In situating law as the central organizing feature of British imperialism, this important book makes a stimulating and innovative contribution to legal history. It does this by examining nineteenth-century debates about who was sufficiently mentally fit to be convicted in the criminal courts of the British Empire, where the assumption that most criminals were sane came up against racialized beliefs about the constitutional weaknesses of the presumed less-civilized peoples of the empire. “Responsibility cases,” in which a murder defendant's sanity was questioned, demonstrate the penetration of medical and anthropological theories into imperial jurisprudence: death sentences tested the “underlying conceptual and procedural integrity of British justice” (9). Utilizing evidence from England, Australia, Canada, and India, Catherine L. Evans argues that Victorian doctors, civil servants, politicians, and judges evaluated legal responsibility on the basis of race, gender, mental disease, psychological immaturity, and “primitivism.” “Ethnology and evolutionary theories, which shaped medical understandings of mental and moral acuity,” Evans contends, “helped to explain both insanity and criminality as functions of a natural hierarchy of civilizations” (226).
Following an extremely informative Introduction, the analysis is spread across eight chapters organized roughly chronologically, in a structure that shows how and why the legal focus shifted over the period circa 1850–1900. The author achieves this using a micro-historical method based largely on trial reports, medical texts, legal decisions, and case dossiers; by juxtaposing cases from different jurisdictions; and through the inclusion of fifteen well-chosen and highly effective images.
Chapter 1 establishes the key importance of responsibility in death penalty cases. The central role played by the M'Naghten rules of 1843 is evident: in emphasizing cognition over other aspects of mental function, the rules were considered by some to be too restrictive and out of touch with medical science (27). Case studies of two men committed for life to Broadmoor Criminal Lunatic Asylum demonstrate how conflicted medical opinions about madness, dangerousness, and responsibility could be. Chapter 2 recounts the strange tale of Thomas James Maltby of the Madras Civil Service, who shot a village judge in 1879. To avoid unwelcome scrutiny, the government denied Maltby's fitness to plead and confined him as a criminal lunatic until he died in Broadmoor, although not before making numerous attempts to have his case heard in a court of law. He was genuinely believed to be insane, but is unlikely to have met the conditions of the M'Naghten rules.
Chapter 3 introduces the concept of moral insanity, using cases from Australia, England, and Ontario to show how controversial the diagnosis was among doctors and lawyers who argued for and against psychological deficiency caused by heredity and biological primitivism rather than mental disease. The following chapter—one of the most interesting—focuses on the failed efforts of a Melbourne lawyer to argue moral insanity in attempts to secure reprieves for three notorious killers in the 1890s. The M'Naghten rules ensured that these white offenders, two men and a woman, were hanged, thus preserving the legitimacy of British law at a time when suspicion was growing that most criminals were mentally abnormal.
Chapter 5 explains why women, colonial subjects, and children were believed to be less responsible than white men, explored via cases of child murder in England and Australia. The next chapter shifts the analysis to India, presenting a sophisticated argument about the ways in which infanticide by Indian women tested the boundary between mental illness and cultural pathology (145). In its focus on the development of a specialist Indian medical jurisprudence, however, this chapter seems to drift away from criminal responsibility. Chapter 7, by contrast, is particularly good at linking the various themes of the book. It explains why the responsibility of Indigenous peoples could only be understood in relation to their purportedly primitive nature; cognitive ability was linked to race, culture, and civilization. The final chapter examines a group of cases tried in Canada in 1885, showing the connections between insanity and culture in imperial jurisprudence, the importance of amateur ethnology in trials of Indigenous defendants, and the role of colonial courts in disciplining and educating native peoples, all in the midst of the political turmoil of the North-West Rebellion. Its leader, Louis Riel, was executed despite a previous diagnosis of insanity.
In my view, the book would benefit from more signposting of the links between chapters, while the fact that there is no bibliography or list of figures represents a missed opportunity to showcase the extensive research that underpins this fascinating study. And it is not entirely clear how the various cases were identified and selected for inclusion. Such minor quibbles aside, however, this valuable work should be read by historians interested not just in the common law and criminal responsibility, but also in imperialism, forensic medicine, and comparative histories of crime. It will not disappoint.
