Erskine was reported by the Oracle as declaring that he was ready to fight for constitutional freedom against the French, should they invade and establish a tyrannical republic.54 Like the appeals to the success of British arms in his crim. con. speeches, this retailing of constitutional patriotism was grounded in sentimental images of home and family as the ultimate source of moral strength and rectitude. For example, once constitutional rights were swept away, according to Erskine, no one was safe from the state, whereby ‘a man [i.e. Hardy] was dragged from his home to perish upon a scaffold, and saw his family and friends no more’.55 Alternatively, it was impossible to believe that a family man like Hardy would consider killing the king, represented as he was by Erskine as ‘a fond husband, and the father of a numerous and most promising progeny’.56 This mawkish appeal was compounded with patriotism by contextualising Erskine’s self-cast heroic role in the ongoing epic story of Britain’s constitutional freedom and its foundation in the domestic family: He was here, counsel for himself, his children, for every one who heard him, and for every man in the kingdom; for should this cause

210  David Lemmings fail him, and the prisoner be convicted upon the evidence before the Court, no man henceforward could sleep soundly in his bed.57 In perhaps the most dramatic flourish of the entire speech, Erskine reportedly drew attention to Hardy’s own tragic personal circumstances. Hardy appeared at the trial in mourning clothes, his wife having died in childbirth after he had been arrested, and his counsel contrasted his situation with that of the jurymen, who after doing their duty at the trial might take comfort ‘in the delights of a social home’. By contrast, according to Erskine, ‘HE HAS NO HOME—the affectionate husband has no wife to receive him—the agonies of his situation have dragged her to the grave’.58 As reported by sympathetic newspapers like the Oracle, like some of his crim. con. performances, Erskine’s speech for the defence in R. v. Hardy transformed a public event into a dramatic appeal to sentiments associated with the private family.59 Naturally the newspapers rendered the speech in slightly different ways according to their priorities and allegiances, however. While the Morning Post echoed the Oracle’s concentration on Erskine’s pity for Hardy’s loss of his wife, and the Morning Chronicle also warned that the loss of constitutional rights would break up families, the Chronicle and the Star devoted relatively more space to Erskine’s patriotic exposition of constitutional history and the law of treason than to sentimental vignettes.60 Even the law of treason was interpreted through a domestic lens, however, for these papers both highlighted Erskine’s ingenious ridiculing of the prosecution’s reliance on constructive treason, whereby he compared it to the cumulative children’s story, The House that Jack Built.61 Moreover, it appears their overall emphasis on the law may have disappointed readers, since the Chronicle subsequently apologised for omitting the details of the ‘popular part’ of his speech, and defended its selection by lauding his ‘critical analysis of the Law of Treason’ as ‘applicable to all cases, and will be referred to as an authority by ages unborn’.62 Of course, in reporting Erskine’s performance in R. v. Hardy, government newspapers resorted to subtle and not-so-subtle forms of antitheatre. Several opposition papers variously eulogised Erskine for his ‘manly perseverance . . . and . . . energetic eloquence’, or his ‘profound investigation, unwearied research, powerful reasoning, and irresistible feeling’.63 But by contrast the True Briton and The Sun, which supported the government, compared him unfavourably with his junior, Gibbs. In the opinion of this paper: Mr. Gibbs’s speech in summing up the evidence against Hardy, was more in point than all the long-winded flourishes of Counsellor Ego. Whatever may be said of the validity of the arguments which Mr. Gibbs adopted, it may be said that he urged those arguments in a more manly way than the other legal orator. An appeal to the feelings

Thomas Erskine and Moral Sentiments  211 of the Jury is always to be expected of course; but that appeal should be made with temperate dignity, not with the meretricious parade of an actor.64 Judith Pascoe has noted the strong element of misogyny in this attack, since the term ‘meretricious parade’ implies the kind of flashiness appropriate for prostitutes plying their trade.65 Certainly it was designed to discredit Erskine’s performance in the eyes of the all-male jury, and hinted that such devices would only work with marginal groups, such as women and the crowds who lauded him on the streets at the end of each day.66 Ultimately, for the True Briton his style of address raised doubts about the substantive integrity of the case, and it cautioned readers that ‘where we find eloquence and an address to the passions resorted to, we may safely conclude that the case stands in need of such assistance’.67 In their reportage of R. v. Hardy, the government papers also resorted to less direct anti-theatrical strategies, which would have influenced public opinion more subliminally. Naturally, they provided more space to the arguments of the government lawyers. Thus, the True Briton covered Solicitor General Mitford’s closing six-hour speech in seven-and-ahalf columns, and The Sun devoted over five columns to it.68 By contrast the Morning Chronicle allowed the Solicitor General around four columns, while the Morning Post gave him only three.69 Extensive coverage of the Solicitor’s reply to the defence provided opportunities to report comments debunking Erskine: both the True Briton and The Sun included details of Mitford’s acidly back-handed compliment, wherein he described Erskine’s speech as ‘very elegant’ and ‘superior to any thing he had ever heard from that Gentleman’, but counselled the Jury ‘not to be led away by the charms of eloquence; they were sworn to decide only upon the truth of the case as laid before them’.70 More interestingly, however, at least from the perspective of the history of emotions, the conservative papers’ reduced coverage of Erskine’s speech for the defence had already simply eliminated virtually all the sensational and sentimental touches designed to appeal to emotions, especially those grounded in the private sphere. By contrast with the Oracle’s lengthy dramatic account, the abbreviated version of Erskine’s speech published in the True Briton and The Sun was flat and unsentimental: there was no opening report of ‘more than common anxiety’ in the courtroom; no introductory declamation about popular love as the essence of the constitution; and the Oracle version’s warning that if the principle of constructive treason was established a man might be ‘dragged from his home to perish upon a scaffold’ was shorn of its vivid imagery. Thomas Hardy does not feature as a man of flesh and blood in this account, either as humble hero or tragic victim; rather than a man whose ‘character and deportment were humane, mild and inoffensive, moral, religious, and in very respect amiable’, he is usually rendered formally as ‘the prisoner’, or ‘my client’, at most as ‘an

212  David Lemmings innocent man’, and on one occasion, ‘poor Hardy’. There is absolutely no trace of Erskine’s dramatic description of his condition as a grieving and homeless widower.71 It appears that the newspapers’ reportage of the case evidenced clear differences in their emotional style, as well as substantive differences; indeed, it may be that the independent titles were distinguished not only by their politics but also by their relative openness to the theatre of moral sentiments.

