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

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

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

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

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

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

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

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

9. See Grossberg, Michael, A Judgment for Solomon: The d'Hauteville Case and Legal Experience in Antebellum America (New York: Cambridge University Press, 1996).CrossRefGoogle Scholar Murder trials are similarly approached in Halttunen, Karen, “‘Domestic Differences’: Competing Narratives of Womanhood in the Murder Trial of Lucretia Chapman,” in The Culture of Sentiment: Race, Gender and Sentimentality in Nineteenth-Century America, ed. Samuels, Shirley (New York: Oxford University Press, 1992)Google Scholar; Robertson, Cara W., “Representing ‘Miss Lizzie’: Cultural Convictions in the Trial of Lizzie Borden,” Yale Journal of Law and the Humanities 8 (1996): 351–416Google Scholar; and Hartog, Hendrik, “Lawyering, Husbands' Rights, and ‘the Unwritten Law’ in Nineteenth-Century America,” Journal of American History 84 (June 1997): 67–96.CrossRefGoogle Scholar Nineteenth-century English trials of any sort have yet to be explored in similar depth. I have examined one English murder case along these lines in “The Sad Story of George Hall: Adultery, Murder and the Politics of Mercy in Mid-Victorian England,” Social History 24, no. 2 (1999). The present article, concerned with tracing certain developments over decades, can only touch very briefly upon any single trial.

10. “A Brief History of the Criminal Jury in the United States,” University of Chicago Law Review 61 (1994): 867–928.

11. See Berridge, Virginia, “Popular Sunday Papers and Mid-Victorian Society,” in Newspaper History, ed. Boyce, George, Curran, James, and Wingate, Pauline (London: Constable, 1978)Google Scholar; Brown, Lucy, Victorian News and Newspapers (Oxford: Clarendon Press, 1985)Google Scholar; Kent, Christopher, “The Editor and the Law,” in Innovators and Preachers: The Role of the Editor in Victorian England, ed. Wiener, J. H. (Westport, Conn.: Greenwood Press, 1985), 99–119Google Scholar; and idem, “Victorian Periodicals and the Constructing of Victorian Reality,” in Victorian Periodicals: A Guide to Research, ed. Don Vann, J. and Van Arsdel, Rosemary T. (New York: MLA, 1989), 2:1–12.Google Scholar

12. See Beattie, Crime and the Courts, 432.

13. For a more thorough description of this home office archive before 1836, see Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994)Google Scholar; for the archive between 1860 and 1900, see Chadwick, Roger, Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian Britain (New York: Garland Publishing, 1992).Google Scholar

14. For the parallel development in the United States, see Tucher, Andie, Froth and Scum: Truth, Beauty, Goodness, and the Ax Murder in America's First Mass Medium (Chapel Hill: University of North Carolina Press, 1995).Google Scholar In Britain even politically militant papers found much space for major crimes: see Rodrick, Anne Baltz, “‘Only a Newspaper Metaphor’: Crime Reports, Class Conflict, and Social Criticism in Two Victorian Newspapers,” Victorian Periodicals Review 29 (1996): 1–18.Google Scholar

15. Guilty pleas, which would have obviated the need for a jury, were extremely rare in murder trials; judges strongly discouraged them and often would refuse to accept such a plea until the defendant had had additional time to reconsider.

16. Green, Thomas A., “The English Criminal Trial Jury and the Law-Finding Traditions on the Eve of the French Revolution,” in The Trial Jury in England, France, Germany, 1700–1900, ed. Schioppa, A. P. (Berlin: Duncker and Humblot, 1987), 72.Google Scholar

17. A prosecution-minded barrister, Sir George Stephen, complained in the 1850s that doing away with the bloody code had not, as had been promised, stopped juries from bending the law; indeed, he declared that “nowadays a man cannot get hanged let him try for it ever so anxiously.” The Juryman's Guide (London: W. Tess, 1867 [originally published about a decade earlier]), 151.

18. For Surrey between 1660 and 1800, Beattie located 309 murder indictments, but only 6 for manslaughter. By 1850, in England and Wales as a whole, there were 192 persons committed for trial on the charge of manslaughter, compared with 52 on a murder charge. See Beattie, Crime and the Courts, 83; Judicial Statistics for England and Wales for the Year 1850 (Parliamentary Papers [1851], 46, 97).

19. This legislation allowed counsel for all felony defendants to address the jury. How defense counsel affected the criminal trial has begun to be explored by Beattie, “Scales of Justice;” Langbein, John (see above, n. 7), and “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” Columbia Law Review 96 (1996): 1168–1202CrossRefGoogle Scholar; and Landsman, Stephen, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review 75 (1989–1990): 197–209.Google ScholarCairns, David J. A., “Full Defence by Counsel and the Development of Advocacy, 1800–1850” (Ph.D. diss., Cambridge University, 1996)Google Scholar, takes this effort into the nineteenth century.

20. Beattie, “Scales of Justice.”

21. When John Wilson was charged with beating his wife to death, his counsel located a neighbor who had not come before the coroner's inquest to testify that she had seen the wife, drunk, verbally abuse her husband and then swing at him powerfully with a poker; Wilson was acquitted. The Times, 30 Aug. 1830. The future Lord Chief Justice Cockbum, Ann Fisher's counsel in her trial for poisoning her husband, mounted a prolonged and fierce assault on the veracity of a major prosecution witness, a fellow prisoner who had testified that Fisher had confessed the crime to her. Cockburn called a large number of persons to the stand to demolish the witness's character. In the end, despite strong evidence from medical men and other lay witnesses, Fisher was acquitted. The Times, 27 Mar. 1848.

