Drunkenness and responsibility for crime in the eighteenth century

Journal of British Studies

Volumn 44, Issue 3, 2005, Pages 457-477

  Rabin, Dana ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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[No Author keywords available]

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EID: 61149244712     PISSN: 00219371     EISSN: None     Source Type: Journal    
DOI: 10.1086/429705     Document Type: Article

References (138)

1. Richard Younge, A sovereign antidote, or, A precious mithridate (London, 1664), 7
2. The work of Raymond Williams is especially helpful for thinking about the complexity of cultural change and evoking ideas, esp. The Long Revolution (London, 1961)
3. Coke's remarks reflect his opinion that drunkenness aggravated the offense. Edward Coke, Institutes of the Laws of England, first part, Coke on Littleton (1628; 10th ed., London, 1703), sec. 405, 247
4. Hale admitted that liquor "deprives men of the use of reason," but he argued that the drunk defendant "shall have no privilege by his voluntary contracted madness." Matthew Hale, The History of the Pleas of the Crown (London, 1736), 1:32-33
5. William Blackstone stated that "the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, (though real,) will not suffer any man thus to privilege one crime by another." William Blackstone, Commentaries on the Laws of England, vol. 4, Of Public Wrongs (1769; Chicago, 1979), 25
6. No formal plea of drunkenness existed. I will use the phrase "pleas of drunkenness" to refer to the informal defenses made by defendants or other participants in the legal process who tried to excuse crimes with reference to the offender's intoxication. For more on the legal history of the excuse of drunkenness, see David McCord, "The English and American History of Voluntary Intoxication to Negate Mens Rea," Journal of Legal History 11 (1990): 372-95
7. and R. U. Singh, "The History of the Defense of Drunkenness in English Criminal Law," Law Quarterly Review 49 (1933): 528-46
8. The language of mental excuse is the subject of my book, Identity, Crime, and Legal Responsibility in Eighteenth-Century England (London, 2004)
9. The process of mitigation has received considerable attention since the publication of Douglas Hay's "Property, Authority, and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow (New York, 1975), 1-60
10. For more on mitigation, see J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton, NJ, 1986)
11. J. S. Cockburn, Calendar of Assize Records, Home Circuit Indictments, Elizabeth I and fames I, Introduction (London, 1985)
12. Cynthia Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge, 1987)
13. and "Law and Morality in Seventeenth-Century England," Past and Present, no. 106 (1985): 102-23
14. Peter King, Crime, Justice, and Discretion in England, 1740-1820 (Oxford, 2000)
15. and "Decision-Makers and Decision-Making in the English Criminal Law, 1750-1820," Historical Journal 27 (1984): 25-58
16. The role of the judge is discussed by John Langbein in "Albion's Fatal Flaws," Past and Present, no. 98 (1983): 96-120
17. For more on the jury, see Thomas A. Green, Verdict according to Conscience: Perspectiva on the English Criminal Trial Jury, 1200-1800 (Chicago, 1985)
18. and J. S. Cockbnrn and Thomas A. Green, eds., Twelve Good Men ana True: The Criminal Trial Jury in England, 1200-1800 (Princeton, NJ, 1988)
19. John Hart, The dreadful character of a drunkard; or, The odious and beastly sin of drunkenness, described and condemned (London, 1686), 1
20. Younge, A sovereign antidote, 7
21. Owen Stockton, A warning to drunkards (London, 1682), 22-27
22. Hart, The dreadful character, 2
23. Stockton, A warning to drunkards, 24-25
24. Edward Bury, England's bane, or, The deadly danger of drunkenness (London, 1677), 29
25. Peter Lake, "Deeds against Nature: Cheap Print, Protestantism and Murder in Early Seventeenth-Century England," in Culture and Politics in Early Stuart England, ed. Kevin Sharpe and Peter Lake, (Palo Alto, CA, 1993), 257-83