Conclusion: Panic and Anti-Panic, a Crisis of Sentiment? Gillian Russell has maintained that in the 1790s we may identify ‘a theatricality of sympathy’, as exemplified by Erskine’s performances in crim. con. trials, which was able to ‘de-stabilize boundaries between public and private, social and familial, masculine and feminine, and rulers and ruled’.72 While not disagreeing, I think this judgement does not go far enough, insofar as it underestimates the importance of Erskine’s art as the apogee of an emotional culture of sensibility around the family and the nation—a culture that was in crisis after 1789 because it appeared to threaten social revolution.73 It is arguable that the Pitt government’s prosecutions of the radicals in 1794, and the conservative propaganda campaign of which it was a central element, constituted an attempt to counter the theatre of moral sentiments with a much flatter and more authoritarian affective style.74 In other words, during the 1790s the government not only opposed the rights of man, but it also attempted to suppress a powerful emotional culture consisting of narratives and images that constituted British ideals of patriotism by associating them with the domestic family.75 As reported most fully and theatrically in the opposition coverage of R. v. Hardy, Erskine maintained that human sympathy was the cornerstone of British society, and argued that ‘popular love’ was the foundation of the British constitution. He insisted the Crown ‘stands only upon the love of the people, and retains it only while it is attentive to their wishes’.76 Moreover, as affirmed regularly by the reports of his crim. con. speeches, in Britain this social love was founded in the affectionate family. Regular readers of his speeches in the newspapers were therefore enjoined to believe that the family was the ultimate source of British power, and familial affection a crucial resource at a time when the nation was locked in war with Revolutionary France. Thus, in defending Hardy, Erskine represented even George III as the father of a loving family: he was portrayed as ‘a Prince exemplary in his duties, a fond husband, and the father of a numerous and most promising progeny’; and by ‘confiding in the love of his people’, he was able to go about ‘unguardedly . . . with only a few servants’. By contrast, in narrating the epic story of British constitutional history, Erskine told how Richard II, constitutionally weak because he lacked the love of his people, had been murdered, despite the protection of draconian law that allowed the authorities to construe mere words as amounting to treason, without proving any overt act to

Thomas Erskine and Moral Sentiments  213 support the charge.77 This was counter-panic: he asserted that the constitution and the freedoms it guaranteed were presently in danger from the revived principle of constructive treason, rather than from home-grown republicanism. But it was also sentimental theatre: for as we have seen, he offered himself as the exemplar of a feeling citizen and family man who cared about fellow Britons like Thomas Hardy: as the Morning Post reported, he said: ‘I feel for my wife, for my children, and particularly I feel for the care of humanity; which if it be not attended to, the Glory of the Constitution is gone for ever’.78 In stark contrast with this dramatic and emotional gesture, the conservative True Briton watered down Erskine’s appeal to the common interest of humanity to read ‘it is not the life of my Client alone which may be endangered, but the lives of many more, nay of every subject of the Country’.79 Such a broad-spectrum shift from celebrating his personal emotional ties with his family to acknowledging the lawyer’s professional duty to defend his fellow subjects is suggestive of the gulf between bourgeois and aristocratic emotional cultures.80 It is important to understand that the most favourable reportage of Erskine’s speech in R. v. Hardy stressed his point that the choice between the government and the reformers was not just a matter of dry constitutional theories; rather, it was an issue of emotional liberty. By contrast with a system of governance based on popular participation and mutual respect between rulers and ruled, this reportage suggested that the government was trying to criminalise sympathy, at least as it was applied in the political realm, to prevent redress of corruption. Thus, the Morning Chronicle reported Erskine as saying: At a time when England may be put to great difficulties to support herself, even when the whole nation draws together with one heart and accord, is it wise at such a time to set up Lawyers to tell us that every man who sees and feels, and is determined to assist in removing the corruptions which are the parents of those calamities are traitors to the Sovereign, and plotters of his death?81 The central message of Erskine’s speech in the trial of Hardy, therefore, alternatively amplified or obscured by the differences in style as well as substance of the reportage, was that cultivating feelings of mutual love and respect, rather than the encouragement of defamation and bullying and fear of the law, formed the proper basis for national unity in a time of war and revolution.82 As we have seen, for Erskine as crim. con. prosecutor the deviant sexual mores of adulterers were the product of an aristocratic culture corrupted by cynicism, wealth, and luxury—an unsentimental regime that threatened social revolution, as in France.83 The antidote was a moral crusade that exposed the real social and emotional costs of such insensibility, dramatically illustrated by pathetic reallife human stories about disrupted families, and backed up by severe financial penalties in the form of penal damages.

214  David Lemmings Finally, I would like to stress the point that the cultivation of moral sentiment that was so central to Erskine’s politics, courtroom practice, and media image was contested explicitly by newspaper reportage, which amounted to anti-theatre, as well as being obscured by partial reporting. In reporting the early stages of Hardy’s trial on 30 October 1794, the General Evening Post printed the following exchange over the admissibility of evidence: Mr. Erskine . . . declared . . . He stood there as counsel for the innocent man at the bar, for the country, and for the Constitution. . . . Mr. Solicitor General smiled. The learned counsel observed, that the solemnity of the occasion ought to inspire emotions of a very different nature. If he was mistaken in point of law he was open to correction, but it was not to him [i.e., Erskine] that he would apply for information on the subject.84 Solicitor General Mitford was represented here as very directly suggesting to Erskine and the court that the law was far more important than emotional rhetoric, thereby puncturing his opponent’s rhetorical selfimportance and suggesting his behaviour was extravagant and inauthentic. Although not named as such, in this exchange Erskine was clearly cast as ‘Counsellor Ego’: a mere self-puffing sham. As reported, the exchange between Erskine and the lawyers for the Crown represented a clash of emotional styles, a challenge by which Mitford and his government colleagues contested the claims of authenticity associated with the performance of moral sentiments.85 Erskine’s other principal opponents in the trial of Hardy, Attorney General Scott and Edward Law KC, who went on to occupy the commanding heights of the English judiciary for many years in the early nineteenth century, were the principals of a government emotional regime that stridently resisted the humanitarian campaign for reform of the criminal code, a campaign driven by sentiment, as well as arguments about effective penal policy. That is a story for another occasion, but I hope that here I have done enough to show that during the 1790s the reportage of Thomas Erskine’s courtroom theatrics represented a multi-layered crisis of moral sentiments.

Acknowledgments A version of this chapter was first read at the Henry E. Huntington Library in November 2013. I would like to thank the audience for their helpful comments. I am also very grateful to Allyson May for her helpful suggestions.

Notes 1 See D. Lemmings, ‘Thomas, Lord Erskine’ in Oxford Dictionary of National Biography, available online at oxforddnb.com.