22. Counsel for Helen Englehardt, an upper-middle-class married woman charged at the Old Bailey with manslaughter of her four-year-old daughter, objected when the prosecution proposed to ask her maid about her general conduct to the child. Such evidence, he argued, could only be pertinent where the crime was one of murder. Mr. Justice Byles overruled him but then cautioned prosecuting counsel that he must avoid asking about any specific previous assault. Englehardt was found guilty of assault only and sentenced to eighteen months' imprisonment. CCCSP 1862–63, #1149; see also The Times, 24 Sept. 1863. Of course, in the majority of murder trials, defense counsel, often engaged or assigned at the last moment, made little difference; neither Perry Mason nor Rumpole was much in evidence in the nineteenth-century English courtroom.

23. As a former barrister, Charles Kingston, observed of the later Victorian and Edwardian criminal courts, “the summing-up by an Old Bailey judge has often been the deadliest weapon of the prosecution.” The Bench and the Dock (London: Stanley Paul, 1925), 36. In an account of Old Bailey practice published anonymously, the future Lord Chief Justice, Lord Russell of Killowen, complained of one case where a weak judge let defense counsel run amok but approved of another in which the judge summed up forcefully: “in a few telling sentences he demolishes the flimsy case for the prisoner, which [defense counsel] has striven so hard to set up.” [Russell, Charles], Briefs and Papers: Sketches of the Bar and the Press by Two Idle Apprentices (London: Henry S. King, 1872), 147.Google Scholar

24. Stephen, James Fitzjames, A General View of the Criminal Law of England (London: Macmillan, 1863), 208.Google Scholar Stephen was writing from his experience as a barrister since 1856. When John Jones's counsel asked the jury to return a manslaughter verdict in his murder of his lover on the grounds that he had been thrown into “an uncontrollable state of passion” by her recalcitrance, Lord Abinger “strongly denounced” this argument. The Times, 15 Mar. 1842. Such judicial behavior was not unusual and rarely drew adverse comment from contemporaries.

25. As Glanville Williams has noted, within a decade of the Prisoner's Counsel Act, it had come to be “recognized to be the right and duty of the judge to state what impression the evidence had produced on his mind in order to prevent the jury being misled by worthless evidence.” The Proof of Guilt (London: Stevens, 1963), 294.

26. Judges made remarks favorable to the convict in less than one-quarter of all spouse murder convictions in the four decades from 1835 to 1874 for which home office files have been located (eighteen of eighty). By comparison, Peter King has found that in the eighteenth-century capital cases he examined in which judges did not simply reprieve the convict themselves “a majority of judges' reports leaned favorably towards the prisoner.” (Crime, Justice and Discretion: Law and Social Relations in England, 1740–1820 [London: Oxford University Press, 2000].)

27. This is not, of course, to say that the normal state of either judge-jury or even judge-defense counsel relations was one of conflict. Most of the time judges and juries agreed, and even when they did not, neither side challenged the essential legitimacy of the other. Similarly, defense counsel usually tried not to rile the judge (if for no other reason than their own professional self-interest). The system worked smoothly at most times; we are concerned here with those times when the workings were not so smooth, for—like divorce or breach of contract litigation—moments of breakdown can throw much light on the “normal” operation of an institution.

28. This effort was a decisive factor shaping all manner of social policy, including both civil and criminal justice. I have described this effort as it affected criminal justice at length: see Wiener, Reconstructing the Criminal. In civil law, it can be seen at work in the new judicial insistence on keeping promises. See Atiyah, P. S., The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979)Google Scholar and Frost, Ginger S., Promises Broken: Courtship, Class, and Gender in Victorian England (Charlottesville: University Press of Virginia, 1995).Google Scholar Neither my earlier work nor Atiyah's very influential book, however, looked much at trial practice.

29. John Beattie's finding that the prosecution and punishment of violent offenses rose in Sussex and Surrey toward the end of the eighteenth century has been substantiated, explored in greater detail, and carried into the early nineteenth century for Essex by Peter King. See Beattie, Crime and the Courts, 136–39; King, , “Punishing Assault: The Transformation of Attitudes in the English Courts, 1748–1821,” Journal of Interdisciplinary History 27 (1996–1997): 43–74.CrossRefGoogle Scholar I have found this trend continuing through much of the nineteenth century. On the half-hearted prosecution of homicide and other violent offenses in the eighteenth century, see also Morgan, Gwenda and Rushton, Peter, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718–1800 (London: UCL Press, 1998), 51–58.Google Scholar

30. Lord Ellenborough's Act in 1803 made possible capital prosecution of attempted murder, or even in certain cases of mere attempts to commit serious injury, if firearms or sharp instruments were employed. Lord Landsdowne's Act in 1828, which replaced the 1803 act, dropped the requirement of use of such weapons. In 1822 (the same year in which cruelty to animals was first criminalized), the maximum penalty for manslaughter was increased to three years' imprisonment or transportation for life; in 1837, while many property offenses had their penalties reduced, those for various kinds of assault were increased.