26. The Bloudie booke, or, The tragical and desperate end of Sir John Vites (alias) Fitz (London, 1605), 3, 20
27. John Taylor, The Unnatural Tather or, A Cruell Murther committed by one John Rowse of the Town of Ewell, ten miles from London in the County of Surry Upon two of his owne Children (London, 1621), 1
28. Heavens Cry Against Murder, or, A true Relation of the Bloudy and unparallel'd Murder of John Knight (London, 1657), 2, 3
29. Lake, "Deeds against Nature." Early modern conceptions of the social order are set out by Keith Wrightson in "The Social Order in Early Modern England: Three Approaches," in The World We Have Gained: Histories of Population and Social Structure, ed. Lloyd Bonfield, Richard M. Smith, and Keith Wrightson (Oxford, 1986), 177-202
30. and in Anthony Fletcher and John Stevenson's introduction to their edited collection Order and Disorder in Early Modern England (Cambridge, 1985), 1-40
31. Lake, "Deeds against Nature," 274
32. Taylor, Unnatural Father, 14
33. John Locke, An Essay Concerning Human Understanding, 2nd ed. (1694), ed. Alexander Campbell Fraser (Oxford, 1894), 1:458-59
34. Hale worried that the "easiness of counterfeiting this disability" and "the variety of the degrees of this infirmity" made its legal recognition problematic. Legal commentators expressed similar concerns about authenticating all mental states presented in court as grounds for mitigation. Pleas of the Crown, 1:32-33
35. Locke, Human Understanding, 1:463
36. For more on the Athenian Mercury, see George Starr, Defoe and Casuistry (Princeton, NT, 1971), chap. 1
37. Athenian Oracle: Being an Entire Collection Of all the Valuable Questions and Answers In the Old Athenian Mercuries (London, 1704), 3:40, 13, 62, respectively
38. Bernard Mandeville, A Treatise of the Hypochondriack and Hysterick Passions, Vulgarly called Hypo in Men and Vapours in Women (London, 1711), 265-75
39. Bernard Mandeville, Fable of the Bees: or, Private Vices, Publick Benefits (1714), ed. F. B. Kaye (Oxford, 1924), 1:91-92
40. The place of alcohol in the British army is explored by Paul E. Kopperman, '"The Cheapest Pay': Alcohol Abuse in the Eighteenth-Century British Army," Journal of Military History 60 (1996): 445-70
41. Mandeville, Fable of the Bees, 1:89
42. Bernard Mandeville, Enquiry into the Causes of the Frequent Executions at Tyburn (London, 1725), 21
43. In view of what could be called a more "sympathetic" analysis of drunkenness, some mistook Mandeville for an apologist for intemperance. M. M. Goldsmith, Private Vices, Public Benefits: Bernard Mandeville's Social and Political Thought (Cambridge, 1985), 143-50
44. and Hector Monro, The Ambivalence of Bernard Mandeville (Oxford, 1975), 250-51
45. Henry Fielding, An Enquiry into the Causes of the late Increase of Robbers (1751), in An Enquiry into the Causes of the late Increase of Robbers and Belated Writings, ed. Malvin Zirker (New York, 1988), 89
46. Jonathan White surveys the discussion of class in the debate that surrounded the Gin Act of 1751 in "The 'Slow but Sure Poyson': The Representation of Gin and Its Drinkers, 1736-1751," Journal of British Studies 42 (2003): 53-63
47. Fielding, Enquiry, 77
48. Fielding's discussion of drunkenness is part of a vast literature of the mid-eighteenth century attacking gin drinking. For a reassessment of the "gin craze," see Peter Clark, "The 'Mother Gin' Controversy in Early Eighteenth-Century England," Transactions for the Royal Historical Society 38 (1988): 63-84
49. See also Jessica Warner, "The Naturalization of Beer and Gin in Early Modern England," Contemporary Drug Problems 24 (1997): 373-402
50. and "In Another City, in Another Time: Rhetoric and the Creation of a Drug Scare in Eighteenth-Century London," Contemporary Drug Problems 21 (1994): 485-511
51. Jessica Warner and Frank Ivis, "Gin and Gender in Early Eighteenth-Century London," Eighteenth-Century Life 24 (2000): 85-105
52. and "'Damn You, You Informing Bitch': Vox Populi and the Unmaking of the Gin Act of 1736," Journal of Social History 33 (1999): 299-330
53. and White, "Slow but Sure Poyson."
