Crime, Histoire & Sociétés / Crime, History & Societies
Vol. 20, n°2 | 2016 Varia
Édition électronique URL : http://journals.openedition.org/chs/1660 DOI : 10.4000/chs.1660 ISSN : 1663-4837
Éditeur Librairie Droz
Édition imprimée Date de publication : 1 décembre 2016 ISBN : 978-2-600-01953-8 ISSN : 1422-0857
Référence électronique Crime, Histoire & Sociétés / Crime, History & Societies, Vol. 20, n°2 | 2016 [En ligne], mis en ligne le 01 décembre 2018, consulté le 04 octobre 2020. URL : http://journals.openedition.org/chs/1660 ; DOI : https://doi.org/10.4000/chs.1660
Ce document a été généré automatiquement le 4 octobre 2020.
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SOMMAIRE
Articles
Dissecting Jack-the-Ripper : An Anatomy of Murder in the Metropolis Elizabeth Hurren
“These are cases which it is inadvisable to drag into the light of day” : Disinterring the Crime of Incest in Early Twentieth-Century England Kim Stevenson
Reforming Juvenile Justice in Nineteenth-Century Scotland : The Subversion of the Scottish Day Industrial School Movement Christine Kelly
Respectable Anxiety, Plebeian Criminality : Politics of the Goondas Act (1923) of Colonial Calcutta Sugata Nandi
L’ascension des conservateurs et le traitement de la délinquance aux États-Unis : le cas du Violent Crime Control and Law Enforcement Act (1994) Diane Bénédic-Meyer
Obituary
Obituary for Herman Bianchi (1924-2015) Pieter Spierenburg
Deviance & Société : concours de jeunes chercheurs
Déviance & Société Concours de jeunes chercheurs 2017
Comptes rendus
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colourblindness, The New Press, 2012, 304 p., ISBN 978-1595586438. David Mansley
Jonathan Davies (ed.), Aspects of violence in Renaissance Europe, London : Ashgate, 2013, 276 p., ISBN 978-1409433415. Sanne Muurling Sanne Muurling
Marc Bergère, Vichy au Canada. L’exil québécois de collaborateurs français. Rennes : PUR, 2015, 328 p., ISBN 978-2-7535-4173-3. Jean-Marc Berlière
Crime, Histoire & Sociétés / Crime, History & Societies, Vol. 20, n°2 | 2016 2
Frédéric Chauvaud, Pierre Prétou (dir.), L’arrestation. Interpellations, prises de corps et captures depuis le Moyen Âge, Rennes : PUR, 2015, 367 p., ISBN 978-2-7535-4256-3. Jonas Campion
Francesco Benigno, La mala setta. Alle origini di mafia e camorra 1859-1878. Torino : Einaudi, 2015, 403 p., ISBN 978-88-06-22441-7. Michel Huysseune
Dominique Kalifa et Jean-Claude Farcy, Atlas du crime à Paris du moyen âge à nos jours, Paris : Éditions Parigramme, 2015, 220 p., ISBN 978-2-84096-872-6 Clive Emsley
Luigi Lacchi (ed.), Il diritto del duce. Giustizia e repressione nell’Italia fascista, Rome : Donzelli, 2015, xxxviii + 313 p., ISBN 978-88-6843-242-3. Jonathan Dunnage
Richard M. Ward, Print Culture, Crime and Justice in 18th-Century London, London : Bloomsbury Academic, 2014, 256 p., ISBN 9781472507112. Clare Wilkinson
Lionel Dorthe, Brigands et criminels d’habitude. Justice et répression à Lausanne, 1475-1550, Lausanne : Bibliothèque historique vaudoise, 2015, 522 p., ISBN 978-2-88454-142- X. Diane Roussel
Livres reçus
Crime, Histoire & Sociétés / Crime, History & Societies, Vol. 20, n°2 | 2016 3
Articles
Crime, Histoire & Sociétés / Crime, History & Societies, Vol. 20, n°2 | 2016 4
Dissecting Jack-the-Ripper : An Anatomy of Murder in the Metropolis
Elizabeth Hurren
Introduction
1 In 1888, the true identity of Jack-the-Ripper confounded the Metropolitan Police of London and created a publishing sensation that has turned into a global industry of true-crime genre.1 Numerous armchair detectives have speculated about the identity of the serial killer, the motivation for the murders, as well as the precarious lifestyles of the five iconic female victims, and their poverty setting in the East-End. Paul Begg is one of a number of modern commentators who have recently concluded : “the identity of Jack the Ripper isn’t really very important. It’s the story of those crimes and the women who died and of the society and times in which they lived that matters and that holds the enduring fascination”.2 This article builds on this observation by returning to the shadowlands in which the main victims lived and worked, re-examining what their personal connection to Jack-the-Ripper may have been. Whilst it may never be possible to name Jack conclusively, it is feasible to look with renewed historical efforts as to how it was that this serial killer was able to evade detection, and why he was motivated to murder his chosen victims. Rediscovering Jack involves walking along a notorious road called Dorset Street in the East-End of 1888 with fresh historical eyes, and to do so with a contemporary medical mind-set. It will be shown that this street-scene, connecting together almost all the murders, provides vital clues about a secretive trade in the dead that may attest to Jack’s real cover story and deadly disguise for murder. In so doing, a new historical context, never considered before, has potentially wide-ranging application for future research into crime studies that are of interest to an international audience. We begin therefore in Sections 1 and 2 on Dorset Street by revisiting its urban street-design looking carefully for medical clues that have been missed or misunderstood in standard historical accounts. Section 3 then dissects Jack’s
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anatomical skills, and the forensic features of the murders in the light of the new medical information introduced. This, it will be argued, facilitates a cold case review. Section 4 builds on that revisionist approach by concentrating on the medical fragments of the fifth murder victim’s life. It will be argued that Mary Jane Kelly’s killing could have been crucial to the social camouflage of Jack. Attention is paid to her links to the others murders, including Mary Ann Nichols, the first victim, whose connection to Dorset Street was not obvious at the time and therefore requires historical scrutiny. This article’s anatomy of murder in the metropolis is, hence, all about dissecting Jack-the-Ripper’s medical disguise to expose his dreary but deadly cover story to public scrutiny for the first time since the late-Victorian era.
Death on Dorset Street : Remapping the Medical Scenery
2 The term ‘East-End’, as the name implies, has been used to describe an area of the capital city that runs eastwards outside the medieval wall of the old City of London, down towards the large docks north of the River Thames. In Victorian times it became synonymous with derogative slang, ‘the blackspot’. Charles Booth in in his Life and Labour of the London People called it a place of “misery, vice, and a cesspool into which the most degraded had sunk”.3 The East-End was filled with parishes in which economic deprivation was deep.4 It was riddled with death, dearth, and disease, where criminal activities of all descriptions defied the rule of law. Popular penny-dreadful novels of the period often featured sinister characters walking its streets. These were dangerous assailants, the vicious and semi-criminal. Few denied that the dirty slums were criss- crossed by a dense network of alleyways, courtyards, and poorly constructed lodging- houses that fronted brothels. Over-crowding was common and life-expectancy low. The East-End certainly had a distinctive street-culture of bar brawls and prostitutes fighting to protect their pitches. Most nights, rough justice broke out on nearly every street- scene. The presence of so many large workhouses – at Lambeth and Whitechapel in particular – located next door to imposing infirmaries along the Mile End Road – symbolised inescapable destitution.5 At the life-cycle crises of birth, in pregnancy, and old age, few of the poorest had any money for basic healthcare. Poor Law institutions became a last resort call in the makeshift economy of the labouring poor.6 For others, two double-dip recessions in 1876-1884 and again in 1893-1895 caused employment levels to plummet, cheapening piece-labour, and reducing wages below subsistence levels. During the 1880s, the East-End was not somewhere from where it was possible to work one’s way out. The area was one huge poverty trap. Those who fell from relative poverty to absolute poverty could never hope to reverse their dire economic plight. If Jack-the-Ripper wanted to get away with murder, then in the East-End there were plenty of potential female victims living very vulnerable lives on the outer margins of respectable late-Victorian society.
3 All commentators on the Jack-the-Ripper case files agree with Paul Begg that : “It has to be acknowledged that Dorset Street features prominently in the story of most of the victims”.7 At least four of the five iconic fatalities known to have been brutal murders committed by the same serial killer happened along this street-scene and this is therefore a location that merits being revisited with fresh historical eyes. Before embarking on a sight-seeing tour of the street-scene, there are three things that need
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to be kept in mind. Firstly, there was something about this street-scene that a murderer like Jack valued highly and which crime historiography has failed to locate. The killer (as we shall see in Section 3) was very methodical about homicide. So it is unlikely that the murder site was chosen without careful consideration. Secondly, the street-scene was once very familiar to contemporaries, too familiar perhaps, because something was taken for granted about aspects of its urban design that crime historians still need to engage with. The street furniture and its social wallpaper merited closer scrutiny by the Metropolitan Police who may have been blind-sided by the obvious too. It is therefore necessary to look carefully again at the normal layout of buildings, social spaces, and public areas. New clues as to any unwitting features will reveal how it was that a serial killer was able to blend in with the surroundings. A third observation is that to evade detection the killer must have looked non-descript, and been part of the social fabric of the community setting, so much so that nobody gave them a second glance, or when questioned they had a convincing explanation for their presence in the area. As it was essential to beg, borrow, or steal, to pay for a bed for a night in the over-crowded lodging-houses along the street-scene, the serial killer either had the resources to maintain a disguise, was hidden by someone, or earned money in such a way that it provided the perfect cover story. Crime and medical historians need therefore together to remap the most mundane street features that facilitated murder on Dorset Street.
4 Imagine then standing at the top of Dorset Street in the East-End of London in 1888 (Image 1, appendix).8 It was a busy, dusty thoroughfare, about 133 yards long ; narrow, littered with run-down terrace-houses, broken windows, and cheap curtain material flapping in the wind. The brickwork was stained by coal dust and there were rough cast stone-steps ; privy yards stank with animal urine and human faeces. The pits containing food waste left a permanent brown slug of decaying matter lying torpid in the road. It was not simply a health hazard to venture out of doors but an assault on the five senses too. Few walked alone because physical loneliness was rare. Large lodging and doss houses emptied each morning (Image 2, appendix). It has been estimated that these contained 700 beds along the street. Generally up to six people slept in one bed, with as many as thirty beds containing one hundred and fifty people per house. Dossing down cost on average 2s 6d a night ; from these calculations historians have concluded that about 1500 people walked up and down Dorset Street on a daily basis seeking accommodation.9 Old photographs suggest that this was not an exaggeration (Image 3, appendix) because Dorset Street was a human cauldron of the marginalised. Most people spilled into the crowded courts running down alleyways that contained a narrow seam of humanity like Miller’s Court, a murder site, densely occupied each night.
5 In a normal working day, prostitutes plied their trade at three local public houses in the street : the Britannia, the Horn of Plenty, and the Blue Coat. The first had a10sign resembling that of a barber’s shop, and later we will be revisiting this medical symbolism. Meantime, sex trafficking was a daily feature of life. Hiring a bed was costly and personal privacy was in short-supply, so prostitutes used the walls of the alleyways and privies of the open courts for their paying customers. Seldom did they sprawl down on the street flat on their backs because it would have exposed them to the police and they might have been physically stamped on by numerous passers-by or attacked by criminal gangs.
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6 Most sex workers (females and males) preferred to perform oral sex in an alleyway turning a quick trick, avoiding penetration, and thus trying to reduce the risk of a contagious sexually transmitted disease.11 This had the added advantage of placing the prostitute within ear-shot of any fellow street-walkers, each looking out for the other’s personal safety : those desperate for cash knew the common risk of domestic violence or a client running off without paying. Few could afford to be silent, with singing or whistling by sex workers a sensible habit when picking up a client. Generally all learned to be street-wise fast or they did not survive the prostitution trade for long ; in middle-age many were found dead in the street from alcoholic poisoning having drunk to excess to inure them to the bitter cold and very rough life-style. It is then one of the most curious features of the Jack-the-Ripper murders that those females used to handling big rough dock workers became so vulnerable to a violent man who initially at least did not instinctively frighten them or raise their hackles to call for help. Jack’s advances must have been friendly in some respect to make them a lot less wary. The medical clues are back along Dorset Street.
7 Looking today at Dorset street’s landmarks in Map 1 (appendix) it is easy to take for granted that there were three ale outlets, large lodging-houses, a big convent and night refuge, church graveyard, and inner courts, making up the architectural scenery ; of which the most renowned became Miller’s Court where Mary Jane Kelly was murdered in November 1888 (Sketch 1, appendix). Nothing seems out of the ordinary about this spatial urban design to the modern onlooker. Yet, these architectural features all had something in common, once very familiar to contemporaries, which have been neglected by crime historians. Each venue was a place where it was possible to once buy a dead body and body parts for sale under the Anatomy Act (1832).12 It is this medical perspective that needs to be factored into a cold case review.
Medicine and Murder
8 When the Medical Act (1858) came into force it set new standards in human-anatomy training for medical students.13 This was then expanded after the Medical (Extension) Act (1885) decreed that all trainee doctors, and those studying to be surgeons, as well as midwives, had to undergo a standard training in human anatomy to register to practice with the General Medical Council. This involved each student dissecting not less than two whole cadavers over a two year teaching cycle at a designated medical school next to a large teaching hospital. If those seeking to enter the medical profession could not get a whole body then candidates being examined were permitted to dissect enough body parts to make up their two complete cadavers, provided they did so within twenty-four months of starting their official training programme in human anatomy. Once then the number of medical students increased six-fold during the Victorian period, there was an urgent need for more dead bodies to dissect. This gave rise to a network of body dealers across the capital city that staffed the business of anatomy in the larger medical schools. The majority of body dealers were paid by anatomists like those at St. Bartholomew’s Hospital, Guys Hospital and the London Hospital in the East- End. They all competed for body supplies and targeted areas of destitution where the poorest congregated in the biggest numbers.
9 The Anatomy Act stated that those who died in abject poverty in Poor Law institutions and whose families could not afford a pauper funeral must repay their welfare debt to
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society in death.14 The poorest thus became the staple fare of the dissection table. Their bodies were to be sold if ‘unclaimed’ for burial by guardians of the poor in places like the Holborn, Lambeth and Whitechapel infirmary-workhouses to supply the needs of medicine. As however the life expectancy of paupers in some parts of the capital started to improve because of better diets, state intervention in sanitation, and improved notification of infectious diseases, the medical profession had to widen its network of body suppliers across the very poorest parts of London. The East-End became then a body-broking business by the 1880s, and typically most dealers worked from three types of premises that feature along Dorset Street. Nightly, they bought bodies found dead in the street. These tended to be carried to local public houses to make a body deal. They were put inside a large wicker laundry basket with soiled linen on top and wheeled by morning to the back of a nearby hospital where it looked like clean bedclothes were being returned for fresh delivery. In reality, inside the basket was a valuable anatomical sale. Body dealers also on a regular basis purchased the dead at the back doors of doss, brothels and lodging houses, making a quick profit for the owner. Profitable sales were also transacted at Night Refuges and Convents where fallen women secured midwifery services for unwanted pregnancies, miscarriages and spontaneous abortions. If they were turned away from charitable care they generally went to workhouse-infirmaries as a last resort, having tried to avoid them because of the stigma of shame and resentful of being under official surveillance. In other words, Dorset Street, described as “the worst street in London” for crime and poverty – a place where you could “do as you please” – had fit-for-purpose premises to run an ideal body dealing business in 1888.15
10 Not less than 60, 000 dead paupers entered the chain of supply from 1832 to 1929 across the capital.16 The dissection registers of St. Bartholomew’s hospital by way of example record a body deal every night in some part of the East-End by 1888. Dorset Street was the medical centre of a shadowy business, yet one so familiar and mundane, part of the social fabric, that it went unnoticed by the police, witnesses, and newspaper reporters involved in the Jack-the-Ripper moral panic. It is then a striking feature that in each of the five well-known murder cases someone stepped in and arranged to bury the women in a proper wooden coffin in a marked grave. For this area, under normal circumstances, that would have been a very unusual occurrence : a theme Section 4 elaborates. Females, their stillbirths and miscarriages, were prized dissection subjects, commanding high supply fees, and were afterwards buried by medical schools at cost in very large public graves using a recycled parish coffin. If, as the forensic evidence strongly suggests below, Jack-the-Ripper had medical skills then the body business of anatomy was a perfect cover for his deadly activities, and Dorset Street would have camouflaged his dealings.
11 The body dealing business depended on a lot of petty cash payments being handed out in a complex human chain of supply every night.17 Generally an ‘undertaker’ – a convenient label to disguise a body dealer at work – had a number of support people in their personal employ. This might include the staff of the local mortuary or dead-house connected to a workhouse. At the infirmary next door, porters and nurses often agreed for a few pennies to alert a body dealer when a pauper died from an infectious disease, unfortunate accident, or pregnancy complication. It was also the case that limbs which had to be amputated following operative surgery entered the chain of dissection supply. Body parts were in fact highly profitable transactions. Breaking up a body generated more sales, compared to trading a complete cadaver for a single fee. Most
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medical misfortunes were thus an opportunity cost for those training to be a doctor and they helped to create a flourishing body business in the East-End of 1888.
12 It follows hence that most body dealers had business partners or close accomplices of one sort or another. Again the dissection registers of St, Bartholomew’s Hospital show that a number of trusted intermediaries were employed on a regular basis. Generally the system worked by one of the demonstrators in anatomy having kept a careful tally in the body supply register of the poor person sold on for anatomy. Their age, gender, where they died, at what time, and who did the deal transaction were carefully noted. This was to satisfy the coroner in case of any query that there had been no foul play involved in the body purchase ; that is, the supplier was not murdering for profit.18 Usually once a month, the number of bodies that had been sold was tallied up. Then the main supplier was paid in cash for their work ; with the supply fees charged to medical students every quarter. Both men and women staffed the business of anatomy for the simple reason that prostitutes in the East-End preferred to deal with females they knew on the street and not strangers who might report them to the Metropolitan Police. For, whilst it was legal to supply a body for anatomy it was illegal to profit personally from a body transaction however abject the poverty. It made sense therefore for a body dealer to employ a small network of trusted people, located conveniently across a district to maximise business opportunities. It is this medical information that merits closer historical scrutiny in the Jack-the-Ripper story and the obvious body dealing premises along Dorset Street. Before doing so however it is essential to examine the homicide techniques in more medical detail. These will establish what sort of medical credentials Jack may have had and reveal the extent of his potential involvement in the business of anatomy.
Dissecting Jack-the-Ripper’s Anatomical Skills
13 To be a body dealer required physical strength. Corpses had a dead weight that had to be lifted in and out of large wicker laundry baskets.19 All dead bodies traded were either in a physical condition known as primary flaccidity in the first hours after death or in rigor mortis for those found more than four hours following a street-fatality. If the deceased was a large-boned man or woman found in a lodging house bed, then it might be more practical to break the limbs to be able to lift them outside and fold the body into a wheelbarrow. Whatever the physical state of the deceased when discovered, it was necessary to be able to transport them efficiently under the cover of night or at first light to avoid any bad publicity. Those that sold them on wanted them removed as quickly as possible. This avoided the shame of being seen to do a body deal when someone could not afford a pauper funeral. Those in abject poverty had to be pragmatic and were not necessarily sentimental about selling the dead. A nearby medical school would bury the human material on their behalf at cost after dissection, and they would be able to spend the supply fee on subsistence, but even so, a speedy transaction reflected cultural sensitivities about the need for a ‘good send-off’ in the East-End. If Jack-the-Ripper had any involvement in the body dealing business of Dorset Street, that would have been a very good and normal cover story for the area.
14 Body dealers were very familiar and often sympathetic figures on the streets of the East-End. Serial killers are however not known for their human empathy and people skills. Jack would then, if he adopted body dealing as a cover story, have had to develop
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the art of small-talk because it was necessary to strike up a conversation to secure a transaction. The normal exchange itself was though often formulaic and somewhat perfunctory, with the body dealer appearing to be friendly-looking and conveying caution in their body language. By way of example when a body dealer named ‘Ward’ posing as an ‘undertaker’ traded the corpse of “Patrick O’Brian, male, aged 66, who died in St. Giles and Bloomsbury Workhouse on 27th October 1887” the deal was made with a nod and handshake at “7pm on the 29th of October” in person with mortuary staff.20 On arrival at the back of St. Bartholomew’s Hospital later that night, the body was found to be missing a limb – “1 leg amputation, left” wrote the anatomist on duty. After dissection, the cause of death was described as “senile decay and paralysis” attributed to a rough lifestyle of hard labour at the docks where the pauper may have experienced an occupational accident. Similarly when Mary Beckett (55) and Elizabeth Murphy (67) died at the Mile End Infirmary on the 13th and 14th March respectively, a body dealer named ‘Slade’ arranged to discretely collect their bodies for sale on “16th March 1888 at 6.15pm” from the mortuary attendant who was paid a supply fee. Both females were down on their luck and found to be suffering from “bronchitis” after dissection : a very common disease of poverty in the East-End.21 The anatomist on duty noted that he could not send “notice to an address” that was permanent because both women were street workers, in all likelihood prostitutes.
15 By a curious coincidence the same dissection registers also record the sale of a pauper named “Mary Kelly aged 69, female, body number 34 of the anatomy season 1888-9”.22 Her corpse was purchased from “Holborn Union workhouse in St. Luke’s parish” by one of the most active body dealers in London on “7th December 1889 at 8pm”. Her cause of death had been a painful decline from “dropsy [swelling from water retention], chronic bronchitis [making it hard to breathe] and emphysema [eroding the lining of the lungs]”. Since however she was a female and her body was therefore prized, new preservation techniques with improved chemicals meant that she was retained for dissection for “112 days”. She was finally buried in a large pauper grave on “25th March 1890” at cost, by the demonstrator in anatomy on duty. So although it was a people business, those that made the most profits did so in few words with lots of reassuring facial and hand gestures : a half-smile, tender eyes, a squeeze of the hand on the arm, conveyed enough humanity to earn a death for sale. A serial-killer likewise needed to be able to lure his victims without causing panic, so whilst Jack had pathological personality traits these must have been kept in check to achieve his deadly ends. That context seems to explain why the later victims were not more wary as the killing-spree became more violent. Another credible possibility is that an accomplice took responsibility for the people side of the business of the body trade on Dorset Street, a theme Section 4 explores. Meantime generally body dealers dressed in black or dark clothes and had a non-descript appearance, with some carrying a medical bag containing basic dissection tools : traits reported to the police by witnesses who claimed to have glimpsed Jack in the vicinity. If a body dealer lacked physical strength then they might compensate for this by developing dexterity with the lancet. The most skilled could cut up each corpse with a sharp knife very quickly on the street-scene : again something that Jack seems to have been well-practiced at. Still, the body dealer would need assistance to push the basket or wheelbarrow as it filled up during the night back to the designated medical venue. It was essential to ensure that blood did not spill down the road and alert the police or coroner to the deal-making activities, accepted by the local community as a fact of life but taboo if exposed to public enquiry.
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In other words, the body business was all about double-standards and that may have suited a serial killer very well.
16 In all the Jack-the-Ripper homicide cases, there was a methodical manner of murdering the victims which had remarkable application for the body business of the East-End. For there has been considerable debate in crime historiography about whether ‘Jack the Ripper’ was a medical man or not.23 Recent scholarship has focused on a spectrum of potential killers including those who worked in slaughter houses, farrieries with veterinary skills, and medical professionals connected to the police like coroners and surgeons with the right knife skills, all seen in the area of the murders. Solving the conundrum of who Jack might have been and how he could have evaded detection by the Metropolitan Police involves factoring in the anatomy trade. It was after all a forensic fact that each victim’s neck was slashed within seconds.24 The murderer used a knife to make a sharp cut across the underside of the chin, a long incision from ear to ear. This first and fatal wound opened the carotid artery and Jack then effectively silenced each victim’s voice-box. Only a person with a working medical knowledge of anatomy would have known where to cut with precision. Forensic evidence suggests that the murderer grabbed the women, cut their throats, and then eased the dying victim onto the street. In this way, they attracted as little attention as possible to the crime. It is noteworthy that fluids drained away fast, generally behind the victim’s head. They may have been attacked from the front but the body was then placed back carefully on the ground or bed. Blood thus gushed out of the body from the neck area but did not spill onto the torso. The murderer was then free to dissect the corpse cleanly : a valued anatomical skill in an era when preservation techniques were crude. Each torso was also opened from the neck to the navel. In a frenzied but highly skilled attack the womb was cut open above the upper vagina area. This exposed the pectoral muscles. The organs were taken out undamaged, including the womb itself. On several occasions, limbs were disgorged too. What is intriguing about this method of killing is that similar bodies that had been mutilated in this way were sometimes brought into St. Bartholomew’s hospital dissection room. Occasionally entries read “mutilated entirely”, “some mutilation”, “unsuitable for dissection, as mutilation”, “body had been opened” and so on.25 Yet little historical link is made between the anatomy trade and the high-profile Jack-the-Ripper victims.
17 The Home Office, Metropolitan Police, coroners, and neighbours all speculated about the motive for such gruesome attacks.26 By common agreement, these were despicable murders committed with exceptional ferocity and speed. Unanswered questions included : how could anyone walk into crowded neighbourhoods where the poor lived cheek-by-jowl and with such confidence murder quickly and then make a swift getaway ? It seemed reasonable to suggest that they may have had an accomplice. Speculation at the time was that the murderer was someone with basic dissection training. If so, then the anatomy trade could have been a factor in their murdering methods. The speed with which bodies were turned around at St. Bartholomew’s explains where somebody attached to the body business might have learned to use the lancet with such lightning skill. How the murderer dealt with each victim’s blood underscores this point. The crime scene was bloody but bodies were bloodless, a crucial forensic distinction. Mutilation was methodical and therefore based on some form of anatomy skill performed at high speed. To dissect a fresh body like this was a feat that could only be achieved with repeated practice. Medical students learned to work with basic equipment in cold candlelight or by gaslight ; it was often hard to find the main
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organs, much less cut them with anatomical precision. T27he dissector had to know what they were doing on the dissection table. If they did not follow standard techniques, then the person on duty would be up to his armpits in plasma in minutes. Blood stopped coagulating after death but this did not mean that dissection was not in disarray. The stomach contents, festering food and blood, often flowed from fresh corpses cut by amateurs. The smell would have been overpowering and the corpse a bloody mess. If the body was kept for longer than two days, then preservation fluid had to be injected into the carotid artery. The blood was slowly replaced by chemicals. In cases where the body contained a baby, the dissector had to be highly skilled to be able to extract the dead infant undamaged from the deceased mother for teaching purposes. Whatever the circumstances in each case, the murderer who cut the victim’s necks in the Jack incidents must have had a basic knowledge of what had to be done in the first hour on a dissection table when a fresh corpse was acquired for anatomy. It was not a skill that was learned arbitrarily from animal work or from human anatomy books. Jack had been hands-on somewhere, at some-time, to have been this skilled at cutting up the victims in fifteen minute short intervals without being detected.
18 Wynne Baxter, the coroner in Mary Ann Nichols’ murder case, held an inquest that concluded on 26 September 1888 : the injuries must have been made by someone who had considerable anatomical skill and knowledge. There were no meaningless cuts. The organ [upper pelvis area of the womb above the vagina] had been taken by one who knew where to find it, what difficulties he would have to contend against, and how he should use his knife so as to abstract the organ without injury to it. No unskilled person could have known where to find it or have recognised it when it was found.28
19 Paul Begg points out that the Lancet agreed with this medical conclusion. Its editorial leader stated that the speed “pointed to the improbability of anyone except an expert performing the mutilations described in so apparently skilful a manner.”29 Someone of a pathological frame of mind could then have been attracted to anatomical work that suited their disturbing personality traits inside the body dealing business on Dorset Street and the surrounding district of the East-End. In the autumn of 1888, that person or someone associated with the anatomy trade perhaps took basic dissection skills out at night with deadly consequences. Begg adds that the fact that most of the victims were street prostitutes, and their wombs subjected to a frenzied knifing attack, is not conclusive proof of a sex crime. This is an important observation if we factor in the anatomy trade and its fast turnover of prostitutes. In the anatomy season of 1888, women who worked in the sex trade were not in short supply at St. Bartholomew’s dissection room for instance but the turnaround rates of all bodies had changed. Preservation techniques had improved and most corpses could be preserved with chemicals for longer than before. On average an anatomist had a maximum of 7 days to dissect a corpse up to the mid-1880s, then around 1888 the use of stronger preservation chemicals increased the time spent on each dissection to over 100 days. The problem was that each preserved cadaver now looked less than human. Anyone who preferred fresh, female corpses would have needed to seek them on the street. A basic alteration in preservation methods could have been behind the motive for murder, coinciding with the time when the Jack murders started in the East-End. Whether they had assistance is an open question.
20 It is worth reiterating that there were many intermediaries involved in the body business with a working knowledge of anatomy and dissection in the East-End. Body
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dealers were very familiar figures and included infirmary nurses, workhouse porters, undertakers, coroners’ mates, and even midwives. “Ms. Biers”, for instance, of “St. James’ Workhouse” was listed as a female body dealer from the anatomy season of 1840 onwards in St. Bartholomew’s dissection registers.30 The potential list of people involved in the body sales is extensive and throws up all sorts of unproven but intriguing possibilities ; though why ‘Jack’ murdered for such a short period remains a mystery : a theme Section 4 returns to. Reviewing the surviving forensic evidence, one curious feature of the murder cases is that all of the female victims did not flinch when approached : as was stated above. Yet, as the murders went on, they would have been more wary of being solicited by a stranger. At the subsequent coroners’ hearings, witnesses testified that some victims had to risk their personal safety for paid sex to survive outside the workhouse. Others needed a few shillings for a lodging room for the night, offering oral sex in an alleyway. Free drinks at the local public house motivated some to walk the streets. They all nonetheless were on the lookout for danger, more sensitive to unusual advances. Several women had also been in and out of Holborn, Lambeth, and Whitechapel workhouses. They were well known to the police and poor law authorities, knew a wide cross-section of the population, and were streetwise. The forensic report in Mary Ann Nichols’ case, by way of example, stated that her petticoat was marked with ‘Lambeth Workhouse P. R.’, a pauper stamp.31 Nicols had been treated at the workhouse infirmary on a regular basis. This observation is noteworthy because all the female victims were left in a rather unusual physical pose of some relevance to the medical mystery surrounding events and the possibility of an accomplice.
21 Begg explains that the women were found flat on their backs : “the legs were drawn up, the feet were resting on the ground, and the knees turned outwards”.32 In the past this was how anatomists dissected to expose the major muscles. It is also the standard medical position when a woman is having a smear test, or internal physical examination to check progress in childbirth. Yet crime historiography seldom discusses the possibility that a woman made the first initial approach, not a man. This would explain a lack of circumspection in all the cases. Maybe an intermediary known to the victims, someone who traded for instance in their stillbirths, whom they were used to acting as a go-between, made the first fatal move. The actual attack had to be done by a man because of the physical strength needed to carry it out with such ferocity and quick skill. That, however, does not rule out the possibility that the women were groomed by a female accomplice, familiar to them from a workhouse infirmary or with whom they had done body deals on the street. Surviving dissection records confirm that women dealers and male traders walked the physical streets of Whitechapel in 1888. The ending of a supply partnership between like-minded individuals prepared to murder, might explain why the killings stopped as abruptly as they started. To engage with this explanation it is necessary to focus on the fifth murder victim Mary Ann Kelly who died in Miller’s Court off Dorset Street because her personal circumstances hint that she may have been the missing accomplice to Jack-the-Ripper in 1888. This may be unpleasant to think about but it does merit careful consideration.
Mary Ann Kelly : Innocent Victim or Body Dealer ?
22 When the mutilated body of Mary Ann Kelly was discovered in Miller’s Court off Dorset Street in the early hours of the 9th November 1888 it was a shocking sight even for the
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Metropolitan Police officers who by now recognised Jack-the-Ripper’s killing-style. 33 Kelly, the fifth iconic victim, had been murdered with an exceptional level of sustained violence. Her face was attacked with a knife in a vicious frenzy, and her breasts had been severed from her torso. Her lower limbs looked like a dissected cadaver, and her major organs like the heart had been removed. Her inquest report was distasteful and disturbing even for the hardened medical men present used to doing post-mortem work. Evidently the serial killer was angry, brutal, and unforgiving. Crime historians have long speculated as to why Kelly was singled out for such callous aggression and why there was so much blood shed on the bed she slept in. Either this was the culmination of pathological cruelty that had been building up to a crescendo of violence, a feature of some serial killings, or there was another motivation for the murder that the evidence-gathering never uncovered. To engage with the latter it is necessary to examine Mary Jane Kelly’s personal circumstances and to do so by factoring in the body trade that was flourishing along Dorset Street in 1888.
23 In 1973 a six-part BBC documentary called Jack-the-Ripper revisited the crime scene of Dorset Street. As part of the preparation for the series, the research team spent a great deal of time trying to locate anyone who had once lived in the area or knew someone that did. This included the bar staff and drinking clientele of the three public houses on location, anyone that had once used or recalled knowing people that had hired a bed in one of the street’s large lodging-houses, as well as practicing Catholics that had staffed or supported the charitable work of the Providence Row Night Refuge and Convent that once faced down Dorset Street. In a curious interview, one novice who had trained at the Convent in 1915 recalled that an older nun who had worked on the premises in 1888, told her : “If it had not been for the Kelly woman none of the murders would have happened”. This Paul Begg points out is “hardly reliable testimony” but nevertheless he concedes that it was an “odd comment” for a Christian nun of devout principles to have made about the Jack-the-Ripper murders. 34 The substance of the oral testimony might however make perfect sense if one factors in an active body trade in the street and one to which some residents might have once been connected : something substantiated by St. Bartholomew’s hospital dissection registers. The evidence connecting Mary Jane Kelly to that business across other London teaching hospitals in the area is currently circumstantial but it might become more convincing once historians re-examine fragments of her personal story that may have been misread or misunderstood.
24 Mary Jane Kelly was a twenty-five year old female of Irish descent said to have been about “5 foot 7 inches tall and of stout appearance” in 1888. She had a pleasing countenance of “blood hair, blue eyes, and a fair complexion” that framed her “attractive face.”35 Few doubted that she was friendly and approachable. Others remarked that as a child she had migrated to Wales with her close family, learnt to speak fluent Welsh, and married a collier named Davies when she was sixteen years old. After he was killed in an explosion, she moved to Cardiff, resided with a cousin, and may have turned to prostitution to earn her keep. By all accounts she suffered from ill- health and lacking the financial wherewithal for medical care she entered the Cardiff infirmary to get treatment. By the time that she arrived in London in 1884, she was living in relative poverty. It was in this economic condition that she lodged with the Nuns of the Providence Row Night Refuge facing down Dorset Street. If as a former nun claimed she had a personal connection to Jack-the-Ripper it may have begun at this
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formative time. The body dealing trade was often associated with charities that gave people down on their luck a bed for the night and food from the soup kitchen in the coldest winter months. It was not a place of last resort like the workhouse but it was somewhere to hide from the shame of poverty for those that had fallen on hard times. The Refuge on Dorset Street has thus been described as providing “shelter for 140 men and 112 women as well as being a training home for servants.”36 It was “open in winter from 5.00 pm onwards, from November through to the following May” and described as accommodation “of the simplest kind, and in fact inferior to that provided by many casual wards” of local workhouses. One of its charitable aims was to house “girls who had been saved from vice” and “deserted women cheated in the promise of marriage and flung friendless on the world”. Mary Jane Kelly, young widow, former prostitute, possibly from a Roman Catholic background in Ireland, had a typical charity profile. Inmates like her were generally housed for “six weeks” and given some practical assistance “in the form of tools for artisans, clothes for servants, and fresh goods for fruit and flower sellers”. The Refuge tried to help people to get back into work to start earning a decent living. But of course, this was also a place in which people lost heart and failed at life. In death, they were in destitution with nobody to pay for their pauper funeral. In other words, this was an ideal location to encounter body dealers and their accomplices on arrival in the East-End. Providing for the possibility that what the nun claimed to her novice in 1915 was correct, Mary Jane Kelly may have encountered her killer in 1884, four years before she was killed, and there may have been a connection to the Refuge, as well as the other murder victims in the vicinity. Something she did or said here would prove to be her, and others’, fatal undoing.