31. See Atiyah, The Rise and Fall of Freedom of Contract, and Wiener, Reconstructing the Criminal.

32. See Cockburn, J. S., “Patterns of Violence in English Society: Homicide in Kent 1560–1985,” Past and Present 130 (Feb. 1991): 70–106.CrossRefGoogle Scholar

33. Wiener, “The Victorian Criminalization of Men.” Another facet of this increased legal pressure upon men was the rising number of prosecutions for sexual assault (an annual average of 189 committals to trial for the years 1836–40 rose to 254 for 1841–45, 397 for 1861–65, 647 for 1881–85, and 895 for 1891–95). See Gatrell, V. A. C., “The Decline of Theft and Violence in Victorian and Edwardian England,” in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. Gatrell, et al. (London: Europa Publications, 1980), 238–337Google Scholar, compiled from annual judicial statistics. After the removal of the capital sanction in 1841, conviction rates for rape jumped. Anna Clark noted a rise at the Northeast assizes from 10 percent between 1836 and 1840 to 33 percent between 1841 and 1845. Women's Silence, Men's Violence: Sexual Assault in England, 1770–1845 (London and New York: Pandora Press, 1987), 60. Judith Travers similarly found that the conviction rate in her sample of London rape trials before 1841 was 18 percent and after 1841 51 percent. “Cultural Meanings and Representations of Violence Against Women, London 1790–1895” (Ph.D. diss., State University of New York at Stony Brook, 1997), 153.

34. [Richard J. Home and Charles Dickens], “Cain in the Fields,” Household Words, 10 May 1851.

35. Daily News, 28 Aug. 1846. There is now a large literature on relations between husbands and wives at different social levels in Victorian England. A focus on cooperation is evident in Gillis, John R., For Better or for Worse: British Marriages, 1600 to the Present (New York: Oxford University Press, 1985)Google Scholar, and Davidoff, Leonore and Hall, Catherine, Family Fortunes: Men and Women of the English Middle Class, 1780–1850 (Chicago: University of Chicago Press, 1987)Google Scholar; more recent work, highlighting conflict instead, are Hammerton, A. J., Cruelty and Companionship: Conflict in Nineteenth-Century Married Life (London and New York: Routledge, 1992)CrossRefGoogle Scholar, and Clark, Anna, The Struggle for the Breeches: Gender and the Making of the British Working Class (Berkeley and Los Angeles: University of California Press, 1995).Google Scholar On the statute law regulating marital relations, see Shanley, M. L., Feminism, Marriage, and the Law in Victorian England (Princeton: Princeton University Press, 1989).Google Scholar

36. A General View of the Criminal Law, 209.

37. Ibid., 204.

38. Rarer than in the eighteenth century, when prosecutions were less screened by magistrates. In the decade 1860–69, for instance, only six wife or mistress murder trials ended in outright acquittals, and in all of these cases the reason was not doubt about identity but about cause of death. This is not to be taken as a claim about Victorian killings themselves, for lacking modern investigative techniques the authorities seem to have usually allowed homicide investigations not readily yielding a clear suspect to lapse. Few indeed approached the notoriety of the Ripper; many were ambiguous enough to be officially categorized as an accident or as simply “found dead.” For this and other reasons (whose discussion here would take us too far afield), criminal prosecutions cannot be used as a straightforward index of the incidence of nineteenth-century homicide.

39. This article is largely limited to examining murder prosecutions. However, manslaughter prosecutions, greatly outnumbering those for murder throughout the century, would also repay closer study. In addition, they sometimes exposed sharp differences in defining culpability, whether in regard to reckless driving (the largest single category), workplace accidents, or mistreatment of children or wives. For example, when Abraham Pembrook's unfaithful and spendthrift wife unexpectedly died after his beating in 1860, the coroner's jury appended to its finding of manslaughter a statement urging the most lenient treatment. The judge however felt they had gone too far, admonishing Pembrook that “however great the provocation, nothing could justify the cruel and merciless beating you gave her.” The Times, 9 Mar. 1860.

40. These are not provided by official statistics but must be ferreted out by examining the circumstances of each trial. The following numbers are necessarily imperfect. Based chiefly on newspaper reports, they may miss an occasional trial (though they miss none that resulted in guilty verdicts); more significantly, conflict between judges and juries has been inferred from the report of the case in newspapers and home office files, and such inferences can only be approximate. For example, I have taken the combination of a manslaughter verdict and the maximum sentence of penal servitude for life as an indicator of some disagreement between judge and jury, but this was not always the case. On the other side, on occasion a judge would pressure a reluctant jury into a murder verdict, only sometimes leaving evidence of this in the surviving records.

41. This latter power was abolished by statute in 1870.

42. Judges and juries readily agreed on evaluating the comparatively rare cold-blooded deliberate killing in pursuit of gain or revenge, and in such cases the question of mitigation almost never arose.

43. Again, see Beattie, Crime and the Courts, 91–96. When, for example, Edward Mann in Newcastle in 1776 killed a man who had challenged him to a fight, he claimed he had been publicly insulted and had no choice, particularly since he feared the victim would attack him anyway if he did not fight; he was acquitted. Morgan and Rushton, Rogues, Thieves and the Rule of Law, 53.