Thomas Erskine and Moral Sentiments  215 2 Anti-Jacobin or Weekly Examiner, 4 December, 1797; James Boswell, ‘The Oratorical Swooner’, in Attic Miscellany, ii. 314 (1791) and ‘A legal faint, i,e, a feint’, Attic Miscellany, ii. 317 (1791). 3 See C. Lutz and L. Abu-Lughod (eds.), Language and the Politics of Emotion (Cambridge: Cambridge University Press, 1990), 7–12; S. Ahmed, Cultural Politics of Emotion, 2nd ed. (Edinburgh: University of Edinburgh Press, 2014), 13–14, 45–47. 4 See W.M. Reddy, The Navigation of Feeling (Cambridge: Cambridge University Press, 2001), ch. 6. 5 J. Pascoe, Romantic Theatricality (Ithaca, NY: Cornell University Press, 1997), 47–52. 6 L. Stone, Road to Divorce (Oxford: Oxford University Press, 1990), 247, 430. 7 Ibid., 273–278. 8 World, 13 November 1792; Times, 13 November 1792. 9 True Briton, 21 February 1798. 10 Ibid. 11 Bells Weekly Messenger, 25 February 1798: Verdict of £5,000. Erskine also insisted the public had an interest in crim. con.: see Cadogan v. Cooper, Times, 22 August 1794. 12 Campbell v. Addison, Times, 25 February 1799. 13 See generally, G. Russell, ‘The Theatre of Crim. Con.: Thomas Erskine, Adultery and Radical Politics in the 1790s’, in M.T. Davis and P.A. Pickering (eds.), Unrespectable Radicals: Popular Politics in the Age of Reform (Aldershot: Ashgate, 2008), 57–70; Stone, Road to Divorce, 273–278. 14 Here I am following partly the ideas of Sara Ahmed. See The Cultural Politics of Emotion. 15 Times, 25 February 1791. 16 Campbell v. Addison, Times, 25 February 1799; True Briton, Dunnage v. Turton, 15 June 1797. 17 Times, 28 August 1794; Erskine, in Howard v. Bingham, 24 February 1794: The Whole of the Trial of the Hon. Richard Bingham, for Adultery with Lady Elizabeth Howard (1794), 26; cf. Stone, Road to Divorce, 263–264. 18 In Campbell v. Addison, the plaintiff and is wife were described as ‘a pattern of conjugal affection’ (Times, 25 February 1799). 19 Times, 25 February 1799. 20 Pascoe, Romantic Theatricality, 59–64. 21 Times, 23 February 1792. 22 St. Vincent’s title was derived from the naval victory of that name, which took place in February 1797 (ODNB). 23 Sun, 21 February 1798. 24 Times, 22 August 1794. The Times’ account of this trial was continued on 25 and 28 August, and subsequently reprinted in pamphlet form (The Trial at Large of the Right Honourable Lady Cadogan for Adultery with the Rev. Mr. Cooper (1794)). 25 Pascoe, Romantic Theatricality, 59. 26 See ‘Erskine, Thomas, Lord’, ODNB; The Trial of Lieutenant Charles Bourne (1783), 109–110, 149. For Law’s speech in Cadogan v. Cooper, see Times, 28 August 1794. 27 Times, 23 February 1792. 28 Pascoe, Romantic Theatricality, 43. 29 Ibid., 49–50. Note, however, that in their reports of Reddy v. Scoolt (for seduction of a daughter), it described his highly sentimental speech as ‘one of the ablest we ever heard in a Court of Justice, even from the Gentleman himself’ (True Briton, 12 December 1794; Sun, 12 December 1794).

216  David Lemmings 30 Elsom v. Fawcett: True Briton, 26 June 1797. 31 Times, 25 July 1789; Times, 23 February 1792; Mason v. Rogers, Times, 3 December 1790; Henderson v. Tempest, Times, 21 June 1799. 32 Times, 13 June 1994. 33 Times, 22 August 1794; Times, 28 August 1794. 34 Lemmings, ‘Erskine’, ODNB. 35 Cf. Russell, ‘The Theatre of Crim. Con.’, 60–61. 36 Ibid., 57. 37 ‘Signs of the Times’, St. James’s Chronicle or the British Evening Post, 12 August 1797. 38 See M. Davis, ‘The British Jacobins: Folk Devils in the Age of Counter-­ Revolution’, in D. Lemmings and C. Walker (eds.), Moral Panics, Media and the Law in Early Modern England (Basingstoke: Palgrave Macmillan, 2009), 221–244. 39 Morning Chronicle, 5 November 1794. 40 J. Barrell, Imagining the King’s Death (Oxford: Oxford University Press), 324; Morning Chronicle, 5 November, Star, 5 November. 41 Star, 3 November. 42 General Evening Post, 6 November 1794. 43 See Barrell, Imagining, ch. 11. 44 Ibid., 324. 45 Morning Chronicle, 3 November 1794. 46 True Briton, 3 November; Sun, 3 November. 47 Oracle, 1, 3, 4 November. 48 Oracle, 1, 6 November, Morning Post, 5 November; Sun, 6 November. 49 Oracle, 3 November 1794. 50 True Briton, 29 October 1794. 51 Ibid. 52 Oracle, 3 November. 53 Morning Post, 3 November. Note this was rendered in True Briton less sentimentally as ‘it is not the life of my Client alone which may be endangered, but the lives if many more, nay of every subject of the Country’ (True Briton, 3 November 1794). 54 Oracle, 3 November. 55 Ibid.; Morning Chronicle, 3 November. 56 Oracle, 3 November. 57 Ibid.; Morning Post, 3 November. 58 Oracle, 3 November. 59 Cf. Pascoe, Romantic Theatricality, 59. 60 Morning Post, 3 November: ‘he has no partner in life to go to, she has already suffered for him, and paid the debt of nature!’; Morning Chronicle, 3 November: ‘he is doomed to behold friends and family no more’ (also in Star, 3 November). 61 They also deployed Erskine’s quotation from King Lear, whereby Lear bemoans the administration of justice as socially unequal, to suggest that Hardy was targeted by the government because he was poor and powerless. 62 Morning Chronicle, 4 November. 63 Courier and Evening Gazette, 31 October 1794; Oracle, 3 November, 1794. See also, e.g., Morning Post, 4 November, 1794: ‘The speech, or rather oration, of Mr. Erskine, on Saturday, was one of the most legal, argumentative, pathetic, and eloquent, we ever heard in a Court of Justice, even taking his own former brilliant speeches into comparison’. 64 True Briton, 5 November 1794; Sun, 5 November. 65 Pascoe, Romantic Theatricality, 52. 66 See the report about popular acclamation of Erskine after his speech (whereby a crowd—called a mob by True Briton—pulled his carriage to his home) : ‘To

