Women, Crime, and Character: From Moll Flanders to Tess of the D'Urbervilles

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1 Oxford Scholarship Online You are looking at 1-10 of 30 items for: keywords : teleonomy lawleg lawclc Women, Crime, and Character: From Moll Flanders to Tess of the D'Urbervilles Item type: book acprof:oso/ In this book, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders in the realist tradition by heroines like Tess of the d'urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender, and social order in 18th and 19th Century England. Drawing on law, literature, philosophy, and social and economic history, the book argues that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalization of women. This work explores the meaning of key social concepts such as agency, identity, selfhood, responsibility, rights, truth, and credibility through a wide range of complementary sources and practices. It illuminates their fundamental dependence on institutions which develop unevenly across the various interlocking spheres of social space. It focuses in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about sexual difference, social order and individual agency. This book tells the story of the shifting relationship between informal codes of norms such as the cult of sensibility and the formal system of criminal justice, and of the impact on women and on understandings of femininity of these complementary systems of discipline. Page 1 of 7

2 Don't go to murder my character : criminal responsibility in the age of Moll Flanders in Women, Crime, and Character: From Moll Flanders to Tess of the D'Urbervilles acprof:oso/ The demise of Moll Flanders and her supersession in the annals of literary female criminality with less powerful figures like Tess of the D'Urbervilles is set up as a framework for unravelling a long-standing debate about changing patterns and understandings of female criminalisation from the early 18th to the late 19th Centuries. This chapter presents a view of 18th Century criminal justice as focused primarily on external markers of conduct and character, within a broad environment which was in transition between pre-modern and modern conceptions of selfhood. It hypothesises a gradual transition from character-based responsibility attribution to practices geared to the investigation of individual capacity and internal psychological states. It relates this transition to not merely the modernization of the criminal process but also broader social changes such as the development of a capitalist economy, urbanization, changing conceptions of selfhood and identity, and emerging problems and technologies of proof. A case is made for regarding the realist novel as a particularly useful form of contemporary evidence of these developments. What is the use of a woman's will? : the demise of Moll in the age of sensibility in Women, Crime, and Character: From Moll Flanders to Tess of the D'Urbervilles acprof:oso/ This chapter argues that while the 18th century saw an emerging focus on internal markers of states of mind, evaluations of external markers of character remained central to the attribution of criminal responsibility. Despite the social changes which put it under pressure, the economy of character, outlived the stable, status-based world of credit for many Page 2 of 7

3 decades. This argument is framed within an analysis of criminal trials in two novels: Joseph Andrews, representing the powerful hold of the economy of character at mid-century, and Caleb Williams, illustrating the emerging critique of it on the cusp of the era of reform. It is argued that the particular economy of character prevailing in the early 18th century may have been relatively hospitable to the acknowledgment of female transgression, while developments in conceptions of the female role during the course of the century changed the perception of women's conduct, giving birth to a new economy of feminine character which was less hospitable to the plausibility of Moll Flanders. The weaker half of the human family?: responsibility, mind and morals in the age of Tess in Women, Crime, and Character: From Moll Flanders to Tess of the D'Urbervilles acprof:oso/ The final chapter considers legal and literary representations of female criminality in the age of Tess. By the Victorian era, women's role as the cultural bearers of developing markers of polite manners fed into a longer-standing image of women as less dangerous than men. But when women's social position took them outside these emerging conventions, the increasingly organized state became interested in controlling them. In the late 19th century, there was certainly a move from treating women as criminally responsible to constructing them as the objects of various new social regulations framed in terms of moralized conceptions of health and public order dressed up in scientific garb. But up to this point, there is little reason to suppose that the images of agency which are so central to the novels are any less present in the court room. The literary transition from Moll to Tess does, therefore, represent something real: but it is a reality about women's environment rather than an emerging inability to conceive women as moral agents. The Origins of Adversary Criminal Trial Item type: book acprof:oso/ Page 3 of 7