25 There are a number of personal descriptions attached to Mary Jane Kelly that should be considered in the light of the body business. It was common for those involved to use a number of aliases, and indeed all the five female victims did this in their hazardous lives as a matter of course. So resorting to an alias does not prove they were involved as go-betweens in body sales but rather that their life-styles were compatible with the modus operandi of an accomplice to the anatomy trade. Yet, Kelly went further than the rest of the victims and altered her name from English to a French spelling : Mary Jane Kelly became Marie Jeanette Kelly. Her former live-in lover, Joseph Barnett, a porter at Billingsgate market and fruit hawker, told the police that after she left the Refuge facing Dorset Street, Kelly told him that she became a prostitute in Knightsbridge. In the West End she was one of a number of young, pretty girls that may have been procured by high-class madams. Kelly told Barnett that she worked for an unnamed French lady that ran an upmarket bordello, and this was why she changed her name because she visited Paris on a couple of occasions and rode in smart carriages with upper-class men. It was also later revealed by other witnesses at the time of her murder that she was ‘well-educated’ enough to be able converse with wealthier male clients, may have been an “excellent scholar” (though in which respect was not revealed), and was known as “an artist of no mean degree.”37 Most people said that “she was superior to that of most persons in her position.” As crime historians have pointed out it is very difficult to balance this evidence against the popular image in the press of Kelly as a drunk down on her luck dossing in Dorset Street. Something does not add up. Either she was a fantasist and this possibility cannot be ruled out for someone who wanted a better life but was in abject poverty ; or, the bits and pieces of her life do contain a kernel of truth but the context of the fragments was forgotten or overlooked in the distorted face of the dreadful forensic information. Here then the historian
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needs to rethink the potential gaps in the misperceptions of how a life was lived, to try to tie the threads back together in a cold case review.
26 The epicentre of anatomy and prostitution in the 19th century was Paris.38 The threads of Kelly’s life look disparate until one appreciates this simple fact. In her life-story of a Tale of Two Cities perhaps Kelly was used to meeting medical men for sex in London on their return from Paris. If, despite the limited evidence, her connection to the French lady that ran a bordello was in fact her first entry point into a shadowy medical world, then her nemesis started to unravel a lot earlier than the police realised. It may have been this connotation that an older nun who had befriended Kelly in 1884 knew about, which troubled her years later. What is known is that after the French Revolution it was a civic duty for everyone alleviated by charity or the state to have their body dissected in the national interest of France.39 Parisians were very open about anatomy and dissection, with the civil authorities having kept the public morgue open daily, located behind Notre Dame Cathedral, so that visitors could identify bodies before they were sent for dissection. It was also common for females to learn life-drawing by sketching the dead in anatomy rooms for a small fee. This tradition of anatomical art also happened in London too. It started with the Murder Act (1752) and continued after the Anatomy Act (1832) came into force. Some females ran the anatomical shows behind-the-scenes at medical museums along Fleet Street.40 They generally assisted with preserving specimens for medical use by helping to inject wax for model-making. Their dexterity was useful to avoid preservation chemicals spilling, extending the dissection time by inserting liquids through the carotid artery and the thumb : areas of the body that happened to be violently assaulted during Kelly’s murder. They likewise acted as a liaison for illegal abortions procured at night from the backdoor of medical museums. Females that learnt the art of anatomy in this way were very familiar with placentas and major organs like the heart : the latter removed from the body during the fifth homicide in Miller’s Court. On the whole women employed anatomically tended to do casual work but all had some sort of basic education, could draw, and looked respectable enough to avoid bad publicity. In other words if Mary Jane Kelly was involved in any respect with the business of anatomy in the East-End, the fragments of her life suggest she could have been so since her arrival in the capital in 1884, and changing her name to a French spelling was not a coincidence but a reflection of her connections to anatomy via prostitution : although this cannot be as yet proven from the scant evidence, the possibility cannot be ruled out either. Most psychologists stress that people that weave tales to compensate for a mundane existence often do so by picking up and refashioning fragments of their life that have a semblance in a reality. So rather than Mary Ann having a Parisian set of adventures, perhaps instead she had known a medical man that had solicited her for sex and offered her other paid work, giving her a more comfortable berth at a West End bordello. Knightsbridge did house lots of medics and medical students that trained in Paris and worked in the capital’s big teaching hospitals. Looking at how she kept up appearances is instructive too.
27 Female body dealers needed to be able to identify themselves visually but with decorum in their dress sense on the street-scene. They typically wore one of two outfits : either a nurse’s uniform with a white apron, or undertaking garb. This would always be clean-looking and not pawned. The person had to appear to be generally in good health to be approachable, and have a stout constitution to handle the dead whatever their size and shape : perhaps this is one reason why all the chosen victims were stout. In Mary Jane Kelly’s case witnesses said she seldom pawned her clothes,
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which was unusual for someone reported to be ‘29 shillings in arrears’ at the time of her death : a cash-flow theme revisited later.41 Meantime, it was said she always looked clean and presentable, wearing most days : “a white apron [over] a black silk dress and often a black jacket”. She was therefore said to be “shabby genteel in her appearance and approachable, having rather attractive features.” For the Victorians, black was fashionable but prostitutes tended to wear something colourful to catch the eye of clients. So it is worth reflecting on the fact that Kelly’s attire was more appropriate for someone attached to a body dealing business of some description than soliciting sex, which may also explain one of her alias’s, “Black Mary”.42 There was nothing odd about her demeanour if she needed to keep up appearances as an accomplice to a body dealer posing as an undertaker. Thus by way of example prostitutes on the Curtain Road of the East-End often sold their stillbirths to St. Bartholomew’s Hospital via a go-between. It made sense to use a woman in the neighbourhood dressed in clean black to make the deals. They handled the cash payment, which could be anything up to a month’s living wage for a female that died from sepsis (childbed fever) or more for her dead child : valuable commodities in the chain of supply. The deal-money would have been refunded once the ‘undertaker’ body-dealer had been compensated once a month by the medical school supplied. Perhaps this was why Kelly was “29 shillings in arrears” but not unduly worried about the debt when she opened the door to her body dealer on the fatal night ? It might also explain the throwaway remark that Mary Ann Nichols (victim one) made on the night of her death. At 1.20am in a lodging house in Thrawl Street she said she could not afford “4d for her bed” for the night, admitting that she had spent the money thrice over on alcohol. Witnesses said that she laughed this off saying : “I’ll soon get my doss money. See what a jolly bonnet I’ve now got.”43 It is worth asking how exactly were these two sentences connected together ; was a man footing her bill for a little black bonnet and why did he do this ? Was it for sex – the obvious motivation – or had she just joined the ranks of a body dealer’s business and the black bonnet was part of her new uniform that would help her pay her way ? Another innocuous clue is worth considering here too.
28 In Image 4 (appendix) we see the archway entrance to Miller’s Court on Dorset Street. To the right is a door at No, 26 to a shop in which a barrow and other items was kept. The police insisted on boarding up the property because local people were squatting in it for the night, and this can be seen in the photograph. It is also worth noting that the shop was opposite one of the three public houses in the street, frequented by Mary Jane Kelly. Indeed one of them, the Britannia, still had a barber’s shop sign displaying its medical heritage of bleeding, teeth-pulling, and hairdressing. This was her patch and she knew the owner of the shop well, a man called John McCarthy who was also her landlord at No 13 Miller’s Court. What is unclear and never seems to have been investigated thoroughly by the police is what exactly the ‘barrows’ in the shop were used for.44 We know that Kelly’s body was carried away in a recycled parish coffin on a hospital cart that looked like a wheelbarrow but not what the shop barrows carried. Their innocuous nature was social wallpaper. Witnesses told newspaper reporters that the shop was known locally as “the shed”, a space to doss down in if friendless females had no money for a shared bed for the night. Others hinted that McCarthy was a pimp ; nevertheless, this tiny social space had two features necessary for the operation of a body trade. It may have been a rest room for those females out and about dealing on the streets, and it contained a crucial ‘barrow’ for transportation. If, as has been noted by many crime historians, nearly all the victims were connected to this set of rooms on
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Dorset Street, was ‘the shed’ their place to meet, get paid, and pass on their trades ? And is this what the nun meant when she blamed Mary Jane Kelly for all the murders : was she the main accomplice who organised the other women at ‘the shed’ next door to her lodging room ? It would explain why the women did not flinch when first approached. Perhaps Kelly walked up to them at the front and Jack the body dealer grabbed them from behind ? If so, she paid a painful price for, as she put it, “taking a wrong turn in life”. As the Jack-the-Ripper murders continued everyone agreed that Kelly was a very frightened woman. Did their partnership falter and Jack then take out his anger in such a brutal fashion ? If so that might bring together three crucial factors in any cold case review : emotional motivation, the means to commit such brutal violence, and the physical prowess needed to skilfully manage the opportunity costs associated with a high-profile homicide at a time of intense media coverage. Even so, there still needs to be a stronger link made that connects four of the iconic victims who had strong physical ties to Dorset Street (Annie Chapman, Elizabeth Stride, Catherine Eddowes and Mary Jane Kelly) to Mary Ann Nichols the first victim.45 Again the body trade may have united them in ways overlooked.
29 Looking at Map 2 (appendix) of the main locations associated with the Jack-the-Ripper homicides one thing stands out. All the buildings and murder locations were close to a main thoroughfare used by body dealers in the capital. They all clustered around a convenient road system. Though pushing a body in a wicker basket or wheelbarrow would have involved crossing from side streets like Dorset Street into the main road of Commercial Street , nevertheless with the latter’s wider pavements and good road surfaces it was conveniently on a well-trodden route to the London Hospital up the Whitechapel Road. And, as we can also see, the first murder victim, Mary Ann Nichols, murdered on Bucks Row, died very close to this hospital venue. All body dealers preferred to adopt a route like this. In other words, what really links all five iconic victims is their geographic alignment within the body trade transportation routes out of the East-End. At a time when streets were stained with human effluent, a good road was essential to supply the needs of medicine.
30 Body dealers moved from workhouse to workhouse across their trading patches of the East-End of London. For Mary Ann Nichols this meant that she did not just enter random institutions.46 She was admitted to poor law facilities where the body trade happened to be thriving on the premises by the 1880s : notably at Lambeth in 1883, several in Holborn in 1887, the Strand in 1887 and finally Lambeth again in 1888. It is feasible that this may have been her first contact with Jack or an accomplice, even though she may never have guessed it at the time. One fact is certain, namely that the final month of Mary Ann’s life was a sad one. In early August she entered Gray’s End workhouse in one of the most notorious neighbourhoods of Holborn dubbed Little Ireland. It was a crime-ridden parish and the main poor law institution was the biggest supplier of dead bodies to St. Bartholomew’s hospital. By all accounts, Mary Ann went back on the streets, was caught stealing clothes, and moved between lodging-house, doss sheds, and brothels. She accepted cash for sex, for as little as 3 pence, the price of a stale loaf of bread to eat, prostituting herself to get a shared bed for the night. Yet, the discovery of her body at 3.40-3.45am on 31st August 1888 on Buck’s Row in the East- End shocked the neighbourhood. Someone that had frequented some of the roughest workhouses across London still aroused considerable sympathy for her plight ; everyone agreed that nobody deserved to die in such a horrible manner. As the first iconic victim, she seems to have been a template for Jack’s anatomical method of
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homicide, discussed in Section 3. She may have been a trial run, and this could explain why her connection to Dorset Street was not as obvious to the police as that of all the other victims. Mary Ann did not tend to live in lodging-houses and used poor law institutions much more frequently than the others. This would have made her personal interactions more erratic on the street. Ironically it may also have placed her at the front-end of the body trade happening every night in the dead-houses at the back of workhouses that she was staying in. As a servant employed briefly on the premises at Lambeth workhouse in 1888 she would have seen and known how all aspects of poor law life worked. Despite the medical mystery surrounding the reasons for her admittance to several infirmaries, during her time inside the premises body dealers were selling dead bodies of men, women, children and infants to Guys and St. Bartholomew’s hospitals nearby. It would be very odd indeed if she had not known about the body trade in some respect. It is therefore conceivable that if Jack was involved in the body business in the area Mary Ann may have been his initial link in a human kaleidoscope of deal-making ; perhaps she saw something that she should not have done as an onlooker drifting from dead-house to mortuary. Or had she simply dossed down at the shed of No. 26 Dorset Street one night and heard a conversation that should have been kept secret : we may never know.
New Cover Stories : Murder in the Family ?
31 We conclude this article at a time when family historians are presenting new evidence on Jack’s potential identity. Recently there has been considerable speculation that a pauper named Robert Mann, mortuary keeper for Whitechapel workhouse, may have been Jack-the-Ripper. Modern-day crime profiling, it is claimed, would expect a typical serial killer to have his life-story characteristics. In an intriguing book, Mei Trow, using modern forensic techniques, is convinced that Mann committed the murders because he had ample access to the dead, may have liked working with them, and got his hands on the first victim who was brought to him for safe-keeping.47 That he dressed and washed Mary Ann Nichols despite police instructions to the contrary before a post- mortem got underway was either, accidental, careless, or suspicious. The theory has received a lot of publicity but it has been criticised for lacking a convincing explanation as to why someone in a morgue might risk becoming involved in the crimes when under such intense police scrutiny. If one accepts that the police were aware of the operation of a body trade but ignored its day-to-day dealings because they were a shadowy fact of life in the area, then a serial killer would have effectively found the perfect cover story. It was common for the authorities to look the other way when informed of a dealing dispute. By way of example, Alfred Feist a workhouse master of St. Mary’s Street Newington workhouse in the East-End employed Robert Hogg the undertaker (for which read body dealer) from Southwark on a regular basis. At the Old Bailey in 1858 Feist was charged with 64 counts of profiting from pauper bodies sold from the dead-house of the poor law premises he ran to Guys Hospital.48 In 1858 he was found guilty but got off on appeal on a technicality. Essentially it was not in anyone’s interest in the medical establishment in the locality to pursue the matter further because body dealers were a necessity. Meantime, Hogg went quiet for a time and re- emerged as a body dealer to St. Bartholomew’s Hospital. And he had remarkable longevity since his so-called undertaking business remained connected to the medical school until the modern period. The body trade might yet then prove in a similar
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manner to be the solution to a missing historical context as to how the Jack-the-Ripper murderer remained hidden, calling for new and meticulous evidence-gathering. We need to know evidently much more about all those working in small morgues and dead- houses of workhouse-infirmaries connected to the murders, since Robert Mann was just one of a number of attendants on the dead that police encountered in the course of their enquiries. There were also several ‘undertakers’ who buried the victims and parish officers who charitably paid for the murdered women to be interred with dignity. Each and everyone one may have had a connection to the body trade and by implication Jack-the-Ripper.
32 We end this cold case review hence with the latest development. It has been claimed by a retired surgeon, Dr Wynne Weston Davies, that his near-relative named Francis Spurzheim Craig (1837-1903) was Jack-the-Ripper.49 Craig was a newspaper reporter covering the police court circuit at the time of the murders and it is claimed this may have been a useful social camouflage. Indeed documentary evidence has been found to suggest that Craig may have been the ex-husband of Mary Jane Kelly. It is postulated that she adopted an alias to disguise a failed marriage. Craig divorced a woman named Elizabeth Weston Davies when living at 306 Mile End Road in the East-End in the 1880s. The new book claims that Craig searched for Elizabeth (now called Mary Jane) who left the martial home after a brief marriage, turned to prostitution, and migrated to the East-End because her ex-husband resented her infidelity. She hence adopted various disguises to evade his detection. The new theory posits that the first four iconic murders were blue-prints for the fifth killing in 1888. Craig, it is argued, covered up his intentions by making it look like there was a serial killer on the streets. His real focus was to murder his ex-wife out of emotional spite. To do so, he learned how to evade police attention as a court reporter. This gave him the means to track down and then destroy Mary Jane’s true identity. He murdered her in a brutal fashion to erode any potential links to him, smashing her face and mutilating the body. The extraction of the heart was hence a highly symbolic act : love turned to hate.
33 The difficulty with this turn of events is that it is a rather elaborate plot, even for a police court reporter to carry out. There would have been a lot of unpredictable events attached to the first four murders and no guarantee of escaping justice before being in a safe position to proceed to a fifth pre-meditated homicide. It does provide a motivation for murder but not the skilled means of killing anatomically, or the ability to stage-manage all of the logistical opportunity costs involved. There may however prove yet to be a macabre twist to this intriguing family history, for, Craig’s middle name was the surname of a famous phrenologist, Johann Gasper Spurzheim. Craig had been fathered by Edward Thomas Craig (1804-1894) who became President of the Phrenological Society in 1888 the year of the Ripper murders : a noteworthy observation.50 Since the time of the Murder Act in 1752, when criminals were hanged for murder and dissected, anatomy had become closely associated with the pseudo- science of phrenology.51 Indeed a ‘Jack’ was the term used for the pulley in dissection rooms to hoist up criminal corpses for brain study. An unanswered question is therefore whether the business of anatomy had some sort of close connection in the Craig family history ? It may have pre-dated the Anatomy Act of 1832 (when criminals, not the poor, were subjects of the dissection table). Did Craig junior know about anatomy skills from Craig senior because a basic hands-on knowledge was handed down in his family-line ? Phrenologists often attended criminal dissections and took
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plaster casts for posterity. If so, it would be a striking irony of family history for Dr Wynne Weston Davies, who in his career has specialised in human anatomy teaching and dissection, to have benefitted from the unsavoury side of medical advancement without knowing his potential connection to its long body trafficking history and phrenology. It is here that we need to leave open the dissection room door to the future research enquiries of crime and family historians. For the business of anatomy on the streets was social wallpaper, capable of concealing the most unscrupulous characters across the East-End of Victorian London. And in so doing, Jack may have had the method, motive and means to murder undetected in the Metropolis.
Image 1
Dorset Street Map, 1888, Ordinance Survey, Whitechapel Division, first published by Her Majesty’s Stationery Office, 1894. (No copyright clearance required for the map as more than 50 years since first printed).
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Image 2
Photograph of a Common Lodging House sign in Dorset Street, 1888. (Copyright : Reproduced on open access at http://photos.casebook.org/displayimage.php?album=6&pos=11, Attribution-Non Commercial-Share Alike 4.0 International (CC BY-NC-SA 4.0) creative commons license for academic purposes only).
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Image 3
Dorset Street with the Britannia Public House on the left corner, c. 1888. (Copyright : Reproduced from an original photograph on open access at http://www.casebook.org/victorian_london/dst-pubs.html, Attribution-Non Commercial-Share Alike 4.0 International (CC BY-NC-SA 4.0) creative commons license for academic purposes only).
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Image 4
Image of the ‘Entrance to Miller’s Court in Dorset Street’ first published by Leonard Matters, The Mystery of Jack-the-Ripper (London : W. H. Allen, 1929). Author Note : Through the archway is where Mary Jane Kelly was murdered. The door to the ‘shed’ is to the right of the archway. It was boarded up by the Metropolitan Police. No copyright clearance required as more than 50 years since first printed.
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Map 1
Dorset Street Map, 1888, Ordinance Survey, Whitechapel Division, first published by Her Majesty’s Stationery Office, 1894. (No copyright clearance required for the map as more than 50 years since first printed).
Map 1 Key – designed by the author
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Map 2
The East End of 1888 showing main major roads connecting across the East End to the London Hospital, 1888, reproduced from Ordinance Survey Map, Whitechapel Division, first published by Her Majesty’s Stationery Office, 1894. (No copyright clearance required for the map as more than 50 years since first printed. Copyright on addition of place names added at http://www.casebook.org/ victorian_london/sitepics.html, Attribution-Non Commercial-Share Alike 4.0 International (CC BY-NC- SA 4.0) creative commons license for academic purposes only).
Sketch 1
Miller’s Court looking down the alleyway towards Dorset Street through the archway, on the corner are Mary Jane Kelly’s rooms, first published in the Penny Illustrated Newspaper 17 November 1888. Author’s Note : On the street through the alleyway to the left was a shop where wheelbarrows were stored inside and homeless people sometimes slept the night in a shed. (No copyright clearance required as more than 50 years since first printed in a London newspaper).
BIBLIOGRAPHY
References
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Begg, P., Jack-the-Ripper : the facts, London, Portico, 2009.
Begg, P. & Bennett, J., The complete and essential Jack the Ripper, London, Penguin, 2013.
Begg, P. & Bennett, J, Jack-the-Ripper : the forgotten victims, Yale, USA : Yale University Press, 2014.
Begg, P., Fido, M. & Skinner, K, The complete Jack-the-Ripper A to Z : The ultimate guide to the Ripper mystery, London & New York : John Blake, 2015.
Bynum, W., Science and the practice of medicine in the nineteenth century, Cambridge, Cambridge University Press, 1994.
Casebook Jack-the-Ripper photo archive, at http://photos.casebook.org/, produced by Stephen P. Ryder et al.
Casebook Jack-the-Ripper victims, http://www.casebook.org/victims/mary_jane_kelly.html, http://www.casebook.org/victims/polly.html, produced by Stephen P. Ryder et al.
Coven, S., Slumming : sexual and social politics in Victorian London, Princeton, USA : Princeton University Press, 2006.
Craig, E. T., Phrenological chart, of the propensities, moral sentiments and intellectual faculties of the human mind, London, John Murray, 1845.
Craske, M., ‘Unwholesome and pornographic : a reassessment of the place of Rackstrow’s museum in the story of eighteenth-century anatomical collection and exhibition’, Journal of the History of Collections, 2011, 23, I, pp. 75-99.
Daily Telegraph, 10 November 1888.
Davies, W. W., The real Mary Kelly, London, Blink Publ., 2015.
Evans, A., ‘E.T. Craig : proto-socialist, phrenologist, and public health engineer’, International Journal of Epidemiology, 2008, 37, III, pp. 490-505.
Evening Express, 12 November, 1888.
Fido, M., A history of British serial killing, London, Mortimer Books, 2011.
Green, D., Pauper capital : London and the poor law, 1790-1870, London, Ashgate, 2010.
Hurren, E. T., Dying for Victorian medicine : English anatomy and its trade in the dead poor, c. 1832 to 1929, Basingstoke, Palgrave, Macmillan, 2013.
Hurren, E. T., Protesting about pauperism : poverty, politics and poor relief in late-Victorian England, c. 1870-1900, Woodbridge, Suffolk : Royal Historical Society Series, Boydell and Brewer, 2015.
Hurren, E. T., Dissecting the criminal corpse : staging post-execution punishment in early modern England, Basingstoke, Palgrave Macmillan, 2016 (in press).
London Metropolitan Archives, A/FWA//C/D49, http://www.casebook.org/dissertations/ws- providence.html.
MacDonald, H., Human remains : dissection and its histories, Yale, USA, Yale University Press, 2006.
Marshall, T., Murdering to Dissect : Grave-robbing, Frankenstein and the Anatomy Literature, Manchester, Manchester University Press, 1996.
Old Bailey cases, http://www.oldbaileyonline.org/browse.jsp?div=t18580222-354, Crown versus Feist, 22 February 1858.
Porter, R., The greatest benefit to mankind : a medical history of humanity, London and New York, Fontana Press, 1999.
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Porter, R., Blood and guts : a short history of medicine, London, Penguin, 2003.
Porter, R., Flesh in the age of reason ; how the Enlightenment transformed the way we see our bodies and soul, London, Penguin, 2005.
Richardson, R., Death, dissection and the destitute : the politics of the corpse in pre-Victorian Britain, London : Wedenfield and Nicholson, 2001.
Rule, F., The worst street in London with a foreword by Peter Ackroyd, London, Allan, 2010.
St. Bartholomew’s Hospital Archive, Dissection Records, MS1/1-6.
The Lancet, 29 September, 1888.
Trow, M. J., (2009), Jack-the-Ripper ; quest for a killer, London, Wharncliffe Books, 2009.
Walkowitz, J. R., City of dreadful night : narratives of sexual danger in late-Victorian London : women in culture and society series, Chicago, University of Chicago Press, 1992.
Walkowitz, J. R., Prostitution and Victorian society : women, class and state, Cambridge, Cambridge University Press, 1991.
White, J., London in the 19th century : ‘A Human Awful Wonder of God’, London, Vintage, 2008.
Wise, S., The Italian boy : murder and grave robbery in 1830s London, London, Pimlico Books, 2005.
Wise, S., The blackest streets : the life and death of a Victorian slum, London, Vintage, 2009.
APPENDIXES
Appendices
NOTES
1. Selectively, refer to books by Fido (2011) ; Begg, Fido, and Skinner (2015) ; Begg and Bennett (2013) ; Begg and Bennett (2014). 2. Begg (2009, edition, p. 418). 3. Begg (2009 edition, p. 273). 4. See White (2008). 5. See, Green (2010). 6. Refer Hurren (2015). 7. Begg (2009, p. 275). 8. On Spitalfields & Dorset Street, see, Rule (2010). 9. See, notably, Wise (2009, p. 18-24). 10. The geographical layout is covered in extensive detail at : http://www.casebook.org/ & Jack- the-Ripper photo archive, at http://photos.casebook.org/. 11. Notably, refer books by Walkowitz (1991) and (1992) ; Coven (2006). 12. Refer Richardson (2001) ; MacDonald (2006). 13. See Porter (1999). 14. Covered in Hurren (2013). 15. Begg (2009, p. 273). 16. Hurren (2013, p. 303) provides conservative figures for whole bodies and body parts in the conclusion to her book. She stresses that only whole cadavers had to be officially declared on
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death certificates ; body parts being traded were at least equal to, and more likely, exceeded that of, complete corpses bought and sold. 17. Ibid. 18. See Marshall (1996) for its history pre-dating the Anatomy Act (1832). 19. Refer Wise (2005, p. 10), points out that body dealers often congregated on Giltspur Street in a public house to collect and deliver their trades to St. Bartholomew’s Hospital each morning after a night’s trading. 20. St. Bartholomew’s Hospital Archive, Dissection Records [hereafter SBHADR], MS1/1-6, 27 Oct. 1887 entry. 21. Ibid, MS1/1-6, 13 and 14 March 1888 entries. 22. SBHADR, MS1/1-6, 7 Dec. 1889 entry. 23. For the most credible and objective summary of all the key debates, see, Begg, (2009 edition). 24. Ibid, pp. 21-32, recounts the forensic facts. 25. Refer SBHADR, MS1/1-6 for example in 1834 had 9 well-documented cases of the “body have been opened” before being traded. A typical example was “Sarah West” a 63 year old female whose “abdomen had been opened” before being sold on in 1837. Another case is “Jane Sheriff’ aged 60 sold from St Giles Workhouse on 2 December 1857 with “an opened body”. She had been cut up by someone unnamed before death and then sold on as a damaged corpse. 26. Begg (2009, pp. 101-35). 27. Ibid, p. 79. 28. Begg, (2009, p. 135). 29. Lancet (29 Sept. 1888). 30. SBHADR, MS1/1-6, information in the marginalia of the register for 1840. 31. Begg, (2009, p. 52). 32. Ibid, p. 78. 33. This case has been compiled from the online newspaper stories for her murder, available at : http://www.casebook.org/victims/mary_jane_kelly.html 34. Begg, (2009 edition, p. 482, footnote, 13 to chapter 16 on Mary Jane Kelly). 35. Refer footnotes 33 and 34 above, Ibid, pp. 267-313. 36. London Metropolitan Archives, A/FWA//C/D49, accessed 17/02/2015 at : http:// www.casebook.org/dissertations/ws-providence.html. 37. Begg (2009, pp. 267-313 covers the case in meticulous detail with quotes at p. 271). 38. See Porter (2003) and (2005). 39. Refer, Bynum (1994). 40. Context in Craske (2011, p. 75-99). 41. Begg (2009, p. 276). 42. Ibid, p. 267. 43. Begg (2009, p. 43). 44. Reported in Daily Telegraph 10 Nov. 1888 and Evening Express 12 Nov 1888 ; also cited in Begg, (2009 edition, p. 485, footnote 50). 45. Begg (2009, p. 486, footnote 50, to chapter 16, Mary Jane Kelly). 46. See, http://www.casebook.org/victims/polly.html, for primary sources relating to her life and these critically evaluated by Begg, (2009, p. 54-64). 47. Trow (2009). 48. Old Bailey, Crown versus Feist, 22 February 1858. 49. Davies (2015). 50. Refer, Craig (1845) and Evans (2008, pp. 490-505). 51. Refer, Hurren (2016, in press), on dissection and phrenology under the Murder Act.
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ABSTRACTS
Jack-the-Ripper has been an historical prism for international studies of crime, history and societies. This article re-examines the infamous violent homicides from a new medical perspective. In a cold case review, original evidence of a secret trade in the dead poor is presented, neglected in crime historiography. Trafficking in bodies and body parts to teach human anatomy to medical students was the norm in the East End of London in 1888. The business of anatomy – peopled by body dealers and their accomplices – had the medical infrastructure to provide a deadly disguise for the serial killings. Those that fell from relative to absolute poverty, in death, supplied dissection tables in major teaching hospitals across London. Its social wallpaper could conceivably have camouflaged homicide in the Metropolis.
Au plan international, la figure de Jack-L’éventreur a servi de prisme historique pour l’histoire sociale du crime. Cet article ré-examine ces homicides abominables et violents d’un point de vue médical nouveau. À partir d’une étude des affaires classées, l’article présente des preuves inédites d’un commerce secret de cadavres de pauvres, jusqu’ici négligé par l’historiographie. Le traffic des cadavres et de portions de ceux-ci destinés à l’enseignement de l’anatomie humaine pour les étudiants en médécine était la norme dans l’East End londonien en 1888. Le commerce anatomique, contrôlé par des trafiquants de cadavres et leurs complices, disposait de l’infrastructure médicale nécessaire pour camoufler les meurtres en série en morts naturelles. Ceux qui passaient de la pauvreté relative à la misère absolue, alimentaient après leur mort les tables de dissection des principaux hopitaux universitaires londoniens et il est fort possible que cette pratique ait permis d’occulter des homicides dans la métropole londonienne.
AUTHOR
ELIZABETH HURREN Reader in the Medical Humanities in the School of History of the University of Leicester. She is renowned as an international scholar of the history of the body, with wide-ranging research interests in death, dying and poverty studies. In 2007 she published in the prestigious Royal Historical Society Series, Protesting about Pauperism : Poverty, Politics and Poor Relief in late-Victorian England. This was followed in 2013 by her ground-breaking study entitled Dying for Victorian Medicine : English Anatomy and its Trade in the Dead Poor, 1832 to 1929, short-listed in 2015 for the British Medical Association’s Book of the Year Prize. In 2016, her latest book, now in press with Palgrave Macmillan, will be Dissecting the Criminal Corpse : Staging Post-Execution Punishment in Early Modern England. Elizabeth was editor of Wellcome History from 2012 and continues to be a board member of Family and Community History, as well as historical consultant for Historic Royal Palaces, London. - [email protected]
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“These are cases which it is inadvisable to drag into the light of day” : Disinterring the Crime of Incest in Early Twentieth-Century England
Kim Stevenson
Introduction
1 The historiography of late twentieth century child sex offending in England and Wales is still being uncovered and written ; most recently in light of the unprecedented disclosure of cases of historic sexual abuse revealed by the Savile Inquiry and Goddard’s Independent Child Sexual Abuse Inquiry into institutional abuse.1 While the current revelations of sexual abuse over the last half century are unparalleled, at least the unrelenting publication of media reports, commentaries and prosecutions will provide an accessible and significant archive for future academic analysis. In stark contrast, the historiography relating to child sexual exploitation including incestuous relations with children during the first half of the twentieth century is much more limited. With specific reference to the crime of incest, there has been significant academic critique of the late nineteenth century debates and social discourse associated with the arguments for and against criminalization and the subsequent enactment of the Punishment of Incest Act 1908. But for the early twentieth century, and especially post-1908, there are significant chronological gaps in the literature in respect of child sexual abuse generally, and more specifically, the impact and wider socio-legal and cultural context of the implementation of the incest statute.
2 This hiatus is bookended by Jackson’s seminal work Child Sexual Abuse in Victorian England and resumed by sociologist David Finkelhor’s extensive contemporary studies of the phenomenon from the 1970s to the present day.2 In between, Smart provides a
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useful overview of how, from 1910 to 1960, child sexual abuse was perceived and understood as a form of harm, but confirms that it is a much neglected period as regards more detailed scholarship.3 One explanatory factor for this dearth of commentary is the apparent scarcity of accessible and reliable archival material detailing prosecutions of sexual offences committed against children including official court reports and, compared to the wealth of crime reportage published in the nineteenth century, newspaper coverage. Currently, Louise Jackson and Adrian Bingham are working on an ESRC funded research project to identify the underlying reasons for this as part of mapping and analysing the social, legal and political responses to child sexual exploitation since the 1920s.4 Predictably initial findings confirm that after 1918 newspaper reporting of child sexual abuse generally was very brief : “Reporting was episodic and fatalistic, as if these crimes were an inevitable feature of society”5 – or at least sections of it. This is despite the fact that compared to the crime of incest there were no definitive legislative restrictions on the public reporting of institutional or non-familial abuse. In contrast, the Punishment of Incest Act 1908 which made incestuous activities with children or between consenting adults a secular offence for the first time, included a prohibition that made it unlawful for the press to report such prosecutions. From the legal perspective at least, it can therefore be argued that any explanatory factors as to the invisibility of newspaper reportage of non-incestuous cases of child sexual exploitation may differ from those elucidating the reasons for any similarly constrained reporting of incest prosecutions, because of the probability that these are more likely to be undetectable due to the reporting ban imposed for the moral protection of society in general.
3 This article aims to add new material to the debate by, somewhat counterintuitively, analysing the public and legal discourse concerning the ‘silences’ surrounding the prohibition on the reporting of the prosecution of incest cases heard in camera in the English criminal courts between 1908 and 1922. As will be demonstrated, an informative amount of source material can be gleaned from synthesizing newspaper reports and comment with the official law reports of criminal appeals against convictions for incest to enhance understandings of how the Act was applied and cases proceeded with. It charts the legal debates regarding the need for privacy, as underlined in the title quote from the Lord Chancellor, the Earl of Halsbury, Harding Giffard. Halsbury believed that the subject was too repulsive for public debate and expressed considerable resistance to the proposed Bills opining that for two reasons the crime of incest should not be “brought into the light of day”. First, the issue would be greatly magnified if prosecuted through the public arena of the criminal courts, and second he believed that the newspaper press could not be trusted to report such cases responsibly. Halsbury eventually secured an amendment that any prosecution for incest would require the consent of the Director of Public Prosecutions, and any subsequent criminal trial must be held in camera in a closed court, thereby excluding the public and effectively repressing any media publication of the case.
4 The discussion interrogates the extent to which Halsbury’s pre-emptive criticisms were justified in respect of charges of incest against children suggesting that as cases started to be prosecuted in the courts, it was not only the press, but also judges and magistrates who expressed disquiet about such censure. The article focusses on one judge in particular, Mr Justice Darling, who, based on his experience as a trial judge who had heard numerous indictments of sexual assault and a representative number of incest cases, became the leading protagonist in urging that the in camera rule be
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repealed and whose criticisms would ultimately contribute towards a resolution of the issue.