44. One early example of this judicial “war on violence” was the unexpected hanging of James Abbott, convicted in 1828 of attempted wife murder. Those convicted of attempted murder had only been made liable to capital punishment in 1811, and it had hitherto hardly been applied for this offense. When the judge sentenced him to hang, horrified jurymen petitioned the home secretary, citing his wife's provocation as grounds for a reprieve. But Peel, after consulting both the lord chancellor and the lord chief justice of common pleas, decided that English society needed an example (it would be, he noted, “dangerous to society” to spare him). The Times, 29 Oct., 3, 6 Dec. 1828; Public Record Office, HO 17/82/1; see also Gatrell, Hanging Tree, 413–16.

45. On the history of the “objective test” of criminal responsibility, see Bernard Brown, “The ‘Ordinary Man’ in Provocation: Anglo-Saxon Attitudes and ‘Unreasonable Non-Englishmen,’” International and Comparative Law Quarterly 13 (1964): 203–35; Coss, Graeme, “‘God Is a Righteous Judge, Strong and Patient: and God Is Provoked Every Day.’ A Brief History of the Doctrine of Provocation in England,” Sydney Law Review 13 (1991): 570–604Google Scholar; Finkel, Norman J., “Achilles Fuming, Odysseus Stewing, and Hamlet Brooding: On the Story of the Murder-Manslaughter Distinction,” Nebraska Law Review 74 (1995): 742–803.Google Scholar Since about the time of the First World War, “objectivism” has been in retreat in both England and America; in recent decades its retreat has become more like a rout. On the U.S., see Stith-Cabranes, Kate, “Faults, Fallacies, and the Future of Our Criminal Justice System: The Criminal Jury in Our Time,” Virginia Journal of Social Policy and the Law 3 (1995): 133–15Google Scholar; on England, see Kiralfy, A., ed., The Burden of Proof (Abingdon: Professional Books, 1987).Google Scholar In both nations, the decade of the 1960s appears to have been the decisive period for the abandonment of this “Victorian” approach to criminal liability.

46. Leader-Elliott, Ian, “Sex, Race and Provocation,” Criminal Law Journal [Australia] 20 (1996): 96.Google Scholar

47. R. v. Fisher (1837): 173 English Reports [hereafter ER] 452.

48. HO 26/43.

49. In R. v. Eagle (1862), Lord Chief Justice Erie explicitly held that whether there existed provocation sufficient to reduce to manslaughter was for the jury to decide. The Times, 14 Mar. 1862;2 F&F 827.

50. 173 ER 422.

51. Emphasis added.

52. R. v. Welsh (1869): The Times, 29 Oct. 1869; 11 Cox's Criminal Cases [hereafter Cox CC] 336. At the same time, Keating immediately qualified his observation that he “was unable to discover such evidences of provocation in this case” by noting “but of course that would be a question which the jury alone would have to decide.” Coss, “‘God Is a Righteous Judge,’” and Taylor, Laurie J., “Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense,” UCLA Law Review 33 (1987): 1679–1735Google Scholar, both mis-leadingly see this case as a turning point in the development of the law of provocation, their exclusive focus on leading cases causing them to miss the gradual judicial adoption of this standard over the previous generation.

53. R. v. Templeton (1840): The Times, 14 May 1840; HO 18/22/25. Although Scotland had its own distinctive criminal law, which differed in many points of substance and procedure from that of England (most strikingly perhaps in the lack of need for jury unanimity), in practice by the nineteenth century the two nations' systems were closely interconnected. At the base they shared a common language and a broadly similar public culture, and at the apex they shared the same arbiter of mercy, the British home secretary.

54. The unspoken negotiations that may often have shaped jury verdicts like this one are suggested in the aftermath of another Scottish wife murder case, R. v. Salt (1860), in which the jury foreman, pleading for a reprieve, argued that the murder verdict had been given in expectation that the prisoner's life would be spared; if they had known their recommendation would be ignored, he suggested, they might well have found “not proven” (HO 12/125/39772).

55. and by the prisoner's lack of standing to be provoked: he later noted to the home secretary that “neither the husband nor the wife were of very temperate habits, but he was the worst of the two…. he was habitually violent on Saturday night.”

56. The petition does not survive, but the signatories of other similar petitions in the period were overwhelmingly male. Whether this is a sign of gender differences in sympathies or that signing petitions was one of the “public” activities normally left for men is not clear.

57. That a mere bank clerk would write the home secretary and take issue with Lord Cockburn (and that his letter would be preserved in official files) was itself perhaps a sign of a more democratic era.

58. Lord Justice Clerk Boyle told the home secretary that “it would be most dangerous doctrine, were it to be held, that the egregious drunkenness either of the deceased or the survivor can alter the nature of the crime.” On the light such cases throw on Victorian gender relations, see Wiener, “Domesticity: Disciplining Women or Feminizing Society?”

59. A few months later, Baron Rolfe sentenced a man who had cut up his wife almost fatally to transportation for life, despite the jury's convicting him only of “wounding with intent to cause grievous bodily harm.” The judge, less impressed than the jurors by the man's defense that she “had been constantly insulting him by unfounded accusations of infidelity,” intimated that he would have liked to have been given the opportunity to sentence the man to hang. The Times, 24 July 1840 (R. v. Wooler).