Thomas Erskine and Moral Sentiments  217 such triumphs we leave Mr. Erskine! We look only for the TRIUMPH of JUSTICE!’ (3 November 1794). 67 True Briton, 5 November. The Irish barrister John Philpot Curran apparently commented of his own performances, ‘when I can’t talk sense, I talk metaphor’ (T. Moore and W. Jerdan, Personal Reminiscences, ed. Richard Henry Stoddard (New York: Scribner Armstrong, 1875), 98. I owe this reference to the kindness of Allyson May. 68 True Briton, 4, 5 November; Sun, 4, 5 November. 69 Morning Chronicle, 4, 5 November; Morning Post, 4, 5 November. Note the Oracle allowed nearly six columns to the Solicitor General’s speech, however (Oracle, 4, 5 November). 70 True Briton, 4 November, 1794; Sun, 4 November. 71 Comparing Oracle, 3 November, with True Briton, 3 November and Sun, 3 November. 72 Russell, ‘Theatre of Crim. Con.’, 66. 73 For the ‘era of sensibility’ stretching from the late seventeenth century to the early nineteenth century, see A. Pinch, Strange Fits of Passion: Epistemologies of Emotion, Hume to Austen (Stanford, CA: Stanford University Press, 1996), 11. 74 For worries about the potentially anarchic political dangers of un-moderated sympathy among collectives see M. Fairclough, The Romantic Crowd (Cambridge: Cambridge University Press, 2013), chs. 1–2. 75 Cf. M. Barezin, ‘Emotions and Political Identity: Mobilizing Affection for the Polity’, in J. Goodwin, J.M. Jasper, and F. Polletta (eds.), Passionate Politics: Emotions and Social Movements (Chicago: University of Chicago Press, 2001), 83–98. 76 Oracle, 3 November. 77 Ibid., R v. Hardy. 78 Morning Post, 3 November 1794. 79 True Briton, 3 November 1794 (my emphasis). 80 See D. Lemmings, Professors of the Law (Oxford: Oxford University Press), 306–307. 81 Morning Chronicle, 3 November; Star, 3 November. 82 Compare Julie Stone Peters on the trial of Warren Hastings (1787), positing a conflict between the ‘theatricality’ of Burke and Sheridan, betokening sympathy and universalist humanitarianism, and ‘narrow nationalist legalism’ on the other side (Peters, ‘Theatricality, Legalism, and the Scenography of Suffering: The Trial of Warren Hastings and Richard Brinsley Sheridan’s Pizarro’, Law and Literature, 18 (Spring 2006), 15–45. 83 This argument was also deployed by Erskine when defending adulterers trapped by mercenary and loveless marriages. See, e.g., Erskine, Speeches of Thomas, Lord Erskine (London: Reeves and Turner, 1870), ed. E. Walford, ii. 230: Howard v. Bingham, 1794. 84 General Evening Post, 30 October 1794 (my itals). 85 See also True Briton, 5 November on ‘Counsellor Ego’: There is scarcely a better general rule whereby to judge of the merits of a case, than to observe the means employed in its favour. Where the case is really strong, it has no occasion for the embellishment of eloquence—A plain statement of facts, and a calm address to the judgement, are the best weapons to be employed. On the other hand, where we find eloquence and an address to the passions resorted to, we may safely conclude that the case stands in need of such assistance. . . . If the late speeches of the Attorney General and Mr. Erskine be examined by the above rule, some very important inferences may be drawn.

Contributors

Katie Barclay is Senior Lecturer in the ARC Centre of Excellence for the History of Emotions and Department of History, University of Adelaide. She is the author of Men on Trial: Performing Emotion, Embodiment and Identity in Ireland, 1800–1845 (Manchester, 2018), and numerous articles on law, emotion, and family life. With Andrew Lynch, she is also the editor of Emotions: History, Culture, Society. Simon Devereaux is Associate Professor of History at the University of Victoria. He has published extensively on the history of criminal trial and punishment in England during the late eighteenth and early nineteenth centuries. Hal Gladfelder is Professor of English and Comparative Literature at the University of Manchester. His books include Criminality and Narrative in Eighteenth-Century England: Beyond the Law (2001) and Fanny Hill in Bombay: The Making and Unmaking of John Cleland (2012), as well as the Oxford World’s Classics edition of John Gay’s The Beggar’s Opera and Polly (2013). David Lemmings is Professor of History at the University of Adelaide and Leader of the Change Program in the ARC Centre of Excellence for the History of Emotions. He has published widely on law, emotions, and eighteenth-century British society. Allyson N. May is Associate Professor in the Department of History at the University of Western Ontario. She is the author of The Bar and the Old Bailey, 1750–1850 and The Fox-Hunting Controversy, 1781–2004: Class and Cruelty. Her current project, a case study of the murder of Lord William Russell, focuses on policing and prosecution in the early Victorian period. Randall McGowen is Emeritus Professor of History at the University of Oregon. He is the co-author with Donna Andrew of The Perreaus and Mrs. Rudd: Forgery and Betrayal in 18th Century London (Berkeley, 2001), and co-editor with David Garland and Michael Meranze

Contributors  219 of America’s Death Penalty: Between Past and Present (New York, 2010). He has written some 30 articles on aspects of crime and punishment over the long eighteenth century in Britain. Andrea McKenzie is Associate Professor of History at the University of Victoria and is the author of Tyburn’s Martyrs: Execution in England, 1675–1775 (London, 2007), as well as numerous articles on last dying speeches, crime, punishment, and print culture in late seventeenth- and eighteenth-century England. She is currently completing a project on the Popish Plot (1678–81): a study of anti-Catholicism, conspiracies and truth claims, oppositional politics, and constitutional crisis in England. Dana Rabin is Professor of History at the University of Illinois, UrbanaChampaign, where she teaches global history, British history, and the history of crime. She is the author most recently of Britain and its Internal Others: Under Rule of Law (2017) and Identity, Crime, and Legal Responsibility in Eighteenth-Century England (2004). E.J. Snell is Senior Lecturer in Criminology at Solent University. She specialises in the representation of perceptions of crime and justice, and in particular their construction, dissemination, and influence. Her publications include ‘Trials in Print: Narratives of Rape Trials in the Proceedings of the Old Bailey’, in D. Lemmings (ed.), Crime, Courtrooms and the Public Sphere in Britain, 1700–1850 (Ashgate, 2012); and ‘Discourses of Criminality in the Eighteenth-Century Press: The Presentation of Crime in The Kentish Post, 1717–1738’, Continuity and Change, 22 (2007).

Index

Note: Italic page references indicate figures. Act of 1624 26 – 27 Act Anent Child Murder (1690) 27 Addison, Mr. 203 Adolphus, John 12, 134, 142 adultery trials 15, 200 – 206 Age of Doubt 121 agency 7, 23 agon 158 Ahmed, Sarah 34 alcohol and rape 68 – 69 Alexander, Thomas and James 165 Angelo, Henry 177, 194 anger against rapists 72 – 73 Anson, Mary 51 anti-theatrical accounts 200 Apsley, Lady 183 Aristotle 13, 156 – 157, 165 Arnold, Ann 33 – 34 Askew, Penelope 65 Aubrey, Mary 47 Austin, J.L. 22 – 23, 30 Banks, Elizabeth 65 Barclay, Katie 9 – 10 Barrett, James 69 Bearcroft, Edward 205 Beattie, John M. 44, 156, 160, 163 Beccaria, Cesare 4, 182 Belsenger, Thomas 69 Berry, Elizabeth 69 – 70 Billings, Thomas 53 Birch v. Meredith (1818) 96, 99 Blackstone, Sir William 4, 182 Blair, Hugh 89 Blandy, Francis 54, 56 Blandy, Mary 5, 7, 41 – 42, 44, 53 – 57, 168

bleaching out of legal detail 162 Boss, Ann 65, 68 Boswell, Anne 48 Boswell, James 199 Bradley, Mary 68 Brant, Claire 44, 54 Brewster, Abraham 93, 95, 97 – 98 Brickinshaw, Mary 65 Broadric, Miss 50 Brody, L. 71 Broom, Susannah 47 – 48 Brophy, Edward 70 Brougham, Henry 12, 129, 134, 138 – 139 Brownrigg, Elizabeth 168 Bryne, Mrs. 95 Bull, Edward 70 Burke, Edmund 13, 88, 130, 136, 157, 168 – 169 Burke, Peter 113 burning 41 – 42, 44, 48, 51 – 52 Burrowes, Peter 94 – 95, 97, 137 Butler, Judith 5, 23 – 24 Cadogan, Lord and Lady 204 Cadogan v. Cooper (1794) 204 – 206 Cairns, David 87, 94, 128 Calderon, Luisa 169 – 172, 171, 173 Campbell, Dr. 202, 204 Campbell, George 89 – 92 Campbell, Mrs. 202 – 203 Campbell v. Addison (1799) 202 – 203 Capp, Bernard 75 Castlepollard massacre 88 Catty, J. 66 Chadwick, Edwin 107 chastity 64, 66, 133, 144

