The nineteenth century, especially its latter part, was a period of considerable advances in psychology, anthropology, and law. Catherine Evans's Unsound Empire ties together all three, to uncover the tensions between them as manifested in the realm of criminal responsibility. The book explores the “nineteenth century debates over who was mentally fit enough—in legal language responsible—to be convicted in British criminal courts.” (p. 2) Through these contests over responsibility, the book exposes the paradoxes inherent in colonial governance, and criminal responsibility more generally.
Colonial governance was premised on Britain's civilizing mission, which assumed the superiority of Europeans over colonized races. Bolstered by legal anthropology and the works of criminologists such as Cesare Lombroso, such theories assumed criminal propensities among the natives. Such tendencies were considered by most to be innate, largely a result of nature rather than nurture. Meanwhile, nineteenth century mentalists increasingly argued that criminality frequently stemmed from mental and moral defects, rather than from weakness of the will. Criminals were born, not made. Yet carrying these racial and psychological theories to their natural conclusion—namely that individuals were not truly free to choose criminality but were instead destined to offend—risked undermining the premise upon which criminal justice rested. Whether punishment was justified through retribution or rehabilitation, the criminal legal system presumed—and had to presume—an actor's free will. Otherwise, their punishment would be both unjust and futile.
Building on this literature, Evans explores these paradoxes through the archives of England, Canada, Australia and India. The choice stems, Evans explains, from these jurisdictions' legal sophistication and their political and economic importance, as manifested by the depths of their archives. Though criminal law differed from metropole to colony and between the colonies themselves, Evans finds striking commonalities and coherence in the underlying logic of criminal responsibility. Though distinct, she argues, the colonies were “not entirely different.” (p. 15).
Even within England, the boundaries of legal responsibility in the Victorian era were contested, unstable, and largely out of step with Victorian science. Though perhaps pragmatic in providing legal clarity, the 1843 M'Naghten rule for insanity was inconsistent with Victorian psychology and medicine. The rule, still very much with us to this day, stated that “To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” (p. 27).
The M'naghten rule focused exclusively on the cognitive abilities of the defendant, and limited the insanity defense to only the delusional, who suffered from a distorted perception of reality. Such defendants, Evans explains, had a “diseased understanding [of reality], but an intact moral sense” (p. 75). Many defendants were, however, in the reverse potion. “They saw the world as it was and committed antisocial acts anyway,” because they could not overcome their urges or had a distorted view of morality. M'Naghten failed to take account, for example, of those suffering from irresistible impulses, whose will had been overcome. One such ailment was monomia, the motiveless need to kill. The reason why M'Naghten could not take account of such mental conditions was mostly pragmatic, not principled: many of the most heinous crimes would remain unpunished.
The compromise struck, tied closely to the history of the mandatory death penalty, was to pronounce defendants responsible and therefore guilty, but exercise mercy to mitigate their punishment. This, again, was a pragmatic rather than a principled approach. Evans skillfully shows how clemency was, however, doled out selectively based on parameters such as gender and race. Women accused of infanticide, for example, often evaded punishment despite full awareness of their acts because they were presumed to be “innately less responsible.” There were, however, bounds to the pity and sympathy of judges, jurors and administrators when mitigating punishment. To enjoy clemency, female defendants had to adhere to Victorian notions of feminine vulnerability. “Women whose violence seemed to be motivated not by despair, fear, or trauma but by cupidity and anger transgressed against both femininity and the law. They would be punished.” (p. 126).
Racial theories similarly led to the conclusion that indigenous populations were innately less responsible for criminal acts. But how could one distinguish mental limitations, which should mitigate or even exempt a defendant from punishment, from “cultural pathology”? “How could responsibility or mental abnormality be determined among people Britons routinely construed as innately abnormal?” (p. 161) The matrix only grew more complicated with intersectionality, or the question of “half castes.” Here again, defendants who successfully performed the British civilizational script of racial inferiority or native savagery may have fared better than their counterparts who challenged those racial hierarchies outright. Some defendants also successfully invoked the notion of “deculturation,” arguing that rapid exposure to British civilization was to blame for their seeming derangement. Yet here too, there were limits to successfully invoking racial difference: reliance on cultural norms rather than racialized biology could aggravate punishment rather than mitigating it. Though so called “cultural defenses” did succeed occasionally, they were far more difficult to invoke successfully, especially when the custom practiced was one that the British had set out to eradicate in the name of their civilizing mission. Thus, while puerperal insanity might mitigate the punishment of a homicidal mother, succumbing to cultural pressures to commit female infanticide would not. When crafting their defense, criminal defendants and their lawyers would therefore have to carefully straddle the unstable and shifting line between race and culture to appeal to judges and administrators.
Evans's work is the latest effort to tap the archives regarding legal insanity to see what they might teach us about citizenship, responsibility, and the threshold of personhood in the nineteenth century. Evans draws from a broad array of colorful yet utterly shocking stories of senseless killing to illustrate her theory. The cases she recounts are not for the faint hearted. Yet the result is a microhistory of the British Empire which skillfully illustrates broader trends, which are often obscured by an exclusively regional focus. It is imperial history at its finest, without the loss of local nuance or detail. Evans provides interesting biographical details not only about the criminal defendants but about their lawyers and judges, which depicts a picture of the bench, bar, and bureaucracy of the empire. She also provides useful background for those not versed in the details of Canadian anticolonial rebellions or the judicial structure of the British Raj. The result is an accessible book that nevertheless does not sacrifice sophistication or subtlety. It should be of interest not only to historians of the criminal law of insanity, legal responsibility, or colonialism in the jurisdictions surveyed but also to those seeking a methodological model for histories of empire that straddle the line between broad strokes and local specificity.
