I’ve had another very busy couple of weeks: end of term gubbins AND the Social History Society Conference. I absolutely love the SHS: it’s really welcoming to everyone at any career level and the provision for socialising is excellent. It is so, SO important in the current HE climate (especially for this WFH scholar) to be able to immerse yourself in research for a few days among likeminded souls. My paper was very dismal (making sense of suicide in the 19thC legal framework) but I thoroughly enjoyed being part of such a great panel. A massive thank you to the Society and to the Black Country Living Museum for providing such an incredible venue.
This is my last post of the academic year. Long-term readers will know I take summer off to be with my kids and give myself a break. I will be back on September 5th with more horrid murder. I’ve got poisonings, a murderous son-in-law and death in the workhouse coming up…
This week, I wanted to do something a bit different, and as such, this week’s post is free to read. This is based on a question that Chris Orlic asked me about legal defences.
I am an inquest specialist, and there’s a qualitative difference between the nineteenth century inquest and a trial. An inquest is an inquiry, not a battle. An inquest looks for an explanation for a death. If that explanation strongly suggests that a crime has been committed, the verdict reflects that. However, a murder or manslaughter verdict at an inquest with a named suspect does not indicate guilt. Instead, the verdict commits that suspect to trial.
The criminal trial has a different aim: it DOES seek to establish guilt. Unlike the inquest, the suspect has a right to a defence, and the jury has to decide whether that suspect committed the crime in question. The victim is front and centre of an inquest, but the suspect is the main attraction at trial.
The defences offered at those homicides that end up in court can be audacious, ridiculous and strange, so let’s take a closer look at the real melodrama of the Victorian court room…
For a long time, accused criminals had very little right to active defence representation in felony trials in England and Wales. They could offer a defence statement in their own words (which was often just begging for mercy) and any advocate present might be allowed to examine witnesses, if the judge said they could. It was a very unbalanced system. This changed in 1836, under the Prisoner’s Counsel Act, when defence barristers were finally allowed to address the jury with a summary of the defence case. If a defendant could afford a decent representative, they would reap the benefit. John Grayson Farquhar was rich, and after he shot his servant-girlfriend, his defence very openly used the difference in social status to get a lenient verdict in court.
However, the majority of defendants didn’t have lawyer-money spare. In capital trials, which by the 1840s were primarily held following a murder, the court would allocate a defence representative to the prisoner. This representative usually had a few hours maximum to acquaint themselves with the case (as with John Thompson), develop a defence strategy and deliver it to the court. Murder trials packed out the courts, and although the ultimate decision on verdict was in the hands of the jury, a defence that provoked an emotional reaction from the crowd would inevitably impact the jurors.
The defences I see in my Friday Murders tend to be unimaginative and rely on common stereotypes and tropes. They are often extraordinarily melodramatic and emotive, but there’s not much creativity on show, and sometimes you can really tell that the defence is not that interested in getting the client off the hook. Thomas Day cut his own child’s throat with witnesses and his defence that it was an accident was frankly lame. Ebenezer Jenkins (aka Wheatcroft) was so obviously guilty that his defence could only make a very weak case for insanity.
Sometimes, the defence, in a bid to sound clever, ended up reinforcing the prosecution’s point. George Ellis threw his wife out of a window and his defence looked to have the charge reduced to manslaughter. The defence, Mr Torr, told the judge that if George HAD thrown his wife out of the window, he was a murderer. The jury agreed entirely when finding George guilty… of murder.
Nineteenth century justice was swift, and even a paid defence lawyer might only have a few weeks to prepare the case. William Saville’s defence team were not aware of half the prosecution’s evidence before the trial and therefore entered a muddled and unconvincing defence that he didn’t do it BUT IF HE DID, it was because his new girlfriend was so alluring compared to his wife.
So… what’s the best defence? Probably The Shaggy Defence: it wasn’t me. Without eyewitnesses seeing the suspect at the site of the crime, preferably with a bloody weapon in hand, the Shaggy Defence is very difficult to overcome. Most of these cases took place before fingerprinting became a trusted method of identification. Fingerprints place someone at the scene of the crime without eyewitnesses, and it is particularly useful evidence if the suspect had no business being where their fingerprints were left. Today, we can use CCTV and DNA testing to pin a suspect’s presence to a place or person, but in the nineteenth century, presence could only be proved by eyewitness evidence or personal items left behind.