Addressing the Apparent Paucity of Source Material
5 Undeniably, the revelation of incestuous relationships amongst the urban poor by the Victorian social explorers, child crusaders and moral campaigners including Mearns, Shaftesbury and Booth did much to educate the public and bring incest “into the light of day” precipitating the eventual passage of the 1908 Act. Social historians, notably Behlmer, Hendrick, and Wohl,6 first correlated this public disclosure of incest and its subsequent criminalization in the 1908 Act complemented by Jeffrey’s feminist perspective of the role of moral and child welfare campaigners and Jackson’s study on the contemporaneous prosecution of familial sexual assaults.7 Bailey, a legal historian, has tracked the legislative process of the 1899-1907 Bills in his definitive account published in 1979.8 This has been further contextualised by Bell’s analysis of how the parliamentary debates constructed the crime of incest. Adopting a feminist informed critique to challenge Foucauldian theory, she examines how the conflicting proposals for criminalisation coalesced around three key themes : health and inbreeding, causation of harm, and threat to the institution of the family.9 It is not within the scope of this article (nor is there the space) to revisit the debates about whether the legislation was intended to be a protectionist measure or to assuage public and medical concerns about the genetic dangers associated with incestuous unions and eugenics arguments as these have been expertly covered by Wolfram.10 Similarly, Bates’ recent work examining the role and perspectives of medical experts – including sexologists and psychiatrists – and medical testimony and evidence in relation to the prosecution of sexual offences more generally usefully incorporates the key aspects of medical jurisprudence.11 The aim here is to focus on the post-Act discourse as, despite such compelling work, there has been little critique of the immediate impact of the legislation and repercussions associated with the reporting prohibition. This paper therefore examines the judicial, legal and media responses to the criminalization of incest and in particular the reporting ban as it was these institutions that the provision most directly affected.
6 Olafson et.al. offer a broad and comprehensive interdisciplinary survey of the literature concerning the modern history of child sexual abuse but this is primarily from a definitional and psychiatric perspective and does not specifically review incestuous abuse. They endorse the fact that, despite the efforts of the early twentieth century child welfare campaigners and feminists, child sexual abuse was repeatedly repressed, creating a “long history of cultural denial” that remained unchallenged until the domestic violence campaigns of the 1970s exposed the phenomenon of child sexual abuse as materializing from the more generic categorization of physical child abuse.12 Within this manifestation the secrecy of the incest ‘taboo’ and cultural reluctance to talk about such a sensitive subject was darkly concealed making access to reliable historical sources even more problematic. La Fontaine stresses that “empirically there is considerable overlap between incest and the sexual abuse of children, but the former is not a sub-category of the latter.”13 Mitterauer cautions that the concept of the incest taboo is primarily an “academic construct” and one that should be dismissed as it “tends to obscure the fundamental difference between the abhorrence of incest as an
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aspect of behaviour and the prohibition of incest as a social rule.”14 However, as Davidoff et.al. remind us, incest was one of the family secrets most silenced in family life narratives during this period making it “almost impossible to uncover historically because its existence has been denied within most families and communities.”15 Cohen challenges this somewhat suggesting that the Victorians regarded incest more matter- of-factly because of the problem of overcrowded housing and that the existence of such secrets generally was a necessary precursor to the subsequent development of modern family privacy.16 But post-1908 the deliberate legal withdrawal of incest prosecutions from the public domain inevitably generated a greater reticence and reluctance to disclose and discuss such ‘secrets’ even behind closed doors. Thus in the context of this article it needs to be acknowledged that any restrictions on reporting incestuous acts (by judicial discretion pre-1908 and by legislation post-1908) will not only have intensified any such social taboos, but expressly and implicitly contaminated official information and responses relating to the prosecution of incestuous behaviour. It is therefore acknowledged from the outset that there are significant practical difficulties in undertaking qualitative – and even more problematically quantitative – historiographic research into the prosecution of child sex offences due to the official censure, which began from the early nineteenth century onwards, of court reports (including the Old Bailey Sessions Papers) on the grounds of immorality as confirmed by Clark, Jackson, and Wiener, amongst others.17
7 Consequently, as I have previously argued, the most accessible and reasonably accurate source for analysing the prosecution of sexual crimes between the 1850s and 1914 are the newspaper court reports, written by lawyer-reporters, of cases heard in the Assizes, police courts and magistrates’ courts such as those published in The Times.18 Trainee and qualified barristers, commissioned by editors and proprietors, listened to and transcribed cases on a daily basis to reproduce a contemporaneous narrative of the proceedings. Writing anonymously protected their legal integrity as did the selection by the editor of the reports to be published.19 However, as reiterated in more detail below, reports of incestuous behaviour are inevitably rare or disguised in the reportage, not only because the press were constrained by public sensibilities, but primarily because incest was not yet a crime ; fathers who sexually abused their daughters were either charged with rape or attempted rape, provided there was sufficient evidence of non-consent, carnal knowledge under the age of consent where the girl was below marriageable age, or sexual assault.
8 Once incest was criminalised in 1908, the press were further constrained as the Act specifically prohibited the publication of any criminal proceedings relating to any charge or prosecution. Yet intriguingly, despite the ban, examples of press reports and commentary can be found, particularly in The Times, albeit in insufficient numbers on which to base any scientific analysis. The fact that these cases were selected for publication strongly suggests that they were thought to be of some particular or distinct interest to the readership. Typically, such exemplars highlight a specific legal issue or concern raised by the judge or trial lawyers relating to the enforcement of the new Act, such as, somewhat ironically, whether or not the case itself could legally be reported in the press given the 1908 Act’s censure on publication.
9 This is an important revelation in terms of source material as the early decades of the twentieth century witnessed a significant reduction in the number of press reports in both national and local papers of rape and child sex offences despite an apparent
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increase in the number of offences prosecuted.20 The reasons for this have not yet been fully established but possible factors include a combination of Edwardian propriety, moral vigilantism and the new tabloid journalism with its emphasis on sport and entertainment. Similarly, as lawyer-reporters started to be replaced by crime journalists, there was a corresponding diminution in the amount of detail-rich crime reportage published in the quality press. The Times, however, did retain its lawyer- reporters, thus I would posit that their interest in the legal nuances and implications of the cases reviewed confirms that the reports must have been written by someone who understands the law and has the requisite legal knowledge and training to convey the judge’s reasoning and lawyers’ emphasis to both professional and lay audiences. I would therefore defend the examples referenced here as a valuable and reliable insight into how crimes of incest were actually dealt with.
Criminal Offence or Immoral Outrage ? Setting the Contextual Framework
10 Historically, the question of whether incest was prohibited as a serious violation against the person, or tolerated as a consensual but immoral act between adults, was mainly one that fell under the jurisdiction of the church rather than the state.21 Incest was made a criminal offence in Scotland in 1567 punishable by death,22 but in England escaped criminalisation under Elizabeth’s Act of 1576, which aligned the age of sexual protection with the age of marriage at twelve years.23 From 1835 incest was removed from the direct jurisdiction of the ecclesiastical courts when Lord Lyndhurst’s controversial Deceased’s Wife’s Sister’s Act made all marriages within the prohibited degrees of affinity and consanguinity void.24 As Clark and Conley concede from their examination of early-nineteenth-century newspaper reports and Kent criminal court records respectively, reported examples of fathers sexually assaulting or having carnal knowledge with their daughters were comparatively rare. According to Clark, only 25 percent of all sexual assaults known to the authorities were reported in the press. From her sample of 138 cases of sexual assault committed against girls under thirteen published in London newspapers from 1800-1845, eighteen involved incestuous acts with a further thirteen examples involving girls of marriageable age at twelve years and above.25 She also asserts that men so charged often believed they had not committed any crime at all (fathers had absolute custody of their children until 1839), something that Justice Darling would later emphasise as an unanticipated consequence of the ban on reporting incest cases.26 As D’ Cruze points out, it would have been incumbent on the court to take over the patriarchal role of the father in which case the mother’s respectability was often as important as the child’s.27 However, the majority of fathers were acquitted, either on the grounds that the girl failed to show physical resistance or because she had ‘permitted’ her father to have sexual intercourse on a regular basis implying that it must have been with her consent.28
11 Despite such ambiguities, in private, the Victorian and Edwardian public officially disapproved of father-daughter incest as Pollock confirms : “law and society condemned child abuse long before the Prevention of Cruelty Act 1889” evidencing 385 reported cases of child abuse and neglect reported in The Times from 1785 to 1860, which included nineteen recorded cases of incestuous relations mainly prosecuted as sexual assaults.29 This would have included examples from the 1850s such as John
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Ayscough transported for life for the rape of his sixteen year-old daughter and John Rowe, sentenced to fifteen years penal servitude for raping his nine year-old daughter, demonstrating that sentences were severe.30 But familial abuse was unequivocally too sensitive a subject to broadcast. Clark cites a magistrate in 1827 whose justification of a lenient sentence echoes Halsbury’s title comment : ‘“it would be better perhaps, though the monster ought not to go unpunished, that the public feeling should not be wounded by the disgusting details” necessarily exposed in the trial.’31 Such inherent reluctance to publish the intimate details of the case is understandable, especially in the context of the masculine domination of the courtroom and legal process overlain by the stereotypically gendered expectations of and conformity with the respectability imperative.32 It may also be perceived as an official endorsement of the so-called incest ‘taboo’, burying the issue even deeper into both the private and public consciousness.
12 Incontestably the Victorians were cognizant of the fact of incest, but as Houghton asserts, “they refused to look at life candidly. They shut their eyes to whatever was ugly or unpleasant and pretended it didn’t exist. Conformity, moral pretension, and evasion – those are the hallmarks of Victorian hypocrisy.”33 Hendrick affirms that it was an issue they were unwilling to confront, largely because “the potentially destructive truth about human propensity to sexual abuse would have created unbearable contradictions in the logic of the [bourgeois domestic] ideal.”34 Wohl adds that there remained an overriding public conspiracy of silence reaching ‘Watergate proportions’ where the word ‘incest’ was hardly ever used in favour of the more euphemistic ‘unnatural practices’, ‘vice’ and ‘promiscuous herding’.35
13 Such assertions need to be considered in light of the increasing acknowledgement and formulation of the social construct of childhood, classified by Hendricks as a chronological series of consecutive and distinguishable stages – sometimes legally defined – delineated by age, intellectual capacity and cultural context.36 Children needed to be treated as children, not adults, but as Hoyles points out, such distinction inevitably disclosed the potential for abuse : as the Victorians accepted “the life of childhood, they also uncovered childhood sexuality”.37 At the forefront was the ‘delinquent female’ bearing the irreconcilable distinction of expected innocence but who, through familial sexual exploitation, had lost her reputation and was now regarded as ‘experienced’ and ‘precocious’. Jackson presents a number of cases in illustration confirming that in court such child witnesses had to “prove their integrity as ‘witnesses of the truth’” demonstrating that they were not delinquent and that questions about whether they were “victims or threats, morally innocent or guilty of delinquency, affected the way they were dealt with in the witness box.”38 But in Scotland where incest was criminalized, such ‘delinquency’ could be harshly punished as in the example of Mary Gray, ‘a girl’, was sentenced to transportation for life for committing incest with her father Daniel Gray.39
14 South of the border, however, child reformers, purity movements and feminist campaigners demanded equivalent legal and also social reform though not all had the same motive. Weeks speculates that “the social-purity agitation over incest reflected middle class anxieties and tensions concerning the sanctity of family life rather than objective reality of working class conditions.”40 In 1871 Shaftesbury pre-emptively wrote that, “The evils …are enormous and indisputable, but they are of so private, internal and domestic a character as to be beyond the reach of legislation.”41 Booth disclosed that “Incest is so familiar as to hardly call for remark”42 and opined that,
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“when unearthed it was a crime sufficiently gross to incite a momentary horror, yet, ironically, never so rare as to sustain a long-lived campaign for reform.”43 Such revelations were confirmed by evidence presented by witnesses to the Royal Commission on the Housing of the Working Classes 1884-1885 which concluded that overcrowding and the single room resulted in immorality and incest.44 Jackson cautions that there was a significant divergence of opinion over the veracity of such claims and that some cases were dealt with informally by the local community in preference to seeking criminal sanctions.45
15 Meanwhile, the feminist campaigner, Ellice Hopkins, an early supporter of the Criminal Law Amendment Bills 1881-1885, gave evidence to the House of Lords Select Committee on the Protection of Young Girls 1881 about the need to raise the age of sexual protection to sixteen years. Through her Ladies Association for Friendless Girls she spent two years increasing awareness about the potential link between incest and child prostitution.46 Further supporting the need for legal reform, in 1883 W.T. Stead helped publicize Mearns’ ‘Bitter Cry of Outcast London’ in the Pall Mall Gazette with its searing descriptions of the misery of those living in the London slums and references to immoral incestuous relations.47 Together with Shaftesbury’s London Society for the Prevention of Cruelty to Children, he campaigned for the criminalization of incestuous conduct with young girls. In its first year of operation the SPCC (later the NSPCC) received 12 referrals concerning “an evil which is altogether unmentionable” alluding to cases of sexual assault and incest.48 Despite hostile opposition in the House of Lords (some Peers were concerned that it was they who needed protection from the sexual advances of young females) Parliament agreed to increase the age of sexual protection to sixteen years but refused to consider criminalizing incest.49 The Criminal Law Amendment Act 1885, passed just a few days after Stead published his own scandalous exposé, The Maiden Tribute, in July 1885, made carnal knowledge with a girl under sixteen years punishable as a misdemeanour (section 5) and under thirteen years as a felony (section 4).
16 The NSPCC and other prosecutory bodies such as the National Vigilance Association (NVA) used these provisions to prosecute cases of incestuous activity against girls under sixteen sharing evidence with the police and others to secure convictions. But in imposing a three month prosecution limit from the date of the offence in respect of section 5, the Act was largely unusable for cases of incest unless complainants reported any abusive activity immediately as historic offences could not be charged. This precipitated considerable pressure on the Home Office from certain Poor Law Unions and the NVA to extend it to twelve months.50 As Mort notes, increasing concern about the difficulties of prosecuting incest “pointed up the growing convergence of opinion” between social purists, women’s groups, the police and the Home Office.51 The NSPCC and the NVA pressed for further reform of the 1885 Act to make incest a specific crime, but proposed amendments in 1893, 1894 and 1896 all failed, largely because of disagreements in Parliament over other clauses. In 1899, with support from the majority of chief constables, the first Incest Bill was introduced but this too was lost.52 Colonel Amelius Lockwood, Conservative MP and Parliamentary spokesman for the NVA, took charge sponsoring two more Private Members Bills in 1903 and 1907, but these also met considerable resistance in both Houses. Lord Alverstone had included an incest clause in the Prevention of Cruelty to Children Bill 1903 “as a consequence of representations made to me by grand juries in the North of England”, but withdrew it when he realised its opposition was likely to destroy the whole Bill.53 Concerns were
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expressed about a Private Member’s Bill making a hitherto moral transgression a crime,54 the likelihood of prosecutions multiplying at the Assizes, the potential for blackmail (especially against gentlemen), a failure to recognize any defence of ‘consent’, and that education was thought more appropriate than criminalization. It is important to note that incest was perceived as largely a matter practised by adults (typically siblings) living in cramped conditions ; there was little acknowledgement of the risk to children except, as Herbert Samuel, Under-Secretary at the Home Office. pointed out, where born from an incestuous connection.55
17 Bell presents a useful discourse analysis of these debates showing how incest ultimately became constructed and ‘problematized’ as a specific crime and how the clashes over this “object of thought” between medical, social welfare, feminist and legal perspectives meant that “the parameters of what constitutes the ‘truth’ about incest are continually attacked and reconstituted.”56 Halsbury, was particularly vociferous ; strongly believing that this unpalatable subject would be magnified if prosecuted through the criminal courts : I regret very much that the nature of this Bill is one which renders it repulsive to everybody to discuss it…. legislation of this character is calculated to do an infinite amount of mischief… these are cases which it is inadvisable to drag into the light of day.57
18 He was especially concerned about the ‘mischief’ that the Press might cause if allowed to report cases with impunity. Earl Donoughmore, who sponsored the Bill in the Lords, dismissed such fears : “I do not believe that as a result of its passing, the halfpenny newspapers would endeavour to make fortunes by spreading detailed reports of criminal cases under this Bill.” Halsbury responded : The noble Earl says he is confident that certain newspapers will not make capital out of these cases. I do not know where his confidence comes from. It strikes me that anything of this sort would be eagerly grasped by some portion of the Press, who make these things more public than they otherwise would be.58
19 The 1903 Bill was lost, “foundered”, as Wolfram concludes, “on the rock of affinity” as the emphasis shifted more towards prohibiting consanguinity with its perceived genetic dangers.59 Reintroduced in the Lords in 1907 the Bishop of St Albans took over its sponsorship informing the House that during the preceding year 42 cases of incestuous conduct with girls had been referred to the NSPCC, Birmingham reported eleven cases, Liverpool twelve and the Metropolitan Police 36. Additionally, of the 193 petitions received by the Home Office pleading remission in sentence for a conviction of rape or carnal knowledge of a girl under sixteen years, 51 concerned incestuous convictions.60
20 This time the Lords were convinced of the need for reform and the Incest Bill was passed, but Earl Russell reminded them, and the new Lord Chancellor Loreburn, of Halsbury’s earlier disquiet. Russell proposed that prosecutions require the consent of either the Attorney General or the Director of Public Prosecutions, and more significantly, that all proceedings be held in camera encapsulated in section 5 of the Punishment of Incest Act. The press and the public were to be prohibited from attending any incest trial and the press from publishing anything about the criminal proceedings, including the simple fact that a person had been indicted, acquitted or convicted. The ban, secured by the Liberal Earl Beauchamp (William Lygon), was something he would later come to regret. It is suggested that Hendrick somewhat misses the point when he claims that because of “the sparsity of reported cases of
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incest, the Act was ‘symbolic’ of public and legal disapproval rather than an effective instrument of law.”61
Bringing Incest into the ‘Light’ of Day ?
21 Given its controversial and contested nature the 1908 Act was relatively well crafted. But as Wolfram notes, what was “almost revolutionary”, given the permissible combination of legal marriage within consanguineous and affinal relations (except of course for the deceased’s wife’s sister as mentioned above), “was the narrow range of relatives included.”62 Intercourse between first and second blood relatives, as with marriage, became a criminal offence, but in effect was legitimised for “close kin” who could not marry due to affinal relations or because they were third degree blood relatives. Section 1 prohibited, in the case of a man, carnal knowledge with anyone who to his knowledge is his grand-daughter, daughter, sister or mother, punishable with between three and seven years penal servitude, two years or less with or without hard labour, or life imprisonment if the girl was under thirteen. Section 2 provided that where a female aged sixteen years or over permits a man she knows to be her grandfather, brother, son or father to have carnal knowledge with her by her consent she also commits an offence. The penalty is identical to section 1 but without life imprisonment where the male victim is under thirteen. The age thresholds matched the ages of protection established in the Criminal Law Amendment Act 1885. The ‘permissive’ aspect was deliberately gender biased, as it was known that most cases involved fathers coercing their daughters, who had little choice but to ‘accede’ to their father’s demands. The imposition of culpability for females over sixteen years is therefore more related to the disapproval of sibling incest despite the fact that both parties “are equal in kinship terms and mutual consent is implied.”63
22 The two offences are unusual from another gender perspective ; this was the only crime (until the Sexual Offences Act 2003) that expressly protected boys under sixteen years from coerced sexual intercourse, albeit limited to a heterosexual context. There are no reports of any such prosecutions within this period probably because there was an irrebuttable presumption in law (not abolished until the Sexual Offences Act 1993), that boys under fourteen were physically incapable of sexual intercourse, combined with the practical impossibility of making any such allegation. Nor was it unlawful for a grandmother to have carnal knowledge with her grandson, as it was thought there was little risk because she would be beyond child-bearing age. Prosecutions required the consent of the Director of Public Prosecutions, but heeding the criticism about the three month time limit imposed in the CLAA 1885, no such restrictions were made in respect of incest prosecutions.
23 An examination of the annual criminal statistics and returns gives some indication of the impact of the new legislation in terms of prosecutorial decisions. Predictably, the numbers are small ; in the first five years after the Act was passed, an annual average of 56 incest offences was recorded by the police in England and Wales of which 88 percent were prosecuted. Reflecting on the prosecution of incest from 1909-1923 the Departmental Committee on Sexual Offences against Young Persons 1924-1925 acknowledged that “It is readily admitted by official and other witnesses that the number of incest cases reported to the police can only be a small proportion of those that actually occur”
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and that where penetration could not be proved alternative charges of indecent assault were substituted and the case heard summarily by the magistrates.64
24 Throughout the twentieth century the number of annual prosecutions remained small (between 100 and 200 cases) but, as Soothill and Gibbens found in their research on recidivism rates from the 1950s to the 1970s, typically only 50 percent of the number of cases known to the police were prosecuted, this figure remained consistent despite population increases.65 In the 1980s, the Criminal Law Revision Committee undertook a review of the 1908 Act and recommended that the word ‘incest’ be ‘redacted’ from the law and replaced with more broadly termed offences of ‘unlawful familial intercourse’, but these were not approved.66 Criminal law barrister James Morton highlighted a 1988 case where a brother and sister who had grown up independently were prosecuted but received an absolute discharge from a sympathetic judge. He asserted that the legislation was “no longer relevant” and unfairly criminalized consensual activities between adult siblings.67 There was an increasing averseness to using the term generally. In 1987 184 males were proceeded against for incest, but this dropped to just 25 by 1997, suggesting that the legislation and associated stigma of being convicted of incest had finally run its course.68 Thus the statistical information presented below needs to be considered in the light of the contested debate about the criminalization of incest and the actuality that the true incidence of sexual abuse in the home will always be concealed.
25 Compared to the number of cases proceeded with to trial for defilement under section 5 (girl under sixteen years) and section 4 (girl under thirteen years) of the CLAA 1885, the annual average for the number of incest crimes reported and known to the police that were subsequently prosecuted was consistently high at around 87 percent as shown in Table 1. Exact comparisons are impossible as some defilement cases, especially pre-1908, would have included incestuous relations as would have some post-1908. Additionally incest cases were not segregated as to the age of the victim or relationship with the accused.69 While a minority of the latter may have involved victims over the age of sixteen years such as adult brothers and sisters, the severity of many of the sentences imposed, as illustrated in Table 2 below, supports the proposition that the vast majority involved daughters under the age of sixteen, suggesting that there was a strong will to bridge the ‘justice gap’ and prosecute such cases. For these reasons it is not feasible to compare conviction rates for incest with conviction rates for other sexual offences committed against children under sixteen years because of the lack of clarity in the statistical returns in relation to both the specific offences charged and the final decision and disposal. These tables should, therefore, be regarded purely for illustrative purposes.
Table 1 - Comparison of number of cases reported to the police and subsequent committal to trial 1895-1919
defilement of girl defilement of girl Annual average Incest under 16 under 13
crimes proceeded crimes proceeded crimes proceeded
reported to trial reported to trial reported to trial
1895-1899 173 127 (73.4%) 187 117 (62.5%)
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1900-1904 110 97 (88.1%) 142 101 (71.1%)
1905-1909 181 127 (70.1%) 156 101 (64.7%) 24 21 (87.5%)
1910-1914 238 187 (78.5%) 129 77 (59.6%) 71 61 (85.9%)
1915-1919 138 98 (71.1%) 78 37 (47.4%) 57 50 (87.7%)
26 In the first year, 1909, 58 applications to prosecute incest were made to the DPP of which 30 were accepted resulting in 21 convictions, eight acquittals, one case pending and one Bill ignored.70 In 1910, 114 applications were made to the DPP and similarly 58 were accepted, of those 56 were prosecuted leading to 36 convictions, eighteen acquittals, one pending and one process refused.71
27 Interestingly, express reference is made in the 1910 statistical return to the doubling of the number of incest reports and prosecutions one year after the Act came into force.72 Jeffrey’s notes that the contemporary feminist, Frances Swiney, was less impressed viewing the Act as ineffective because ultimately it relied on the male bias of juries and magistrates.73 However, a breakdown of the cases heard that first year shows that the sentences imposed in many cases were severe as illustrated in Table 2.
Table 2 - Cases prosecuted under the Punishment of Incest Act 1908 1 Jan-31 Dec 1909
Accused Informant Assize Court Date of trial Disposal
Albert Davies Commr of Police CCC 23 Mar. 12 mths hl
James Norris CC Bolton Manchester 19 Apr. 9 mths hl
Thomas Solloway NSPCC Leeds 3 July 5 yrs
Isaiah Jenkins CC Glamorgan Swansea 23 July 2 yrs
Thomas Dyson CC Huddersfield Leeds 3 July 5 yrs
Evan Jones CC Glamorgan Swansea 26 July 5 yrs
Christopher Taverner Commr of Police CCC Jun sess. 7 yrs
Anon & another CC Gloucester Gloucester 28 Oct. Acquitted
Ernest Denly CC Glamorgan Swansea 26 July 7 yrs
Anon CC York York 18 Nov. Acquitted
Henry McLaren Commr of Police CCC Sept sess. 3 yrs
Arthur Chaplin Private pros Birmingham 22 Nov. 3 yrs
Daniel Drain Commr of Police CCC Oct sess. 3 yrs
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Anon Commr of Police CCC Oct sess. Acquitted
Anon NSPCC Worship St Oct sess. dismissed
Henry Burt CC Staffordshire Stafford 13 Nov. 7 yrs
Anon Private pros Leeds 27 Nov. Acquitted
William Trowbridge NSPCC CCC Nov sess. 12 mths
William Hallett CC Hull York 18 Nov. 12 mths
Anon CC Hull York 16 Nov. Acquitted
Henry Hedges NSPCC Maidstone 20 Nov. 10 yrs
Robert Matthews NSPCC Warwick 17 Nov. 3 yrs
Edward Robinson NSPCC Lincoln 15 Feb 1910 5 yrs
Harry & Ada Kenhard NSPCC Monmouth 22 Feb. 18 & 6 mths
Anon CC Cumberland Carlisle 26 Jan. Acquitted
John Bell CC Newcastle Newcastle 16 Feb. 7 yrs
Anon NSPCC Windsor 10 Feb. Acquitted
Anon NSPCC Windsor 10 Feb. Acquitted
John Smith CC Wiltshire Devizes 24 Feb. 3 yrs
28 Of these first 29 prosecutions referred to the DPP, twenty resulted in convictions, eight were acquitted and one dismissed. Complainant details were not recorded but the disposals suggest that where a custodial sentence of three years or more was imposed it is likely that the offence was perpetrated against a child. Conversely, the lower eighteen and six month sentences imposed on Harry and Ada Kenhard suggest that they were consenting adult siblings with the latter sentence reflecting Ada ‘permitting’ Harry to have intercourse with her. The table also highlights the source of the complaint with predictably the NSPCC referring nine cases, two from unnamed private prosecutors and the rest from police forces across the country.
29 Inevitably, those convicted soon started to challenge the Act’s application, especially as the Criminal Appeal Act 1907 created a new Court of Criminal Appeal (CCA) in response to public disquiet about a number of miscarriages of justice including those of Florence Maybrick and George Edjali.74 Such appeals were published in The Times as well as the official law reports as they were not caught by the in camera rule, while synthesizing the two sources can provide a more detailed account of the legal issue, the lawyer- reporters (cognizant of the censure) continued to avoid any explicit narrative of the actual offence. However, with careful interpretation, an amount of detail can be gleaned.
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30 The first appeal against conviction was launched by Henry Hedges convicted at Maidstone Assizes where he was sentenced to 10 years imprisonment. The official law report does not identify the specific charge but denotes the keywords of the appeal as “rape-fresh complaint and corroboration evidence”. Typically, prior to 1908, fathers who sexually violated their daughters were charged with rape, but as many victims ‘acquiesced’ it was often difficult to prove non-consent. Reading the report a number of clues indicate incest : the prosecutrix was Hedges’ fifteen year-old daughter who testified that he had “forcible connexion” with her. Hedges’ wife testified that on returning home at 6.00am one morning she was surprised to find her daughter in the matrimonial bedroom apparently nursing their baby, a doctor was summonsed who confirmed that the daughter’s hymen was broken with injuries consistent with frequent sexual intercourse. Hedges, representing himself, denied culpability challenging the veracity of his daughter’s testimony. Revealingly, there is a note from the Lord Chief Justice in brackets : “This appellant must have been convicted under the Incest Act.”75 The CCA dismissed Hedges’ appeal holding that the conviction was safe as his daughter’s evidence was corroborated by the doctor.
31 Interestingly, the first appeal from the new CCA to the House of Lords concerned a case highlighting the issue of sibling incest. In 1910, a nine bench panel including Halsbury and Lord Chancellor Loreburn, reversed the CCA’s decision to quash the conviction of William and Edith Ball, married siblings who had been indicted for incestuous activities in July and September that year. Cross-referencing the law report with The Times’ details of the original conviction reveals that Edith received six months imprisonment reflecting her apparent lesser culpability in ‘permitting’ her brother to have sexual intercourse with her, and William three years as the presumed instigator.76 Their sexual connexion is euphemistically expressed as “their guilty passion for each other” thereby sparing Halsbury’s blushes and proven by the birth of their child in 1908 and consequent marriage, which the CCA was held to have wrongly considered inadmissible in relation to proving the indictment.77
32 The evidential difficulties of proving incest and the additional requirement that the unsworn testimony of a child under thirteen years required corroboration as a matter of law, and in practice because it was a sexual offence, generated further appeals, as did the question of whether a victim’s (often reluctant) mother could be compelled to give evidence in support. In 1911 Benjamin Brown appealed against two separate convictions involving his daughters, Constance and Lily. He was first convicted on 16 June 1910 at Chelmsford Assizes in respect of Constance and sentenced to four years imprisonment. He won his appeal in December that year on the grounds that the jury had not been properly cautioned about how they should accept Constance’s uncorroborated evidence.78 He appeared at the same court on 3 February 1911 in respect of Lily, and was also sentenced to four years, but this time the trial judge ensured the jury were forewarned. Brown optimistically tried the same appeal again but this time it was dismissed. Corroboration was shown in the doctor’s medical examination that Lily had had frequent intercourse with someone, combined with, somewhat ironically, Brown’s voluntary testimony admitting his previous sexual conduct with Constance.
33 At Stafford Assizes, a man named Leach was convicted for incest on his daughter after his wife had been compelled by the trial judge to give evidence against him. The CCA affirmed the judge’s direction79 and so he appealed to the House of Lords.80 At common
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law a husband and wife were legally regarded “as one person in the eye of the law” ; a wife could only be compelled to give evidence against her husband in a criminal court if this was enshrined in statute or constituted one of the three common law exceptions where the husband was accused of high treason, personal injury to his wife, or forcible abduction followed by marriage. Section 4 of the Criminal Evidence Act 1898 permitted a wife to give evidence if her husband objected, but she could not be compelled against her will. Allowing the appeal, Loreburn and Halsbury (somewhat ironically given his involvement in the statute’s production) criticised Parliament for failing to clarify the issue in the 1908 Incest Act. Loreburn, no doubt much to Halsbury’s chagrin, demanded “What is the meaning of the law as laid down in the 1908 Act ?”81 Such a clause had been included in the original Bill but was rejected at the Commons Second Reading on the grounds that “the crime was not serious enough to warrant it.”82
34 A problematic case in terms of the legal extent of the ban was John Love Elliott, 48 years, a wealthy American mining engineer indicted at Lewes Assizes in March 1914. The Times’ report is brief but the fact that “the previous day had been taken up hearing the evidence of his young daughter” suggests a charge of incest.83 A follow up report a week later that Elliott had been convicted and sentenced to five years imprisonment refers to the daughter as aged twenty, she would therefore have been under sixteen years at the time the offences were committed “on divers dates” between 16 November 1910 until 15 November 1913. That she was not charged with the permitting offence is further confirmation.84 The in camera rule only applied to the British press ; absurdly, the American press could publish as much information as it could get hold of. The New York Times carried nine reports about the case from arrest to conviction, but its editor was frustrated about “the secrecy surrounding the whole affair.” Their London correspondent was rebuffed by Scotland Yard, the East Grinstead police stated that they knew nothing of the case other than confirming that “a meagre account” had appeared in one of the London morning dailies.85 On attending the committal hearings the journalist reported back that the “the public press were excluded” from the first day of the trial, the public were “rigidly excluded” and expressed surprise that “even the local newspaper men” were excluded.’86
35 The New York Times reports provide more factual information : Elliott, a well-known entrepreneur, had moved to a stately Georgian home near East Grinstead with his two daughters, Doris aged 18 and Florence 17, whose mother had died. In 1907 he had caused a sensation in New York when he acrimoniously divorced his second wife, a renowned opera singer, and taken a third wife.87 Elliott came to the attention of Chief Inspector Fowler at Scotland Yard when a neighbour reported comments the daughters had made. Initially, the police were reluctant to make an arrest, but corroborating statements from other neighbours and a servant confirmed their disclosures resulting in Elliott’s arrest and first court appearance on 26 November at East Grinstead petty sessions. The preliminary hearings lasted fifteen days producing 325 sheets of foolscap. Elliott was remanded on bail in the sum of £ 10,000. On 9 March 1914 he was indicted at Lewes Assizes, the trial lasted six days, 36 witnesses were subpoenaed and 74 exhibits presented. Contrary to Halsbury’s concerns, the reportage can hardly be described as sensational, immoral or even euphemistic ; there is no explicit reference to the word “incest” with the charge simply described as a “serious offence”. It is testament to the respect the British press had for the law that so little was published, but it is also disconcerting that the censure of such lengthy proceedings involving a man with means was justified as not being in the public interest. In 1918, while giving evidence to
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the Joint Select Committee on the Criminal Law Amendment Bill, Sir George Riddell of the Newspaper Society pointed out the irony of the law that such “a big case” had been fully reported in the American press but could not be reported domestically.88
36 The use of the wording of “divers dates” in indictments was challenged by James Thompson, charged at Durham Assizes that “on divers days” between February 1909 and 4 October 1910, and between 4 October 1910 and the end of February 1913, he had committed incest with his daughter aged under sixteen. Sentenced to four years, Thompson claimed this prejudiced any fair trial as he had been charged with an “indefinite number of offences”. The Lord Chief Justice, Rufus Isaacs, confirmed that, “Upon perusal of the evidence the offences had undoubtedly been committed”, therefore no substantial miscarriage of justice had occurred.89
37 In another appeal on a technical legal point, Joseph Simmonite, charged with incest at Leeds Assizes for carnally knowing his nine year-old daughter, Harriet Pollard, was instead found guilty of indecent assault and sentenced to twelve months imprisonment. Section 4(3) of the Incest Act permitted the jury to return an alternative verdict of guilty under section 4 CLAA 1885 (carnal knowledge of a girl under thirteen) which in turn allowed a conviction for indecent assault to be substituted (under section 9) where, for example, the evidence was ambiguous about the nature of the penetration. The CCA confirmed that where incest is charged a presumption exists that the accused must also be regarded as indicted under the CLAA 1885.90
38 Occasionally simple sentencing appeals were reported in the press such as a brief four line column of a sentence reduced from ten years to five.91 But the law was even unclear as to whether the original sentence, the fact it had been substituted, and the details of the new sentence, could be published. For example, Rufus Isaacs permitted a reduction in the ‘excessive’ sentence imposed on Thomas Keats at Dorchester Assizes to three years. Isaacs was persuaded by the jury’s expression of sympathy for the squalid conditions in which Keats and his family lived, but the report offers no details of the original sentence imposed. Either the judge believed it best not to mention the specific offence and tariff or the reporter felt compelled to censure it.92
Turn the Light on Darling
39 In 1897 Halsbury controversially appointed one of his acolytes, a little known criminal barrister from the Oxford Circuit, Charles Darling QC to the bench. Darling had not yet secured his reputation as ‘an eminent lawyer’ and thought that he was “being promoted on political grounds.”93 Depicted the same year by Spy in Vanity Fair as ‘Little Darling’ he had first-hand experience of prosecuting physical and sexual assaults against women and children.94 Darling was regularly listed to try incest cases and on occasion acted on behalf of the Lord Chief Justice, he sat on all of the incest appeal panels, argued at the CCA, including the cases of Thompson and Simmonite above. However, Darling became increasingly frustrated about the in camera rule believing that it had led to public ignorance of the Incest Act and lack of awareness about the nature of the crime.95 In January 1919, he tried two incest cases on the same day, acquitting Walter Abbott and sentencing a man named Duncan to five years. Darling expressed his incredulity that no-one apart from the judge and jury knew of the two trials :
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I think it would be very much better that these cases should be heard publicly as other cases with regard to rape and carnal knowledge of women….These cases of incest are no more indecent in their details… they are as to the facts and details precisely on the same level…
40 Seemingly unaware of Halsbury’s rationale he added, “How it was that Parliament enacted that these cases must be heard in secret I don’t know” surmising it must have been because formerly the ecclesiastical courts heard all cases in camera. Halsbury had been concerned that publicizing incest trials would produce a vicious circle of copycat offences and sensational reportage ; Darling’s view was that the silence meant many accused were ignorant of the law and did not appreciate it was a criminal offence.96 And it was not just those accused that had a limited understanding of the law.