Index  221 Cheek, Francis 6, 21 – 26 child murder see infanticide Christie, Agatha 11, 114 Cicero 53 Clark, Anna 66 conformity 2 – 3 Connaught Circuit 12, 131 Convention Act 97 conviction 144 Cooper, Ann 69, 74 Cooper, William 49 Copely, Sir John Singleton (Lord Lyndhurst) 116 – 117 Cottu, Charles 160 ‘counter-speech’ 5 courtroom as theatre 158 – 162; see also poetics of criminal trials Courvoisier, François Benjamin 10 – 12, 86, 96, 106 – 108, 128, 141, 143 Cooper, Mr. 204 Cox, Edward W. 118 – 119 Craig, Agnes 30 – 31 Craige, James 73 Cranstoun, William 54 crime see specific type and case criminal conversation cases 200 – 206 Criminal Evidence Act (1898) 10, 104, 111, 120, 122 criminal justice see criminal trials; justice; specific crime and case criminal trials: emotional scripts and 5; emotions in 11; performativity and 2 – 3; religiosity in 11; speech act and 2, 22 – 23, 30 – 31; terror of 153 – 158, 168 – 170, 172 – 173; as theatre 158 – 162; see also lawyerisation of criminal trial; poetics of criminal trials; specific case Crofts, Penny 74 Croker, John Wilson 133 – 135, 144 cultural practices and emotions 3, 24 – 25 culture of sensibility 3 – 4, 49 – 53, 55 – 56, 196 Curran, John Philpot 12, 92 – 99, 129 – 130 Currell, Mary 65 Curwen, Samuel 178 Cutler, Ralph 68 Dabhoiwala, Faramerz 66 Dallas, Robert 172

D’Archenholz, M. 188, 195 – 196 Darwinism 121 Davis, Natalie Zemon 7, 46 Dawes, Manasseh 8, 62, 66 – 67, 69 – 70 death penalty 2, 4, 8, 62, 70, 182 Demos, John 65, 67 Denman, Thomas 116 Derrida, Jacques 23 Devereaux, Simon 9 – 11 Dickens, Charles 106, 108, 144 Dickie, Simon 71 – 72 didactic narrative 55 disorientation, moments of 34 ‘dissident citizenship’ 5 Dodd, Dr. William: background information 14 – 15, 177 – 178; causes of 181 – 182; execution of 194 – 196; fate of 189 – 191; financial problems of 181 – 185; forgery accusations and 184 – 185; insincerity accusations against 17; jury and 185 – 189; justice and 177 – 178, 188 – 195; justice and, defending against claims of emotion 191 – 194; Magdalen Hospital and 181, 183; as preacher 178 – 182; press and 189 – 191; public and 189 – 191; repentance of 1 – 2; sentimentalism of 178 – 182, 185 – 189; as ‘Tyburn martyr’ 194 Dolan, Frances 43 – 44 domestic murder see parricide Doody, Margaret 44 Dover, Hepzibah 69 Draper, Edward 172 Duberley, Mrs. 203, 205 Duberley v. Gunning (1792) 203, 205 – 206 Duncomb, Lydia 162 – 163, 165, 169 duty of restraint 49, 52, 163 Eagleton, T. 71 Eden, William 53 Education Act (First) (1870) 13 – 14, 121 Education Act (Second) (1902) 13 – 14, 121 – 122 Eigen, Joel 50 Elias, Norbert 65 Ellis, Sarah 74 eloquence see legal oratory; rhetoric emotional appeals by counsel 114 – 117, 122 – 123

222 Index emotional communities 2, 6, 25, 27 – 32, 34 – 35 emotional regimes 2, 4 – 5, 7, 9, 13, 17, 41 – 43, 55, 178, 214 emotional scripts 5 emotions: conviction of accused and 13; in criminal trials 11; cultural practices and 3, 24 – 25; cultural scripts of 3; functionality of 72 – 73; Hochschild on 63; institutional dimensions of 25; jury and 11, 114 – 118, 142; justice and 16 – 17, 24, 86, 88, 94; morality and 24; as narratives of negotiation 34; normative scripts of 3; origin of 24; performativity and 5 – 6; perspective of, overtime 63; rape trials and 75; reason and 117 – 120; Reddy on 63, 71; religiosity and 11; scaffold and 6; scaffold speech and 6, 31, 35; Scheer on 63; sensibility and 52; significance of 71; truth and 16 – 17, 143 – 146; see also historicising emotions; moral sentiments; rape victims’ emotions; sentimentalism Emsley, Clive 153 English bar 86 English Common Law 87 Ensor, George 88 – 89, 91 Epstein, James 170 – 172 Erskine, Hon. Thomas: adultery trials and 15, 200 – 206; antipanic campaign and 15 – 16, 207, 213; background information 15 – 16, 199 – 200; Cadogan v. Cooper and 204 – 206; Campbell v. Addison and 202 – 203; as ‘Counsellor Ego’ 199, 206, 214; criminal conversation cases and 200 – 206; Duberley v. Gunning and 203, 205 – 206; Gibbs and 207 – 208, 210 – 211; Hardy defence and 16, 199, 207 – 213; Hodges v. Wyndham and 202; Hutchinson v. Burford and 206; insincerity accusations against 17, 144, 199, 206, 214; jury and 201 – 205, 211; legal oratory of 16, 172, 199 – 200, 206 – 212; moral panic and 200 – 206, 212 – 214; moral sentiments and 200 – 206, 212 – 214; Ricketts v. Taylor and 201, 203 – 204; sentimentalism of