60. The Times, 4, 13, 18 Mar. 1840; HO 18/45/31.

61. “Life, trial and confession of Wilmot Buckley for the murder of his wife, aged 22 years, at St. Helen's …”; The Times, 10 April 1843; HO 12/102/24. Unless otherwise noted, broadsides can be found in the British Library.

62. R. v. Sherwood (1844): The Times, 5 Aug. 1844; 174 ER 936; HO 18/146/2.

63. Perhaps he was keeping in mind, as the public did not, the interesting fact that Sherwood's first wife had died under suspicious circumstances (she burned to death).

64. For instance, Graeme Coss, “‘God is a Righteous Judge,’” has cited this case as establishing that “the provocative conduct, and not simply a single act, had to be analyzed, and its total effect assessed.” This was indeed the point of view typically taken by defense counsel, one to which jurors were often sympathetic, but one fairly consistently rejected by nineteenth-century judges.

65. The exceptional case he allowed for was, as the jurist E. W. Cox later described it, “a very peculiar case” and hardly generalizable. “If an ordinary quarrel arose,” Pollock observed, “and the wife spat at the husband, and he thereupon killed her, it would I think be murder.”

66. In addition to the cases discussed below, see R. v. Salt (1860): The Times, 1, 6 March 1860; R. v. Hagan (1863): The Times, 5, 6 March 1863; R. v. Hallett (1864): The Times, 4 March 1864; R. v. Hopkins (1866), 10 Cox CC 229 and The Times, 14, 15 June 1866.

67. R. v. Noon (1852): The Times, 20 July 1852; 6 Cox CC 137. In R. v. Parrot (1853), Cresswell had expressed his frustration that an obvious wife murderer was escaping justice because of the difficulty of firmly establishing the cause of death. The Times, 4 Feb. 1853.

68. R. v. Smith (1866): 176 ER 910 and The Times, 15 Dec. 1866. Like Sherwood, this case has been misunderstood by modern commentators. Neither Graeme Coss [“‘God is a Righteous Judge’”] nor Norman Finkel [“Achilles Fuming”], relying solely on English Reports, seemed to be aware that the judge had summed up against reducing the offense to manslaughter.

69. R. v. Selten (1871): The Times, 14 March 1871; 11 Cox CC 674.

70. R. v. Bradley (1872): The Times, 29 July, 1 Aug. 1872 (reprinting from the Pall Mall Gazette). Jurors could indeed stretch the meaning of provocation considerably. In the case of Thomas Edwards, a butcher who in 1862 stabbed to death a prostitute with whom he had been living, the jury recommended to mercy on the “provocation received, caused by his previous intimacy with the deceased.” Not surprisingly, the judge did not hide his scorn. The Times, 18 Dec. 1862.

71. See, for example, the comments of the nation's largest-selling paper, Lloyds' Weekly Newspaper, 5 April 1874, condemning the finding of manslaughter in R. v. Buckley.

72. See HO 45/9395/49945 (R. v. Anderson [1875]). The jury deliberated a long time and asked the judge for clarification as to the difference between aggravated manslaughter and murder; indeed at least one member claimed afterwards that he had never agreed to a “murder” verdict. Nonetheless, the man hanged.

73. For example, spouse killing in Kent rose from 4 percent of all prosecuted killings in the 1810s to 9 percent in the 1830s to 38 percent by the 1900s. See Cockburn, “Patterns of Violence,” 94. Moreover, I have found that a growing proportion of prosecuted spouse killings nationally were wife killings. The ratio of reported English trials for wife killing to that of trials for husband killing rose from about 4 to 1 in the early decades of the century to well over 12 to 1 during the 1890s.

74. The Times, 10 May 1879; HO 144/39/83714.

75. Of course, defenses were frequently combined in practice (in particular, drink was often involved in the cases discussed above, even when they were argued chiefly in terms of provocation). As with provocation, the standard legal view of the history of drunkenness as mitigation is seriously inaccurate. Looking backward from the present and relying again solely on leading cases, legal scholars have ignored everyday practice in favor of simple teleological models leading more or less directly to the present. John Hostettler QC has recently summed up the history of the intoxication defense as a long movement toward modern “enlightenment”: “In Coke's time drunkenness could never be a defence unless induced by unskilled medical treatment or the action of a man's enemies [Coke introduced the beginnings of flexibility and by the nineteenth century the rigidity of the old rule had been gradually relaxed by judicial decisions such as Grindley 1819 and Cruse 1838]. … Generally speaking, today drunkenness remains no excuse for crime, except where it is involuntary or where it results in permanent or temporary insanity. But it is of importance if it can be proved to negate a mental element essential to the charge. This particularly applies to crimes such as murder and theft where it may negate specific intent, recklessness or specific knowledge. The evidentiary burden is now on the prosecution to establish that, despite the evidence of intoxication, the accused had the necessary specific intent.” The Politics of Punishment (Chichester: Barry Rose Law, 1994), 159–60. However, the development Hostettler describes is a twentieth-century one, which has reversed the trend of the nineteenth. During the nineteenth century, in homicide cases drunkenness, like the excuse or mitigation of provocation, was not increasingly admitted as an excuse or mitigation; quite the contrary.