54. Gentleman's Magazine 3 (1733): 201
55. Thomas Trotter, Essay, Medical, Philosophical, and Chemical on Drunkenness and its Effects on the Elantan Body (London, 1788)
56. For more on addiction prior to the eighteenth century, see Jessica Warner, '"Resolv'd to drink no more': Addiction as a Preindustrial Construct," Journal of Studies on Alcohol 55 (1994): 685-91
57. For an overview of the social history of alcohol and alcoholism, see Roy Porter, "The Drinking Man's Disease: The 'Pre-History' of Alcoholism in Georgian Britain," British Journal of Addiction 80 (1985): 385-96
58. These numbers give us only the barest outline of the role of drunkenness in the eighteenth-century courtroom and must be used with care. Because no records of the jury's deliberation exist, it is impossible to know which factors affected the jury's decision. One may be able to show correlation but not causation. Furthermore, the OBSP strove to be more comprehensive and exact after 1730, but counting the number of drunkenness pleas for the latter part of the seventeenth century and the first third of the eighteenth is unreliable at best. These problems of sampling obscure the more important question of defendant agency and what it reveals about popular attitudes toward alcohol and cultural definitions of criminal responsibility. For more on these issues, see my book, Identity, Crime, and Legal Responsibility, 6-8, 51-53
59. John Beattie's statistics for punishments at the Old Bailey are found in J. M. Beattie, Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford, 2001 )
60. For more on the Northern Circuit, see J. S. Cockburn, "The Northern Assize Circuit," Northern History 3 (1968): 118-30
61. For more on the OBSP, see John Langbein, "The Criminal Trial before the Lawyers," University of Chicago Law Review 45 (1978): 311-12
62. and "Shaping the Eighteenth-Century Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (1983): 1-136
63. William Logans and Elizabeth Larmore, OBSP, February 1681. Logans was not sentenced to death, but it is unclear from the proceedings whether he was transported, burnt in the hand, or whipped
64. Elizabeth Scot, OBSP, January 1682. Scot was condemned to death. 74 Richard Dounes, OBSP, December 1697. Dounes was found guilty and condemned to death
65. Miranda Chaytor, "Husband(ry): Narratives of Rape in the Seventeenth Century," Gender and History 7 (1995): 378-79
66. For an analysis of the structure of depositions and their interpretation, see Marion Gibson, Reading Witchcraft: Stories of Early English Witches (London, 1999)
67. J. H. Baker, "Criminal Courts and Procedure at Common Law, 1550-1800," in Crime in England, 1550-1800, ed. J. S. Cockburn, (Princeton, NJ, 1977), 15-48
68. J. S. Cockburn, A History of English Assizes from 1558 to 1714 (Cambridge, 1972)
69. and "Early Modern Assize Records as Historical Evidence," Journal of the Society of Archivists 5 (1975): 215-31
70. For discussions of crime and representation in early modern England, see Frances Dolan, Dangerous Familiars: Representations of Crime in England, 1500-1700 (Ithaca, NY, 1994)
71. Gibson, Reading Witchcraft
72. Malcolm Gaskill, Crime and Mentalities in Early Modern England (Cambridge, 2000)
73. and Joy Wiltenburg, Disorderly Women and Female Power in the Street Literature of Early Modern England and Germany (Charlottesville, VA, 1992)
74. For a more general discussion of representation, see Catherine Gallagher and Thomas Laqueur, eds., The Making of the Modern Body: Sexuality and Society in the Nineteenth Century (Berkeley, 1987)
75. Ludmilla Jordanova, Sexual Visions: Images of Gender in Science and Medicine between the Eighteenth and the Twentieth Centuries (Madison, WI, 1989)
76. and Sara Maza, "Stories in History: Cultural Narratives in Recent Works in European History," American Historical Review 101 (1996): 1493-1515
77. J. M. Beattie, "The Cabinet and the Management of Death at Tyburn after the Revolution of 1688-1689," in The Revolution of 1688-1689: Changing Perspectives, ed. Lois Schwoerer (Cambridge, 1992), 218-21, and Policing and Punishment
78. For more on the emergence of counsel for the prosecution, see Beattie, Crime and the Courts, 352-56
79. John Langbein, "Criminal Trial before the Lawyers," and "The Prosecutorial Origins of Defense Counsel in the Eighteenth Century: The Appearance of Solicitors," Cambridge Law Journal 58 (1999): 314-65
80. The work on sensibility is tremendously rich and provocative. See Nancy Armstrong, Desire and Domestic Fiction: A Political History of the Novel (Oxford, 1987)
81. G. J. Barker-Benfield, The Culture of Sensibility: Sex and Society in Eighteenth-Century Britain (Chicago, 1992)
82. Barbara Benedict, Framing Feeling: Sentiment and Style in English Prose Fiction, 1745-1800 (New York, 1994)