16, 200, 205; treason trials and 206 – 212 exculpatory narratives 41, 49 – 53 executions, management of 154 – 155; see also burning; hanging Felman, Shoshana 23, 26 female passion 8 feminine performativity see infanticide; parricide; rape Ferril, Mary 68 Fielding, Henry 51, 154 – 156, 160 Finlay, John 90 Finney, Patrick 92 – 93 Fisher, Elizabeth 48 Fletcher, Justice 99 Flower, Elizabeth 45 Fonblanque, Anthony 145 Foote, Samuel 183 forgery 184 – 185; see also Dodd, Dr. William forgiveness and rape 69 Foyster, Elizabeth 47 Frazier, Simon 65 Freeman, Elizabeth 47 French Revolution 199 – 201 Fry, Michael 131 Gardiner, Mrs. 205 Garrick, David 155, 170 Garrow, William 13 – 14, 49, 52 – 53, 139 – 140, 158, 170 – 172 Gatrell, V. A.C. 52, 154 George III 212 Gibbs, Vicary 207 – 208, 210 – 211 Gifford, William 133 Gilbert, Martha 69 Gladfelder, Hal 13 – 14, 16 Godden, Elizabeth 50 Godwin, William 144, 153, 157 Goffman, Erving 2 Gonzalez, Carlos 169 – 170 Gossip, William 69 Gothic, theory of 13 Gowing, Laura 29 Grady, Henry Dean 96 Gratton, Henry 136 Green, Richard 69 – 70 guilt of rapists 69 – 73, 75 Gunnell, Susannah 56 Gunning, General 203, 205 Gutherie, James 166 Guthrie versus Sterne 131 – 133, 136, 141 – 142

Index  223 habeas corpus 153 Habermas, Jürgen 2 Hackman, James 86 Haddon, Mary 69 Hale, Sir Matthew 154 Halifax, Sir Thomas 184 hanging judge 99, 114, 160 hangings 6, 33, 44, 155, 166, 168 – 169 Hardy, Robert 15 – 16 Hardy, Thomas 16, 199, 207 – 213 Harlowe, Clarissa (fictional character) 8, 66 – 67, 71 Harris, Elizabeth 65, 68, 72 Harrison, Elizabeth 162 – 163 Hay, Douglas 154 Hayes, Catherine 45 – 47, 51, 56 Hayes, Henry 95 Hayes, John 53 ‘Her Legacy to the World’ (Parker) 32 Herring, Elizabeth 43, 49, 52 Hicks, Robert 53 – 54 Hiddelston, William 30 Hincks and others v. Turnly (1848) 98 – 99 historicising emotions: aims 1 – 2; background information 1 – 2; infanticide and 24 – 26; performativity and 2 – 5, 24 – 25; scholarship on 2; themes 2 Hochschild, Arlie 63 Hodges v. Wyndham (1791) 202 Hodgkis, Joyce 47 Hogarth, William 166, 168 honour, desire for 67 Horner, Francis 129 Hughes, William 54 Hume, David 3, 73 husband-murder criminal trials see parricide Hutcheson, Francis 62, 65 – 67, 70, 72 – 74 Hutchinson v. Burford (1789) 206 infanticide: Act of 1624 and 26 – 27; Arnold case 33 – 34; Cheek case 6, 21 – 26; Craig case 30 – 31; disorientation and, moments of 34; emotional communities and 27 – 32; explaining 26 – 28; gendered affective impact of courtroom and 6 – 7; historicising emotions and 24 – 26; Inglis case 5 – 6, 28 – 30; marital status of accused and

26 – 27; overview 5 – 7, 34 – 35; Parker case 32; performativity and trial of 21 – 26, 35; scaffold speech and 31, 35; Sedgwick case 6, 33; silence and, reading 33 – 34; social order and 31; speech act and 22 – 23, 30 – 31; Turnbul case 6, 28 – 29; unwed mothers and 26 – 27, 32 Inglis, Margaret 5 – 6, 28 – 30 insanity defence 27, 46, 50 Irish bar 87, 129 – 137 Irish oratory 12 Jackson, Sergeant 94, 99 Jeffrey, Francis 129 – 131, 137, 143 Jeffryes, Elizabeth 54 Jervis, Elizabeth 69 – 70 Joels, Amy 65 Johnson, Samuel 65, 179 Johnston, William 119 – 120 Jones, Richard 98 jury: Anson case and 51; Arnold case and 33; Blandy (Mary) case and 55, 57; Brewster and 97 – 98; Broadric case and 50; Calderon case and 170 – 172; Castlepollard massacre and 88; Cheek case and 6, 21, 24 – 25; counsels’ influence on 105; Courvoisier case and 106; Cox and 119; Curran and 92 – 93; decision-making of 99, 155, 160; defence lawyers and, prohibition to address 50, 55, 129, 163; Dodd case and 185 – 189; emotions and 11, 114 – 118, 142; Erskine and 201 – 205, 211; Flower case and 45; Garrow and 53; Grand 85, 88; Hardy (Thomas) case and 208, 210 – 211; Hincks case and 98 – 99; judge’s instructions to 45, 49, 116, 155, 204; justice and 55, 92, 97, 115; Malcolm case and 164; North and 116; Phillips (Charles) and 98; Prisoners’ Counsel Act and 12, 104, 146; role of 156; Smith’s (W.D.) speech to 85, 88; sympathy of 26; trials 12 – 14, 16, 173 justice: administration of 4; adversarial process of trial and 86 – 87; Butler on 5; conviction and 144; court case and implications for 92 – 93; emotions and 16 – 17, 24, 86, 88, 94; jury and 55, 92, 97, 115; malice and 8; media

224 Index conversation about 2; moral order and 15; news about 2; objectivity and 34; ‘public sphere’ and 2; rape and 8 – 9; research on eighteenthand nineteenth-century 1 – 4; rhetoric and 12; Ryder and 6, 24; sympathy and 87 – 88, 94, 98 Kenyon, Lord Chief Justice 50, 201 – 204, 207 Kite, William 70 – 71 Knowles, Devereux 120 Lamb, George 116 Langbein, John H. 86 – 87, 155 – 156, 162 Langford, Paul 177 – 178 Law, Edward 205, 214 lawyerisation of criminal trial: Courvoisier case and 11, 106 – 108; Criminal Evidence Act and 10, 104, 111, 120, 122; Education Acts (First and Second) and 121 – 122; emotional appeals by counsel and 105, 114 – 117, 122 – 123; emotions and reason and 117 – 120; overview 10 – 11, 104 – 105, 122 – 123; Prisoners’ Counsel Act and 11 – 12, 104, 108, 112, 114, 117; secularisation of defendant’s testimony and 10 – 11, 105, 120 – 123; testamentary oath and 10 – 11, 108, 109 – 110, 111 – 114; Victorian law and 105 Lean, Eugenia 25 legal oratory: of Erskine 16, 19 – 200, 206 – 212; Locke and 9 – 10, 89; passion and, enlisting 89 – 92, 95, 100, 129 – 130, 173; of Phillips (Charles) 93, 128, 131 – 137; purpose of 88; as rhetorical art 87; sympathy and 9, 88 – 91; see also rhetoric; sympathetic speech Lemmings, David 13, 15 Leverington v. Edwards (1792) 201 Linebaugh, Peter 154 Locke, John 9 – 10, 89 London Corresponding Society 207 London, Mary 67 ‘longing for voice’ 43 Lowther, Ann 69 lust and rape 70 Lylliman, Elizabeth 46 Lyttelton, Alfred 122