41 On 6 March, trying yet another case, Darling issued a controversial edict that the in camera rule should exclude all counsel not directly engaged in a particular case so they could watch and learn how to conduct incest proceedings.97 He generated considerable confusion initially saying it did not matter whether they were wearing full court robes while observing or not. The following day he was forced to concede that he had meant only barristers in full dress, ingeniously justifying his direction that “it would be easier for the doorkeeper to recognize the right of those to enter who were in robes and that while not engaged in the case as such they could always be called upon in court if necessary, e.g. to act as amicus curiae.” As observers they could raise an argument or case not known to the judge, a duty all barristers owed to the court : “after all a barrister learns his role best by sitting in court and watching.”98
42 Sir Herbert Stephen, barrister, Clerk to the Northern Assizes, Conservative MP and prolific letter writer, who had previously written to The Times in 1918 in support of Justice McArdle at Liverpool Crown Court describing the rule as “unjust and dangerous”,99 now wrote a second letter repeating his concerns. Supporting Darling’s proposal he wrote : “I am sorry to trouble you again concerning a discreditable feature of a disagreeable topic”, but the instruction in the statute should be interpreted as allowing the judge discretion to “exclude anyone he pleases, not to compel him to exclude everyone.”100 A few days later Darling showed that he was willing to stand his ground and use his discretion when he engaged two observing barristers to defend an unrepresented man accused of incest.101
43 The absurdity of the in camera rule is effectively highlighted in the case of Kingsland which was first heard in a closed court where Darling sentenced Edward Kingsland, a 54 year-old boot repairer, to twelve months imprisonment for nineteen counts of incest with his adult daughter. The following week Darling allowed this incest conviction to be disclosed to convict Kingsland in open court for two counts under the CLAA 1885 between 1906-1907 of having sexual intercourse with his younger daughter when she was under thirteen years. Darling imposed a sentence of ten years for this felony, and another ten years (to run concurrently) for the further offences of incest. Darling expressly points out the incongruity of the press being permitted to report the conviction of the carnal knowledge of a girl under thirteen, but not to publicly acknowledge its incestuous nature. Further, he warned that Kingsland could have been imprisoned for life commenting that “a man might be sent to penal servitude and never appear again”, no-one would know what had happened to him except a few persons in court.102
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44 Though not falling under the legal definition of incest there were some attempts to prosecute fathers who had molested their wife’s child from a previous relationship. Mostly these failed, as not only were they non-consanguineous but if the child had been born out of wedlock the courts would generally refuse to accept any evidence that would confirm their bastardy.103 Gerald Dodson, who had married his wife when she was two months pregnant by another man, found himself in an invidious position when indicted some years later before Darling on a charge of incest against his ‘adopted’ daughter. As she was not his biological child Dodson wanted to prove that his daughter was a bastard to escape conviction for the crime of incest. Darling advised the jury that “if a man were allowed to go into the witness box and swear that a child was not his own, he might commonly be supported by his wife, and a great deal of incest would go unpunished.”104 The jury found Dodson not guilty but this is another illustration of the legal conundrums that the Act generated and that Darling was forced to rationalise. He strongly believed that the additional shame of the public knowing of a man’s immoral acts meant that “publicity is the real penalty… Incest would be less frequent if people knew more about it.”105
45 A year later Darling was forced to clear the court for a case involving four adult brothers and sisters. Repeating his mantra, “I can say no more about it”, underlines his exasperation that incest “would be much less frequent if people knew that, since 1908, it was a crime punishable in the criminal courts.” He also sought to distinguish adult sibling incest from child incest advocating that there should be some tolerance : “in nearly all cases the woman consents … there are not the horrible instances of violence and so on.”106 He affirmed this view in another adult sibling case heard in November 1920 noting that the facts were no more shocking or disgusting than many other sexual offences. The accused had started their relationship before the 1908 Act was passed producing nine children of whom six had died and one suffered a mental disability.107 He immediately wrote to The Times the following day protesting again about the absurdity of the in camera rule and the need for reform.108
46 There is no question that the censure rule was applied inconsistently depending on judicial or magisterial discretion, and was largely respected, if not accepted, by a compliant press. Some judges made occasional references in their opening speeches at the Assizes which were sporadically reported but it is evident that both press and judiciary were uncertain as to their respective positions.109 In 1918, a combined Bill to amend the CLAA 1885 proposed an extension of the ban to a range of other sexual offences, permitting judges the discretion to close a court to the public if “desirable in the interests of decency, morality, humanity or justice.”110 Lord Muir-Mackenzie, the Chair of the Joint Select Committee, strongly opposed the clause. Critical of the minimal press coverage of incest he confirmed, “I do not think criminal cases are indecently or suggestively reported in newspapers.”111 His assertion was supported by Sir Herbert Stephen, also called to give evidence, who made it clear that the press do not publish “anything licentious in relation to cases involving young girls”, reiterating his view that all such cases should be heard in public.112 Sir George Riddell reported that the London and Provincial Press conference had passed resolutions casting “grave misapprehension” on the clause as it was unnecessary and undermined the open administration of justice and press responsibility to report matters of significant public interest.113
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47 The press continued to push their cause. In October 1919, representatives of the Institute of Journalists and National Union of Journalists campaigned outside North London Police court where a case was listed. They claimed that some magistrates did not exclude the press, and while they would not wish to publish explicit details, they should be permitted to report cases as a matter of principle.114 In 1921, Mr Mead, the magistrate at Marlborough Street Police court made a point of asking the press to leave to demonstrate his frustration that it was an anomalous provision “severely criticized in high places.”115
48 By 1922, even the newly appointed Lord Chief Justice, Hewart, acknowledged that he did not know how to apply section 5 of the 1908 Act regarding an appeal at the CCA involving a nineteen year-old sister and her seventeen year-old brother whose sentences had been reduced to six months from twelve months and fifteen months respectively. The defence counsel offered no objection to the CCA hearing the case in public but Hewart determined that the rule not only applied to the trial proceedings but should now apply to appeal hearings as well, though he did permit the law reporters to stay.116 Thus fifteen years after its enactment the in camera rule was still causing considerable judicial uncertainty and confusion.
49 Meanwhile, during the closing debates of the CLA Bill in 1921, the Lord Chancellor, Lord Birkenhead, unequivocally proposed that the rule be repealed raising an even more important point, that as acquittals could not be announced no-one would know if an accused had been found not guilty. The Earl Russell finally acknowledged that it was no longer desirable to maintain the rule and the amendment was agreed.117 However, a last minute ambuscade from the Commons to reform section 5, rather than repeal it, threatened to undermine the whole Bill. The Bishop of Norwich pressed the Lords to allow judges a more limited discretion to direct that a particular case be held in camera in exceptional cases. Birkenhead was adamant : “The right rev Prelate is in error, in my opinion, when he suggests that the whole subject of trials in camera need reconsideration. It needs no reconsideration in my opinion.” Alluding to some trial judges – presumably Darling – who had sought to get the section repealed, he reiterated that “In no circumstances could I agree to such a proposal.”118 Lord Phillimore, who also had experience of trying incest cases, supported the amendment justifying it as a qualification to the existing law rather than a last minute ambuscade. Earl Beauchamp admitted that as Lord Steward of the Household under Asquith he had been responsible for persuading the Government to accept Russell’s proposal in 1908 and now acknowledged it was a mistake and one that he wanted to see repealed.119 As a result the motion was rejected and section 5 was finally replaced by section 5 CLAA 1922, but public confusion about whether incest was actually a crime remained, as illustrated by Justice Roche at Northampton Assizes in 1925 who said it would not “outrage anybody’s feelings of indecency if they called a spade a spade” as there was a “stratum in society that did not know incest was a crime.”120
Conclusion
50 It initially appears that on the face of the historical record there is limited source material to analyse regarding the immediate prosecution of incest following the 1908 Punishment of Incest Act. The in camera rule ensuring cases were heard in closed court not only restricted the publication of information about such trials but reinforced the
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incest ‘taboo’ prolonging public ignorance that it was a crime, allowing some offenders to claim lack of knowledge and preventing, or at least limiting, informed public discourse. Ironically, as demonstrated here, at least the existence of the controversial in camera rule generated an amount of newspaper reportage and judicial commentary and possibly more than if it had never been introduced in the first place. But despite the repeal of the ban in 1922 its ramifications endured and no substantive changes were made to the law. The incest provisions in sections 1 and 2 of the 1908 Act were simply renumbered as sections 10 and 11 respectively in the consolidating Sexual Offences Act 1956 replacing ‘carnal knowledge’ with the more modern term of ‘sexual intercourse’. The two offences had become seriously outdated and the word ‘incest’ was finally expunged from the law when the Sexual Offences Act 2003 replaced it with the term ‘familial sexual abuse’ to reflect the looser structure of modern families. The statute introduced a new suite of offences to deal with child sexual exploitation placing more emphasis on those who abuse their position of trust and removing the stigmatization of ‘incest’ from the law and extending liability to aunts, uncles, cousins, step-parents, adoptive parents, fosterers and other full-time carers.121 The Press Complaints Commission Code of Practice 2003 also prohibited the word ‘incest’ being used where a child victim might be identified. This supports Mitterauer’s assertion that “incest rules can long outlive the social conditions which produced them …[and that]… incest prohibitions as cultural norms, never seem to have a simple explanation.”122
BIBLIOGRAPHY
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Mitterauer, M., ‘The customs of the Magians : The problem of incest in historical societies’, in Porter, R., and Teich, M., (Eds.) Sexual knowledge : sexual science the history of attitudes towards sexuality, Cambridge, Cambridge University Press, 1994.
Morris, P., ‘Incest or survival strategy ? Plebeian marriage within the prohibited degree in Somerset 1730-1835’, in Fout, J., (Ed.) Forbidden history, the state, society and the regulation of sexuality in Modern Europe, Chicago, University of Chicago, 1992.
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Morton, J., ‘The Incest Act 1908 : was it ever relevant ?’ New Law Journal, 1988(138), pp. 59-60.
Olafson, E., Corwin D., and Summit, R., ‘Modern history of child sexual abuse awareness : cycles of discovery and suppression’, Child Abuse and Neglect, 1993(17), p. 7-24.
Pollock, L., Forgotten children : parent child relations from 1500-1900, Cambridge : Cambridge University Press, 1983.
Rowbotham, J., Stevenson, K., and Pegg, S., Crime news in modern Britain : press reporting and responsibility 1850-2010, Basingstoke, Palgrave Macmillan, 2013.
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Sellar, W., ‘Marriage, divorce and the forbidden degrees : Canon Law and Scots Law’, in Osbrough, W., (Ed.) Explorations in law and history : Irish Legal History Society discourses 1988-1994, Dublin, Irish Academic Press, 1995.
Smart, C., ‘Reconsidering the recent history of child sexual abuse, 1910-1960’, Journal of Social Policy, 2000, 29 (1), p. 55-71.
Stevenson, K., ‘The respectability imperative : a golden rule in cases of sexual assault ?’ in Inkster, I., (Ed.), Golden age ? Britain 1850-1870, Aldershot, Ashgate, 2000, p. 237-248.
Stevenson, K., ‘Unearthing the realities of rape : utilising Victorian newspaper reportage to fill in the contextual gaps’, Liverpool Law Review, 2007, 28(3), p. 405-423.
Stevenson, K., ‘Outrageous Violations : enabling students to interpret nineteenth century newspaper reports of sexual assault and rape’, Law Crime and History, 2014(1), pp. 36-61
Stevenson, K., ‘“Not just the ideas of a few enthusiasts” : early twentieth century legal activism and reformation of the age of sexual consent’, Cultural and Social History, (accepted for publication, forthcoming 2017).
Walker-Smith, D., The life of Lord Darling, London, Cassell, 1938.
Weeks, J., Sex, politics and society, 2nd ed. London, Longman, 1989.
Wiener, M., Men of blood, violence, manliness and criminal justice in Victorian England, Cambridge, Cambridge University Press, 2004.
Wohl, A., ‘Sex and the single room : incest among the Victorian working classes’, in (same Ed.) The Victorian family, London, CroomHelm, 1978.
Wolfram , S., ‘Eugenics and the Punishment of Incest Act 1908’, Criminal Law Review 1983, p. 308-316.
Wolfram , S., In-laws and out-laws : kinship and marriage in England, Beckenham, Croom-Helm, 1987.
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NOTES
1. https://www.csa-inquiry.independent.gov.uk/ 2. Jackson (2000) ; Finkelhor (1986 ; 1988). Brown and Barrett (2002) does cover the period, but its focus is primarily on child prostitution. 3. Smart (2000). 4. Bingham et.al (2016). 5. Bingham & Settle (2015). 6. Behlmer (1982) ; Hendrick (1994 ; 2003) ; Wohl, (1978). 7. Jeffreys (1997). 8. Bailey and Blackburn (1979) ; Bailey and McCabe (1979). 9. Bell (1993, ch.5). 10. Wolfram (1983 ; 1987, ch.7). 11. Bates (2016). 12. Olafson et al. (1993, p. 8). 13. La Fontaine (1988, p. 3). 14. Mitterauer surmises that there are two aspects to the incest taboo and aversion to incestuous relationships : one based on the biological potential for ‘inbreeding’ and other on the social proximity of individuals (1994, pp. 233-234). 15. Davidoff et. al. (1999, p. 245). 16. Cohen (2013). 17. See Clark (1987) ; Jackson (2000) ; Wiener (2004). D’Cruze (1998) usefully highlights how the correlation of Justices Petty Sessions Minutes with newspaper reportage can provide more detailed narratives. 18. See Stevenson (2007) ; Stevenson (2014). After 1914, professional journalists took over the reportage from the courts, but until the 1950s were still strongly influenced by the earlier involvement of barrister reporters. 19. Rowbotham, Stevenson and Pegg, (2013), ch.4. 20. For example in 1910 while the number of persons tried on indictment and summarily for violent offences fell, for sexual offences they rose from 1,158 to 1,435, reflecting both changes in the law and more robust prosecutorial practices Home Office (1912, p. 10). 21. See 18th chapter of Leviticus. Transgressions fell under the jurisdiction of the Canon or ‘bawdy’ courts but prosecutions were comparatively rare see Ingram (1987, p. 245-47). 22. The death penalty was rarely imposed (Sellar, 1995, p. 77), but was not abolished until the Criminal Procedure (Scotland) Act 1887. 23. During the interregnum, the Commonwealth Act 1650 made incestuous marriage a felony punishable by death, but after 1661 jurisdiction, according to Blackstone, reverted back to the “feeble coercion of the spiritual court, according to the rule of canon law”. Cited in Bailey and Blackburn (1979, p. 708). 24. Wolfram (1987, pp. 30-40) ; Morris (1992, p. 140). The Act was not repealed until the Deceased Wife’s Sister’s Marriage Act 1907 which, as reflected in the contemporaneous incest Bill debates, marked a significant shift from affinal to consanguineous prohibitions, see Wolfram (1987, p. 141). 25. Clark (1987, p. 18, 101-103). 26. Ibid, p. 101-103) ; Conley (1991, p. 121). 27. D’Cruze (1998, p. 169). 28. Conley (1991, p. 121) cites a father acquitted on the grounds of consent where he admitted having sexual intercourse with his daughter for six years, since she was aged eleven. 29. Excluding 1788-1790, Pollock (1983, p. 93). In fact one of the most regular themes in Victorian pornography was incest, but it was of limited or acknowledged public circulation as it was
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printed privately and accordingly expensive, see ‘Sport among the She-Noodles’, The Pearl, 4, 1879 ; The Romance of Lust, London, 1873. 30. The Times, 12 March 1855 ; 19 August 1858. 31. Clark (1987, p. 103). 32. D’Cruze (1998) ; Stevenson (2000). 33. Houghton (1974, p. 395). 34. Hendrick (2003, p. 59). 35. Wohl (1978, p. 200-201). 36. Hendrick (1994, ch.1). 37. Hoyles (1979, p. 96). 38. Jackson (2000, p. 96). 39. The Times, 2 October 1852. 40. Weeks (1989, p. 31). 41. Cited on NSPCC website http://www.nspcc.org.uk/what-we-do/about-the-nspcc/history-of- NSPCC/history-of-the-nspcc_wda72240.html 42. Booth (1890, p. 65). 43. Cited in Blaikie (1987, p. 6) and see Wohl for a detailed account of its existence amongst the poor. 44. Royal Commission (1884-1885), p. 13. 45. Jackson (2000, p. 49). 46. Jeffreys, (1997, p. 17-18). 47. Reproduced in Keating (1978). 48. Behlmer (1982, p. 70). 49. See Jeffreys (1997, ch.3). 50. See Stevenson (forthcoming 2017). 51. Mort (2000, p. 105). 52. See Hendrick, (2003, p. 60), Mort (2000, p. 105). 53. PP, HL, 27 March 1903, cols.407-408. 54. The state was only just beginning to embrace the concept of, and its responsibility for, regulating unlawful conduct by criminalization, see Mort (2000). 55. PP, HC, 26 June 1903, col.284. 56. Bell, (1993, ch.5 ; p. 149). 57. PP, HL, 16 July 1903, cols.820-824. 58. Ibid, col.822. 59. Wolfram (1987, p. 138 & 142). 60. PP, House of Lords, 2 December 1908, Incest Bill 2nd Reading, col.1408. 61. Hendrick (1994, p. 67). 62. Wolfram (1987, p. 43). 63. La Fontaine (1988, p. 6). 64. Home Office (1925, p. 13-14). 65. Gibbens (1984, p. 18-20). 66. Criminal Law Revision Committee (1984) ; Wolfram (1987, p. 44). 67. Morton, (1988). 68. Home Office Communication Directorate (2000, para.5.2.3). 69. Specifically recommended in the 1925 Departmental Report, Home Office (1925, p. 6). 70. Home Office (1910, p. 14). 71. Home Office (1911, p. 12) 72. Judicial Statistics (1912, p. 10). 73. Jeffreys (1997, p. 39).
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74. The CCA abolished the Court for Crown Cases Reserved (established in 1848). Decisions could be appealed to the House of Lords by prosecution or defence with a certificate of leave from the Attorney General provided it was a legal issue of exceptional public importance. 75. R v Henry Hedges (1910) 3 Cr App R 262. 76. The Times, 17 January 1911. 77. DPP v Ball and Ball (1910) 22 Cox CC 366. 78. R v Benjamin Brown (1911) 6 Cr App R 24. 79. The Times, 21 December 1911. 80. Leach v DPP (1912) 22 Cox CC 721. 81. Ibid at 723. 82. Clause 4 ; its removal was proposed by Mr Rawlinson MP and accepted, PP, House of Commons, 26 June 1908, col.290. 83. The Times, 10 March 1914. 84. The Times, 16 March 1914. 85. New York Times, 23 November 1913. 86. New York Times, 23 & 27 November 1913. 87. New York Times, 22 November 1913. 88. Joint Select Committee (1918, p. 127). 89. R v Thompson (1913) 24 Cox CC 43 ; The Times 31 July, 20 December 1913 note that The Times report offers more detail than the official report. 90. R v Simmonite (1916) 25 Cox CC 544. 91. R v Cooper, The Times, 13 May 1914. 92. The Times, 19 November 1913. 93. Walker-Smith (1938, p. 92). 94. Ibid (p. 72). 95. Surprisingly, there is no mention of any such cases or concerns in his biography by Walker- Smith (1938). 96. The Times, 11 January 1919. 97. The Times, 7 March 1919. 98. The Times, 8 March 1919. 99. The Times, 8 February 1918. 100. The Times, 8 March 1919. 101. The Times, 12 March 1919. 102. The Times, 12 March 1919. 103. See R v Carmichael (1939) 31 Cox CC 409 ; R v Hemmings (1939) 31 Cox CC 240. 104. The Times, 20 June 1919. 105. The Times, 5 May 1920 cited by Lord Burnham in report of parliamentary debates about the Matrimonial Causes Bill. 106. The Times, 20 March 1920. 107. The Times, 19 November 1920. 108. The Times, 20 November 1920. 109. For example two cases of incest at the Central Criminal Court are mentioned at the September Sessions in 1911 see The Times, 6 September 1911 and a further two cases in September 1913, The Times, 3 September 1913. 110. Clause 9. 111. Joint Select Committee (1918, p. 7). 112. Ibid p. 78. 113. Ibid. p. 126. 114. The Times, 15 October 1919. 115. The Times, 17 October 1921.
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116. The Times, 9 May 1922. 117. PP, House of Lords 15 March 1921, cols.572-573. 118. PP, House of Lords 15 August 1921, cols.579-580. 119. Ibid, col.581. 120. The Times, 6 Jun 1925. 121. Sections 25-29. 122. Mitterauer (1994, p. 247).
ABSTRACTS
Proposals to criminalize incest in England and Wales, which was formalised in several the Incest Bills from 1899 to 1907, met considerable resistance from the Lord Chancellor who thought the subject too repulsive for public debate. Concerned that the issue would be greatly magnified if such crimes were prosecuted through the criminal courts he believed that the press could not be trusted to report them responsibly. Ultimately, two amendments ensured that the Punishment of Incest Act 1908 was passed, which ruled that the Director of Public Prosecutions must approve any prosecution and that such trials must be held in camera. This article suggests that as cases started to be prosecuted in the courts, it was not only the press but also judges and magistrates who expressed disquiet about such censure. The article also offers some commentary on the difficulties of accessing historical sources in relation to the historiography of incest.
Les propositions de criminalisation de l’inceste en Angleterre et au Pays de Galles, formalisées dans plusieurs propositions de lois entre 1899 et 1907, se heurtèrent à une résistance considérable de la part du Lord Chancellier qui estimait la question trop répugnante pour être publiquement débattue. Préoccupé par le fait que des procès criminels grossiraient grandement ce problème, il était persuadé qu’on ne pouvait se fier à la presse pour en rendre compte de manière responsable. Finalement, la loi Punishment of Incest Act de 1908 fut votée grâce à deux amendements soumettant toute poursuite à l’accord du Directeur du ministère public et tout procès au huis-clos. L’article avance qu’à mesure que les procès se multiplièrent, la presse ne fut pas la seule à s’inquiéter de cette censure, mais que ce fut également le cas des juges. L’article s’interroge aussi sur les difficultés d’accès des sources historiques dans le domaine de l’inceste.
AUTHOR
KIM STEVENSON Professor of Socio-Legal History at Plymouth University and is co-founder and director of ‘ SOLON : Interdisciplinary Studies in Law, Crime and History’ and co-editor ‘Routledge SOLON : Explorations in the Histories of Crime and Criminal Justice’. Citation in the title is by Per Lord Halsbury, Lord Chancellor, during debates on the Incest Bill, Parliamentary Papers (PP), House of Lords, 16 July 1903, cols.820-824. - [email protected]
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Reforming Juvenile Justice in Nineteenth-Century Scotland : The Subversion of the Scottish Day Industrial School Movement
Christine Kelly
1 This account examines the origins and development of fresh initiatives to respond to juvenile offending in Scottish cities from the mid-nineteenth century, exploring matters from a legal historian’s viewpoint. The Scottish contribution in the field of juvenile justice reform has been somewhat neglected by historians but its impact was significant and far reaching, extending throughout the UK, and even as far afield as Australia.1 It was widely appreciated well into the twentieth century that the Scottish system provided the template for industrial schools throughout Britain. As the influential English Report of the Departmental Committee on the Treatment of Young Offenders of 1927 observed in reviewing the history of schools and institutions for young offenders in England, the Scottish day industrial schools “may be regarded as the parents of the industrial schools.”2 Despite this wide-reaching influence, the origins of reform began humbly, with local, philanthropically-inspired responses to juvenile offending. The article will focus particularly on the inception and adoption across Scotland of a network of day industrial schools, also known as Industrial Feeding Schools, first introduced by Sheriff William Watson in Aberdeen in the 1840s. It examines the underlying changes taking place in administration of criminal justice which facilitated this development. The paper goes on to discuss the creation of a national British statutory system of certified industrial and reformatory schools, arguing that the predominantly disciplinary character of these schools ultimately subverted the welfarist ethos on which the locally founded Scottish schools were based.
2 An important aspect to emphasise here is the impact of the trend towards centralisation. This was a recurring theme in nineteenth century criminal justice, reflecting the transition from local, ad hoc systems to national forms of organisation which has been well identified by a number scholars such as Lindsay Farmer, David
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Barrie and Susan Broomhall in areas ranging from criminal procedure to policing history.3 A similar shift from local to national systems occurred in relation to diversionary approaches for young offenders in Scotland and it is suggested that this process saw the largely disciplinary focus of the English reformatory movement gain ground at the expense of the defining welfarist ideals of the Scottish day industrial school movement. In other words, the resultant British statutory system was marked by a different, more punitive approach which departed considerably from the ethos of the original Scottish system of day industrial schools. This is not to suggest, though, that there is necessarily a stark dichotomy between welfarist and punitive systems. As Donzelot, Cox and Mahood all recognise, in practice matters are far more nuanced : ostensibly contrasting approaches each contain ambivalent elements that can be characterised as controlling, disciplinary and protective.4 As will be discussed here, this inevitable conflict was all too apparent both within the practice of some Scottish schools and within the English reformatory movement with its wide spectrum of views encompassing both the idealist humanitarian Mary Carpenter and the more retributively minded Sydney Turner and Barwick Lloyd Baker.5
3 One of the most striking aspects of this account is the degree of contact and co- operation between those involved in reform movements in different countries. This applied most obviously in the British context with the longstanding connection between the eminent English reformer, Mary Carpenter, and the leading Scottish reformer, Sheriff William Watson. In his autobiography Watson recorded that he had “long corresponded” with her [Carpenter], speaking of her “energy” and saying that she was “held in great respect by all philanthropists.”6 Mary Carpenter was extremely impressed by Watson’s efforts in Aberdeen, commending his successes to a Select Committee in 1852 and even basing her proposed scheme for industrial schools on Watson’s model of day feeding schools.7 Mary Carpenter’s co-reformer Matthew Davenport Hill, the Recorder of Birmingham, held Watson in similarly high regard, as will be discussed later. But the interjurisdictional influences extended even further. They were evident on an international scale.
4 The effects of profound and rapid industrialisation, displacement, economic and social change were features affecting the youth of many European countries as well as the US. These changes provided a powerful incentive to reformers of juvenile justice who were eager to exchange new ideas about the best ways to approach reform. This opened up new channels of cross-border communication with reformers being influenced by new experiments developed elsewhere. For instance, as a committed Unitarian, Mary Carpenter looked to her co-religionists in New England for inspiration on reformatory institutions being introduced there.8 Perhaps most influential of all was the pioneering disciplinary model of the Mettray institution for young offenders established near Tours in France in 1840 by Frédéric-Auguste Demetz. Soon similar reformatory agricultural colonies run on family lines were being set up by philanthropists in many other European countries, such as the Rauhe Haus near Hamburg.9 Mettray was much admired by the English reformatory movement, providing the model for the Philanthropic Society’s reformatory institution at Red Hill in Surrey in 1849 where the formidable Rev. Sydney Turner was chaplain before his appointment as first Inspector of Reformatory and Industrial Schools.10 The French influence was also important in the Scottish context : the section of the Code Pénal referring to children under the age of sixteen being presumed to act sans discernement was discussed in a book by Watson’s fellow reformer Alexander Thomson in 1852.11 It was also noted by Sydney Turner in
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one of his Inspector’s reports.12 Even more significantly for the Scottish history, a school very similar to Mettray appeared near Edinburgh in 1859 in the shape of Wellington Reformatory Farm School.13 Of course this inter-jurisdictional influence continued to be a feature of criminal justice reform throughout the remainder of the century and beyond, with later developments such as the introduction of juvenile courts and probation.
5 As Heather Shore and Pam Cox have shown, certain discourses and themes regarding troublesome youth have been a recurrent theme in different contexts, places, countries and over varying time spans.14 For instance, Cat Nilan’s analysis of the trials of child criminals in the French legal journal La Gazette des Tribunaux, 1830-1848, reveals many of the same themes concerning youth offending which are apparent in the city of Aberdeen in the 1840s.15 These include the role of parental (ir)responsibility, pity for vagrant children, philanthropic intervention, the discomfiting of the judiciary and the notion of the corrupting influence of criminal activity. It appears that the problems identified in Aberdeen and the responses to them were not unique. As Shore and Cox also rightly point out, searching for the ‘invention’ or ‘re-invention’ of delinquency at specific junctures is beset with the problem that similar patterns of disorderly behaviour and regulatory responses can be identified in the seventeenth century as well as the nineteenth.16 Nonetheless, the evidence presented here on Aberdeen does strike a definite chord with Susan Margarey’s work on The invention of delinquency in early nineteenth-century London, where she identifies the criminalising impact on children of a combination of summary processes and changes in legislation.17 Arguably these factors were a very significant factor in early nineteenth-century Scotland too.18 As Shore argues in Artful Dodgers, while it may be problematic to suggest a wholesale ‘invention of delinquency’ in this period, it is true that the early nineteenth century has “come to be seen as something of a watershed because of its coincidence with the striking social, economic and political changes that were occurring.”19 The special significance of the nineteenth century for the public focus on juvenile crime has been underlined by a number of other important studies too. These include Margaret May’s work emphasising the role of intensive inquiries and investigations in highlighting the issue as well as, of course, the highly influential work of Radzinowicz and Hood which argues that the concept of the young offender is a Victorian creation.20 May’s observation on the growth in literature on juvenile crime is borne out in this account in the literature referred to here on the subject of juvenile vagrancy and juvenile offending written by those involved in the Scottish and English reform movements.
6 It is also worth pointing out that the developments discussed in this paper resonate with the findings of other scholars too. This applies particularly to Peter King’s research on the role of diversionary practices for young offenders in London.21 King’s work on the London Refuge for the Destitute uncovers the new diversionary sentencing policies pursued by Old Bailey judges and magistrates in the first three decades of the nineteenth century. These saw judgement respited and young offenders directed instead to the reformatory establishment The Refuge for the Destitute. King shows how the initial focus of the Refuge was on both the destitute and the criminal, but this changed over time as it evolved into a reformatory establishment catering for young offenders. King argues that as the Refuge had no legal authority to detain inmates against their will, its transition to a secure prison-type institution meant that it operated on the fringes of legality. The Refuge appears to have been remarkably successful in advancing its own position as it was the only one of the three early
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reformatory establishments in early nineteenth-century England which attracted state funding. The other two, the Philanthropic and the small asylum at Stretton on Dunsmore, were reliant on philanthropic support. Although Shore points out that the overall impact of these early voluntary initiatives was fairly limited,22 the active role of the judiciary in formulating and implementing new diversionary practices for young offenders has definite parallels with the situation in Scotland presented in this paper.
7 While there has been much scholarly work on the English situation, sadly, the existing historiography on Scotland is far less extensive. I should point out that most of the contemporary scholars mentioned in the references have written on the English history with the exception of Lindsay Farmer’s important book on Scots criminal law, Linda Mahood’s and Barbara Littlewood’s work on Scottish child savers, Linda Mahood’s sociological study of institutions for young offenders and Andrew Ralston’s article on Scottish industrial and reformatory schools.23 Mahood and Littlewood are particularly significant in this context in emphasising the disciplinary nature of child saving interventions. This point is also reinforced in the English context by Pamela Cox and Michelle Cale who, like Mahood, stress the highly gendered nature of the regulation of young offenders, especially in relation to the sexual policing of girls.24
8 Overall, until recently, there has been a surprising dearth of scholarship which places a direct focus on the Scottish dimension, especially on the complex detail of the legislative developments involved and their application by the courts. This is a subject I have addressed more fully elsewhere.25 Encouragingly, although in general the Scottish aspect has been rather overlooked, there has recently been a new flourishing of interest in the Scottish history with the publication by Susan Broomhall and David Barrie on Scottish police courts, as well as work on theme of continuity and change in the history of Scottish juvenile justice.26 My hope is that this article will contribute to this growing interest on the subject
9 The paper proceeds by looking at the political, legal and social context in which the Scottish reform movement began. It then examines the diversionary schemes responding to juvenile offending, beginning with a scheme unique to Glasgow and then moving on to focus on the day industrial school movement which was implemented in most large Scottish towns by the 1850s.
The political, legal and social context of the changes
10 It is striking that some of those most involved in attempting to bring about change in ways of dealing with juvenile offenders in Scotland were the judges before whom young offenders appeared, especially Sheriffs. Foremost among the innovators in this area were Sheriff Watson of Aberdeen and, to a lesser degree, Sir Archibald Alison, the Sheriff of Lanark, who is better remembered in Scotland as a writer on Scots Criminal Law than as a juvenile justice reformer.27 Sheriff Hugh Barclay of Perth was also active in the reform movement, authoring a book on juvenile delinquency and helping to draft the earliest Scottish legislation on industrial schools.28
11 Sheriffs such as these occupied a powerful position, both legally and politically, and those of a reforming disposition had an ideal platform from which to introduce their innovative ideas. In the wake of the Jacobite rebellion of 1745 an administrative and legal framework was put in place to draw previously feudal jurisdictions into the control of the Crown through the creation of a hierarchy of Sheriff and Justiciary
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Courts.29 Sheriffs were at the centre of this system. They were legally qualified judges who oversaw the first instance courts. They had to reside in their sheriffdoms for at least four months a year, charged with supervising the administration of justice in a system where crimes were prosecuted by public prosecutors.
12 It was within this context that innovators such as William Watson and Archibald Alison and were able to operate so effectively. Presented regularly with the large numbers of children repeatedly appearing before local courts for minor offences such as begging, breach of the peace or trivial thefts30, many judges felt disheartened :31 Imprisonment of children exposed them to contaminating influences, it was regarded as futile in terms of deterrence and it stigmatised the children for life, rendering them almost unemployable. In Aberdeen and Glasgow in particular Sheriffs were instrumental in devising new diversionary schemes to respond to juvenile offending. But the reform movement was not only composed of judges : it also embraced others who were active in civic life, most notably the charismatic Edinburgh Free Church Minister Thomas Guthrie, author of the successful publication A Plea for Ragged Schools or Prevention Better than Cure.32 Guthrie’s involvement underlines the important role of religious belief in driving the schools forward. Indeed the literature of the reform movement is imbued with a sense of the missionary fervour ; its goal to reclaim the lives of marginalized and outcast children. Another important defining characteristic of the movement was the extent to which it was a community enterprise. Not only were pre-statutory schools funded by voluntary contributions from local people, they involved the community in a very practical sense too : this was demonstrated by the admissions procedure in Aberdeen, where the admissions committee for the schools, the Child’s Asylum Committee, was composed of representatives from a number of local organizations. This will be discussed later in the paper. This community aspect was also evident in the financing of Glasgow’s Houses of Refuge, as will be seen next.
The Glasgow Houses of Refuge under local legislation
13 Sheriff Alison in Glasgow was involved in setting up a system of pre-trial diversion for juveniles where a child could opt to become an inmate of a House of Refuge rather than proceed to trial.33 This was a system based on local legislation, an Act of 1841 for repressing juvenile delinquency in the city of Glasgow.34 Under the Act the costs of the Houses of Refuge (one for boys and another for girls) were met by charging local residents a small sum. This was an appeal to Glasgow’s sense of civic responsibility in which it was seen to be in the interests of the local community to fund an enterprise to prevent juvenile offending. In the 1840s some judges from the High Court of Justiciary were making use of this local scheme.35 The Act applied where children under twelve were undergoing trial. In cases where the prosecutor consented, and the Board of Commissioners of the House of Refuge agreed, then the child’s counsel could ask for proceedings to be discharged. Instead an order would be made for reception into the House of Refuge. There is a reported case from 1845 which shows the system in operation in the trial of three young girls charged with theft by housebreaking.36 Two of the girls were sent to the House of Refuge, one for three years and the other for five years ; the third girl proceeded with the trial and was sentenced to transportation for ten years.37 The Act could also be used by children released from the Glasgow prison or bridewell, who had no home to go to. They could make voluntary requests for
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admission. The idea was that the Refuge would provide them with education and train them in a trade so that they would not fall back into criminal habits.38 The Glasgow system based on local legislation was not adopted elsewhere. This contrasted with the Aberdeen day industrial school scheme introduced by Sheriff Watson around the same time, which was widely emulated in other large Scottish towns, including Glasgow, where it operated alongside the Houses of Refuge.