4 The adversary system of trial, now the defining feature of Anglo- American criminal procedure, developed late in English legal history. For centuries, defendants were forbidden to have trial counsel. Prosecution counsel was allowed but seldom used. The criminal trial was meant to be a lawyer-free occasion at which the defendant could hear the accusing evidence and respond to it in person. The transformation from lawyerfree to lawyer-dominated criminal trials happened within the space of about a century, from the 1690s to the 1780s. This book explains how the lawyers captured the trial. In addition to conventional legal sources, the book draws upon a rich vein of contemporary pamphlet accounts about trials in London s Old Bailey. The book also mines these novel sources to provide the first detailed account of the formation of the law of criminal evidence. Responding to menacing prosecutorial initiatives (notably reward-seeking thieftakers and crown witnesses testifying to save their own necks), the judges of the 1730s decided to allow the defendant to have counsel to cross-examine accusing witnesses. By restricting defense counsel to the work of examining and cross-examining witnesses, the judges intended that the accused would still need to respond in person to the charges against him. But defense counsel manipulated the dynamics of adversary procedure to defeat the judges design, ultimately silencing the accused and transforming the very purpose of the criminal trial. Trial ceased to be an opportunity for the accused to speak, and became instead an occasion for defense counsel to test the prosecution case. The Lawyer-Free Criminal Trial acprof:oso/ This chapter describes the trial procedure in cases of serious crime, which took shape in England in the 16th and 17th centuries. Lawyers for prosecution and defense played virtually no role. Defense counsel was forbidden, and prosecution counsel was seldom used. The contemporary legal literature offered many supposed justifications for the rule forbidding defense counsel, which the chapter explores. Trial took the form of an altercation between the accusers (the victim and any other witnesses) and the accused. The main purpose of the criminal trial was to hear the defendant respond in person to the accusing evidence. Contemporaries appear not to have understood how severely the procedure of the time disadvantaged the accused. Page 4 of 7

5 The Treason Trials Act of 1696: The Advent of Defense Counsel acprof:oso/ In criminal prosecutions for high treason, the crown was always represented by counsel, but the rule against defense counsel prevented the defendants from having a lawyer. In the decade preceding the Glorious Revolution of , a series of sensational treason trials occurred, most notably the Popish Plot trials of , in which weak or perjured evidence led to the conviction and execution of many persons, including leading political figures. It became known within a few years of the Popish Plot trials that the accusing evidence had been perjured, and that the executed defendants had been innocent. Many of these defendants had complained at their trials of the unfairness of denying them defense counsel when the crown was represented. In the Treason Trials Act of 1696, Parliament evened the playing field by abrogating the rule against defense counsel, but only in cases of high treason, which were quite rare. The ban on counsel remained for cases of felony. The Prosecutorial Origins of Defense Counsel acprof:oso/ In the 1730s, English judges began to depart from the rule against defense counsel in cases of felony, by allowing counsel to examine and cross-examine witnesses. This change in practice effectively extended adversary procedure from treason to ordinary felony. The judges acted in response to a series of innovations in prosecutorial practice which had eroded the older notion of the trial as a lawyer-free altercation between accuser and accused. These prosecutorial developments included the reward system, commencing in the 1690s, which offered huge bounties to encourage the prosecution of certain serious property crimes, at the risk of inducing false witnesses; the crown witness system for obtaining accomplice evidence in gang crimes, which created further incentives for perjured testimony; and the growing use of prosecution lawyers Page 5 of 7

6 (especially among institutional prosecutors such as the Mint and the Bank of England) to investigate and prosecute criminal cases. The Law of Criminal Evidence acprof:oso/ In addition to admitting defense counsel, English judges undertook a further effort to safeguard against the mounting dangers of 18thcentury prosecutorial practice, by creating the law of criminal evidence. Among the rules of evidence that were developed was the corroboration rule for accomplice testimony, the confession rule excluding suspect pretrial confessions, and the hearsay rule. This chapter examines the emergence of the law of criminal evidence based largely on a set of historical sources called the Old Bailey Sessions Papers, which came to light only in recent decades. These pamphlet accounts depict trials proceedings at the main London criminal court, the Old Bailey, from the 1670s into the 1910s. From Altercation to Adversary Trial acprof:oso/ The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonabledoubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case. Page 6 of 7

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