76. “Trial of Patrick Carroll, with an account of his execution in front of the gaol at Maid-stone, Kent, for the wilful murder of Mrs. Browning,” The Times, 16 May 1835; 173 ER 64.

77. Speaking for Littledale also, he observed that “there is no doubt that [R. v. Grindley (1819), the most recent precedent, particularly relied upon by Carroll's counsel] is not law. … I think that there would be no safety for human life if it were to be considered as law.”

78. Of course, Carroll's case was not helped by his Irishness or Catholicism, nor indeed by his military profession. The jury accompanied their verdict with a complaint about the practice of allowing soldiers to carry their arms around; as the prosecuting counsel had put it, they were “dangerous appendages in the hands of men who were in the habit of going about to public-houses and inflaming themselves with liquor.”

79. At a lower level, prosecution of drunkenness was also mounting: convictions (mostly resulting in fines) totaled 57, 251 in 1860, 69, 881 in 1864, 109, 356 in 1870, and 185, 837 in 1876. Harrison, Brian, Drink and the Victorians, rev. ed. (Keele: Keele University Press, 1994), 376Google Scholar (from the annual judicial statistics).

80. Such as in R. v. Cruse (1838); 173 ER 610. It was crucial that this case, frequently cited in modern scholarship, was first of all one of attempted, not successful, murder. As Mr. Justice Patteson pointed out, the former required specific intent to kill, which the latter did not. Second, it was a case of a (drunk) father beating his child almost to death, a situation in which actual intent even to cause “grievous bodily harm,” the usual requirement for finding murder when death resulted, was much harder to believe in than in killings or near-killings of adults.

81. R. v. Ferray (1839): The Times, 11 March 1839 (a trial for attempted murder of a woman; the jury found only aggravated assault, however).

82. R. v. Lees (1839): The Times, 30 Nov. 1839; “Sorrowful Lamentation of William Lees, now under sentence of death at Newgate”; “Execution of William Lees …” (Oxford, Bodleian Library, John Johnson Collection); CCCSP 1839–10, case #106.

83. R. v. Reid (1858): The Times, 16 Dec. 1858; “Trial and Awful Execution of Henry Reid”; HO 12/119/34777. Such judicial warnings to the jury became regular occurrences: Lord Chief Baron Pollock cautioned a jury in a stabbing murder trial in 1862 that “the defense appeared to be that the prisoner was mad drunk … but it was his duty to tell them that the law did not allow such a defence, and that drunkenness was no excuse whatever for the commission of crime; and it was unnecessary for him also to state that it was clear that the safety of the public and the security of human life imperatively required that this should be so.” But as the victim in this case was merely another man, the jury found only manslaughter. R. v. Quail (1862): The Times, 7 March 1862. Three years after this case, Mr. Justice Mellor pronounced that “to have one law for drunken or angry and another for sober or quiet people would be subversive of all justice and order in this country.” R. v. Atkinson (1865): The Times, 6 March 1865.

84. R. v. Hynes (1860): The Times, 17 July 1860. A drunken murder of a wife the following year produced a similar confrontation at the Old Bailey. Here, the jury wanted to return a verdict of “killing but without premeditation” but Mr. Justice Byles refused to receive it. After deliberating a time without leaving the courtroom, they asked if they could return a manslaughter verdict. The judge, saying he did not see any evidence that would warrant such a verdict, sent them out of court. A short time later he had them brought back for a fresh lecture on provocation and intention, pointing out that premeditation was not necessary to find murder. They then agreed to find murder but added a mercy recommendation, “on the ground that they believed that when the prisoner went home he had no intention to injure his wife.” He was reprieved. R. v. Maloney (1861): The Times, 28 Sept. 1861; CCCSP 1861, #798; 9 Cox CC 6; H012/132/47359.

85. This “felony-murder rule” had in earlier years generally been confined to cases of killing in the course of robbery or political insurrection.

86. R. v. Howes (1863): The Times, 6 Aug. 1863.

87. Though he did concede that “taken in conjunction with provocation from the deceased it might make a slight provocation an excuse, but drunkenness alone was not sufficient.”

88. R. v. Brice (1872): The Times, 10 July 1872.

89. R. v. Coppen (1874): The Times, 28, 31 Aug., 4, 24 Sept., 14, 17 Oct. 1874; Lloyds' Weekly Newspaper, 30 Aug. 1874; CCCSP 1874, #423; HO 45/9369/37745.

90. HO 45/9417/57634 [1876].

91. HO 144/75/A1915 [1881].

92. Drunken killings without a female victim were not viewed as seriously, and usually produced manslaughter verdicts.

93. For example, R. v. Dorricott (1875), where the judge had exhorted the jurymen “to do their duty with courage, however serious might be the consequences of the verdict which their consciences required them to find.” The Times, 23 March 1875. Their manslaughter verdict, one observer later recalled, produced “impatience” in the judge. See Plowden, Alfred, Grain or Chaff: The Autobiography of a Police Magistrate (London: Unwin, 1903), 120.Google Scholar

94. For example, R. v. Fordred (1876): here Lord Chief Justice Coleridge replied to the foreman's inquiry about considering manslaughter by telling him straight out that “if they believed the case for the prosecution they were bound to find a verdict of wilful murder.” The Times, 16 March 1876. They did. Public complaint and petitions followed, stressing the lack of premeditation, but the man hanged. HO 45/9405/53798.