83. R. F. Brissenden, Virtue in Distress: Studies in the Novel of Sentiment from Richardson to Sade (New York, 1974)
84. Alan T. McKenzie, Certain Lively Episodes: The Articulation of Passion in Eighteenth-Century Prose (Athens, 1990)
85. John Mullan, Sentiment and Sociability: The Language of Feeling in the Eighteenth Century (Oxford, 1988)
86. Adela Pinch, Strange Fits of Passion: Epistemologies of Emotion, Hume to Alisten (Palo Alto, CA, 1996)
87. Janet Todd, Sensibility: An Introduction (London, 1986)
88. and Ann Jessie Van Sant, Eighteenth-Century Sensibility and the Novel: The Senses in Social Context (Cambridge, 1993)
89. Todd, Sensibility, 9
90. Mullan, Sentiment and Sociability, intro. and chap. 1
91. Van Sant, Eighteenth-Century Sensibility, chaps. 2-3
92. For sensibility and the courtroom, see Dana Rabin, "Searching for the Self in Eighteenth-Century English Criminal Trials, 1730-1800," Eighteenth-Century Life 27 (2003):85-106
93. and "Bodies of Evidence, States of Mind: Infanticide, Emotion, and Sensibility in Eighteenth-Century England," in Infanticide, 1550-2000, ed. Mark Jackson (Ashgate, 2001), 73-92
94. and "Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," Law and History Review 9 (1991): 221-67
95. Green, Verdict according to Conscience, chap. 7
96. Stephen Landsman, "The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England," Cornell Law Review75 (1990): 498-609
97. Langbein, "Criminal Trial before the Lawyers," 282-83, "The Prosecutorial Origins of Defense Counsel," and "Shaping the Eighteenth-Century Criminal Trial," 123-34
98. For more on women and alcohol in England, see Peter Clark, "'Mother Gin,'" 70-71
99. Warner and Ivis, "Gin and Gender"
100. For more on the culture of drinking, see Peter Clark, The English Alehouse: A Social History, 1200-1830 (London, 1983)
101. For a discussion of gender and honor in early modern England, see Garthine Walker, Crime, Gender, and Social Order in Early Modern England (Cambridge, 2003), esp. 33-39, 230-33
102. David Sabean discusses the centrality of the tavern in daily life in early modern Germany: "There was a good deal of steady drinking.... It is safe to say that a good many men were under the influence of alcohol during most hours of the day." Property, Production, and Family in Neckarhausen, 1700-1870 (Cambridge, 1990), 174-79
103. Hannah Hore, OBSP, October 1750, no. 636
104. Hore was found guilty and sentenced to transportation; McDaniel was acquitted. Assizes, Northern Circuit, 1752: Assi 44/24/4/98. Assi 44/67
105. James Cartwright, OBSP, July 1772, no. 520. Cartwright was found guilty and sentenced to transportation
106. Assizes, Northern Circuit, 1728: Assi 45/18/5/34
107. This description of drunkenness contrasts sharply with Michael Dalton's in The Countrey Justice (London, 1618). Dalton's advice manual for justices of the peace defined someone as drunk when "the same legs which carry a man into the house cannot carry him out again." (29)
108. No indictment survives for the Heavysides case. This might indicate loss or damage, or suggest that the grand jury did not find sufficient evidence for trial. Baker, "Criminal Courts and Procedure," 18-20
109. and Cockburn, Calendar of Assize Records, Introduction
110. Assizes, Northern Circuit, 1742: Assi 45/22/2/48G
111. Assizes, Northern Circuit, 1756: Assi 45/26/1/153. Wharton was acquitted. Assi 44/72
112. Assizes, Northern Circuit, 1796: Assi 45/39/1/142
113. Assizes, Northern Circuit, 1768: Assi 45/29/1/78C. Heron was found guilty of simple felony. Assi 44/83
114. Assizes, Northern Circuit, 1750: Assi 45/24/3/16C
115. John Moer, OBSP, January 1716. Moer was acquitted. At their courts-martial, soldiers who deserted often claimed they were drunk at the time
116. For an example of such proceedings, see Helen McCorry, ed., "'Besides, he was very drunk at the time ...': Desertion and Discipline, North Britain, 1751-1753," Journal of the Society for Army Historical Research 70 (1992): 189-97
117. Assizes, Northern Circuit, 1743: Assi 45/22/4/48B
118. No indictment survives for this case. Perhaps the victim decided not to press charges any further, or maybe he initiated legal proceedings as a means of urging Harwood not to engage in such unlawful behavior in the future. Elizabeth and William may have disagreed about the severity of the crime, or perhaps the complainant received some compensation from the accused in exchange for dropping the case. Robert Shoemaker discusses how the early stages of the legal process were used to reach negotiated settlements in Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, 1660-1725 (Cambridge, 1991)
119. Strangers in a community who lacked the support of character witnesses often suffered harsher penalties. J. M. Beattie, "Crime and the Court in Surrey, 1736-1753," in Crime in England, 1550-1800, ed. J. S. Cockburn, (Princeton, NJ, 1977), 155-86