The Aberdeen system : origins of the day industrial school
14 Of all the Scottish cities Aberdeen was the cradle of juvenile justice reform in Scotland. It was there that the Scottish industrial school movement first came into being, as the creation of Sheriff William Watson of Aberdeen, who was the leading reformer of juvenile justice in nineteenth century Scotland. Born in 1796 into an affluent farming family in Lanarkshire, Watson was one of eight children.39 He attended Edinburgh Academy and then studied law at Edinburgh University before embarking on an apprenticeship with an Edinburgh firm in 1813. In 1829 he was appointed to the post of Sheriff Substitute of Aberdeenshire. He immersed himself in the civic affairs of Aberdeen, seeking to improve the social conditions of the poor, especially the children of the urban poor. He chaired the Board of Health when there was a threatened cholera epidemic in the town, and was involved in setting up a home for the destitute of all ages in Aberdeen. Most of all he was concerned with the plight of the poorest children and their lack of access to education. He wrote that he could not help but feel guilty punishing children in the exercise of his judicial role for “some unconscious fault” when he had done nothing to help them gain an education.40 Like many nineteenth- century philanthropists he was mainly motivated by deep religious conviction.41
15 It is important to have some sense of the kind of place Scotland was in the 1840s. According to one historian, life for the poor was “competitive, unprotected, brutal and, for many, vile.”42 The demands of increasing industrialisation and rapid population growth were accompanied by the miseries of overcrowding, disease, and squalor, making Scottish cities a hostile environment for the children of the poor. Watson was particularly concerned about the large, transient population of juvenile vagrants.43 He was disturbed by the “cruel” and “absurd” plight of the many young children of this kind appearing before the local courts, many of whom were aged only eight to eleven years of age, but who were repeatedly being imprisoned for minor offences. He found this especially perplexing because “it is known that unless by begging or stealing ninety-nine in a hundred have no way of subsisting.”44
16 It is clear from Watson’s writings that there were four main factors which contributed to the increasing numbers of children coming before the courts and being imprisoned in Aberdeen. These were changes in criminal procedure, more vigorous policing, the effect of new criminal prohibitions, and the impact of sentencing practices. It is worth looking briefly at each of these factors, which were not unique to Aberdeen, but were replicated on a much broader scale across the country. As noted earlier, these factors emphasised by Watson show parallels with the findings of Susan Margarey on the invention of juvenile delinquency in early nineteenth-century London in relation to the combined effect of criminalising legislation and summary processes.45 It appears that
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significant changes in criminal administration had far reaching consequences for children both in Scotland and England.
17 Firstly there was the effect of summary procedure on young offenders. From 1828 onwards, summary procedure was widely used to allow lower courts to deal quickly and simply with offences.46 In Scotland there is clear evidence to show that under summary procedure children appeared before the courts much more frequently than before.47 This created the illusion of an increase in juvenile crime. For example, the 1843 report by the Governor of Aberdeen prison discussed the causes of an increase in commitments of boys under the age of twelve and was very critical of the impact of summary procedure which he blamed for the repeated trial of young offenders and the repeated imposition of short sentences of imprisonment. To illustrate this, he gave the example of an eleven year old boy who in the space of three years had received five sentences of imprisonment for theft, the last of which was for fourteen days and one for vagrancy for twenty days.48 So, it appears that the availability of fast procedure encouraged prosecution of trivial offences, and children were repeatedly processed rapidly through the courts and subjected to short-term sentences of imprisonment. This created an escalating momentum in the volume of offenders.49
18 Secondly there was the effect of very active policing. Watson wrote about a local Police Act for Aberdeen coming into operation in 1829 which set up a regular police force, greatly increasing the level of law enforcement.50 The third factor was the effect of new offences created under this Police Act.51 Watson described these as offences which no- one had ever heard of before. The types of offences he was talking about here were new minor offences designed to impose order and control behaviour in public spaces, a common feature of urban regulation at this period as cities responded to the challenges of growing population associated with industrialisation.52 The offences which particularly affected children related to activities normally carried on by children as a matter of course as they played outdoors, but there were other offences which applied more generally such as a prohibition on beating carpets after eight o’clock in the morning. Under this legislation the offences carried a penalty of a fine of a few shillings or a few days’ imprisonment. Watson was severely critical of this new form of criminalization : We call those acts injurious which are wilfully injurious to person or property. Flying a kite, throwing a snowball or sliding on the ice for which children by local police acts or provisional orders may be sent to prison, though abundantly annoying, can hardly be called crimes.53
19 The fourth factor was inconsistency of sentencing in the justice of the peace and police courts, which Watson attributed to the judges in these courts not having any legal training.54 This meant that offenders could face considerable penalties for infringing these new prohibitions. He said that while one judge might impose a fine of half a crown or five days imprisonment another might for the same offence impose a fine of twenty shillings or twenty days, with or without hard labour. Watson described prisons filled with men, women and children of all ages sentenced by burgh magistrates to short periods of imprisonment for breaching the new offences. The punishment extended beyond imprisonment as those sentenced to imprisonment were socially ostracized : they could not find work as employers would refuse to employ them. Watson attempted to help those affected by holding a meeting with several manufacturers in July 1838 to persuade them to hire ex-prisoners but they refused because other employees, especially women, would not work alongside them.55 He was
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so disillusioned by all of this that he wrote that if someone set out deliberately to “pauperise’” and “demoralise” the poor and “increase the number of delinquents” then the most effective way of doing it would be by making “harmless acts” into police offences.56
20 By the early 1840s Watson was becoming increasingly frustrated and determined to act. The scheme he had in mind centred on his idea of an industrial school to be paid for entirely from voluntary contributions. It is important to recognize that in this period there were a great many children not attending any kind of school. Some indication of the scale of educational deprivation in the mid nineteenth century is provided by looking at the Second Report of the Argyll Education Commission on Elementary education in Scotland (xxv-xxvi), which reported in 1867, five years before the introduction of compulsory education in Scotland :57 the Commission found that there were 5,000 schools engaged in elementary education with 400,000 pupils but there were 90,000 children with no access to education.58
21 Watson had previously been involved in education for the poor as president of the Education Society. He had also formed a Society for Promoting Education among the Poor. The parish schools which existed in Watson’s time required payment of a small fee which the very poorest could not afford, and his society offered these children a free ticket to attend school to be renewed after three months if attendance was satisfactory.59 This earlier idea had proved ineffectual because the children were too ragged and hungry to attend and were often refused admittance to schools attended by poor children of a more respectable class. An article in Household Words, edited by Charles Dickens, observed that these were the sort of children who had “a raggedness and dirtiness which defied classification, and demanded an establishment of their own.”60 So this is what Watson set out to provide with the new idea of the industrial school.
The Day Industrial Schools in practice
22 The day industrial schools established in Aberdeen in the 1840s were set up for vagrant, destitute children and juvenile offenders who were referred by magistrates instead of being sent to prison. The schools provided food, education and training in a trade. Children were offered three meals a day, instruction in the three Rs, scriptural studies, and practical training in tailoring, shoemaking and the making of salmon nets.61 These were the types of skills which were considered useful in securing employment in later life.62 The system was supported entirely by voluntary contributions from local people with a school for boys in 1841 followed by one for girls in 1843. The aim was preventive, to rescue the most vulnerable children from a life of crime. No distinction was made between the neglected and the petty offender, both being regarded as children with same types of problems.63 The primary goal was the creation of useful citizens, the inculcation of the values of the respectable, sober and industrious and, ultimately, the evangelisation of whole families. The instillation of moral values was seen as the key element in transforming the lives of children whose families lived on the very margins of society. Watson described the role of children in their family circle as being that of “home missionary in homes so wretched the self-regarding missionary would have feared to enter.”64 He saw it as essential to support the family unit and this was why he
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so strongly disapproved of later developments under the statutory system where children were forcibly separated from their parents.
23 Watson utilised his influence very effectively to overcome continuing problems with attendance of pupils in the absence of legal powers of compulsion. For example, in May 1845 he persuaded his colleagues on the local bench to assist in a scheme to use an old statute prohibiting vagrancy to authorise police to round up seventy-five local children still found begging on the streets and direct them to the premises of an old soup kitchen where a new industrial school was to be established.65 There was some dubiety about the legality of this procedure, but Watson overcame the initial reservations of his colleagues. The captured children were told they were not compelled to return but that begging would not be tolerated by the police. The system was also bolstered by the support of the local community, not only a financial level, but in the governance of the schools. In 1846 a Child’s Asylum Committee was set up to deal with admissions to the schools and this was made up of representatives from a range of local bodies including the management boards of industrial schools, many of whom were magistrates, along with police representatives, town councillors and poor law officials. In essence this was a genuine civic enterprise, as was recognised by the foremost English reformer of juvenile justice, the reformatory campaigner, Mary Carpenter, when she observed that Aberdeen’s Child’s Asylum Committee had “effected a social reformation altogether unexampled.”66
24 Watson claimed great success for his project, crediting it with eliminating juvenile vagrancy in Aberdeen. Elated by his achievement, Watson became an ambassador for the system, the “apostle of the industrial school”, as he put it.67 He avidly promoted the value of his experiment, advising on its benefits, with the result that his system was adopted by other Scottish towns and cities in the course of the 1840s.68 This was the high point for Watson. His project was highly praised in a widely published journal in 1845 Chamber’s Journal.69 His schools were visited by the likes of the author William Thackeray, who was said to be moved to tears by the sight of so many children rescued from a life of crime.70 In 1851 Mary Carpenter wrote her internationally distributed book on juvenile offenders71 which was full of praise for Watson’s success in Aberdeen. And in evidence to the 1852 Select Committee on Criminal and Destitute Juveniles she presented a detailed account of statistics demonstrating the success of the Aberdeen initiative.72 Her fellow reformer in the English reformatory movement, the influential judge Matthew Davenport Hill, the Recorder of Birmingham, regarded Watson as being of similar stature to Frédéric-Auguste Demetz, the founder of the celebrated pioneering establishment for young offenders at Mettray in France.73 He wrote that, “a Demetz or a Watson, like the poet, nascitur, non fit ;74 and yet these men not only do good in their own sphere, but they raise the general average of well-doing.”75 Even Charles Dickens’ popular journal Household Words carried an article referring admiringly to Watson’s achievements : The plan appears to have been strikingly successful ; and what magic was there here ? Why should the country shudder in a cowardly manner over details of horror- when a little money and a little courage will do so much ? Aberdeen has done an act of real charity and good sense here, blessed itself and blessed these poor vagrants. The poor must be taught, somehow, if society means to exist.76
25 By the early 1850s the majority of large Scottish towns had industrial feeding schools based on the Aberdeen model.77 While most were named industrial schools, others (particularly in Edinburgh) described themselves as ragged schools. The admissions
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procedure to the schools in other towns was similar to that in Aberdeen in aiming to restrict attendance to cases of genuine need and refusing admission to those who could claim relief from parish funds under the poor law. In addition to those applying for voluntary admission to the industrial schools, children were referred by the courts. In these cases judges sometimes acted under local legislation to authorise children’s referral to the schools, as happened in Aberdeen, while in other areas there appears to have been no pretext of legislative authority.78 Contemporary accounts attest to the success of the pre-statutory system. For instance Watson’s co-reformer, Rev. Thomas Guthrie, spoke about the transformation in Edinburgh.79 He said the streets had almost been cleared of juvenile beggars which was a huge achievement. By 1852 over six hundred children aged between six and fourteen attended the four industrial schools which had been set up in the city in 1847. In that time 200 children had been referred by magistrates instead of being sent to prison.
The statutory system
26 But the Scottish reformers wanted more. They wanted to set the system up on a more secure financial footing. To do that they needed government aid. They also wanted judges to have the unequivocal legal power to send children in need to industrial schools. The kind of children they particularly sought to compel to attend were those with profligate parents who had the means to support them, but instead wasted the money on alcohol. The aim was to force these parents to pay towards the cost of their children’s education at the industrial schools.
27 The Scottish reformers joined forces with those active in the English reformatory movement also seeking legislation to tackle juvenile offenders.80 Prominent among these were, as previously noted, the Bristol philanthropist, Mary Carpenter81 and the judge Matthew Davenport Hill.82 But the eventual creation of a national UK legislative framework in time subverted the Scottish system, undermining the original welfarist principles of reform.83 This was an insidious process. The early years of the statutory system were marked by a transitional period of adjustment. In essence Scotland and England were approaching the problem from different standpoints. Scotland had a pre- existing network of industrial schools based on an inclusive ethos which did not distinguish between the offender and the purely destitute and was firmly rooted in the concept of the day school.84 This contrasted with the approach of English reformers which was intent on classifying children in a somewhat utilitarian fashion : the aim was to separate those who been branded by conviction from the vagrant and destitute thought to be in danger of falling into criminality. According to this view, the confirmed criminals, the ‘dangerous classes’, required reformation in the disciplinary context of residential reformatories while the pre-criminal group, the ‘perishing classes’, could be catered for in residential industrial schools.85 The attempt to merge operations in both countries into one system resulted in a complex web of legislative confusion.
28 With the arrival of two Acts in 1854 Scotland had a statutory framework in place.86 There was the specifically Scottish measure, Dunlop’s Act for destitute non-offenders.87 There was also an Act applying across Britain, the Youthful Offenders’ Act, which empowered courts to send children under sixteen convicted of an offence to a reformatory.88 As far as the Scottish reformers were concerned, Dunlop’s Act achieved
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what they had set out to do. The main objectives of the Scottish campaigners were enshrined in the Act : it invested magistrates with the legal authority to compel vagrant or destitute children under fourteen to attend an industrial school under court order, and to force parents who had the means to do so to pay for their child’s education. It was designed to cater for the Scottish situation where there was an existing network of pre-statutory schools which sought extra powers to compel attendance. The main drawback from Watson’s point of view was that the Act introduced the principle of residential attendance for children under court order. Under the pre-statutory system the schools had adhered to the principle of day attendance except in cases of extreme need. Over time the residential system was to effect a major change. Watson greatly disapproved of this. He blamed it for splitting up families, destroying family affection and leaving children with no home to return to.89
29 It is clear that for Watson and the other Scottish reformers the primary focus was always on the preventive role of the industrial school.90 Watson saw the English conception of the reformatory for the convicted offender introduced by the Youthful Offenders Act as an adjunct to his system which could at best complement it, but not supersede it in any way. Reformatories, in his view, could only be useful in extreme cases where the primary aim of prevention had failed, an opinion forcefully echoed by his fellow reformer Thomas Guthrie.91 They were the last resort, almost an admission of failure. In Watson’s view there was no real reason to classify children, and Dunlop’s Act reflected this : it was framed in such a way that it was clear the intention was that vagrant and offending children would continue to attend the same institutions. All Watson wanted essentially was to have the existing pre-statutory system set up on a stronger financial and legal foundation. This is not what happened.
30 In the wake of the statutory framework created in 1854 there were strong pressures towards a uniform system north and south of the border. This was accentuated by the creation of a national inspectorate to oversee the schools. By 1857 reformatories for young offenders were being set up in Scotland to operate alongside the industrial schools for the destitute. The reformatories, usually farm schools, were run along the same harshly disciplinarian lines as those established in England.92 The ethos was one which insisted on a period of preliminary imprisonment of fourteen days prior to entering the reformatory. This was exactly the opposite of what Watson had wanted. He had wanted to keep children out of prison. Once admitted to the reformatory, the route to reformation was seen to be through very arduous, often back-breaking work. This introduced a highly retributive element93 entirely absent from the original welfarist ideals of reform. By the time that the consolidating UK legislation on industrial and reformatory schools appeared in the mid-1860s the statutory system was well entrenched. The industrial schools became institutions to which vagrant, destitute children under fourteen and younger offenders under the age of twelve were admitted under court order as residential inmates.94 In contrast, the reformatories were residential institutions usually for older children who had been convicted of an offence. 95 In spite of the legislative structure of two types of schools, one designated preventive and the other reformatory in purpose, they evolved into similar institutions with markedly penal regimes.96 This was a disciplinary statutory system under which children could be detained for years. The essential point here is that the legislative framework, and the centralising factors associated with it, was in time to alter substantially the character of the original system, first established in Aberdeen : from schools at which attendance was, in theory, voluntary and on a daily basis, to
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residential institutions where children were detained under court order with severe penalties attached for absconding or helping children to abscond.97 The contrast with the welfarist ethos of the pre-statutory day industrial schools was stark.
31 Although the disciplinary emphasis mainly originated from outwith Scotland, it is important to recognise that supporters of the reformatory movement in England were far from being uniformly punitive in inclination. While the movement was strongly influenced by the disciplinarian model of the Mettray in France, it accommodated a broad spectrum of views. It embraced the humanitarian-philanthropic outlook of the formidable Mary Carpenter with her focus on the child’s need for love, realised in the ideal surroundings of her Red Lodge Reformatory for girls in Bristol.98 On the other hand, there were also those who bowed to popular demands for retribution, promoting prior imprisonment as a condition of reformatory admission, especially the influential reformatory and industrial school inspector Sydney Turner.99 This retributive stance was strongly resisted by both Mary Carpenter and Matthew Davenport Hill but, in a bid to achieve a pragmatic compromise, ultimately the disciplinary approach won the day. 100 And this outcome was welcomed by landed aristocrats keen to establish reformatory establishments on their country estates as a cheap source of labour.101 This was the conflicted and contested context from which the UK legislation emerged and was imposed on the unsuspecting Scottish reformers.
32 By the 1870s it was very evident that the original ideals promoted by the Scottish reformers were being undermined. Most Scottish industrial schools by then were single sex residential boarding establishments, where the majority were detained under court order.102 Watson was determined to restore his central vision of the day industrial school. Despite his advancing years, he was instrumental in a successful campaign to introduce day industrial schools to Glasgow with the result that local legislation was used to provide a statutory basis for day industrial schools much like the original schools set-up in Scottish towns in the 1840s.103 But, unfortunately for Watson, Glasgow stood alone in attempting to reclaim the original idea.104
33 Watson’s last appearance on the public stage was in 1884 when he gave evidence to a Royal Commission.105 Now eighty eight years old, he was persuasive and determined. He used the opportunity to make a strong plea for restoring the first principles upon which his project in Aberdeen had been based. He strongly denounced the residential industrial schools for destroying family ties, adamant that the residential schools should be “utterly abolished.”106 He advocated that all certified industrial schools should be converted into day schools, and government aid withdrawn from those that refused to comply. For Watson, as ever, the central focus was not on the reformatories, which he viewed as ancillary to the main operation. The real goal was prevention and that was to be carried on in the day industrial schools which should embrace both the destitute and those with offending behaviour. Watson’s evidence demonstrated his disappointment and bewilderment with the way the industrial schools system had departed from the original schools he set up in the 1840s : I was very sorry to see a child taken away from its parents, and kept in a certified industrial school, who perhaps for three years never saw its parents. I think it was very cruel, and I was very unwilling to break up the family connection.107
34 From the very outset he had been motivated by high humanitarian ideals and had devoted much of his life to the cause of assisting children in trouble. A key element of his philosophy had always been supporting not just the children but their families. This
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central idea had been eroded by the development of a system which removed children from their families and detained them in institutions for years, undermining familial bonds.
Conclusion
35 So, what was the significance of the original Scottish day industrial school movement inspired by Watson ? In historical terms it was most important for devising a unique diversionary system, the first major attempt in Britain to create an organised and nationally applied diversionary system for juvenile offenders. This produced a model which formed the basis for the statutory system across the UK. It was also of significance internationally, underpinning a legislative structure which even influenced developments as far afield as Australia.108 However, the arrival of a statutory framework in the1850s marked the beginning of a period of transition which changed the Scottish system fundamentally, heralding a gradual departure from the original welfarist ideals of reform.
36 Ultimately, diversion to residential reformatory and industrial schools had an immense impact upon Scottish children by the close of the nineteenth century. In 1894 the average population of the Scottish reformatory and industrial schools was double that of the daily average adult Scottish prison population. In England, however, the 1894 figures show the average number detained in the schools was slightly less than the daily average adult prison population.109 The influential 1896 Report on Reformatory and Industrial Schools recorded that there were about 24,000 children under detention in the 141 industrial schools and 50 reformatories across Britain, with around 5,500 of these detained in 43 Scottish institutions.110 This constituted criminalisation of children, especially Scottish children, on a very considerable scale. As scholars such as Mahood, Littlewood, Cox and Cale have all demonstrated in their work, the ethos pervading institutional life for young offenders was highly regulated and disciplined.111 The oppressive nature of institutional confinement was also underlined by the 1896 Report which testified to the detrimental psychological effect on children of being detained in institutions run according to repressive regimes.112
37 All of this represented the subversion of the idealistic principles of the original reformers and their pre-statutory legacy founded on principles of compassion, civic co- operation and local cohesion. However, it should be acknowledged that, although there was such a marked divergence from the ideals of the original project, there continued to be definite vestiges of humanitarianism discernible in the Scottish approach. The 1896 Report on Reformatory and Industrial Schools emphasised the “strong repugnance to the imprisonment of children”113. The widespread “aversion felt by the Scottish people” to the idea of child imprisonment114 was reflected in the attitude of Scottish judges reluctant to impose the prior period of imprisonment required for reformatory admission.115 The continuing current of humanitarianism was also evident in the tendency of Scottish judges to regard the certified schools as a place of refuge for destitute children at a time when there was particularly inadequate alternative social welfare provision for the poor in Scotland ; this accounted for many of the committals to certified schools, particularly to industrial schools where prior imprisonment was avoided.116
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38 The 1896 Report recognised the compassionate motivation underlying the over- readiness of judges in Scotland to commit children to the schools. This was an approach based on “a widespread and genuine feeling of commiseration towards the numerous children in the large towns who grow up wild or drift into crime because they are neglected or have bad homes.”117 Judges were aware of the penal nature of the schools, 118 but despite the punitive characteristics, the lack of viable provision for destitute children in Scotland created a situation where they considered they had little choice but to admit children to the schools.119 In England considerable numbers of children who were equally eligible for industrial schools were accommodated in workhouse schools, but in Scotland the common practice was to board out pauper children, a system unable to cope with the high level of demand.120 The presence of many children in Scottish courts was attributable to this shortage of alternative support mechanisms. This combination of factors provides some explanation for the differences between the statistics on England and Scotland : it indicates that the disparity in the volume of committals can be attributed in part to the approach of the Scottish courts, and the lack of adequate social welfare provision for the poor. All of this suggests a clear link with the welfarist origins of the schools in Scotland, showing that the original spirit of reform left its legacy in certain respects.121
39 What has also emerged strongly from this account is that developments in Scotland did not occur in isolation. There were significant parallels in other jurisdictions struggling to respond to the effects on youth of a potent combination of rapidly changing economic and social factors accompanying the demands of industrialisation. For example, this was evident in the English context where, as King’s work on the London Refuge for the Destitute in the early nineteenth century shows, judges in the Old Bailey devised a new diversionary sentencing policy sending young offenders for reformatory training.122 This development resonates with the efforts of Scottish judges to create diversionary alternatives to imprisonment for young offenders in Scotland. As we have also seen here in relation to Scotland, and as Susan Margarey’s work on London similarly indicates, far-reaching changes in criminal justice administration contributed to the increasing criminalisation of children in the nineteenth century, especially in relation to procedure, policing, legislation and sentencing. On the wider international front there were many links too with interaction and channels of communication between reformers in European countries and the US as they exchanged new ideas and approaches towards juvenile offending.
BIBLIOGRAPHY
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Manton, J., Mary Carpenter and the children of the streets, London, Heinemann Educational Books, 1976.
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Smout, T. C., A century of the Scottish people 1830-1950, London, Fontana Press, 1997.
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Thomson, A., Social evils, their causes and cure, London, J. Nisbet & Co, 1852.
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NOTES
1. Ritter (2001). 2. Young Offenders Committee under the chairmanship of Sir Thomas Molony, 1927, Cmd. 2831, p. 8. 3. Farmer (1997) ; Barrie (2008) ; Barrie & Broomhall (2014). 4. Donzelot (1979) ; Cox (2002) ; Mahood (2005). On the protective aspects : Moore (2008). 5. Manton (1976). 6. Watson, W., My Life, unpublished handwritten manuscript, City of Aberdeen Library, Chapter 1850-1860. 7. Carpenter (1851). 8. Manton,(1976). 9. Dekker (2001) Note also the obituary of Demetz in Reformatory and Refuge Journal for January 1874, p. 145 where it is noted that he had been influenced by the agricultural colonies in France and Belgium such as the Rauhe Haus and in 1836 had made exploratory visits to institutions in the US set up by Quakers and Methodists before returning to France to found Mettray. For discussion of Mettray in the US : Schlossman (1995). 10. Driver (1990). 11. Thomson (1852). 12. Nineteenth Report of the Inspector of Reformatory and Industrial Schools, 1876, p. 5. 13. Kelly (2012). 14. Cox & Shore (2002). 15. Nilan (1997). 16. Cox & Shore (2002). 17. Magarey (1978). 18. Kelly (2012). 19. Shore (1999, p. 14). 20. May (1973) ; Radzinowicz & Hood (1990). 21. King (2006). 22. Shore (1999). 23. Farmer (1997) ; Mahood & Littlewood (1994) ; Mahood (2005) ; Ralston (1988).
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24. Cox (2002) ; Cale (1993). 25. Kelly (2012) ; Kelly (2016). 26. Barrie & Broomhall (2014) ; Kelly (2016). 27. Michie (1997). 28. Barclay (1848). 29. Farmer (1997). 30. Letter by Watson to Thomson. Quoted in Angus (1913, p. 59). 31. Watson, W. My Life, Volume I, p. 119 ; Barclay (1848). 32. Guthrie (1847). 33. Kelly (2012). 34. Act of 1841 for repressing juvenile delinquency in the City of Glasgow, 4 and 5 Victoriae, c. 36 ; Ralston (1988) ; Mahood (1995). 35. 1847 Select Committee of the House of Lords appointed to inquire into the execution of the criminal law, especially respecting juvenile offenders and transportation, Paper 447, Volume V11 ; Kelly (2012). 36. Kelly (2012). 37. HMA v Mary Ann O’Brien, Agnes Wallace and Janet McNaught Brown’s Justiciary Reports 2 1844-45, 499. 38. Section 19 related to voluntary requests for admission by a child and did not specify any age requirement. Section 20 applied to children under 12 in a pre-trial situation ; Kelly (2012). 39. Watson’s My Life, Volume II, Chapter 1830-40 (unnumbered page of manuscript) ; Angus (1913). 40. Ibid. 41. Follett (2001) ; Checkland (1980) ; Prochaska (1980) ; Prochaska (2006). 42. Smout (1997, p. 31). 43. Watson (1872, p. 8) ; Watson (1851, p. 25). 44. Comment made in a letter to Thomson. Quoted in Angus (1913, p. 59). 45. Margarey (1978). 46. Under an Act introduced by Lord Advocate Sir William Rae, 9 Geo. IV c. 29. See chapter three of Farmer (1997). 47. Evidence of Scottish judges appearing before the 1847 Select Committee of the House of Lords to inquire into the execution of the criminal law especially respecting juvenile offenders and transportation. PP. 447, Volume VII. 48. Watson (1877, p. 37). 49. On summary procedure in England see Shore (1999) ; Shore (2002) ; Godfrey & Lawrence (2005) ; Emsley (2009) ; King (1998). Peter King’s analysis shows that summary processes in England were linked to increased levels of prosecution of minor offences, and Emsley presents a similar argument. 50. Watson, My Life, Volume 11, Chapter 1830-1840 (unnumbered page of manuscript). 51. Ibid. 52. This local legislation should be viewed in the context of similar legislation in other Scottish towns. David Barrie points out that ‘police legislation resulted in stricter regulation and tighter control over street behaviour and the built environment.’ Barrie (2008, p. 197). 53. Watson (1872, p. 7). 54. He recommended the appointment of legally trained stipendiary magistrates. atson (1872, p. 40). 55. Watson’s My Life, Volume II, Chapter 1830-40 (unnumbered page of manuscript). 56. Watson (1877, p. 40) . 57. Education (Scotland) Act 1872 35 & 36 Vict., c.62. 58. Cruickshank (2010, p. 26-27)..
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59. Watson, My Life. 60. Hannay (1851, p. 544). 61. Watson (1872, 6). 62. On the economic role of children in the nineteenth century see Humphries (2010). 63. In his evidence to the 1852 Select Committee on Criminal and Destitute Juveniles, Alexander Thomson, Watson’s co-reformer in Aberdeen, stated that the proponents of the schools did not see any distinction between the convicted and the destitute, considering them members of the same class facing the same difficulties in life : Paper 515, Vol VII, p. 301. 64. Watson (1851, 25). 65. Watson, My Life ; Evidence of Alexander Thomson to 1852 Select Committee on Criminal and destitute Juveniles. Sources do not provide a specific reference for this Act, Thomson referring to a ‘local Police Act.’ 66. Carpenter (1851, p. 234). 67. Watson, My Life. 68. Angus (1913) ; Thomson (1852, p. 139) ; Clark (1977). 69. Chambers (1845). 70. Angus (1913). 71. Carpenter (1851). 72. 1852 Committee on Criminal and Destitute Juveniles, p. 99. She quoted Watson’s figures recounting the decline in juvenile vagrancy and delinquency in Aberdeen from 328 vagrants and 61 juvenile delinquents in 1841 to only two vagrants in the area in 1850. For further statistics see evidence of Alexander Thomson to the same select committee at p. 292. Thomson, a fellow reformer of Watson’s, was a magistrate, chairman of Aberdeen County Prisons Board and author of three texts on industrial schools. He recorded the fall in numbers of children aged 12 and under committed to prison in Aberdeen from 61 in 1841 to 5 in 1851. 73. As noted earlier, Mettray was established in 1840 near Tours, under the auspices of Demetz. See Nineteenth Inspector’s Report on Industrial and Reformatory Schools, 1876, p. 5 where Sydney Turner describes how Mettray principles were adapted in the Red Hill reformatory in Surrey ; see too Driver (1990). 74. ‘is born, not made.’ 75. See his letter to Tory M.P. Viscount Adderley, later Lord Norton dated January 11th 1851 quoted in Davenport Hill (1878). Adderley drafted the Bill for the Youthful Offenders Act 1854. 76. Hannay (1851).This article commended the work of Mary Carpenter in England and her recently published work on reformatory schools. This unsigned review of Carpenter’s book is attributed to Dickens by Manton (1976) while other commentators suggest James Hannay was the author : Blount (1965). 77. Thomson (1852) : some English towns also adopted aspects of the system. 78. 1852-53 Report of the Select Committee on Criminal and Destitute Children, Paper 674, Volume XX111, p. 41. 79. Ibid. p. 40. 80. Kelly (2012). 81. Manton (1976). 82. Davenport Hill (1878). 83. Kelly (2012). 84. Ibid. 85. Carpenter (1851). 86. For details of the body of nineteenth century legislation applicable to reformatory and industrial schools in Scotland and its application by the courts, see Kelly (2012). 87. The Reformatory Schools (Scotland) Act 1854, 17 &18 Vict.,c.72-7, or Dunlop’s Act, after its author Alexander Murray Dunlop, Liberal MP for Greenock ; Ralston (1988).
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88. The Youthful Offenders Act 1854 (17 & 18 Vict., c.86). For the chronology of legislative developments in Ireland see Sargent (2013). 89. Watson (1872, p. 17). 90. Watson (1851) ; Guthrie, T. (1847). 91. See Guthrie’s remarks in Reformatory and Refuge Journal 1861, vol. 1, p. 55 on the importance of prevention. See also Guthrie’s comment, comparing giving money to reformatories to giving a man money to buy a wooden leg having refused help him save it. Quoted in Ralston (1988, p. 50). 92. See the annual reports of the Inspector of reformatory and Industrial Schools. For instance, Sydney Turner’s 1857 Report at page 7 on the regime in reformatory schools just set up in England under the Youthful Offenders Act 1854 when he described how boys had to work extremely hard : ‘digging, trenching, brickmaking and stockkeeping, in all weathers, at all seasons, with the scripture regulation in full force. If a man will not work, neither should he eat.’ 93. Ibid. 94. Younger offenders under twelve admitted to industrial schools did not receive convictions. 95. Industrial Schools Act 1866 29 & 30 Vict., c.118 ; Reformatory Schools Act 866 29 & 30 Vict., c. 117 – this stated that those under 10 should not be sent to a reformatory unless they were previous offenders. 96. 13th Report of the Inpector of Reformatory and Industrial Schools, 1870. See also Report of the Departmental Committee on Reformatory and Industrial Schools, 1896 [C. 8204]. 97. Watson (1872, p. 20). 98. Manton (1976). 99. See Sydney Turner’s comments at page 10 of Nineteenth report of the inspector of the certified reformatory and industrial schools1876 [C.1534 ]. 100. Manton (1976) ; Davenport Hill (1878). 101. Stack (1979). 102. See Twelfth Report on Reformatory and Industrial Schools, 1868, p. 18. See too Ralston (1988, p. 50). 103. Glasgow Juvenile Delinquency Prevention and Repression Act 1878, 41 &42 Vict., c. cxxi. Under s.30 of the Act of 1878 certified day feeding schools were introduced in Glasgow ; Watson (1874, a) ; Watson (1874, b) ; Watson (1877) ; Watson,W., My Life. 104. Although Edinburgh introduced a day industrial school (St. John’s Hill Day Industrial School) more than twenty years later under the Day Industrial Schools (Scotland) Act 1893, 56 Vict., c.12. 105. 1884 Report of the Commissioners on Reformatories and Industrial Schools [C.3876] [C.3876- I]. 106. Ibid. p. 442. Kelly (2012). 107. Ibid. p. 413. 108. Ritter (2001, p. 122). In 1866 New South Wales and South Australia adopted legislation on industrial and reformatory schools based on the UK model. 109. The average daily prison population in England and Wales in 1893-4 is given in the Gladstone Report as 18,233. (Report from the Departmental Committee on Prisons, 1895 p. 3.) The average number of children who were inmates in English reformatory and ordinary residential industrial schools in the same year stood at 17,526. See Report of the Departmental Committee on Reformatory and Industrial Schools, 1896, p. 132. For Scotland the average daily prison population in 1893-4 – a figure of 2,686 – appears in the Sixteenth Annual Report of the Prison Commissioners for Scotland 1894 [C.7470], p. 5. The average number of children who were inmates in Scottish reformatories and residential industrial schools in the same year was 5,476. See Report of the Departmental Committee on Reformatory and Industrial Schools, 1896, p. 132. Note also that the figures of child inmates did not include all of those under order of detention as there were always a number of children out
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on licence. These figures also do not include children in truant industrial schools (in England) or those in day industrial schools. 110. Report of the Departmental Committee on Reformatory and Industrial Schools, 1896, p. 8 and p. 132. 111. Mahood (1995) ; Cox (2002) ; Cale (1993). 112. 1896 Report, p. 21. 113. 1896 Report, p. 138. 114. 1896 Report, p. 131. 115. Kelly (2012). See 1896 Report (p.138) which explains that the Scottish abhorrence for child imprisonment accounted in part for the high numbers of industrial schools in Scotland compared to reformatories as Scottish judges were reluctant to impose the prior period of imprisonment required for reformatory admission. In situations where young children appeared in court on offence grounds judges might decide not to convict but instead order detention in an industrial school under s.15 of the Industrial Schools Act 1866. This section could be used where a child was under 12 and had no previous convictions. This avoided the need for prior imprisonment. Following the Reformatory Schools Act 1893 (Lord Leigh’s Act) prior imprisonment could be dispensed with. The 1896 Report criticized the ‘inequality’ between Scotland and England in the greater use made by Scottish judges of the optional dispensation of prior imprisonment under the 1893 Act (p. 100). Under the Reformatory Schools Act 1899 prior imprisonment was abolished. This removed the main distinction between reformatory and industrial schools. 116. 1896 Report, p. 138. 117. 1896 Report, p. 138. 118. See the reference by Lord Neaves to the ‘penal element’ of industrial schools in Wilson v Stirling 1884 2 Coupar 518. Kelly (2012). 119. Taylor v Tarras 1901 3F. 39. 120. Report of the Departmental Committee on Reformatory and Industrial Schools, 1896, p. 131, 132 & 137. 121. For further analysis of this point see Kelly (2012). 122. King (2006) ; Margarey (1978).