Mackintosh, Sir James 129, 131 Madan, Martin 157 – 161 Magdalen Hospital 181, 183 Magrath, Jane 164 Malcolm, Sarah 13, 16, 158, 162 – 166, 167, 169, 172 – 173 malice of rape victims 9, 73 – 75 Mandeville, Bernard 155 Manly, John 188 Mansfield, James 186 – 188 Martin, Mary 65, 73 Massey v. Headfort (1804) 93 matricide 7, 41; see also parricide Matts, Sarah 68 Maturin, Charles 137 May, Allyson N. 9 – 12, 117, 163 May, Anne 69 McGowen, Randall 1, 13 – 15, 52 McKenzie, Andrea 5, 7 – 9 mercy 154 Midwinter, Elizabeth 65, 68, 74 misogyny 211 Mitford, Solicitor General 211, 214 Monk, Esther 50 moral sentiments: adultery trials and 200 – 206; criminal conversation cases and, reportage of 200 – 206; crisis in sentiment and 212 – 214; Erskine and 200 – 206, 212 – 214; overview 15 – 16, 199 – 200; treason trials and, reportage of 206 – 212 Mudd, Anne 46 Murder Act (1752) 54 Newall, Richard 74 news of criminal justice 2 Norbury, Lord Chief Justice 99 North, John Henry 116 Norton, Edward 69 Norwood, Mary 51 – 52 O’Connell, Daniel 134 Old Bailey trials: Courvoisier 11; exculpatory narratives and 41, 49 – 50; matricide 41; parricide 41 – 44, 53; petty treason defences 44 – 51; Phillips (Charles) and 140; rape 64, 71, 73 – 74; testamentary oath and 108, 109 – 110; see also specific case Osgood, Margaret 46 Owen, Mary 50, 56 Owen, Parthenia 45

Index  225 Page, Sir Francis 160 – 161, 173 Paine, Tom 144 Paley, William 111 – 112, 154 pardon narratives 7 – 8 pardons 154 Parker, Francis 32 parricide: as adversarial trial 53 – 56; Aubrey case 47; Billings case 53; Blandy (Mary) case 5, 7, 41 – 42, 44, 53 – 57, 168; Boswell (Ann) case 48; Broadric case 50; Broom case 47 – 48; Cicero’s example of 53; Cooper (William) case 49; exculpatory narratives and 41, 49 – 53; Fisher case 48; Flower case 45; Foyster case 47; Freeman case 47; Godden case 50; Hayes (Catherine) case 45 – 47, 51, 56; Herring case 43, 49, 52; Hicks case 53 – 54; Hodgkis case 47; Hughes case 54; husband-murder context and 42 – 44; incidence 42; Jeffryes case 54; Lylliman case 46; Monk case 50; Mudd case 46; Norwood case 51 – 52; Old Bailey defences 44 – 51; Old Bailey trials 41 – 44, 53; Osgood case 46; overview 7 – 8, 41 – 42; Owen (Mary) case 50, 56; Owen (Parthenia) case 45; Pool case 51; provocation and 44 – 49; Radbourne case 7, 42 – 43, 51 – 53, 56; Roberts case 48; sensibility and 52 – 53, 55; Sharpless case 51; shift in representation of 56; Sibson case 50 – 51, 56; silent women and 42, 47; socioeconomic status of victim and 49, 56; Symbole case 45, 51; vocal women and 42, 45; Williams (Anne) case 48 – 49; zeal to punish and 57 Partridge (fictional character) 160 – 161 Pascoe, Judith 144, 203, 205 – 206, 211 passion: crimes and 21, 25, 30, 32, 44, 46, 53, 55, 70, 162, 180; female 8, 46; Hume and 3; legal oratory in enlisting 89 – 92, 95, 100, 129 – 130, 173; prosecutorial 42, 53, 56; reason and 64, 117; sensibility to 4; sympathy and transfer of 86; truth and 143 – 146; useful 72; validity of argument and 118; see also emotions

Pearson, Christopher 66, 69, 71, 74 Percival, Spencer 50 performativity: agency and 7; Butler’s view of 23 – 53; criminal trials and 2 – 3; cultural history of 2 – 5; emotions and 5 – 6; historicising emotions and 2 – 5, 24 – 25; infanticide trial and 21 – 26, 35; punishment and 2; repetition and 23 – 24; Sedgwick and 33; silence and, reading 33 – 34; truth and 12 – 13; see also infanticide; parricide; rape; specific case periperformatives 6, 33 perjury 112, 155 perlocutionary speech 22 – 23 Perryn, Baron 187 – 188 Perse, William 95 persuasion 144 petty treason see parricide philanthropy 181 Phillips, Charles: Adolphus and 12, 134, 142 – 143; Courvoisier case and 10 – 11, 86, 96, 106 – 108, 128, 141; Croker’s criticisms of 134 – 135, 144; English bar and 12, 137 – 143; Guthrie v. Sterne case and 131 – 133, 136, 141 – 142; insincerity accusations against 17, 144; Irish bar and 12, 129 – 137; legal oratory of 93, 128, 131 – 137; obituary of 140 – 141; Old Bailey and 140; overview 11 – 13, 128 – 129; passion of 143 – 146; Prisoners’ Counsel Act and 128 – 129, 146; scandal and decline of career of 128, 143 – 144; Shaw v. Williams and 139; sincerity allowances for 144 – 145; sympathetic speech of 93, 96, 98; truth and 143 – 146 Phillips, Sir Richard 115 Picton, Thomas 13 – 14, 16, 158, 167 – 173, 171 Pinch, Adela 24 piqueting 169 – 170 Pitt (William) government 153, 207, 212 Poetics (Aristotle) 13, 156 poetics of criminal trials: anxiety about 16 – 17; Calderon and 169 – 172, 171, 173; courtroom as theatre and 158 – 162; exceptional trials and 16; executions, management of 154 – 155; Garrow’s

226 Index theatrical restaging and 158, 170 – 173; Malcolm case and 158, 162 – 166, 167, 169, 172 – 173; overview 13 – 14, 156 – 158, 173; Picton case and 158, 167 – 173, 171; terror of criminal trials and 153 – 158; truth and 14 Pool, Sarah 51 Portsmouth, Robert 134 Price, Ann 162, 164 – 165 Priddle, William 72 Prisoners’ Counsel Act (1836) 11 – 12, 86, 104, 108, 112, 114, 117, 128 – 129, 146, 159 prosecutorial passion 42, 53, 56 ‘public sphere’ and criminal justice 2 punishment and performativity 2 Purse, James 74 queer phenomenology 34 Rabin, Dana 4 – 7, 9, 50, 52 Radbourne, Henrietta 7, 42 – 43, 51 – 53, 56 Radcliffe, Ann 13, 168 – 169 rape: alcohol and 68 – 69; anger against rapists and 72 – 73; Askew case 65; Banks case 65; Berry case 69 – 70; Boss case 65, 68; Bradley case 68; Brickinshaw case 65; chastity and 66; communal action and 73; Cooper (Ann) case 69, 74; Currell case 65; Dawes on 66 – 67, 69 – 70; death penalty for 62, 70; Dickie’s research on 71 – 72, 74; Dover case 69; Ellis case 74; emotions and trials of 75; Ferril case 68; forgiveness and 69; Gilbert case 69; guilt of rapists and 69 – 73, 75; Haddon case 69; Harris case 65, 68, 72; humour about 71 – 72, 74; imagery 65; Joels case 65; justice and 8 – 9; London case 67; Lowther case 69; lust and 70; Martin case 65, 73; Matts case 68; May (Anne) case 69; Midwinter case 65, 68, 74; Old Bailey trials 64, 71, 73 – 74; positive emotions and 72; restitution of victims and 69 – 73, 75; Sanderson case 74; sexual reputation and sexuality and 75; sexual virtue as public good and 68; social stigma of women engaging in illicit sex and 65 – 66;