120. King, Crime, Justice, and Discretion, and "Decision-Makers."
121. For more on the alehouse, see Clark, The English Alehouse
122. Assizes, Northern Circuit, 1758: Assi 45/29/1/42. No indictment survives for this case. Coultherd's name was found on a jail delivery list for 1768, ten years after the depositions were taken. Assi 44/83
123. Cynthia Herrup discusses seventeenth-century appeals to the doctrine of universal human depravity in "Law and Morality," 110-11, and The Common Peace
124. English legal tradition recognized insanity as an exculpatory state of mind since the earliest legal codes. During the eighteenth century, participants in the legal system employed the language of mental excuse to augment the definition of mental incapacity. For more on the insanity plea in the eighteenth century, see Joel Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven, CT, 1995)
125. and "Intentionality and Insanity: What the Eighteenth-Century Juror Heard," in The Anatomy of Madness: Essays in the History of Psychiatry, vol. 2, Institutions and Society, ed. William Bynum, Roy Porter, and Michael Shepherd (London, 1985), 34-51
126. and "Delusion in the Courtroom: The Role of Partial Insanity in Early Forensic Testimony," Medical History 35 (1991 ): 25-49
127. Nigel Walker, Crime and Insanity in England, vol. 1, The Historical Perspective (Edinburgh, 1968)
128. and "The Insanity Defense before 1800," Annals of the American Academy of Political and Social Science 477 (1985): 25-30
129. Nathaniel Packhurst, OBSP, April 1715
130. Pankhurst was found guilty of willful murder under the Statute of Stabbing. The Statute of Stabbing (1 Jac. I, c. 8; 1604) made stabbing a capital, nonclergyable offense that could not be downgraded to manslaughter. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol. 1, The Movement far Reform, 1750-1833 (New York, 1948), 630, 695
131. Sarah Hatchet, OBSP, August 1726
132. For a comprehensive discussion of lay definitions of lunacy in early modern England and the significance of babbling speech to such a diagnosis, see Michael MacDonald, Mystical Bedlam: Madness, Anxiety, and Healing in Seventeenth-Century England (Cambridge, 1981)
133. William Smithson, OBSP, December 1778, no. 65
134. Robert Stephenson was found guilty of manslaughter. Assizes, Northern Circuit, 1737: Assi 45/ 21/2/53-57; Assi 44/52. No indictment was found in Downham's case, but his name appears on the jail delivery list "for not finding sufficient sureties for his keeping the peace to Alice Downham his wife." Assizes, Northern Circuit, 1763: Assi 45/27/1/12
135. James Guthrie, The Ordinary of Newgate, his account of the behaviour, confession, and dying words of the malefactors who were executed at Tyburn on ... 24 December 1744 ... (London, 1744-45), 47
136. James Guthrie, The Ordinary of Newgate, his account of the behaviour, confession, and dying words of the malefactors who were executed at Tyburn on ... 17 of February 1743 ... (London, 1744), 81
137. James Guthrie, The Ordinary of Newgate, his account of the behaviour, confession, and dying words of the malefactors who were executed at Tyburn on ... 13 February 1739 ... (London, 1739-10), 7
138. Williams, Long Revolution, 46