95. R. v. Johnson (1879): HO 144/39/83714.

96. R. v. Hewett (1886): The Times, 25 May 1886. HO 144/286/B318.

97. Philippe Chassaigne, examining all homicide trials at the Old Bailey in the last four decades of the century, has found that by the 1890s, despite a growing humanitarian reaction against penal severity, London murders “committed under the influence of drink were more frequently punished by death” than earlier. “Le meurtre à Londres à l'époque victorienne: Structures sociales et comportements criminels, 1857–1900” (Ph.D. diss., University of Paris, 1991), 293. Like many of the legal trends noted here, this was to reverse itself in the new century. After 1900, with fear of interpersonal violence much diminished, and sensitivity to official violence increasing, jury reluctance to condemn “hot-blooded” wife killers to death reasserted itself and this time judges and home secretaries responded. They eased up on their “civilizing offensive” and began to again take both drunkenness and provocation seriously as mitigating factors. For examples of this relaxation, see R. v. Price (1901) [HO 144/953/A62955] and R. v. Cole (1902) [HO 144/956/A63437]. This important development is beyond the scope of this article, which is concerned with correcting the modern tendency to read back twentieth-century (and often later twentieth-century) developments into the nineteenth.

98. For totals, see Chadwick, Bureaucratic Mercy, tables 3, 5, and 6. In spouse murder cases, the number of jury verdicts of “insane” or “unfit to plead” doubled from eleven in the 1880s to twenty-two in the 1890s. There were also several cases in the 1880s of the home office certifying offenders as “unfit to plead” and removing them to Broadmoor without any jury action, but judicial protests had put a stop, for the moment, to this practice by 1890; if they had gone to a jury, these 1880s cases would very likely have resulted in “unfit to plead” verdicts, increasing the total cited above still further. There were eleven cases also in the 1870s, but none involved independent home office action; thus, there was a rise throughout the twenty years between the 1870s and 1890s.

99. On the latter, see Wiener, Reconstructing the Criminal, 269–76. On the former, see Eigen, Joel, Witnessing Insanity: Madness and Mad-Doctors in the English Court, 1760–1843 (New Haven: Yale University Press, 1995).Google Scholar Also see Ward, Tony, “Law, Common Sense and the Authority of Science: Expert Witnesses and Criminal Insanity in England, c. 1840–1940,” Social and Legal Studies 6 (1997): 343–62.CrossRefGoogle Scholar

100. Reverend Henry Lettsom Elliot, “What are the principal causes of crime, consid ered from a social point of view?” National Association for the Promotion of Social Science Transactions 1868, 335–36.

101. R. v. Crouch (1844): The Times, 9, 10 May 1844; HO 18/129/16.

102. R. v. Dove (1856): The Times, 21, 28 July, 2, 11 Aug. 1856; Lloyds' Weekly Newspaper, 16 March, 17 Aug. 1856; Annual Register 1856: “The Leeds Poisoning Case.” See also the lengthy discussion of this case in Smith, Roger, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981).Google ScholarThe Times denounced the claim of insanity by pointing to the familiarityof the prisoner's behavior (despite his middle-class position): “A sottish husband, becoming every day more brutal and depraved, telling his wife, even when sober, that he will ‘do for her,’ calling her opprobrious names, throwing her down, and standing over her with a carving-knife, beating her with his fist, forcing her to seek refuge under the bed, is an example of what we have learned to consider mere vulgar crime.”

103. That Byles's strict view of criminal responsibility was easing is suggested by his remarks a few months earlier to the home office in the case of Richard Addington, another wife murderer. Though he agreed with the jury's guilty verdict, Byles went on to say that “some portions of the evidence … and information supplied since may induce a reasonable doubt whether the prisoner was master of his own actions.” The Liberal Home Secretary H. A. Bruce (observing that “a man who inflicts three mortal wounds in different parts of the body must be assumed to have intended to kill”) saw insufficient reason to interfere. HO 45/9289/5490.

104. HO 144/2/7940. For a thorough account of Watson's case, see Chadwick, Bureaucratic Mercy, 239–56. See also Bainbridge's, Beryl interesting fictionalized version, Watson's Apology (New York: McGraw-Hill, 1985).Google Scholar

105. R. v. Hunt (1875): The Times, 30 March 1875.

106. R. v. Blampied (1875): The Times, 24 July 1875.

107. R. v. O'Donnell (1876): The Times, 31 Oct., 3, 10, 24 Nov. 1876; HO 45/9422/59678.

108. The Times, 14, 16 March 1878; HO 45/9457/72192.

109. R. v. Wingfield(1880): The Times, 28, 31 Jan., 4, 9 Feb., 5 March 1880; CCCSP 1880 #273; HO 144/45/90932.

110. The Times, 29 July 1881; HO 144/A74111.

111. R. v. Payne (1881): The Times, 14, 23 Feb., 10 May 1881; HO 144/A4796.

112. Recollections of Sir Henry Dickens (London: Heinemann, 1934), 182. See also The Times, 21 April 1883.

113. R. v. Terry (1890): HO 144/236/A51751; see also The Times, 28 July 1890. A similar situation took place the following year when John Miller, who had fatally fractured his wife's skull, was examined before trial by home office doctors. Miller's counsel happily made use of their findings that his family “had the hereditary taint of insanity and he himself was of a low mental organisation, weak to resist impulses to violence, and easily thrown off balance by drink.” Mr. Justice Lawrance told the jury flatly that this was not enough to meet the insanity test; the jury responded by finding manslaughter. The Times, 11 Dec. 1891.