If a murder or its immediate aftermath was not observed, the Shaggy Defence was highly likely to succeed - as seen in the last two cases I’ve written about. Sometimes, the defence named another suspect in court, as both Thomas Bacon and Samuel Gardner did. This was unsuccessful in both cases.
A variant on the Shaggy Defence is the Suicide Defence. “She did it to herself”, despite medical evidence suggesting suicide was impossible. This defence was attempted by William Beamish, George Litchfield and Andrew Macrae… but Felix Beasley actually succeeded. The idea that a woman with an STD openly committing adultery would kill herself was apparently more plausible to the all-male jury than her jealous husband slaughtering her in the kitchen.
I generally write about murder between people who know each other well, and it is not unusual for the suspect to be caught literally red-handed. When there is no doubt about the identity of the killer, the defence switches to motive. The two most common defences are:
Provocation
Insanity
Provocation can probably be best summed up as “She Deserved It” It could be used in conjunction with the Shaggy Defence and/or the Suicide Defence, to become the OJ Defence: “I didn’t do it, BUT IF I DID, it was because she deserved it!”.
William Slack claimed provocation: she was the “ruination of his life”, apparently. His defence had a go at demonstrating insanity, but insanity had to be rather robustly proven. A prisoner found guilty but insane was still liable to be kept in custody, and no criminal asylum was interested in caring for the sane. The suspect was observed in prison and multiple witnesses, medical and otherwise, were expected to attest to ongoing madness if insanity was to stand as a defence. Sometimes insanity was presented as the only possible reason for the murder, as in the aforementioned case of Ebenezer Jenkins - his defence claimed that Ebenezer’s confession was proof of insanity - but this did not stand. Murder was not considered inherently insane (masturbation was though). Charles Sampson did successfully plead insanity but George Goosey’s defence simply said he was a “degraded man” which did not count as insanity.
So, back to provocation, which was usually couched in terms of errant female behaviour - either sexual laxity or alcohol. This is probably the most common type of defence. She made me do it. She deserved it. George Ellis blamed his wife’s drinking, Miles Weatherill blamed literally everyone but himself, Richard Insole claimed his wife was a prostitute and that he had been driven mad by life at sea, William Fallon’s wife was actually a prostitute but he was pimping her out. The men who left Bess Knox to die in the snow got away with it because she was a prostitute. John Johnson used the Shaggy Defence, but the fact his victim was working as a prostitute certainly helped. James Harper blamed his girlfriend for throwing a jug at him. James Bannister’s lawyer blamed his wife for already having a child when they married. George Hibbs blamed his wife for being drunk, as did John Robinson.
Blame didn’t have to be around the victim breaching femininity. Richard Addington blamed his dying wife for not stopping him stabbing her… his actual defence in court was that he didn’t mean to hurt her. John Cooch killed his son but blamed him for being a drunk soldier. Thomas Leatherbarrow killed his girlfriend but blamed his landlady for requiring rent. Samuel Mason, who was probably insane, blamed his family for drugging him and died before this could be formalised in court. Charles Cosford blamed his wife’s entire family for making him miserable.
So, what does this mean when we are thinking about historical true crime? First, we need to remember that legal defence was a relatively new concept, and usually poorly funded. Defence barristers did not have months to prepare a case: sometimes they had an hour at most. If no genuine defence presented itself and with no time to prep, they fell back on stereotypes of bad women, of madness, of deferring blame to someone else. These defences can be understood as reflecting the social context of nineteenth century England. This was a time and place where women were secondary, and where women’s acceptable behaviour was so tightly constrained that any transgression could be magnified.
But there is also a practical element: these defences were relatively easy to construct. They did not require lots of additional forensic analysis or opinion. And they might reduce a capital charge of murder to a non-capital charge of manslaughter, if not an acquittal.
A misogynist, enraging defence is also a quick, cheap one.
I’ll see you in September, starting the academic year with a poisoning.
This post is free, so please share it!
This is marvelous! I think it provides an insightful overview that allows me to connect many of these cases before.
The nascent practices of defense lawyers would be interesting to look into further -- but that is another PhD project.
Remarkably interesting how these cases reveal wider aspects of Victorian society.
Enjoy the holidays
Thank you! This was super interesting and provided me with a framework to further understand future posts within Victorian England.