ABSTRACTS
This article traces the origins and development of fresh diversionary initiatives to respond to juvenile offending in Scottish cities from the mid-nineteenth century. This topic has been somewhat neglected by historians, but the Scottish contribution to juvenile justice reform was significant, both in the UK context and internationally. The paper focuses particularly on the inception and development across Scotland of a network of Day Industrial Schools first introduced in the 1840s. It addresses the changes in Scotland which were brought about by the impact of legislation that ushered in the statutory UK framework governing certified industrial and reformatory schools. The article considers how pressures for uniformity resulted in a marked departure from the welfarist ethos of the reformers undermined the original ideals of reform.
Cet article retrace les origines et le développement de nouvelles initiatives de diversion visant la délinquance juvénile dans les villes écossaises au milieu du XIXe siècle. Cette question a été
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quelque peu négligée par les historiens, mais la contribution écossaise à la réforme de la justice des mineurs a été significative aussi bien au Royaume-Uni qu’au plan international. L’article s’intéresse particulièrement à la naissance et au développement, à travers l’Ecosse, dans les années 1840, d’un réseau d’Écoles industrielles d’externat. Il analyse les répercussions en Écosse de changements dans la législation britannique des écoles certifiées d’industrie et de correction et la manière dont les pressions à l’uniformisation ont conduit à une déviation marquée par rapport à l’ethos d’assistance des réformateurs et à la fragilisation des idéaux originels de réforme.
AUTHOR
CHRISTINE KELLY A qualified solicitor with a PhD from the University of lasgow, is currently a British Academy Postdoctoral Fellow at the Law School of the University of Glasgow. Her post-doctoral research – following her doctoral research on the criminalisation of children in Scotland between 1840 and 1910 – investigates the criminalisation of children in Scotland in the period from 1910 to 1971. The aim is to provide a broader vision of the historical origins of the distinctive Scottish approach to juvenile justice. The author would like to thank Lindsay Farmer for his helpful comments on an earlier version of this paper. - [email protected]
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Respectable Anxiety, Plebeian Criminality : Politics of the Goondas Act (1923) of Colonial Calcutta
Sugata Nandi
Introduction
1 The archetypal modern urban criminal of South Asia is the goonda, often taken to be a rough equivalent of the hooligan. The term ‘goonda’, a slang of obscure etymology, came into common parlance in colonial Calcutta around 1900. Till 1918 it connoted a lowly looter who surfaced during heights of tumult and disappeared as soon as order was re-enforced. In 1920 the goonda appeared in a new avatar, that of a fearsome violent robber who lurked in the streets of some north-Calcutta neighbourhoods and preyed upon wealthy Indians or those loyal to them in broad daylight. He struck such terror among his victims and other law-abiding people that the police found it difficult to find witnesses against him. The fear of the goonda assumed such proportions that European police officers of Calcutta, who were obsessed with maintaining order at the time of the then ongoing anti-imperial mass movements, Non-Cooperation and Khilafat, swung into action to draft a new law against goondas and to chalk out a novel strategy of maintaining surveillance on them. At the same time newspapers reported frightening instances of violent crimes from all over the city and attributed these to the goondas. In 1922 the Goondas Bill found its way to Bengal provincial legislative council, in which English educated Hindu Bengali bhadralok (i.e. gentlefolk) were in a majority. In 1919 they had staunchly opposed the Rowlatt Act, the anti-sedition law which empowered the police to arrest and detain individuals on suspicion that they were political terrorists. In February 1923 they ratified the Goondas Bill into an Act though its provisions empowered the police to deport virtually anyone from Calcutta and its surrounding industrial rim to outside the province of Bengal on mere suspicion without a trial.
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2 The Goondas Act [hereafter GA] came into effect in 1923 and became a model for other such acts for Kanpur (1930), Delhi (1937) and cities of Central Provinces and Berar (1946). Each of these acts similarly empowered city police from forces to evict individuals on suspicion. The GA of Calcutta could come into being as disparate, disunited and mutually opposed segments of the city’s residents felt the acute need for a law like it. These segments were – wealthy Hindi-speaking Hindu and Jain Marwari traders, upper and middle class Bengali bhadralok, elite Bengal Muslim politicians, and Calcutta Europeans, officials and non-officials. In 1922-23 these segments were bitterly divided and mutually opposed to each other. The Europeans constituted a small yet the most powerful minority of Calcutta. They were its high administrators, rich industrialists and businessmen. They looked down on Indians and distrusted them ever more so since the rise of mass nationalism. The bhadralok were leaders of Indian nationalist movements at provincial and local levels. They were narrowly elitist in outlook and often used Hindu symbolisms for political purposes which alienated Muslims. They were largely averse to mass movements and joined or even successfully led such movements only reluctantly. Their political predominance was challenged with the introduction of separate electorates for Hindus and Muslims to the provincial legislatures in 1919. In spite of that in 1922-23 they still wielded great influence in provincial and city politics. Muslim politicians of Bengal had drawn away from bhadralok led nationalist politics, especially since 1906 with the foundation of the Muslim League. With the beginning of the First World War, Pan-Islamist movement in support of the Ottoman Turkish Sultan and against the dismemberment of his empire gained ground among Bengal Muslims like elsewhere in India, which culminated in the Khilafat movement in 1919. During the same time the Marwaris joined nationalist politics. They had earlier kept away and even opposed bhadralok nationalism and their communal animosity towards Muslims had led to riots in Calcutta. When Gandhi led the anti-Rowlatt satyagraha (1919) and a year later the Non-Cooperation movement, in which he joined forces with the Khilafatists, unforeseen fraternization united these three segments in the city. Their unity, however, proved short-lived. In February 1922 Gandhi called off Non-Cooperation. Khilafat, though not called off, lost its objective in less than a year with the rise of Mustafa Kemal and the removal of the Sultan. The vacuum left by abrupt withdrawal of anti-imperial and nationalist movements was filled by communalism and factionalism. The bhadralok sections tried hard to retain their elite status in politics and were divided into several bickering factions. Muslims, encouraged with the advantage of greater political representation in the provincial legislature given by the Montagu-Chelmsford Act (1919) tried to contest bhadralok domination. Their politics turned increasingly communalist. The Marwaris, who were significantly wealthier than before, were left with no common ground to share with either the bhadralok or the Muslims. To secure their business interests they had already established linkages with colonial administrators as well as with Gandhi who towered over Bengal politicians. Many of them were drawn to Hindu communalism which culminated in the formation of the Hindu right wing party, the Hindu Mahasabha in 1925.
3 What made these segments come together to usher in the GA in spite of their irreconcilable differences, was not, I argue, the fear of a new category of urban criminals. Instead what each segment sought to address was its respective anxiety which arose in response and reaction to the changes that took place since the beginning of the First World War and especially the entry of the mass into the political
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arena. Following Geoffrey Pearson’s research on London hooligans at the turn of the last century, I assert that there was a respectable fear of the goondas in Calcutta during 1920-23.1 Respectable fears conceal anxieties that upper and middle classes experience in response to rapid changes in society and politics, which they then map on the lower classes criminalizing segments within them. Thus, in 1890-1900 an anxiety of losing to Germany militarily and economically in the international arena made British conservatives and liberals come together to look for symptoms of a national decline among the poor, and the consequent invention was the hooligan, a degenerate violent poor youth.2 Similarly, in St. Petersburg of 1900-14, hasty industrialization and brutal suppression of protests by an absolutist state produced unprecedented social change and tensions. The consequences, as Joan Neuberger says, were overpopulation of the city with desperate poor rural migrants, rapid decline in influence of the traditional elite and rise of a new bourgeoisie seeking to assert high social status.3 In this situation any perceived or deliberate defiance of authority of the elites or the bourgeois by poor migrants came to be labelled as hooliganism or a sign of the most serious social malady. In the light these works it needs to be known what caused anxieties among the elites and middle class of Calcutta, and how and why it culminated in the invention of the goondas and in the legal innovation, the GA.
The Goondas Act (1923)
4 The express purpose of the Act was “to provide for the control of the certain goondas residing in, or frequenting Calcutta or the neighbourhood of Calcutta, and for their removal elsewhere”.4 It said that the goonda was an “extraordinary badmash”, “other rough” or a “member of a gang of goondas”.5 While badmash meant a miscreant and necessarily male, what would turn him extraordinary was left entirely to the discretion of either the Commissioner (i.e. the chief) of Police, the Calcutta Magistrate or the District Magistrate in the industrial belt surrounding the city outside the Calcutta Police jurisdiction, also known as the Presidency Area. Having identified a person fit for being charged by the GA either of the said officers were to send a detailed report on him to the Governor of Bengal seeking permission to issue a warrant of arrest under the Act.6
5 Immediately after his arrest the Commissioner or a magistrate was to produce the accused to two judges. Any attempt by the accused to evade arrest, or to evade other formalities like being photographed, furnishing sample signature, handwriting and fingerprint was punishable by six months of imprisonment or by imposition of a fine of one thousand rupees or both.7 The judges, drawn from the Sessions Courts, were to act in advisory capacity. They were to go through the report on the accused submitted to the Governor, and deliberate on whether the case was fit for expulsion solely on its merit. The GA had no provision for trial by a court of law. However -, the arrested person had the right to represent himself in writing or in person to the judges if he so wanted. He could also seek their permission to call in witnesses to support his statements. The judges -, could call on anyone to seek additional information if necessary. Such persons were to be examined in complete secrecy and the accused was to know nothing of that.8 After going through all available information on the individual they were to advise the police on whether he should be deported or not.
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Though their advice was not binding, it was rarely contradicted, as appears from available evidence.
6 The Governor ‘if satisfied’ with the judge’s advice determined the duration for which the accused was to be expelled from the Presidency Area.9 In case one of the judges was not in favour of expulsion, the Governor was free to follow advice of the other. The police then served an order of externment, i.e. a directive on the accused while he was in captivity, specifying the date, destination, route and the mode of his deportation. They were to escort him to a railway station of the city from where he had to go to a location either outside Bengal or somewhere within the province but away from Calcutta. Immediately after reaching the place he had to report to a police station named in the order. For the entire period of his expulsion he was to remain under strict police surveillance over there and had to inform the local police of any change of his residence, and “absence or intended absence” from there. Any non-compliance of the order within the duration of expulsion was to be punished with arrest without warrant followed by rigorous imprisonment up to one year.10 While these elaborate scheme of punishment existed on paper, when the Act came into operation the Calcutta Police paid no attention to what happened to the deportee after removing him from the city. Within the city surveillance on those charged by the GA was maintained relentlessly till the time of their expulsion.
7 When ordered to leave the city the deportee had the right to stake a claim that both he and his father belonged to a family “definitely settled in Bengal” and had to offer evidence of continuous residence in the province for three generations.11 In addition he had to offer proof of his own unbroken residence in Calcutta. If his claim appeared convincing to the Bengal Governor he was to be sent to a place within Bengal. This, though seemingly possible was rendered difficult as the deportee’s claims had to go uncontested at the hands of the Commissioner or Magistrate.12
8 The deliberate absence of a definition of a goonda in the Act or other markers such as his typical offences, apart from the one that suggested that he was a migrant to the city was justified on the ground that there was little doubt among the law-abiding propertied classes of Calcutta as to who a goonda was. It implied that the social markers of goonda had already been fixed by then, by those who demanded immediate stern action against him. These markers had slowly been singled out and affirmed since 1890s.
Fear of the poor migrant
9 A new figure appeared in the horizon of respectable fears in Indian metropolises and industrial towns from around 1880s, namely the poor male migrant. Prashant Kidambi and Jim Masseloss have shown that an increase in population in Bombay, the visibility of the poor in city streets and bazaars and their occasional clashes with the police from 1880s led the colonial administrators, capitalists, and Indians of respectable classes to regard them as volatile and dangerous.13 The same had happened in Calcutta from the 1890s. Rapid demographic change had taken place in the city and its immediate surrounding areas from the 1880s as male migrants from Bengal’s neighbouring province of Bihar, United Provinces and Orissa. The migrants were pushed out of their native villages either by abject poverty or at times by famines. The steady stream of male migrants from these places altered the composition of population in the city by
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1901, of which migrants comprised 35 per cent. In 1911 migrants from Indian provinces other than Bengal comprised two fifths of its population.14 The trend continued through the 1920s and ’30s when fresh migrants from the other provinces alone comprised around 35 per cent of the city dwellers.15 Among these migrants nearly fifty- four thousand earned their living as casual labourers in the 1920s, and from around 1911 they remained concentrated in huge numbers in Burra Bazar and its contiguous neighbourhoods and found work as carters, coolies, servants and guards.16 Bengalis, averse to menial work, looked down on these migrants as they were illiterate and rustic ; and referred to them as ‘Hindustani’ i.e. Hindi speaking migrant or by a pejorative slang ‘Khotta’.17
10 The prejudice against migrant labourers transformed into fear as there were three short-lived local riots in the city and its surrounding industrial suburbs in 1896, 1897 and in 1898. The first two of these were occasioned by religious disputes among Hindu and Muslim factory workers and the last one broke out from labourers’ resistance to forcible inoculation against the plague.18 During these riots the police, European mill managers and upper and middle class Bengalis bore the brunt of workers’ violence. In reaction they created the stereotype of irrational and fearsome violent labourer or coolie from whom the respectable classes and even policemen at times needed protection.19 From the early 1900s people fitting into such description came to be marked out loosely as goondas or ‘gundas’, the more prevalent spelling back then. Calcutta experienced three short-lived riots of varying intensity between 1907 and 1918, in each of them low-class aggressors and looters, who suddenly appeared after violence broke out to take advantage of the temporary anarchy, came to be described by the term.
11 The first of these riots broke out at a public square in north Calcutta in the evening of 3 October 1907 as a Muslim Police Inspector and two constables tried to disperse a Swadeshi movement meeting of middle class Bengalis.20 The crowd over-powered them only to be dispersed by a larger posse of policemen led by European police sergeants. Soon scuffles between the Bengalis and the policeman spread all over the Chitpore Road, a main arterial street in north Calcutta. After a few hours the police drove out the crowd and patrolled the street. In the following evening fights broke out between the police and the Bengalis of the area again, and a large number of shopkeepers from along the street and others alleged that ‘gundas’ joined hands with police constables to belabour and rob them in the evening. A Bengali physician, one D.N. Chatterji, said that he saw ‘gundas’ drag out commuters from tramcars, belabour them and denude them robbing their clothes. Akhil Chandra Chatterji, a Bengali civil engineer said that some up-countrymen attacked him while he was travelling in a tramcar on the Chitpur Road and robbed him of cash. He conjectured that the men were police constables in plainclothes as they looked like ‘gundas’ but appeared better-fed.21 Bengali shopkeepers from the place said that ‘up-country’ police constables stood watching as ‘gundas’ raided and looted their shops. However, as order was enforced, the threat of the goondas seemed to wane away and there were no further allegations of goonda crimes or demand for police action against them.22
12 The 1910 riot broke out on the occasion of Eid, the Muslim religious festival.23 A slum of poor Muslims stood on a plot of land in north Calcutta owned by a Hindu Marwari trader who wanted it cleared for construction of buildings. He along with other Marwaris organized a protest to prevent cow-killing in a mosque in the slum under the
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pretext that it hurt their religious sentiment especially as they resided in houses close to the slum. The Bengal government found out that the mosque was not, and had not been, a place for cow-killing for years. Yet, as the day of the Eid approached Marwaris went ahead with virulent anti-cow killing protests. They brought a well-known Hindu orator from United Provinces and inducted a number of up-country Hindu durwans (Hindi for gatekeeper or guard) for their campaign. They tried to enforce a strike in the neighbourhood a day before Eid, which Muslim shop-keepers resisted keeping their stores open. This led to clashes which escalated into a riot in Burra Bazar and the Harrison Road, a street running east-west in north and central Calcutta.24
13 Fierce combats took place between Hindu up-country durwans and the Muslim itinerant traders, popularly called Kabulis, from North West Frontier Provinces and Afghanistan who visited the city during winters. The Commissioner of Calcutta Police observed that the Marwaris had brought the durwans to execute planned violent attacks on the Muslims, and they appeared in newspaper reportage as durwans, badmashes and also as ‘gundas’. A case which caused a sensation was the murder of an unsuspecting Muslim pedestrian who had gone to Burra Bazaar during the riot when suddenly an assailant, described in newspapers as a Hindu ‘gunda’, appeared from a bye-lane stabbed him to death and disappeared in a flash.25 Such attacks were equally matched by the violence of Kabulis, who hurled bricks at Marwari households and fought with policemen who tried to disperse them. In the eyes of the European officials and Bengali observers though, the up-country durwans marked out as goondas appeared as the main culprits.26
14 After the riot the goondas were heard of in 1918, yet again during a riot.27An English daily of Calcutta, The Indian Daily News, catering to an almost exclusively European readership, published an article in which Prophet Mohammed’s tomb had been compared with a gutter of Paris. In protest eminent Muslims, including important leaders of the Muslim League, asked the Bengal Governor to prohibit publication of the paper, which he refused to do. So they called for a protest meeting on 9 September 1918. It was to be addressed by important Muslim clerics from all over India and was expected to draw several thousands of attendees.28 The Governor promptly prohibited the meeting a couple of weeks before its scheduled date. He apprehended the sheer size of projected gathering for the meeting, and the imminent dismemberment of Ottoman Turkey by the Allies meant that it could become a mass Pan-Islamist agitation against the colonial government.29
15 The prohibition of the meeting proved counter-productive. Ephemeral leaders from among Muslims of lower class, the overwhelming majority of whom were migrants, resolutely mobilized their poor brethren for it.30 A few institutional politicians like Muslim League Young Turk Fazlul Huq repeatedly requested the Governor to revoke the prohibition. The venue for the meeting, a ground next to Nakhoda mosque in central Calcutta near Burra Bazar, was readied and guarded by the club wielding poor Muslims. On the day of the meeting a crowd of poor Muslims clashed with a posse of policemen and a riot broke out as a durwan guarding a mansion of a Marwari businessman fired a shot at the crowd. Enraged the Muslims raided and ransacked shops and warehouses of the Marwaris in the vicinity of the Nakhoda mosque. Soon riots spread all over central Calcutta and Burra Bazaar.31 Eyewitness reports said that the goondas made a sudden appearance at this point to advantage of the anarchy. They stopped traffic, climbed into tramcars, roughed up and robbed commuters. Soon they were seen raiding shops and bazaars and ran away with clothes, sacks of wheat flour,
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foodstuff and in a few cases money.32 The Amrita Bazar Patrika, a nationalist daily, reported an incident in which a ‘gunda’ single-handedly raided a shop in the vicinity of Burra Bazaar and unhesitatingly stabbed a shop-clerk to death who tried to resist him.33
16 On 10 September crowds looted shops and bazaars at several places in north, central and east Calcutta. At Garden Reach, an industrial area to the south the city a large crowd of Muslim labourers fought pitched battles with the military braving their firepower.34 In this situation fearing the possibility of being held responsible for inciting crowds, Muslim politicians who had actively supported the call for the meeting found it necessary to dissociate themselves from the riot.35 As a result, within days a number of important Indian edited dailies and vernacular periodicals of the city singled out the goonda for the event. The Moslem Hitaishi, a Bengali periodical which claimed to speak for Bengal Muslims, said that as soon a riot broke out on the Zakaria Street Hindu goondas emerged from their lairs to loot the shops of Muslims in the locality.36 They were followed by Muslim goondas, who attacked shops and warehouses of the Hindus. The Hitavadi, a periodical which spoke for the Marwaris, similarly said, … the riots and the looting are the work of the gundas, both Hindu and Muhuammdan, and we want to see justice done in the matter.37
17 Such words represented the view of the Indians –wealthy, elite and middle class– irrespective of their creed, who held their low class brethren solely accountable for the outbreak. Taking this as an opportunity to claim lofty benevolence from his high office the Bengal Governor made a display of a formal brokering of peace among Hindus and Muslims. A week later a public notice that he had authored, entitled ‘Hindu Moslem Appeal for Toleration’, appeared in The Statesman.38 It had a long list of eminent signatories, which included Moti Lal Ghosh, a high ranking Congress leader and Muslim leaders like Fazlul Huq. It said, The serious riot that broke out in Calcutta and its suburbs is now over. The public is well aware that there has not, nor is there any Hindu Muslim question involved in it. We strongly condemn the acts of lawlessness – though very few – of rowdyism which occurred between the Hindus and the Muslims … These incidents were acts of Goondas for whom nobody has any sympathy.39
18 The notice was an official re-confirmation of the prevailing view of who the goondas were. They were criminals from the margins who had no support from the Indian elites or from society at large, and who surfaced only at times of large scale disorders. With order enforced they necessarily disappeared and hence there was no outcry for action against the goondas after the riot was over.
1920-23, The Goondas Anew
19 In 1920, the Marwari Traders’ Association of Burra Bazaar sent a petition to W.R. Gourlay, the Chief Secretary to the Government of Bengal, written in markedly accusatory language saying that since December 1919 the neighbourhood witnessed an abnormal rise in street robberies.40 It blamed the police for it and said that they allowed the worst goondas a free hand to brazenly rob rich Marwaris and their loyal servants in broad daylight in Burra Bazaar. It said that the police were usually reluctant to record complaints of such robberies. If at all they recorded such cases they delayed the framing of charges, allowing crucial evidence to disappear, dissuaded complainants with threats of false charges and also made enquiries with deliberate carelessness.41
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Due to these crimes bill collectors of Marwari firms refrained from stepping out in the streets in fear of the goondas, who did not spare robbing jewellery from helpless Marwari women and children as they ventured out either for their ritual holy dip in the river Ganges nearby or went to temples to offer prayers.42 Fear of reprisals at the hands of the goondas and the general reluctance of the police to help victims often prompted them not to report such crimes, which in turn further emboldened the miscreants.
20 The descriptions of the crimes contained in the petition in meticulous detail, however, do not appear as unheard of ferocious offences. For example, a Marwari businessman, one Shiv Bhagwan Goenka was beaten with clubs and then robbed at the point of a dagger by ‘goondas’ in the bye-lanes when he was returning with a large sum of money. Eight days later one Hanumanbux and Basudeo, proprietors of a firm, were robbed similarly by goondas while on their way home. They had the day’s earnings with them and were accompanied by two of their servants. While on way some goondas attacked them, belaboured them as they tried to resist and decamped with a bag full of money. On 31 January, a wealthy Marwari Bhuramull Chandgoria was stabbed by goondas who tried to rob him as he was on his way to the Tarasundari temple of Burra Bazaar. He had a narrow escape as some bystanders came to his rescue and found a knife sticking to his back. What made these cases appear alarming was their growing incidence ; for example, between November 1919 and February 1920 there were more than twenty such cases of serious assault and robbery. Their number seemed to increase towards the end of February when there was days on which as many as three robberies had taken place.
21 As Gourlay drew attention of Reginald Clarke, the Commissioner of Calcutta Police, to these cases the latter admitted that there existed a ‘goonda problem’ in Burra Bazaar. Crime statistics showed that there had been an abnormal increase in ordinary crime in Calcutta that year : there were 99 cases of robbery, more than double of that in 1918, and the value of property robbed was also ‘abnormally’ high.43 Contemporary observers linked this to the sudden increase in the cost of living and specially so in the prices of food and clothing, the worst sufferers of which were the poor.44 Clarke, however, said that the Marwaris were themselves to blame for the goonda problem because These goondas are up-country-men who have been brought down to Calcutta as lathials (i.e. stick or club wielding guards) or durwans by Marwaris in Burra Bazar, or have been attracted to Calcutta by the reports of the ease with which money can be made by violence. The Marwaris themselves are very largely responsible for this evil, some employing as many as 200 of these men over whom there can be no efficient control…45
22 He admitted that the police could not deter these men from taking to crime as the force had neither the necessary manpower to patrol Burra Bazaar effectively nor the weaponry to intimidate criminals into inaction with a small force.46 The existing laws which the police used against these criminals were preventive sections of Indian Criminal Procedure Code, which relied heavily on the knowledge of the magistrates about bad characters within his jurisdiction.47 These sections were largely ineffective in a metropolis like Calcutta with a continuous inflow of large numbers of migrants. In the absence of effective laws, he lamented, both the numbers and the activities of the goondas proliferated. For example, there were durwans entrusted with carrying substantial amounts of cash through the bye-lanes of Burra Bazaar who violated their employer’s trust to steal money. Then there were those who waylaid pedestrians carrying large amounts of money or jewellery, and finally there were goondas who
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worked for other goondas, like guards of cocaine and gambling dens. Taking stock of the problem, he said that more than 95 percent of them were up-countrymen who had migrated to Calcutta in the recent past. Gourlay suggested that an effective mechanism of punishment of these men was to “exclude from the limits of Calcutta”.48 This became the kernel of the GA, which was drafted as a bill during 1922 and ratified by the Bengal Legislative Council in 1923. Anticipating the Act, Clarke heightened police surveillance in Burra Bazar, drawing personnel from other police stations of the city.
23 It needs to be noted that this was not the first time Marwaris sought police action against the goondas. They had done so first in 1914 when the police responded to their plea by increased patrolling of Burra Bazar for just over a month. When the same group of traders complained about the goondas six years later the unprecedented concern of the police to ensure protection of the complainants with greater care than ever before meant that the Marwaris had by then acquired great significance in the eyes of the Bengal government.49
24 For the Marwaris, the First World War had proved to be a turning point like a few other groups of Indian traders. Till the War the Europeans and the Bengali bhadralok looked down on them as lowly and dishonest traders hailing from Rajputana. Anne Hardgrove says that by 1917-1918 they had gathered immense wealth supporting the war efforts of the colonial government and actively started to assert “their identity as honourable businessmen and political subjects”,50 and they could rightly boast that “the entire trade of Calcutta is in their hands”.51 They had risen spectacularly in wealth and proven to be important allies of the colonial government. In 1905 they had strongly opposed the Swadeshi movement, unlike the Hindu Bengalis of upper and middle classes, and refused to boycott dealing in foreign goods. For this reason the Bengal government was disposed favourably towards them. During the War they supplied the Indian Army with gunny sacks and soldiers’ uniforms, and the Government of India with War Loans. The government recognized their assistance with honours like War Work Badges given to Birla brothers, Ghanshyam Das and Jugal Kishore of Calcutta.52 By 1920 they were poised for transition from traders into industrials.53 From around this time Marwari men donned western attire and demeanour in public in order to gain acceptability among European businessmen of the city. Their quest for higher social status found a new opportunity as Gandhi-led mass movements drew support from among groups which till then were outside the fold of politics. Marwari traders had come into close touch with Madan Mohan Malaviya, the nationalist leader, as they took part in the anti- indenture campaign in 1913.54 Gandhi had established links with Calcutta Marwaris from 1917 in whom they found the much needed influential leader, who enjoyed a much higher status than Malaviya. In 1919 they took active part in the Gandhi led anti- Rowlatt agitation in Calcutta. A year later they provided the Congress with a large fund to run the Non-Cooperation movement. Alongside from the early 1900s they had started asserting supremacy over Burra Bazaar, their business cum residential quarter since 1870s. From 1910 they had started acquiring land in the Burra Bazaar area, removing its poor shanty-dwelling Muslim residents. When the Calcutta Improvement Trust started functioning in 1911 the Bengal Government paid special attention to facilitate smooth functioning of Marwari businesses in that neighbourhood by slum removal.55 When they asked for suppression of the goondas in 1920, it became evident that they were looking for police protection which complemented their newfound wealth and political importance.
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25 This was not, however, the only reason which impelled the high officials of the Bengal government and the Calcutta Police to adduce high importance to the goondas in 1919-20. Burra Bazaar and its contiguous neighbourhoods had turned into a site of a mass agitation of unforeseen intensity since 1919. The Marwaris took part in these movements but they were outnumbered and overwhelmed by the poor ‘up- countrymen’ i.e. people from neighbouring states of Bihar and United Provinces, both Hindus and Muslims, who constituted the mass of the agitators. The first agitation took place in April 1919 against the Rowlatt Act.56 Clarke noted in the police report that up- countrymen unhesitatingly attacked Europeans whoever ventured into that area during the agitation. The first shock came with assaults on two high ranking European police officers, with one injured fatally. Their number grew larger and even more aggressive as the police brought in additional personnel to aid the officers. They drove them out pelting stones and then set fire to a police car which was on the spot. Finding themselves overpowered, the police called in the troops, who then dispersed the crowds with gunfire.57
26 The agitation shocked the non-official Europeans far more profoundly. The Englishman, a city daily representing their views narrated several incidents in which Europeans, unaware of the violent agitation, had ventured into the area and were thrashed in full public view by the “lowest elements” of Calcutta, which was unheard of in the city till then.58 It regretted that “real Calcutta goondas” i.e. low class violent elements, led in places by well-heeled Marwaris, had taken to the streets to bring traffic to a halt. One unnamed European informant said that he was made to doff his hat at agitators, who then flung him against a wall and kicked him. In another report a correspondent of the daily said that he was assaulted by a crowd while he was taking a tour of neighbourhoods centring on Burra Bazaar to witness the agitation, and had managed to escape with his life rescued by a European policeman there on duty. The daily remarked that this kind of violence was the result of Indian politicians bringing in “goondas and the mobs” to take part in what was supposed to be non-violent passive resistance.59
27 In 1921 Burra Bazaar erupted with a mass movement of even greater intensity. Bengal Governor Ronaldshay described it as an outbreak led by goondas which brought about temporary reign of anarchy. Police reports on the movement noted that like previously the majority of its participants were Marwaris, groups of ‘up-country’ Hindus and Muslims. For example, on 17 November 1921 a strike enforced by Non-Cooperation and Khilafat activists rekindled the fear of the anti-Rowlatt agitation among the Europeans. An official on duty in that part of the city noted that “crowds of hooligans” in the garb of the political activists paralyzed the city completely. They brought transport and all businesses to a halt by sheer intimidation, and “there was talk not of Gandhi Raj but a Goonda Raj”.60
28 The need felt acutely among European officials of the Bengal Government in the light of these experiences was for an assertion of police authority over the area. Hence the police took to gathering information on those who it perceived to pose a threat in Burra Bazar and its immediate surroundings. A new section within the Detective Department of the Calcutta Police was entrusted with this responsibility in September 1920. It was christened the Goondas Department [hereafter GD] in 1921, and renamed the Goondas Division in February 1923.61 The department worked with great urgency and gave its first report to Clarke in May 1921, who observed,
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93.6 per cent or a very large majority of the goondas in Calcutta are not natives of this province and such Bengalis as join in are merely hangers-on of the Punjabis and up-countrymen who are the real mainspring of this activity.62
29 In early 1922 the department re-affirmed his words with a comprehensive report of its findings titled ‘A Concise and Complete Statement of Facts as to the Number, Distribution, Classification etc. of Goondas in Calcutta’ [hereafter Statement] which made these groups of migrants appear as dangerous criminals masquerading as persons with legitimate vocations.63 It was a classified document and the veracity of its information has never been examined. The GD had arrested 181 persons between March and May 1921, described them as “active and dangerous goondas”, it divided them under seven headings following an arbitrary mix of regional, linguistic and religious categories.64 Its classificatory scheme echoed the Orientalized notion of martial races, who in their new avatar displayed a proclivity to violent crime in place of valour.65 Most dangerous among those which the GD classified as goondas were Peshawaris from North West Frontier Province, who were cocaine smugglers and leaders with “a large number of local Muhammadan goondas” as followers. As they all had “some connexion with fruit or shoe business” they managed to evade arrest. Five of them were settled in Calcutta for fifteen to twenty years. The rest, whom the Statement called “new arrivals”, were those who had migrated to the city less than six years back. Ranking close second were Punjabis. The report said that the GD had been able to identify only three of them, but suspected that their number was definitely larger. They were said to engage in the same criminal activities as the Peshawaris. Up- country Muhammadans came third. The Statement mentioned seventeen of them and claimed that most of them migrated fifteen years ago from the districts of Shahabad and Gaya in Bihar, and Allahabad in the United Provinces. Next and the most numerous group was of up-country Hindus. The Statement listed seventy of them and described that the majority were : … recent importation and swell the list of goondas. They are chiefly carters, durwans, hawkers by profession. The older residents among them are some notorious leaders of the goondas own carts and houses which affords them immunity from prosecutions of bad livelihood. They come from Mirzapur, Agra, Jaunpur, Banaras, Patna, Gaya, Arrah, Monghyr, Fyzabad, Lucknow and Gwalior…66
30 “Local Muhammadans” numbering fifty nine ranked after them. The GD said their number was increasing by the day. They worked as clerks in pan (i.e. chewing beetle leaf) and biri (i.e. country made cigars) shops, and served as hirelings for their up- country counterparts, but were not as “desperate” as them. Right at the end of the list mentioned nine “Local Hindus” and ten “Local Bengalis”. There were nine persons, “Kahars by caste and coolies by profession”, listed in the first of the groups who had committed robberies along with local Bengali youths. In the last and least significant category of “Local Bengalis” were ten youths from respectable classes “with no inclination for study or work, supported by relations who have no control over them” and another five “homeless men” with “remarkable criminal careers”. According to the GD these three “local” categories did not pose a serious threat.67
31 Tracing the history of a so-called “goonda menace”, the Statement said that the goondas emerged as a threat to law and order from after 1916. From that year there a slight increase in the annual aggregates of robbery. The aggregates kept increasing till 1919 but from 1920, meaning from the time Marwaris complained of a sudden spate of crimes in Burra Bazaar, there was an abnormal rise in robbery which continued to rise
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even further through the first six months of 1921.68 It attributed this to the presence of the majority of goondas from the city in Burra Bazaar and its contiguous neighbourhoods. Out of the GD’s one hundred and eighty-one goondas, one hundred and seventeen came from that cluster of neighbourhoods, another forty-nine persons, whom the police described as “homeless”, very often frequented these neighbourhoods as carters, hawkers and coolies.69 The rest of the city had an insignificant fourteen goondas who posed a minor threat when compared to their former counterparts.70
32 While the classification and enumeration of known criminals as goondas of the Statement remained confidential the rise in robbery statistics was public knowledge and it echoed in the pages of Calcutta’s important dailies and periodicals, which in the early twenties attributed any violent crime and intimidation to the goondas. Reportage and editorials on crimes like robbery and extortion liberally mixed speculation with hearsay. One such report published in a Bengali daily, Dainik Basumati, said : We have heard that some well-known goondas and their headquarters are … known to many, … when the Lady Dufferein Hospital building was being opened, a goonda made a bet and shied a shoe at the Viceroy … We have heard that one of the goondas levies chouth (i.e. a levy imposed by Maratha raiders in early eighteenth century India) in the China Bazar quarter and he has a centre of enjoyment at No. 7 Swallow Lane, where he goes now and then to collect money from various offices, people pay up in fear of their lives.71 (Italics mine).
33 The account, typical of reportage on goonda-ism then, was evidently based neither on witnessed scenes nor on lived experience or careful investigation required for accurate crime reporting. The disparate set of activities – one of deliberate defiance of high official authority and others of extortion and of running a recreation centre for the working class – had no apparent connection with each other, and there was nothing inherent in them to mark them out as goonda crime. Similarly, in another report the daily said : Many goondas with money pass as belonging to the respectable class yet they have in their employ men who are capable of any crime possible. Sometimes these men pose as inoffensive vendors of dal (lentils) or dried fruits, and sometimes they sell cocaine surreptitiously through women of ill fame. Considering how proudly they move about … it does not seem that peace is well preserved in Calcutta …72
34 The report, which was a detailed account of the network of drug trafficking in the city, conflated the category of the smugglers and drug peddlers onto that of the goondas, and informed its readers that their city was being secretly invaded by them.