114. R. v. Hay (1890): The Tunes, 19 July 1890.

115. Hawkins had a number of public runins with juries: in an 1898 case in which the chief engineer of a ferryboat shot a woman without apparent motive, but thereafter acted quite rationally, he was astonished at the insanity verdict. “Do you mean to say,” he asked the foreman, “that [the defendant] did not know what he was doing?” “We do,” was the reply. “It is your verdict,” shrugged Hawkins, accepting defeat. R. v. Sando (1898): The Times, 19 May 1898. He also contended against post-trial claims of insanity made to the home secretary. One public rejection of such claims he later recalled with satisfaction. In the 1894 case of Walter Smith, who had shot to death a woman who had rejected him, “a question was asked [in the House of Commons] of the Secretary of State for the Home Department,” Hawkins noted in his memoirs, “as to the prisoner being insane, and whether there was not abundant evidence of insanity at the trial” —a question that was thoroughly rebuffed by a written acknowledgment by the man's defense counsel that his argument had been that the shooting was entirely accidental, an argument that had rested in part on the entire absence of evidence of insanity. “After that statement,” concluded Hawkins, “the humane questioner left the prisoner to his well-deserved fate.” SirHawkins, Henry, Reminiscences, ed. Harris, Richard (London: Edward Arnold, 1904), 2:73.Google Scholar

116. See, for example, the cases of Michael Dowdle (1899) [HO 144/279/A61461] and Edward Simmons (1902) [The Times, 7 June 1902]. If provocation could often be redescribed in terms of insanity, drunkenness—when viewed in the form of delirium tremens and other physical disorders associated with persistent drunkenness—was even more suitable to such redescription. See the cases of F. H. Watts [The Times, 17 Nov. 1900], James Bottom [The Times, 14 Sept. 1901 ] and John Devlin [The Times, 27 June 1906], in the last of which the Medical Officer of Brixton Prison acknowledged under cross-examination that “delirium tremens is insanity” (Devlin was found to be insane and committed). Judges individually began to supplement or even replace the M'Naghten Rule by Stephen's suggested “mental disease” standard: in the case of Samuel Redfern (1903), Mr. Justice Channell told the jury after citing M'Naghten, “he himself was accustomed to—and should continue in so doing until a higher authority decided against him—extend the law as there laid down slightly in favor of the prisoner by adding that if from disease of the mind a person is unable to consider what is the difference between right and wrong, then it may very fairly be said that he does not know what is wrong.” The Times, 5 Dec. 1903. Such “extension” was formalized in 1915, when in R. v. Fryer (24 Cox CC 403), Mr. Justice Bray explicitly abandoned the M'Naghten Rule in favor of “mental disease.”

117. The Times, 23 Oct. 1902. In the trial of Charles Howell, who murdered his lover the following year, Mr. Justice Wright kept the jury from finding insanity by promising that the prisoner's mental state would be carefully examined after conviction: “There might,” he conceded, “be a kind of insanity which would not excuse him, but which could be inquired into hereafter by those medical gentlemen whose duty it is to advise the Home Secretary.” The Times, 20 June 1903.

118. One barrister, reflecting in 1916 on his career, observed that judges no longer harassed defense counsel or frequently summed up hard against the defense, as had been common in his beginning days at the Bar. See Purcell, Edmund, Forty Years at the Criminal Bar (London: T. F. Unwin, 1916), 66.Google Scholar Similarly, judges increasingly urged the home secretary to heed jury recommendations, warning that otherwise it would be ever harder to get them to return findings of guilt. As Chief Baron Pollock confidentially noted in an 1888 case, “now that the law has been upheld and the Jury have given their recommendation to mercy, I think—seeing the difficulty that there is of getting verdicts for murder, and the desirability of giving effect to such a recommendation—it would be well if you can agree to this course.” (However, two home office doctors found the man sane, and the civil servants were troubled by the judge's argument from “expediency”; a reprieve was not granted. HO 144/223/A49657 [R. v. Bulmer].) Overall, whereas during the 1860s judges had supported only ten of twenty-four jury mercy recommendations in spouse murder trials, during the 1890s, they supported fifteen of twenty-three (in two other cases with jury recommendations the files can no longer be located).

119. Indeed, some became expert in “playing” juries, like the barristers they had been. Baron Huddleston, recalled Edward Abinger, “knew how to manage a jury better than any judge I knew. He would leave his seat, and approaching the jury-box, point out most affably perhaps some difficulties in a plan or a document, he would flatter, coax and wheedle them; he became in fact a thirteenth juryman; and it was almost impossible to get a verdict when his views were the other way” (Forty Years at the Bar [London: Hutchinson, 1930], 89).

120. Though tension was apparently to increase again in the early twentieth century, as judges often sought to maintain the “reasonable man” standard in the face of waning public fear of violent crime, and consequent diminishing comfort with the death penalty, which revived the tendency for juries to make allowances for provocation and drunkenness. But these later developments make another story.