sorrow and 73; Stone (Elizabeth) case 65, 67 – 68; Swain case 70; Worsley case 66, 69, 71 rape victims’ emotions: Clarissa Harlowe tale and 8, 66 – 67, 71; Dawes and 8, 62; gender discrimination and 9; guilt of rapists and 69 – 73, 75; malice 9, 73 – 75; overview 8 – 9, 62 – 64; revenge 73 – 75; role of in trials 75; self-abasement 67; shame of 9, 64 – 69; society’s emotions and 76; understanding 63 – 64 Ray, Martha 86 reason and emotions 117 – 120 Reddy, William 1 – 2, 24, 42, 63, 71 Regency Act 129 religiosity 11, 105 revenge 73 – 75 Reynolds, Thomas 94 – 95 Reytown, Alexander 74 rhetoric: French Revolution and 90; good 88; Irish revolution and 90; justice and 12; of sympathy 91 – 94; truth and 88 – 91; see also legal oratory Richard II 212 – 213 Richardson, Samuel 8, 43, 66 – 67, 180 Ricketts v. Taylor (1798) 201, 203 – 204 Roberts, Elizabeth 48 Robertson, Lewis 184, 193 Robinson, Robert 94, 137 Rogers, Nicholas 54 Rosenwein, Barbara 5 – 6, 24 – 25, 34 Royal Commission on Oaths (1867) 112 Ruiz, Pedro 169 – 170 Russell, Gillian 207, 212 Russel, Lord William 10, 106, 128 Russen, Benjamin 73 R. v. Hardy 207 – 213 Ryder, Sir Dudley 6, 21 – 26, 33 St. Vincent, Earl 203 Sanderson, Elizabeth 74 Saurin, William 93 Savage, Richard 160 – 161 scaffold speech 6, 31, 35 Scheer, Monica 63 Scheff, J. 65 Scott, Sir John 207 – 209, 214 Scott, Sir Walter 131 Second Reform Act (1867) 121

Index  227 secularisation of defendant’s testimony 105, 120 – 123 Sedgwick, Eva Kosofsky 6, 33 self-abasement 67 sensibility: culture of 3 – 4, 49 – 53, 55 – 56, 196; emotions and 52; narratives of 4; novels and 24; parricide and 52 – 53, 55; passion and 4 sentimentalism: Anson case and 51; Blandy (Mary) case and 55 – 56; Broadric case and 50; of Dodd 178 – 182, 185 – 189; of Erskine 16, 200, 205; Garrow on 52 – 53; Godden case and 50; Hayes (Catherine) case and 51; Herring case and 52; McGowen on 52; Norwood case and 51 – 52; in novels 49, 66; overview 3 – 4; Owen (Mary) case and 50; penal arrangements and, criticism of 196; Pinch on 24; Radbourne case and 52 – 53; Sharpless case and 51; Sibson case and 50 – 51; Symbole case and 51; see also emotions shame of rape victims 9, 64 – 69 Sharpe, James 73 Sharpless, Mary 51 Shaw v. Williams (1823) 139 Sheridan, Richard Brinsley 136 Shiel, Richard Lalor 91 Sibson, Jane 50 – 51, 56 silent women 6, 9, 42, 47 Slattery, Paul 95 Small, Elizabeth 73 Smith, Adam 3, 89, 94, 96, 199 Smith, Baron W.C. 85, 88 Smith, Sydney 129 Snell, E.J. 8 – 9 sociability, natural 3 social interactions 2 – 3 Society for Constitutional Information 153 Society for the Relief and Discharge of Persons Imprisoned for Small Debts 181 Society for the Resuscitation of Persons Apparently Drowned 181 sovereignty 22 – 23 speech act 2, 22 – 23, 30 – 31 Stanhope, Philip (Earl of Chesterfield) 14, 177 Stone, Elizabeth 65, 67 – 68 Stone, Lawrence 200 Straub, Kristina 31

sublime 13, 168 – 169 Sutton, John 70 Swain, Mary 70 Symbole, Elizabeth 45, 51 sympathetic evidence 99 – 100 sympathetic speech: of Brewster 93, 95, 97 – 98; in civil cases 98; connection and 92; of Curran 12, 92 – 96, 98 – 99; defence and 94 – 99; juries and 100; justice and 92 – 93; legal oratory and 9, 88 – 91; overview 9 – 10, 85 – 88; of Phillips 93, 96, 98; prosecution and 94 – 99; rhetoric of 91 – 94; sensibility and 4; truth and 9 – 10, 85, 88 – 91, 100 sympathy 16, 26 – 27, 86 – 88, 94, 98 Tandy, Napper 97 terror 153 – 158, 168 – 170, 172 – 173 testamentary oath 10 – 11, 108, 109 – 110, 111 – 114 theatre, criminal trial as see poetics of criminal trials Third Reform Act (1884) 121 Thomas, Sir Keith 66 Thompson, E. P. 153 Thornhill, James 166 Tombe, Mr. 99 Tom Jones 161 Tooke, John Horne 199 torture trial see Picton, Thomas Tracey, Mary 165 treason trials 15 – 16; see also Hardy, Robert; petty treason criminal trials triple murder criminal trial see Malcolm, Sarah truth: emotions and 16 – 17, 143 – 146; passion and 143 – 146; performativity and 12 – 13; Phillips (Charles) and 143 – 146; poetics of criminal trials and 14; rhetoric and 88 – 91; secularisation of telling of 109 – 110, 111; sympathetic speech and 9 – 10, 85, 88 – 91, 100; Victorian society’s understanding of telling of 113 – 114 Turnbul, Bessy 6, 28 – 29 Tyler, James Endell 112 – 113 unwed mothers 26 – 27, 32 Victorian law 105 vocal women 9, 42, 45

228 Index Walker, Garthine 46 – 47, 53, 72 Walker, Nigel 49 – 50 Walpole, Horace 166 Ward, Richard 54 Wargrave, Lawrence (fictional character) 114 Warren, Samuel 145 Webb, Timothy 129, 137 Welsh, Alexander 55 Wesley, John 180 Wilberforce, William 112 – 113

Williams, Anne 48 – 49 Williams, Henry 68 – 69 Williams, Sam 70 Wiltenburg, Joy 75 Wollstonecraft, Mary 157 Wontner, Thomas 159 Worsley, Elizabeth 66, 69, 71 Woulfe, Mr. 95 Wykes, Jacob 69 Yates, Jeremy 69