35 Similar reports in other Bengali dailies and periodicals exaggerated the threat of goonda-ism to make it appear overpoweringly fearful. Ananda Bazar Patrika, a Calcutta daily, described the goondas as a body of criminals armed to the teeth with modern weapons, saying : …(I)nstead of the old time daggers, they now use pistols. Some of the recent outrages have filled Calcutta with panic. The goondas are now collecting pistols and cartridges by throwing dust into the eyes of the police.73
36 Soon it became a usual for Bengali journalists to speculatively attribute any alarming crime reported from any part of the city to the goondas, which gave goonda-ism the appearance of a city-wide threat. A sensational robbery in front of the Calcutta Medical College took place in May. This was an elite institution where bright Bengali students were trained to be physicians, in which unidentified robbers snatched away five
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thousand rupees from the durwan of Shaw Wallace (an important British firm) in broad daylight. Reporting the incident, the Amrita Bazar Patrika said : When he (the durwan) came near the Medical College Hospital he was accosted by two men apparently goondas, armed with lathis (i.e. stick or club) and was given a sharp … blow. He fell down when the robbers got hold of the money and bolted in a taxi …74
37 The daily published a number of reports on similar incidents from different parts of north and central Calcutta to create an impression that the city was experiencing a crime wave. For example, reporting a case of pick pocket in front of the Jorabagan police station in north Calcutta, it sarcastically remarked that the Commissioner of Calcutta Police was competing with “journalists and film companies” in making sure that the city did not miss its share “thrilling sensations” provided by goondas.75 In August the daily published a detailed report on a street robbery in Burra Bazaar, similar to the ones cited in the Marwari Association petition. The report said unknown assailants, whom it described as goondas, robbed nearly twenty thousand rupees from one Brindhichand and one Gobind, bill collectors of Marwari firms. Gobind succumbed to his stab wounds and Brindhichand suffered facial paralysis as he was stabbed in the face. Citing this incident an editorial in the daily said that waylaying and robbery were becoming everyday occurrences in the whole of north Calcutta and not just Burra Bazaar.76
38 The Bengalis were not victims in any of these cases, yet that the fear of goondas was spreading throughout the city became palpable from Bengali periodicals, which published even rumoured events as actual cases of goonda crimes. For example the Nayak said : We hear that gundas stabbed a man under the portico of the Sealdah Station … we hear that motor car dacoities are committed at Burra Bazaar, Garanhata, Kumartoli, Tollygunj and Ballygunj (localities in north, central, west and south Calcutta respectively), we hear that it is no longer safe to walk the streets of Calcutta in the evening with a gold wrist watch or a gold chain on …77
39 In a general commentary on law and order in the city the Swaraj painted a similar picture saying : It has become dangerous for people to walk in the streets of Calcutta. Goondas use revolvers and daggers in public and carry on their nefarious business with impunity. Life and property are no longer safe.78
40 The Bande Mataram accused subordinate policemen in Calcutta, hailing from Bihar and United Provinces, of being in cahoots with their country cousins, the goondas, which allowed the latter to prowl even in areas usually frequented by Calcutta Europeans. In a report on a robbery of gold buttons from the person of a “respectable gentleman” who went to visit an exhibition at the Eden Gardens, then a favourite promenade of the Europeans and the wealthy Anglicized Indian elites, it said that the stolen items were later discovered from one Ram Ajit, an “up-country” police constable.79
41 The fear the goonda did not remain restricted to the dailies and periodicals published by Bengalis. The most influential daily of Calcutta The Statesman, which catered to a predominantly European and Anglicized Indian readership, likened the goonda with warlike tribes of north-west frontier of India preying on an indefensibly docile people following an Orientalist typology. It said : The great avenues of traffic in northern Calcutta, such as Harrison Road and the Central Avenue are treated by local ruffians like mountain defiles by the Pathan
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(warlike Muslim tribals of Afghanistan). Lurking in the bye-lanes and alleyways, the goonda upon his victim, in broad daylight as well as in the dark, and revolvers and daggers are used if slightest resistance is offered. When a man is killed or seriously injured, or a large sum of money taken, the case is reported to the police, but for one such report, according to common belief, there are dozen instances in which the victim, after the patient Indian way, suffers and says nothing.80
42 At the time when these reports were published fear of the goondas became perceptible among Bengalis of educated and professional classes. Pancanan Ghosal, a Hindu Bengali who joined the Calcutta Police in the 1929 in a middle rank, attests that the fear of the goonda had silenced Calcuttans from reporting cases of victimization at their hands to the police.81 Ghosal read Botany at the Calcutta University and fancied himself to be an amateur criminologist. He remembered the goondas as an irrepressible set of criminals of north and central Calcutta. Citing instances of criminals he had known he said in his autobiography that a typical goonda was not a Bengali, he had no fear of the law, and often poked fun at the police after his arrest. Policemen generally feared him for his superhuman physical prowess. When tried under ordinary laws they often intimidated Bengali lawyers to defend them free of charges, and silenced witnesses against themselves with threats of violence that too in the presence of policemen. Such men found a spawning ground in the slums of north and central Calcutta, where they raised gangs and fiercely controlled their respective turfs in which the police were virtually powerless.82
43 Another such amateur Bengali criminologist, N.L. Bhattacharyya, a senior advocate of the Calcutta High Court in the 1920s, in a short treatise on crimes of the city published in 1926, attributed the rise of the goondas of Calcutta to the rich Marwaris who hired guards from ‘up-country’ to protect their increasing wealth at the time of the First World War.83 These guards were violent men, and many among them lost their occupations after the War as the profits of their employers diminished considerably. Burdened with a steep rise in the cost of living on top of unemployment these men took to garrotting and became increasingly desperate and violent with each successive crime. So, What was formerly done under verbal threat of future harm began to be performed with distinct hint as to immediate loss of life.84
44 He said that soon what was typical of Burra Bazaar spread to other parts of the city, as subordinate policemen in the rank of constables offered immunity to the goondas in exchange of bribes. City Magistrates, indifferent to the well-being of the law-abiding people, often punished the goonda and his victim equally for a breach of the peace. In such circumstances robbery and extortion increased alarmingly and the goondas found an easy way to amass wealth by terrorizing the innocent and the peace-loving. Their modus operandi by this time had become uniform : Once the pedestrian was attacked, all passers-by would run away, out of fear ; nobody would come to his help and the timid victim would not make any show of resistance but at once hand over the booty …85
45 Such occurrences, though regular, could not be proven in a court of law due to the fear of the goonda, because : Even if arrests were made nobody would venture to come forward and give evidence against them though they were sure of their identity and their part in the crime.86
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46 The petitions of the Marwaris, the confidential report of the GD of the Calcutta Police, the observations of its Commissioner and the crime reportage of the early 1920s, taken together created the image of a typical goonda as a fierce low class male migrant hailing mainly from Bihar, U.P., and also from the Punjab and the North West Frontier Province. This image was already in place when a Select Committee was constituted in 1922 to draft the Goondas Bill. It was headed and dominated by H.L. Stephenson, the Home Member of the Bengal Governor’s council, a European and a highly placed bureaucrat, who was then the equivalent of provincial minister for home/internal affairs.87 The Bill was initially drafted as a measure applicable to Burra Bazar only, but before being tabled in the Bengal provincial legislative council it was modified to bring the whole of the city under its jurisdiction. It was hotly debated and ratified with the one amendment, which extended its jurisdiction beyond Calcutta to its industrial rim also known as the Presidency Area.
47 The Bengal provincial legislative council of 1923 – consisting of 91 councillors, out of which 88 were elected on a restricted franchise – was dominated by the Bengali Hindu bhadralok, who were raring to retain their elite status in institutional politics following the rise of mass.88 For the bhadralok politicians the timing of the Goondas Bill was extremely significant ; with the inception of mass politics from 1919 they had rightly perceived a threat to their importance in the political arena.89 The only successful anti- imperial movement they had led was the Swadeshi movement of 1905-08. The movement was led by wealthy and English educated Bengali Hindu landlords and professionals and drew its following from Bengali middle class Hindus. The use of Hindu pantheon for political mobilization in the movement alienated the Bengal Muslims. After the movement the bhadralok did not develop any institutional connection with the lower classes, a shortcoming which became apparent with the rise of Gandhi and especially from the time of the anti-Rowlatt agitation. The highest Bengali Hindu politicians remained aloof from the masses ; they were apprehensive of the Pan-Islamism and the Khilafat movement ; they aspired to rival Gandhi’s leadership in all-India nationalist politics and so they initially kept away from the Non-Co- operation movement in 1920. While bhadralok politicians joined the movement later on realizing the futility of keeping aloof, their importance in nationalist politics had by then diminished greatly.90 In Calcutta the violence of lower-class Muslims in the riot of 1918 and the occasional violence of the masses in the Gandhian movements afterwards had shocked them. When called upon to ratify the Goondas Billin December 1922, with the memory of the Non-Cooperation movement, withdrawn earlier that year, fresh in their mind, the bhadralok were apprehensive that it might become a leveling law which would enable the police to arbitrarily equate them with their social inferiors who comprised the mass in political movements. Their apprehensions were rooted in there being no definition of the word goonda and the consequent near universal applicability of the law. Voicing these concerns, Hasan Suhrawardy, a senior Bengali Muslim politician, and Surendranath Mallik, a bhadralok jurist and legislator who was a member of the Select Committee that drafted the Bill, said that during the Non-Cooperation and Khilafat movements in Burra Bazaar and the mill districts surrounding Calcutta witnessed the presence of large number of “bad characters” on several occasions.91 Hence it was necessary to have a clear legal demarcation of the lawful agitators from the goonda who might temporarily don the garb of a political activist. As the Goondas Bill said nothing about distinguishing one from the other, Haridhan Dutta, a Bengali
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physician and a councillor, demanded an amendment in the bill by which it “shall not apply to any political offence.”92 In his opinion : A goonda is a dishonest man and is always committing offences against person and property, while a political offender is an honest man having certain political ideals which he tries to achieve. He is not expected to commit any offence against person and property.93
48 These words brought out clearly the way the Bengal political elite imagined the goonda, i.e. as a figure incapacitated from obtaining a dual identity, both criminal and political, even temporarily. It meant, as Dhareshwar and Srivastan say, that the goonda was incapacitated from overcoming his “negative universality” or disincorporating criminality from his body taking part in activities in the public sphere.94
49 Dutta said he feared that without safeguards to protect political activists the Act would operate as a legal weapon against youths with zealous nationalist ideals who, though not terrorists, might not always remain wedded to non-violence. He said that if such a youth “powerfully urged” a shopkeeper not to deal in foreign made clothes, an overzealous policeman armed with the special powers conferred of him by the GA, might easily mark him out as a goonda. Thus “Hundreds of young men – non-co- operators” arrested by the police during 1920-22, who had been charged with either “breach of the peace” or “criminal intimidation” could be externed as goondas when the act came into force.95 He also apprehended that students, taking part in nationalist agitation, could become easy prey for the GA. So, he demanded the amendment to ensure that the police would necessarily overlook “excesses committed by students” while not conniving at the goondas who would probably join the students led by their criminal instincts.96
50 Dutta’s proposed amendment for safeguards protecting political offenders in the Goondas Bill failed to win support of the majority in the house who feared that it would, in turn, make way for goondas in political movements. S.R. Das, the Advocate General of Bengal who prided himself as a champion of freedom for the political offender in the council, opposed the amendment on the ground that its incorporation in the bill would mean, “you cannot proceed against a goonda if that goonda is connected with a political movement.”97 Stephenson reminded the Council of the looting of shops of warehouses on the Harrison Road during the riot of 1918, when shops and storehouses, containing essential commodities like food-grains and clothes, were looted allegedly by the goondas.98 He added that the goondas would “merrily join” all political events in the future to win immunity from the GA and then take to such looting if the amendment was made to the Bill.99 He assured the house that the GA would not be applied to Bengalis of the respectable classes because : … (T)he Bill does not punish a goonda per se ; it merely enables us to deal with a certain class of people, provided they commit certain acts under certain circumstances.100
51 As that class was not that of the Bengali bhadralok his assurance won the confidence of the majority in the house, who concurred with him that the Bill was an “extraordinary measure for extraordinary people under extraordinary circumstances” and therefore its “whole object” was “to avoid an open trial.”101 In his opinion ordinary criminals could be tried under the criminal procedure code, but the goonda would intimidate witnesses.102 In the opinion of the majority of councillors the goonda’s crimes though similar to that of the habitual offender evoked much greater fear. S.R. Das pointed out that the goondas would easily escape harsh punishment they deserved if they were
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equated with habitual criminals which meant that neither a series of non-bailable offences nor an offence of criminal intimidation leading to breach of the peace were more serious than the crimes of a goonda.103 Following this argument Stephenson told the house that “ordinary badmashes” could be tried under the criminal procedure code, but the goonda would certainly intimidate witnesses.104 Surendranath Mallik supported him citing the fate of a man who deposed against a goonda in a trial : We cannot afford to have an open trial … It is dangerous to the witness concerned. The man who comes to give evidence is intimidated. As I know of a case which I was called upon to try, a witness was shot down when the case was at the investigation stage. The man’s son came to give evidence after the father was killed. He was a little young fellow who appeared before the tribunal about 23 days after the murder. This is what we do not want.105
52 Having thus highlighted the apparent necessity of protecting people from falling prey to the goondas the councillors agreed with Stephenson that the surest and swiftest way of achieving this goal was deportation of goondas from the city. Bearing that in mind they extended the jurisdictional area of the Bill to include the whole of Calcutta and its surrounding industrial area, in which the most important place was Howrah, Calcutta’s adjacent industrial town thickly populated with migrant labourers from Bihar and U.P. 106
53 Charting an imagined course of the journey of a typical goonda from his up-country home to Calcutta, Hasan Suhrawardy said that Howrah was the place where the future goonda settled immediately after he “alighted from the train” arriving from his country home. There he enjoyed the support of his slum-dwelling factory-worker country cousins and took to petty crimes enjoying their support. In the next phase of his criminal career he began to perpetrate crimes in Calcutta while living in Howrah. On attaining the status of a fearsome goonda he would settle in Calcutta proper for good.107 By deporting such an outsider or migrant to his country home, Shib Shekhareswar Ray, a noted Bengali landlord, claimed that he would give up crime and would “live the life of his forefathers.”108 As the city and its surroundings was “a field of temptations” for him and his native village was a place where the “natural checks” on his “follies and vicious tendencies” exercised by friends and relations would help him to turn a new leaf.109 Thus, deportation, a rough and ready punitive strategy, appeared to be a just mechanism of decriminalization. The house accepted Ray’s argument and the Bill was ratified by 47 votes for and 24 against, with others absent and a few abstaining. Ratification meant that a typical goonda was inherently unable to have a political function and a re-affirmation of his being an outsider to the city. With it all the prime markers of the goonda acquired its final affirmation and the GA came into effect.
Conclusion
54 While a strong prejudice against the migrant poor existed in the elites and the middle class of Calcutta long before, the goonda was essentially the successful outcome of several quests which originated during the First World War, a time of rapid change. The War years witnessed the rise of the Marwaris as a decisively important wealthy community of the city. With new wealth they sought to augment their social status. They supported British imperialists for profit and later used a part of their wealth to establish themselves as a significant nationalist constituency led by Gandhi himself in Calcutta. To assert their newfound importance in the city they specially demanded
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action against the goondas, or violent robbers and extortionists, many of whom were their former employees brought in from Bengal’s neighbouring provinces. The Europeans having suffered the shock and humiliation of being attacked and assaulted by the mass, which gathered in Burra Bazaar in 1919 and then in 1920-22, found it necessary to make way for police powers which would instil fear and turn the poor, who constituted it, docile. Shorn of manpower and weaponry European administrators and police officials had to devise a mechanism for deterrent policing over recalcitrant elements from among the mass to achieve this end. Being averse to and apprehensive of the mass the elitist Bengali bhadralok and elite Bengal Muslim politicians were anxious to retain their predominance and respectability in times of anti-imperialist movements and agitations. They feared being equated with the migrant poor who they thought of as habitually violent, motivated by criminal intent and incapable of upholding the lofty ideal of nationalism. They anxiously awaited a law to retain their high social status while taking part in agitation alongside the migrant poor. They were aided by journalists who attributed an increasing incidence of ordinary crimes committed during a time of hardship for the poor to the goondas. The result was the GA, a suspicion law which turned the migrant poor into the social matrix of violent street criminals who, while committing ordinary crimes, could silence their victims and paralyze the functioning of the law by instilling extraordinary fear.
BIBLIOGRAPHY
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Datta, Partho, Planning the City : Urbanization and Reform in Calcutta c.1840-c.1940, New Delhi, Tulika Books, 2012.
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Dhareshwar, Vivek and Srivatsan, Radhika, ‘Rowdy Sheeters : An Essay on Subalternity and Politics, in Subaltern Studies IX : Writings on South Asian History and Society, ed. Amin, Shahid and Chakrabarty, Dipesh, Delhi, Oxford University Press, 1996.
Edwardes, S.M., Crime in India, London, Oxford University Press, 1924.
Ghosal, Pancanan, Poolish Kahini, Volume II Calcutta, Mandala Book House, 1974.
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Goswami, Omkar, Industry, Trade and Peasant Society : The Jute Economy of Eastern India, 1900-1947, Delhi, Oxford University Press, 1991.
Hardgrove, Anne, Community and Public Culture : the Marwaris in Calcutta, New Delhi, Oxford University Press, 2004.
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Pearson, Geoffrey, Hooligans : A study of Respectable Fears, London, Basingstoke, Macmillan, 1983.
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NOTES
1. Pearson (1983, p. 157-167 & 230). 2. Humphries (1981, p. 31-32). 3. Neuberger (1993, p. 39-41). 4. Bengal Act I of 1923 (The Goondas Act, 1923), The Bengal Code, Volume IV, Bengal Acts 1920-1930, Calcutta, Bengal Government Press, (1939 fifth edition), p. 97. 5. Ibid. (p. 98-99). 6. Ibid. (p. 99-100). 7. Ibid. (p. 100-101). 8. Ibid. 9. Ibid. (p.101-102). 10. Ibid. (p.103). 11. Ibid. (p. 102). 12. Ibid. 13. Kidambi (2007, p. 154-155) ; Masselos (2007, p. 96-103). 14. Census of India, 1911, vol. VI, ‘Report of the Census of the City of Calcutta’, p. 14. 15. Census of India, 1931, vol. VI, ‘City of Calcutta’, Parts I and II, p. 11-13. 16. Census of India, 1921, vol. IV, ‘City of Calcutta’, Parts I and II, p. 103-104. 17. These terms have been in common parlance till lately. Bengali literature of the twentieth century colonial Calcutta is replete with these references. Bengali aversion to menial work was proverbial during the colonial period. The most famous critic of this tendency was celebrated Bengali chemist Acharya Prafulla Chandra Ray (1861-1944), who urged Bengali youths repeatedly to take up menial jobs usually performed by people Bihar, UP and Orissa (now spelt Odisha) in Bengal. 18. Shubho Basu (2004, p. 118-131).
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19. Ibid. 20. Papers regarding the Calcutta riots, 1907, Government of Bengal, Home department, Political branch, 149/07 KW, West Bengal State Archives, Kolkata, India (hereafter WBSA). 21. Ibid. The constabulary of the Calcutta Police, its lowest rank was manned almost exclusively by men from Bihar and UP through the colonial period. They were looked down upon as corrupt and inefficient by the European high officials of the force. They wanted to hire educated Bengalis in their place, who in turn rarely ever displayed inclination for the job. For a detailed commentary on the matter see W.R. Gourlay, A Contribution Towards of the Police in Bengal (Calcutta ; Bengal Secretariat Press, 1916) and the confidential Bengal government report entitled, ‘Detailed Examination of the working of the Calcutta Police with statements showing the staff required at once to bring the force into a state of reasonable efficiency and to secure law and order’ (Calcutta, Bengal Secretariat Press, 1942). 22. Ibid. 23. Disturbances in connection with the Bakr Id Festival, 1910, Government of Bengal, Home department, Political branch (Confidential), File Nos. 290/1-3.WBSA. 24. Ibid. 25. Amrita Bazar Patrika, Calcutta, 10 December 1910. 26. ‘Disturbances in connection with the Bakr Id Festival, 1910’, Government of Bengal, Home department, Political branch (Confidential), File Nos. 290/1-3. WBSA. 27. ‘Report on recent Mohammedan disturbances in Calcutta, 1918’, Home department, Politcalbranch.A series. File No. 164-201, National Archives of India, New Delhi, India (hereafter NAI).. 28. ‘Complaints made by Muhammadans in regard to an article published by the Indian Daily News, October 1918’. Home department, Political branch, B Proceedings, File no. 195-198, NAI. 29. ‘Resolution on Riots which occurred in Calcutta on 9th and 10th September 1918’.Calcutta Gazette, 2 October 1918, p. 1138-1140. 30. Ibid. 31. Ibid. 32. The Statesman, Calcutta, 10 September 1918. 33. Amrita Bazar Patrika, Calcutta, 13 September 1918. 34. ‘Resolution on Riots which occurred in Calcutta on 9th and 10th September 1918’.Calcutta Gazette, 2 October 1918, p. 1138-1140. 35. The Non-Official Commission of Enquiry, The Statesman, Calcutta, 28, 29 November and 1 December 1918. 36. Moslem Hitaishi, 15 October 1918. ‘Report on Native Newspapers and Periodicals in Bengal’ [hereafter RNNPB], no. 38 of 1918, 926, West Bengal State Archives, Kolkata (hereafter WBSA). 37. Ibid. 38. The Statesman, Calcutta, 17 September 1918. 39. Hitavadi, Calcutta, 2 November 1918. RNNPB no. 39 of 1918, 948-9. (Italics by Sugata Nandi). 40. ‘Control of Goondas in Calcutta, 1920’, Government in Bengal, Political department, Police branch (Confidential) File no. 241/(1-8), WBSA. 41. Ibid. 42. Ibid. 43. Annual Report of Police Administration for the town of Calcutta and its Suburbs for the year 1920 (Calcutta, Bengal Secretariat Book Depot, 1921), 7, Resolution. 44. Edwardes (1924, p. 50-51). Sarkar (1983, p. 170-171). 45. Ibid. 46. Ibid. 47. Deb (1969, vi and 1). The laws in question, Sections 109 and 110 of the Criminal Penal Code empowered magistrates to summon a habitual criminal, or any person including a newcomer to
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the area within his jurisdiction without an “ostensible means of livelihood” and made him execute a bond of good behaviour for a maximum of three years. 48. ‘Control of Goondas in Calcutta, 1920’, Government in Bengal, Political department, Police branch (Confidential), File no. 241/(1-8), WBSA. 49. Ibid. 50. Hardgrove (2004, p. 197-198). 51. Ibid. (p.156). 52. Issue of War Work Badges and Certificates (Case of Mr.Birla), 1920, Government of Bengal, Home department, Political branch (Confidential), File no. 62 (9-10) Poll. Spl., WBSA. 53. Timberg (1978, p. 178). Goswami,(1991, p. 239-240). 54. Hardgrove (2004, pp. 192-196). 55. ‘Disturbances in connection with the Bakr Id Festival, 1910’, Government of Bengal, Home department, Political branch (Confidential), File Nos. 290/1-3, WBSA. Datta (2012, 9 and 12). Datta, (2012, p. 259-262). 56. ‘Disturbances in Calcutta in Connexion with the agitation against the Rowlatt Act. Month and Year – May 1919’. Home department, Political branch.B Proceedings. File No. 514-515, NAI. 57. Ibid. 58. ‘Report of Casualties which occurred in Calcutta during the recent disturbances.Month and Year – October 1919’, Government of India, Home department, Political branch. File No. 33 Deposit, NAI. 59. Ibid. 60. ‘Papers concerning the compilation of a history of the Non Cooperation and Khilafat movement in India.Year 1925’, Government of India, Home department, Political branch. File No. 185. NAI. 61. BLCP 1922, Volume X, 105. ‘Annual Report of Police Administration for the Town of Calcutta and its Suburbs for the year 1923’ (Calcutta, Bengal Secretariat Book Depot, 1924), 1. 62. ‘The Goondas Bill, 1922’, Political department, Police branch, File No.P.2-A-9(3) of 1921, WBSA. 63. Ibid. 64. Ibid. 65. Ibid. 66. Ibid. The place-names mentioned in the quote are of districts of United Provinces and Bihar. 67. Ibid. 68. Ibid. The Report said, “The increase was noticeable from June 1920, which shows 8 cases (7 in North Town alone) as compared with 2, 2 and 4 in the preceding three months, and it continues particularly in the North District – right through the year 1920 up to the month of June the current year.” 69. Ibid. 70. Ibid. 71. Dainik Basumati, Calcutta, 6 August, 1923. ‘Report on Native Newspapers and Periodical in Bengal’ (hereafter RNNPB), No. 17 of Year 1923, p. 520. 72. Dainik Basumati, Calcutta, 18 August, 1923. RNNPB, No. 19, Year 1923, p. 701. 73. Ananda Bazar Patrika, Calcutta, 5 August 1923. RNNPB, No. 32, Year 1923, p. 811. 74. Amrita Bazar Patrika, Calcutta, 26 May 1922. 75. Amrita Bazar Patrika, Calcutta, 3 June 1922. 76. Amrita Bazar Patrika, Calcutta, 3 August 1922. 77. Nayak, Calcutta, 31 March 1923. RNNPB, No.13 of 1923, p. 260-261. 78. Swaraj, Calcutta, 28 March 1923. RNNPB, No. 13 of 1923, p. 280-281. 79. Bande Mataram, Calcutta, 12 January 1923. RNNPB No.3 of 1923, p. 59. 80. The Statesman, Calcutta, 4 January 1923.
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81. Ghosal (1974 ; p. 59-61, 108 & 115-116). 82. Ibid. 83. Bhattacharyya (1926, Reprint 2010 ; p. 68-69). 84. Ibid. (p. 69). 85. Ibid. (p. 72-73). 86. Ibid. (p. 73). 87. Report of the Select Committee, The Statesman, Calcutta, 13 January 1923. 88. Chattopadhyay (1984, p. 68-74). 89. Broomfield (1968) 90. Ibid. (p. 316-324). 91. Bengal Legislative Council Proceedings (Official Report) [hereafter BLCP], Volume XI, (Calcutta, Bengal Government Press, 1923), p. 422. 92. Ibid. (p. 408-409). 93. Ibid. (p. 382-383). 94. Dhareshawar and Srivatsan (1996, p. 223). 95. BLCP, 1923, vol. XI, (p. 409). 96. Ibid. (p. 409). 97. Ibid. (p. 415). 98. Ibid. (p. 425). 99. Ibid. 100. Ibid. (p. 424). 101. Ibid. (p. 391) 102. Ibid. (p. 390). 103. Ibid. (p. 390 & 392). 104. Ibid. (p. 390). 105. Ibid. 106. Census of India, 1931, vol. VI, Calcutta, Parts I and II, (p. 15). 107. BLCP, vol. XI, 1923, (p. 421). 108. Ibid. (p. 461). 109. Ibid. (p. 461).
ABSTRACTS
With the Goondas Act of 1923, Calcutta conferred on its police executive powers of deporting virtually any man from the city without a trial under the pretext that he was a violent criminal of migrant origin. The Act deliberately did not define the goonda, as it was ‘known’ to all in the city who he was. Fear of violence by the migrant poor was felt in Calcutta earlier, but since 1920 the goondas assumed special significance, as a new and commonly accepted social image. From this year, the goonda was invented through : the Marwari traders’ search for higher social status ; the demands by the police for powers to subdue the migrant poor who constituted the mass ; and the Bengali Hindu English-educated gentlefolk’s perceived necessity to retain an honest an idealist political self-image at the time of tumultuous mass politics.
Par la législation du Goondas Act de 1923, Calcutta a confié à sa police le pouvoir de déporter sans procès pratiquement tout habitant de la ville au prétexte d’être un criminel violent d’origine
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migrante. De manière délibérée, la loi s’abstenait de définir le “goonda” , car tout le monde dans la ville “savait” de qui on parlait. La peur de la violence du migrant pauvre s’était déjà manifestée auparavant, mais les “goondas” avaient pris une importance particulière depuis 1920, en tant que figure sociale nouvelle et communément acceptée. A partir de cette année-là, différents éléments ont contribué à l’invention du “goonda” : l’aspiration des commerçants Marwari à un statut social plus élevé ; la revendication policière de pouvoirs plus étendus pour maîtriser les migrants pauvres qui constituaient la masse de la population ; et la perception des élites bengalaise hindoues éduquées à l’anglaise qu’elles devaient conserver la représentation d’honnêteté et d’idéalisme qu’elles se faisaient d’elles-mêmes, dans une époque tumultueuse de politique des masses.
AUTHOR
SUGATA NANDI Assistant Professor in the Department of History, West Bengal State University, earned his PhD entitled Crime Politics and the Law in Colonial Calcutta, 1918-47 : Goondas, City Politics and Police Surveillance in Colonial Calcutta from the Jawaharlal Nehru University, New Delhi. He has published three articles : ‘For Sake of a Better City : Early Activities of the Calcutta Improvement Trust’ in Combating Disasters ; ‘Constructing the Criminal : Politics of Social Imaginary of the Goonda’, Social Scientist, 38, 3-4, March-April 2010 ; ‘Inventing Extraordinary Criminality : A study of Criminalization by the Calcutta Goondas Act’, in John MacLaren and Shaunnagh Dorsett, Legal Histories of the British Empire : Laws, Engagements, Legacies (London, Routledge) 2014. - [email protected]
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L’ascension des conservateurs et le traitement de la délinquance aux États-Unis : le cas du Violent Crime Control and Law Enforcement Act (1994)
Diane Bénédic-Meyer
Introduction
1 Lors de la convention nationale du parti républicain de 1992, l’ultraconservateur Pat Buchanan, ancien conseiller des présidents Nixon, Ford et Reagan, affirme l’existence d’une guerre culturelle (culture war) aux États-Unis. Buchanan termine son discours en incitant les plus courageux à faire entendre leur voix et à dire non au désordre moral et social. Il illustre son propos en évoquant le comportement exemplaire de deux jeunes gens durant les émeutes sanglantes de Los Angeles de la même année1. Mes amis, cette élection porte sur quelque chose de bien plus important que sur simplement qui remporte quoi. Elle porte sur qui nous sommes. Elle porte sur nos croyances. Elle porte sur ce que nous défendons en tant qu’Américains. Une guerre religieuse touche notre pays pour l’âme de l’Amérique. C’est une guerre culturelle, aussi déterminante pour le futur de notre nation que la Guerre Froide l’était en son temps. (…) Mes amis, au cours de ces 25 dernières merveilleuses semaines, les jours les plus tristes furent ceux des émeutes sanglantes de Los Angeles, les pires de notre histoire. Mais même de cette tragédie affreuse peut surgir un message d’espoir. (…) Il y avait par exemple ces garçons de 19 ans prêts à mettre leur vie en péril pour empêcher une bande de malfrats de malmener des personnes âgées alors qu’ils ne les connaissaient même pas. Et comme ils reprenaient les villes de LA, maison après maison, nous devons de la même manière reprendre le contrôle de nos villes, de notre culture, et de notre pays2.
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2 La guerre culturelle que décrit Buchanan est un combat pour définir l’identité nationale américaine. Le concept de guerre culturelle peut être défini comme un conflit de valeurs et d’idées qui donne lieu à une polarisation sociale et politique. Son nom vient de l’allemand Kulturkampf qui désignait la confrontation entre le chancelier réformateur Bismarck et l’Église catholique allemande des années 1870. Ce concept a fait l’objet de nombreuses études depuis la publication de l’ouvrage Culture Wars : The Struggle to Define America du sociologue James Hunter en 1991. Hunter fait part du conflit portant sur le futur de la nation américaine et qui oppose deux cadres de pensée. Selon lui, Dieu et la loi morale sont au centre du cadre de la pensée « orthodoxe » tandis que la raison et l’adaptation à la société contemporaine sont les principes qui guident le cadre de la pensée « progressiste ». Buchanan estime que les conservateurs doivent contrer l’action destructrice de l’aile gauche américaine. Il drape son discours politique dans un message populiste où l’Américain travailleur des classes moyennes est devenu la proie des élites dispendieuses et laxistes de gauche.
3 Le discours de Buchanan constitue une bonne entrée en matière pour étudier le rapport des conservateurs américains à la délinquance et les effets de cette relation sur le traitement de la délinquance dans la société américaine. Avant d’entrer plus en avant dans notre sujet, un effort de définition s’impose. Le conservatisme moderne américain s’inscrit par contrepoint au progressisme. Il est généré, d’une part, par l’opposition aux contraintes du marché et une conception individualisée de la liberté politique et, dans le même temps, nourri par sa dévotion à l’ordre social et sa foi religieuse. Le mouvement conservateur est de nature protéiforme car il s’est construit sous l’action d’intellectuels, de citoyens sans mandat et de professionnels de la politique. Il est à l’origine d’une droitisation quasi ininterrompue du parti républicain. Par opposition, le bloc progressiste, aussi appelé « liberal » 3, entend assurer la sécurité économique et sociale et la protection des droits de l’individu en ayant recours à une plus grande intervention de l’État. Contrairement aux conservateurs, les membres du bloc progressiste pensent qu’il est nécessaire de discipliner le marché et non l’individu.
4 Le thème de la loi et de l’ordre fait partie de la rhétorique politique du mouvement conservateur depuis ses débuts dans les années 1950. Le traitement de la délinquance par les conservateurs a suivi une évolution binaire. Il a d’abord été tributaire du « penal welfarism », conception selon laquelle la délinquance est à penser comme une forme de carence interne ou externe à l’individu (le tenant du conservatisme étant plus enclin à croire en la carence interne). Puis dès la fin des années 1960, les conservateurs s’emparent plus franchement du thème de la loi et de l’ordre et demandent un renforcement des sanctions.
5 La modernité tardive de la décennie suivante et son cortège de transformations économiques (liberté de marché), sociales et culturelles entraînent une augmentation de la délinquance et par conséquent une modification de son traitement. Désormais, le crime est perçu comme un phénomène inévitable qu’il appartient de réguler4. De nouveaux modèles de justice pénale et de contrôle de la délinquance s’installent. Ils sont les composantes d’une « ?culture du contrôle ?» identifiée comme telle par le sociologue et politologue David Garland5. La gestion du risque et la sécurité des personnes priment désormais sur la réinsertion et la gestion sociale. Le ralliement de la nouvelle gauche (les Nouveaux démocrates) à la politique sécuritaire dans les années 1990 confirme le bien-fondé et la pérennisation de la grille de lecture de la nouvelle
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pénologie aux États-Unis. En effet, les Nouveaux démocrates se construisent en réaction au danger électoral que représente le mouvement conservateur.
6 Notre étude s’inscrit dans cette seconde phase du traitement de la délinquance. Nous proposons d’étudier le cas du Violent Crime Control and Law Enforcement Act (VCCLEA) de 1994. Il s’agit de la loi de lutte contre la criminalité la plus ambitieuse de la seconde moitié du XXe siècle tant en termes de budget que de contenu. Le VCCLEA prévoit notamment le renforcement des forces de l’ordre et du système carcéral, le maintien des dépenses pour combattre les réseaux liés à la drogue mais aussi la mise en place d’une police communautaire, la protection des femmes victimes de violence et l’interdiction des fusils d’assaut.
7 Nous exposerons d’abord comment les conservateurs se sont progressivement emparés du discours politique sur la criminalité depuis 1964 jusqu’à présenter le parti républicain comme l’unique recours face à l’insécurité. Nous verrons ensuite pourquoi le VCCLEA est symptomatique d’une droitisation de la vie politique américaine en exposant ses racines conservatrices et progressistes. La troisième partie traitera de la bataille législative acharnée dont le VCCLEA fit l’objet. L’accent sera mis sur l’obstructionnisme dont firent preuve les républicains du 103e Congrès et qui aboutit à la révolution conservatrice parlementaire de 1994. La dernière partie de cette étude portera sur la réévaluation du VCCLEA plus de vingt ans après qu’il ait été voté. Que nous apprend cette réévaluation sur l’état du traitement de la délinquance à l’aube de l’élection présidentielle de 2016 ? Annoncerait-elle l’avènement d’une nouvelle et troisième phase du traitement de la lutte contre la délinquance aux États-Unis ?
Le discours politique sur la criminalité et l’insécurité : un sujet républicain ? (1964-1988)
8 La stratégie de conquête électorale du mouvement conservateur passe par la préemption de certains thèmes de campagne dont la lutte contre la criminalité fait partie. Pour mieux comprendre l’évolution du discours des partis républicains et démocrates sur la question de l’insécurité, nous aurons recours aux travaux de John Petrocik et Theodore Sasson, deux spécialistes américains reconnus en sciences politiques et en sociologie.
9 Le débat autour de l’appartenance d’un sujet à un parti politique a fait l’objet de nombreuses études au cours des années 1980 et 19906. La théorie de l’appartenance d’un sujet (issue ownership) telle qu’elle a été énoncée par John Petrocik, affirme que les partis politiques peuvent se forger une réputation de compétence dans un domaine particulier. Petrocik définit l’appartenance d’un sujet comme « la capacité à résoudre un problème qui importe aux électeurs ». Le parti politique a bâti une « réputation » en construisant une « histoire basée sur l’attention, l’initiative, et l’innovation pour résoudre ces problèmes »7. En d’autres termes, un parti peut chercher à devenir si intimement associé à un sujet que l’électeur aura tendance à prendre pour acquise la compétence de ce dernier en la matière. Petrocik distingue les sujets qui appartiennent au Parti démocrate comme l’aide sociale, les droits des femmes, des minorités et des populations défavorisées de ceux qui relèvent de la sphère des républicains comme la réduction de l’intervention de l’État fédéral, l’ordre civil et social, ainsi que les valeurs morales8. Une seconde vague d’études au début des années 2000 a confirmé le bien-
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fondé de la théorie de Petrocik pour les sujets consensuels9 comme la lutte contre la criminalité ou contre le chômage.10
10 À présent que la rivalité pour l’appartenance du sujet de la lutte contre la criminalité entre républicains et démocrates a été posée, il convient de se pencher sur les cadres de pensée que chaque parti utilise le plus fréquemment. En 1995, Theodore Sasson a identifié cinq cadres de pensée : le système défectueux (faulty system), la rupture sociale (social breakdown), les opportunités bloquées (blocked opportunities), la violence des médias (media violence) et le système raciste (racist system). Les cadres du système défectueux, de la violence des médias et du système raciste servent couramment l’idéologie11 des conservateurs tandis que les démocrates ont traditionnellement recours à ceux de la rupture sociale et des opportunités bloquées.
11 Dès 1960, Barry Goldwater, sénateur républicain encore méconnu, appelle les conservateurs à conquérir le Parti républicain : « Grandissons, les conservateurs, si nous voulons reprendre ce parti, et je pense que nous le pourrons un jour. Mettons- nous au travail ». En 1964, la mise à l’écart de Nelson Rockfeller, candidat de la frange libérale plus modérée des républicains, marque le début de la mainmise du mouvement conservateur sur le Grand Old Party (GOP). L’élection présidentielle qui l’oppose au président Lyndon B. Johnson, est l’occasion pour Goldwater de faire de la lutte contre le crime un thème fédérateur. S’il veut réussir, il lui faut exposer le caractère irréconciliable des cadres de pensée conservateurs et progressistes. En vérité, les chances de victoire de Goldwater sont minces face à la popularité immense de Johnson. L’institut de sondage Gallup indique que 74,2 % des Américains approuvent la manière dont Johnson remplit la fonction présidentielle de novembre 1963 à janvier 1965. Les circonstances exceptionnelles de son arrivée au pouvoir après l’assassinat de John F. Kennedy expliquent en partie ce chiffre. La stratégie de Goldwater consiste à affaiblir les démocrates du Sud et à fédérer les différentes composantes du conservatisme. Le discours de Goldwater devait pouvoir plaire à la fois aux conservateurs sociaux ou culturels (social conservatives, cultural conservatives) et aux tenants d’un conservatisme fiscal (fiscal conservatives). Certes, ces deux groupes sont sensibles aux droits des États mais les conservateurs culturels entendent conserver l’immuabilité de la société en protégeant la norme et les valeurs traditionnelles tandis que les conservateurs fiscaux défendent la rigueur budgétaire avant tout.
12 Le thème de la lutte contre la criminalité présente un potentiel populiste qui n’a pas échappé à Goldwater. L’argumentation politique qu’il développe en 1964 marque le début d’une approche nouvelle des élus conservateurs, lesquels vont s’enhardir à demander un durcissement de l’intervention de l’État. Comme le rappelle Sophie Body- Gendrot, spécialiste française des questions urbaines, la sanction du crime rassure la majorité morale en jouant sur la peur de l’Autre12. Goldwater évoque le thème du retour à la loi et à l’ordre dans son discours d’investiture : « Ce soir il y a de la violence dans nos rues, de la corruption dans notre haute administration, une perte de sens chez nos jeunes, de l’angoisse chez nos aînés (…) »13. Il joue sur la méfiance des républicains à l’endroit de l’État fédéral et il adopte une stratégie de l’attaque14. Enfin, Goldwater espère s’attirer les bonnes grâces des électeurs du Sud en associant le mouvement des droits civiques à l’image des transgresseurs de loi. Il introduit par ce biais le facteur racial qui trouve un écho dans l’imagerie sudiste du criminel noir menaçant les familles blanches et les femmes en particulier.
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13 De son côté, Lyndon Johnson assimile la problématique de la criminalité à une question d’ordre social. Il conçoit la criminalité comme la conséquence de l’inégalité et de la discrimination telles qu’elles se manifestent sur le lieu de travail, dans les écoles et dans les milieux défavorisés. À ses yeux, le programme de la guerre contre la pauvreté a entre autres visées de faire baisser les chiffres de la criminalité. Malgré la victoire écrasante de Johnson qui remporte 44 états et 61 % du vote populaire, la bataille électorale pour la préemption du thème de la lutte contre la criminalité a mis à jour les dissensions géographiques et idéologiques au sein du Parti démocrate. Johnson en paye le prix. Il n’a d’autre choix que de négocier avec les démocrates du Sud pour faire voter une nouvelle loi anti criminalité, l’Omnibus Crime Control and Safe Streets Action de 1968. Or les positions des démocrates du Sud sont très proches de celles des républicains : tous deux souhaitent une répression plus stricte et notamment l’allongement des peines carcérales.
14 De fait, l’ascension des conservateurs va s’appuyer de plus en plus fortement sur la région du Sud. Du statut de bastion démocrate, le solid South15 devient à partir des années 1970 une terre de compétition électorale. Certes, la politique de Johnson en faveur de la défense des droits civiques a ouvert une brèche importante où les républicains auront tôt fait de s’engouffrer, mais ce sont aussi les transformations économiques et sociales du Sud qui sont à l’origine du réalignement d’une partie de son électorat en faveur du Parti républicain16. L’avènement d’une classe moyenne blanche du Sud réceptive à l’argumentaire du moins d’État, contribue grandement à l’avancée électorale des conservateurs. Ces derniers s’appuient sur l’accroissement du poids démographique17 et donc électoral du Sud pour renforcer le succès des candidats républicains aux élections présidentielles et législatives18. L’effort de conquête électorale des conservateurs contribue certainement à la progression, puis au maintien, d’une opinion publique qui se déclare davantage conservatrice que liberal (de gauche) depuis les années 1980. En 2014, soit près d’un demi-siècle après la signature du Civil Rights Act (1964) par Johnson, 38 % des Américains se considéraient comme conservateurs19.
15 Après la tentative avortée de Goldwater, le discours sécuritaire des républicains se poursuit sous les présidences Nixon et Reagan. Aux élections présidentielles de 1968, le candidat Nixon traite du thème du crime non organisé. Il marque là un tournant puisque contrairement à la campagne de Robert Kennedy qui avait fait de la lutte contre le crime organisé son cheval de bataille en 1963, Richard Nixon s’attaque à la petite délinquance urbaine. On notera l’habileté de la manoeuvre puisque l’exécutif n’a que peu de prise sur la délinquance urbaine qui est du ressort des États et des collectivités locales. En 1970, Nixon use à nouveau du discours sécuritaire à des fins électorales. Il dénonce le laxisme de ses prédécesseurs démocrates et la fausseté de leur discours. Sa campagne présidentielle de 1968 est l’occasion de mettre en pratique une stratégie électorale visant à rallier l’électorat blanc conservateur du Sud (southern strategy). Tout comme Barry Goldwater, Nixon a recours à des thèmes porteurs comme le droit des États et la question sécuritaire. Signe des temps, Nixon ajoute à ce message la résistance à l’intégration raciale. Toutefois, la campagne de 1968 marque une étape nouvelle dans l’instrumentalisation de la question sécuritaire puisqu’elle s’accompagne d’une mise en cause de la Cour suprême. Nixon remet en question la décision de la Cour de nationaliser les procédures criminelles, et notamment l’arrêt Miranda v. Arizona de 1966, lequel oblige la police à informer un suspect de ses droits. La démission de Nixon
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consécutive au scandale du Watergate de 1972 marque une pause dans la politisation de la lutte contre la criminalité et la délinquance dans les campagnes présidentielles. Les Américains sont davantage préoccupés par la stagflation qui touche le pays. De plus, la lutte contre la criminalité est perçue comme étant la chasse gardée des républicains, y compris par les démocrates eux-mêmes qui évitent soigneusement d’aborder la question.
16 Il faut attendre la campagne présidentielle de Ronald Reagan en 1980 pour que le sujet réapparaisse sur le devant de la scène nationale. Reagan avait déjà utilisé ce thème avec succès lors de sa campagne pour le siège de gouverneur de Californie. Selon lui, la criminalité relève de la responsabilité individuelle comme il le rappelle avec force à la convention républicaine de 1968 : « Nous devons rejeter l’idée que chaque fois que la loi a été violée, la société est coupable plutôt que le contrevenant. Il est temps de restaurer le précepte américain selon lequel chaque individu doit répondre de ses actes »20. Une fois président, Reagan dirige ses efforts dans le domaine de la lutte contre la drogue, allant jusqu’à utiliser l’image de son épouse Nancy dans sa campagne de communication21. Il fait voter deux lois anti-drogue en 1986 et 1988 qui durcissent la répression envers les trafiquants. Certes, des programmes de prévention existent mais ils sont dérisoires face aux dépenses qui sont allouées aux forces de l’ordre. Les chiffres parlent d’eux-mêmes : en 1985, les forces de l’ordre bénéficient de 78 % du budget global dans la lutte contre la drogue22. Cette politique répressive s’inscrit dans la conception néolibérale du traitement de la délinquance, qui associe une croyance dans les idéaux du libre marché (le laissez faire) à une demande accrue d’intervention de l’État dans la sphère pénale. Ce paradoxe apparent est en partie élucidé si l’on pense qu’un État suffisamment fort est le seul à même de garantir le bon fonctionnement du système économique libéral. Dans la pensée des conservateurs américains, le crime est compris comme une violation des règles du marché23. Par ailleurs, Reagan poursuit l’avancée des conservateurs au sein de la Cour suprême par une politique de nominations de juges d’obédience conservatrice.
17 La campagne présidentielle de 1988 fait encore monter d’un cran l’intensité des attaques contre les démocrates sur la question sécuritaire. Sophie Body-Gendrot utilise l’image du « ?triangle de fer ?» pour expliquer la stratégie républicaine qui vise à convaincre le citoyen du bien-fondé de la répression. Ce triangle combine les messages des hommes politiques, des médias et des groupes de pression24. Les républicains font preuve d’une grande efficacité en faisant de Dukakis, le candidat démocrate de 1988, l’illustration parfaite du laxisme de la gauche sur la question sécuritaire. Les républicains profitent en particulier de la mauvaise prestation de Dukakis au second débat télévisé de l’élection présidentielle pour faire de la peine de mort une question décisive (litmus test). Dukakis n’a pourtant pas à rougir des bons résultats de son État du Massachusetts car le taux de criminalité y est inférieur à la moyenne nationale25. Dukakis reste fidèle à son positionnement contre la peine de mort pendant le débat. À la question « si votre épouse Kitty était victime d’un viol puis assassinée, demanderiez- vous la peine de mort pour l’assassin ?», le gouverneur répond qu’il ne croit pas en la peine de mort. Malgré l’étrangeté de la question, c’est bel et bien la réponse dénuée d’émotion de Dukakis qui porte un coup d’arrêt fatal à sa campagne.
18 La campagne des républicains est aussi marquée par l’utilisation agressive de l’outil médiatique. S’il n’en est pas à l’origine, le directeur de campagne de George H. Bush, Lee Atwater, voit d’un bon oeil la diffusion du spot « Willie Horton » par le comité
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d’action politique pour la sécurité nationale (National Security Political Action Committee). Il considère – à juste titre – l’électorat conservateur du Sud comme un élément clé de la victoire. Le spot associe l’image de Dukakis à l’affaire du criminel récidiviste noir Willie Horton. En 1986, Horton profite d’une permission de l’État du Massachusetts pour s’échapper. Dix mois plus tard, il se rend dans le Maryland où il commet un nouveau forfait et torture un jeune couple à son domicile. Horton sera finalement condamné à la prison à vie. Sur la dernière image du spot figurent les mots suivants : « Weekend prison passes : Dukakis on crime »26. Le traitement de l’affaire Horton par les républicains contient trois messages : il stigmatise l’échec du traitement de la gauche dans la lutte contre la criminalité, il nourrit les peurs de l’opinion publique, et il donne un caractère racial et social au crime en lui prêtant les traits d’un homme noir issu d’un milieu défavorisé. Le spot eut un tel impact que son souvenir a perduré dans les esprits longtemps après sa diffusion. La facilité avec laquelle les républicains ont pu jouer avec le thème de la lutte contre la criminalité dans la campagne de George H. Bush démontre que les républicains se sont bel et bien appropriés cette thématique à l’orée des années 1990.
Les racines conservatrices et progressistes du Violent Crime Control and Law Enforcement Act (1982-1993)
19 Les années 1990 sont l’occasion d’un renouveau du traitement de la criminalité par les démocrates les plus modérés. Au début des années 1990, le taux de criminalité aux États-Unis est près de quatre fois supérieur à la moyenne de l’Europe de l’Ouest. Le Bureau of Justice Statistics recense quatorze millions de crimes en 1991. Il met aussi en lumière une accélération de la progression du crime de l’ordre de 23 % entre 1988 et 1991. Depuis la défaite de George McGovern aux élections présidentielles de 1972, les démocrates au progressisme le plus modéré cherchent à faire entendre leur voix avec plus de force. Ils contestent les dérives du déplacement vers la gauche du progressisme américain lequel favorise les groupes d’intérêts au détriment des élus. L’élection présidentielle de Jimmy Carter en 1976 entraîne dans son sillage l’arrivée d’une nouvelle génération d’élus au progressisme plus modéré parmi les gouverneurs et les parlementaires du Congrès. Certains entendent se saisir à nouveau du thème de la lutte contre la criminalité car la mainmise républicaine sur la question est devenue difficilement supportable. Les élus démocrates blancs du Sud se sentent menacés par le réalignement de l’électorat que promettent les républicains alors que le mouvement conservateur gagne du terrain.
20 Nous nous arrêterons sur le parcours de deux réformateurs démocrates influents : Joe Biden, sénateur du Delaware (et futur vice-président au sein de l’administration Obama) et Bill Clinton, gouverneur de l’Arkansas qui deviendra le 42e président des États-Unis. L’action combinée de ces deux hommes rendra possible le vote du Violent Crime Control and Law Enforcement Act (VCCLEA) de 1994. Notre étude se limitera à la question sécuritaire. Celle-ci entre dans le cadre du déplacement vers la droite du centre de gravité idéologique du Parti démocrate auquel Clinton et Biden ont contribué : le premier avec la réforme de l’aide sociale de 1996 et le second alors qu’il présidait le comité sénatorial des relations étrangères sous l’administration de George W. Bush (2001-2003, 2007-2009).
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21 Le VCCLEA est tributaire des travaux de George L. Kelling et de James Q. Wilson (1931-2012), spécialistes américains des questions urbaines qui ont inspiré à la fois les conservateurs des années 1980 et les démocrates modérés. En mars 1982, Kelling a publié en collaboration avec Wilson un article éponyme qui présente la théorie des « vitres cassées » dans The Atlantic Monthly. Ils y démontrent que l’état de délabrement d’un endroit public contribue au sentiment d’insécurité et à attirer l’implantation de criminels. L’article connaît un certain succès d’autant plus que Kelling officie en qualité de conseiller pour l’administration Reagan. Cette théorie donne lieu à des expériences de réhabilitation des lieux publics dans le New Jersey au milieu des années 1980. George Kelling rejoindra les rangs du think tank conservateur The Manhattan Institute et s’illustrera auprès des républicains en assistant le maire Rudolph Giuliani dans la sécurisation du métro de New York en 1995 (avec une présence policière accrue et l’application de la tolérance zéro).
22 Du côté démocrate, le Democratic Leadership Council, un réseau d’élus démocrates modérés, s’efforce depuis sa création en 1985 de moderniser le progressisme du parti de l’âne en le déportant plus à droite. Bill Clinton et Joe Biden en rejoignent les rangs à la fin des années 1980. Bill Clinton en devient le porte-parole en 1991. Au cours de sa campagne présidentielle de 1992, il adopte la posture de Nouveau démocrate initiée par le Democratic Leadership Council (DLC). Biden se montre plus discret quant à son attachement au DLC durant ses années sénatoriales27. En 1990, le tout jeune think tank du DLC, le Progressive Policy Institute, propose la création de Police Corps, un programme de service civil au sein des forces de police. Le programme repose sur le principe de la police de proximité (community police28). Ce dernier peut être défini comme une philosophie de pratique de la police, placée sous le signe de la coopération entre les officiers de police et la population civile du quartier concerné, pouvant contribuer à résoudre des problèmes locaux liés au crime, à la peur du crime, à la qualité de vie, et aux conditions de vie du voisinage29. Aux États-Unis, le concept de la police de proximité est l’héritier de deux traditions, celle des community watchmen, des patrouilles de civils qui arpentent le territoire de la communauté pour dissuader les criminels éventuels depuis l’apparition des premières colonies britanniques, et celle des vigilante, des patrouilles de citoyens qui jouaient le rôle d’agents de l’ordre (policiers et juges confondus) dans les nouveaux territoires de l’expansion américaine du XIXe siècle.
23 Pour être plus précis, les Nouveaux démocrates reprennent le discours des penseurs communautaires. Les communautaristes se reconnaissent dans les idées républicaines du début de la République américaine qui ont à la fois pour aspiration l’avancement du bien commun, la liberté et la vertu civique. Selon eux, les sociétés humaines doivent être comprises comme des communautés qui créent, partagent, divisent et échangent un éventail de « bien sociaux » (social goods). Tout État serait par principe un État providence et chaque société déciderait de la nature des biens sociaux en fonction des besoins de ses membres. Les communautaires posent la sécurité et le bien-être social comme les deux principaux biens sociaux de la société américaine contemporaine30. Face à la guerre culturelle nourrie par la rhétorique des conservateurs, ils ressentent avec acuité l’absence de consensus national quant à la définition de la notion de bien commun. Leur manifeste de 1995 permet de mieux appréhender leur pensée : De manière plus profonde, nous étions troublés par le fait que de nombreux Américains se montrent plutôt réticents à accepter les responsabilités. Nous étions peinés de voir que de nombreux Américains étaient vivement désireux de réclamer
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haut et fort ce à quoi ils avaient droit, mais étaient lents à donner quelque chose en retour à la communauté et aux autres. Nous avons adopté le nom de ‘communautaire’ pour souligner le fait que le temps est venu de faire face à nos responsabilités vis-à-vis de nos communautés31.
24 La participation active du citoyen pour assurer le bien commun (ici la sécurité du quartier) que les Nouveaux démocrates plébiscitent s’inscrit donc pleinement dans le renouvellement de la communauté préconisé par les communautaires des années 1980 et 1990.
25 Proche du mouvement des Nouveaux démocrates, Joe Biden s’inquiète aussi de la polarisation qui touche le monde politique. Le sénateur du Delaware montre un intérêt constant pour la lutte contre la délinquance. Il occupe la présidence du comité judiciaire du Sénat depuis 1987. La hausse inquiétante du taux national de criminalité le conduit à s’intéresser à la lutte contre le trafic de drogue. En 1990, Biden présente un premier projet de loi contre le crime. Il demande à cette occasion l’augmentation des effectifs de police, l’interdiction des armes d’assaut et le durcissement des peines encourues par les trafiquants de drogue. Le projet de loi ne manque pas de susciter la désapprobation des républicains et du puissant lobby des armes de la National Rifle Association (NRA). Il n’y a rien d’étonnant à cela puisque la NRA est partie prenante dans l’ascension des conservateurs. Le lobby des armes s’oppose farouchement à la réglementation des armes depuis le début du débat moderne sur la question lorsque Lee H. Oswald (1939-1963) se servit d’une arme achetée via une publicité dans un journal contre le président Kennedy32. Toutefois, c’est une coalition contre nature composée d’une forte proportion de républicains et de quelques démocrates parmi les plus à gauche qui parvient à bloquer au Sénat le projet de loi de Biden. Trois ans plus tard, dans son discours d’introduction du VCCLEA, l’intéressé mettra son échec sur le compte du climat partisan qui régnait au 101e Congrès : Pendant trop longtemps, une majorité de ce corps a préféré le politique au pragmatique. Lors du dernier Congrès, nous avions l’occasion de voter pour une législation anti criminalité attendue qui avait reçu l’aval des démocrates et des républicains pour chacun de ses programmes. Au lieu de quoi nous sommes demeurés obnubilés par nos désaccords sur des détails qui ont allumé l’étincelle de la chaleur partisane dans des proportions exagérées par comparaison à l’importance de combattre le crime avec efficacité33.
26 Joe Biden ne s’avoue pas vaincu. Il multiplie les auditions au Sénat pour proposer un nouveau projet de loi de 1991 à 1993. Il prend alors la mesure des violences faites aux femmes ainsi que celle du vide législatif qui sévit dans le domaine. Biden souhaite par conséquent élever le crime contre les femmes au rang de crime haineux (hate crime) afin qu’il soit considéré comme une violation des droits civiques au même titre que les crimes raciaux. Joe Biden se heurte rapidement à William H. Rehnquist (1924-2005), le très conservateur président de la Cour Suprême34 et aux groupes religieux de droite. En revanche, Biden reçoit parmi les républicains le soutien de son confrère Orrin G. Hatch (né en 1934) avec qui il alterne la présidence du comité judiciaire au Sénat. Biden obtiendra finalement gain de cause en 1994 lorsqu’il recevra l’appui du président Clinton pour le vote du VCCLEA.
27 Bien que Joe Biden et Bill Clinton aient tous deux oeuvré pour faire aboutir le VCCLEA, leur réflexion sur la lutte contre le crime a pris des chemins différents. Bill Clinton est issu d’un État du Sud et il est en tant que tel soumis à l’approbation d’un électorat plus conservateur que la ligne établie par l’establishment du Parti démocrate national. Au
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cours de son premier mandat de gouverneur, Clinton a appris à ses dépens qu’il lui fallait soigner une image sécuritaire forte. Confronté à la fuite d’immigrés illégaux cubains internés par l’administration fédérale à Fort Chaffee au nord-est de l’Arkansas, il fait son possible pour éviter les heurts avec la population locale. Clinton doit faire intervenir les forces de l’ordre de l’Arkansas face au laisser-aller des gardes fédéraux qui avaient laissé les Cubains quitter le fort et dénonce alors les déficiences de l’administration Carter. L’affaire des réfugiés cubains finit malgré tout par mettre en péril ses chances de réélection. Clinton ne retrouve son siège de gouverneur que deux ans plus tard. L’homme retient la leçon et adopte par la suite une posture de sévérité. Il modifie notamment sa ligne de conduite vis-à-vis des condamnés à mort. Alors qu’il avait commué la peine de soixante-dix condamnés à mort en celle de prison à vie pendant son premier mandat, Clinton ne réserve ce traitement qu’à sept personnes de 1984 à 1991.
28 En 1992, Clinton fait de la lutte contre la criminalité l’un des thèmes de sa campagne. Il s’agit là d’un choix courageux mais réfléchi. Il est hors de question pour lui de se faire taxer de laxisme comme son prédécesseur Michael Dukakis. La question sécuritaire demeure toutefois délicate et divise au sein des démocrates. Quelle qu’elle soit, la position de Clinton a toutes les chances de susciter les passions. Bill Clinton procède en deux étapes. Il suit tout d’abord les règles établies par les républicains dans le débat sur la question sécuritaire en se prononçant en faveur de la peine de mort. Il va jusqu’à arrêter sa campagne pour revenir en Arkansas et autoriser l’exécution de Rickey Rector dont il avait pourtant été établi qu’il ne possédait plus toutes ses capacités mentales. Puis il expose son propre traitement du thème de la lutte contre la criminalité. Son livre de campagne Mandate for Change établit un ensemble de mesures concrètes comme l’ajout d’un effectif de 100 000 policiers, la création de centres de détention réservés aux jeunes ayant commis leur premier forfait, et des campagnes de prévention contre la drogue et d’accompagnement pour les toxicomanes. Clinton se prononce aussi en faveur d’une approche communautaire. Il encourage les initiatives qui incluent la participation du voisinage et la coopération entre la population et la police de proximité. Il souhaite la mise en application de Police Corps, un programme de service civil au sein des forces de police. Clinton envisage également des mesures qui relèvent d’un progressisme plus traditionnel comme l’interdiction de la vente des armes d’assaut et la régulation de leur circulation. Il se prononce enfin pour l’application de la loi Brady (Brady Handgun Violence Prevention Act), restée bloquée à la Chambre basse, qui préconise de vérifier les antécédents des acquéreurs d’armes.
29 Les républicains quant à eux se sentent floués car ils ont l’impression que Clinton a préempté une de leurs thématiques favorites. Clinton n’est bien entendu pas du même avis : « Quand je suis arrivé à Washington, je lisais des éditoriaux dans de grands journaux qui disaient que si vous vous souciez du déficit, de la criminalité et de l’aide sociale, vous voliez les sujets des républicains. Et j’ai dit, eh bien, attendez une minute. (...) Je pense que ce sont des sujets américains (…)35 », déclarera-t-il en 1997 devant une assemblée de gouverneurs démocrates. L’intention de Clinton est claire : il veut redéfinir le débat autour de la question sécuritaire en ses propres termes et en maîtriser l’agenda36. Il fera de même pour la réforme de l’aide sociale de 1996 où il fera prévaloir le principe du workfare. Dans une société marquée par un virage néolibéral, il applique l’idée d’une contrepartie par le citoyen qui demande une aide de l’État, sous la forme d’une obligation de travail ou d’une formation professionnelle37. Pour ces deux thématiques sensibles de la sécurité et de l’aide sociale, Bill Clinton suit la philosophie
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politique des Nouveaux démocrates qui cherchent à trouver une approche qui sorte de la stricte polarisation gauche/droite et qui co-optent au besoin des idées chères au mouvement conservateur38.
La bataille législative autour du VCCLEA (1993-94)
30 Peu de temps après son accession à la présidence, Bill Clinton se trouve confronté à une très forte opposition pour faire voter le budget fédéral puis la réforme de santé qu’il a confiée à son épouse Hillary. Il lui semble donc opportun de reprendre les commandes de son agenda politique et de traiter d’un thème qu’il estime des plus porteurs, celui de la lutte contre la délinquance. Il s’attaque ce faisant à un bastion républicain. Le projet de loi du VCCLEA va se retrouver rapidement au centre d’une bataille législative qui, si elle est remportée par Clinton avec la signature du VCCLEA le 13 septembre 1994, servira finalement les intérêts de la nébuleuse conservatrice.
31 Le dossier de la lutte contre la criminalité est confié au Domestic Policy Council, un organe de l’exécutif. Ce dernier met en place une commission de réflexion qui soutient fermement l’action du sénateur Biden. Concrètement, le VCCLEA prévoit le recrutement de 100 000 policiers en six ans, dont la moitié sera affectée à la police de proximité, ainsi que la création de camps pénitentiaires pour jeunes délinquants, et le durcissement du droit à l’habeas corpus pour les trafiquants de drogue. Il alloue un budget record de 9,7 milliards de dollars au système pénitentiaire. Le second volet est consacré aux violences faites aux femmes avec le Safe Street Violence Act qui accroît la sévérité des peines à l’encontre des récidivistes et le Safe Homes for Women Act qui prend mieux en compte les violences au sein du foyer.
32 Le vote pour le VCCLEA s’annonce difficile. Les républicains ne peuvent accepter ni la clause interdisant les fusils d’assaut ni le montant des dépenses liées à la prévention qu’ils estiment trop élevé. En vérité, des raisons plus profondes expliquent le refus des républicains. Afin de consolider leur avancée électorale, représentants et sénateurs républicains se sont engagés dans une stratégie d’obstruction parlementaire qu’ils ont déjà pratiquée lors du vote du budget. Ils avaient utilisé la flibuste dans le but avoué d’allonger les débats au Sénat39. Facteur aggravant, les républicains sont particulièrement remontés contre toute intervention touchant à la réglementation des armes à feu depuis que la loi Brady a été votée et a reçu la signature présidentielle le 30 novembre 1993.
33 Cependant, la faiblesse du VCCLEA est surtout due à l’étendue de son contenu. Les élus porteurs du VCCLEA, en accord avec le président, font le choix de présenter un projet de loi global. Le volet sur l’interdiction des armes d’assaut a notamment été rajouté parce qu’il n’avait que peu de chance de remporter l’adhésion du Sénat. Le contenu du VCCLEA est si vaste qu’il se heurte d’une part à l’opposition de la droite et des démocrates les plus conservateurs car ils refusent les mesures légiférant davantage l’usage des armes à feu, et d’autre part au refus de l’aile gauche démocrate qui désapprouve la proposition d’extension de la peine capitale contenue dans le volet répressif du VCLEA. Clinton reçoit en ce sens des mises en garde du caucus noir40 de la Chambre basse qui craint que les préjugés raciaux ne pèsent encore davantage dans l’application de la peine de mort.
34 Bill Clinton décide de passer en force. Il part plus franchement à la chasse aux votes, en jouant sur les deux tableaux. Il promet aux républicains de réduire les dépenses liées
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aux programmes de prévention à hauteur de 3,2 milliards de dollars tout en mettant en avant ces mêmes programmes face aux démocrates. Les démocrates les plus modérés mettent en garde le président contre les effets collatéraux du volet sur les armes. Ils demandent au président de le retirer sous peine de les affaiblir. Clinton refuse et c’est un projet de loi légèrement modifié qui est finalement approuvé par les deux Chambres. La clause tant controversée interdisant les armes d’assaut demeure inchangée, condamnant de ce fait de nombreux démocrates modérés du Sud qui perdront leurs sièges. Seules les dépenses liées à la prévention sont revues à la baisse. Avec 1,8 milliards de dollars, le budget alloué au VCCLEA en fait la loi anti criminalité la plus ambitieuse depuis la loi Safer Streets de 1968.
35 La signature du VCCLEA attire de nombreuses critiques. La droite s’empare du dossier à l’approche des élections parlementaires. La lutte contre la délinquance est l’un des nombreux sujets de campagne qui serviront à la fois à cimenter une victoire historique du parti républicain au Congrès et à asseoir la mainmise des conservateurs sur le Parti républicain. Les chefs de file républicains des deux Chambres intègrent la question sécuritaire dans leurs programmes de campagne. Dans son Contrat pour l’Amérique, le député Newt Gingrich de Georgie propose un plan intitulé The Taking Back Our Streets Act dont la terminologie fait écho aux accents populistes du discours de Pat Buchanan de 1992. Gingrich y réclame l’allongement des peines carcérales, davantage de bâtiments pénitentiaires, le durcissement des conditions de détention et la réduction des dépenses prévues par le VCCLA. Les sénateurs républicains se montrent quant à eux plus prudents. Contrairement au Contrat pour l’Amérique qui préconise la mise en application des mesures au cours des cent premiers jours du Congrès à venir, le plan Seven More in ’94 du chef de file républicain le sénateur Bob Dole se veut plus vague. La formule qui avait été trouvée par l’éditorialiste conservateur William Safire (1929-2009) fait référence aux sept sièges sénatoriaux manquants au Parti républicain pour qu’il redevienne majoritaire. Rompu aux pratiques parlementaires, Dole connaît les écueils inhérents au processus législatif et mesure le poids du veto présidentiel.
Les années 2010 : une tendance à l’apaisement
36 Par le biais de l’étude de cas du VCCLEA, nous avons démontré dans cet article que la lutte contre la délinquance a représenté un enjeu dans la guerre culturelle et électorale entre conservateurs et progressistes. En d’autres termes, le thème de la lutte contre la délinquance a nourri à la fois l’ascension de l’aile conservatrice au sein du Parti républicain et la guerre culturelle qui a culminé dans les années 1990. Nous souhaitons maintenant aborder le VCCLEA dans sa relecture et voir ce que la réévaluation de ce texte de loi majeur peut nous dire à propos de l’état actuel du traitement de la question sécuritaire aux États-Unis.
37 Dans un contexte plus apaisé que celui des débats présidant à sa signature, nous entendons analyser l’évolution de la perception de l’efficacité du VCCLEA. Il nous semble pertinent de parler de deux vagues distinctes dans l’évaluation du VCCLEA. La première concerne les avis prononcés à l’issue de la présidence Clinton. D’une part, les défenseurs du VCCLEA ont très tôt fait la corrélation entre la baisse nationale de la criminalité et la mise en application du VCCLEA. Les chiffres du Bureau of Justice semblent corroborer cette thèse. Le taux national de criminalité a décru à partir de 1993. De 1993 à 1998, les crimes violents ont diminué de 21 %. En 1997, la moitié des
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crimes violents ont été commis par une personne connue de la victime, ce qui confirme le bien-fondé de la lutte de Biden pour un meilleur traitement juridique des violences faites aux femmes. Il convient toutefois de nuancer la corrélation qui a été établie entre VCCLEA et la baisse de la criminalité car la période de mise en application du VCCLEA correspond à une baisse du nombre de consommateurs de crack et au vieillissement de la génération d’après-guerre (baby boomers). D’autre part, les détracteurs du VCCLEA contestent l’efficacité du déploiement massif des forces de l’ordre. La Heritage Foundation, think tank conservateur de renom, reprend dès 2002 les résultats d’une étude qui affirme que le chiffre de 100 000 policiers est erroné et avance à la place celui de 68 00041. On peut ajouter à cette critique partisane celle plus indépendante du Government Accountability Office42 selon laquelle l’augmentation des effectifs de police n’aurait réduit le taux de criminalité global que de 1,8 % et de 2,5 % pour les crimes violents au cours de la période 1993-2000 (2005).
38 Une seconde vague d’évaluations du VCCLEA est apparue dans les années 2010 après l’élection de Barack Obama. En 2008, le candidat Obama avait reconnu sans réserve l’efficacité du VCCLEA pour justifier le choix de son co-listier Joe Biden : Il y a quinze ans de cela, les communautés américaines étaient trop nombreuses à être victimes de la violence et de l’insécurité. Joe Biden a donc amené les républicains et les démocrates à travailler ensemble et à voter pour la loi contre le crime de 1994, ce qui a permis l’envoi de 100 000 policiers dans les rues et qui a amorcé une chute du taux de criminalité de huit ans dans tout le pays43.
39 Le choix de Biden pour occuper la vice-présidence était en grande partie guidé par le besoin d’Obama de combler son manque d’expérience en politique étrangère et de rallier les démocrates les plus modérés. Pourtant, les choses changent une fois que l’administration Obama est en place. Les critiques à l’encontre du VCCLEA se multiplient. La forte hausse du taux national d’incarcération est pointée du doigt par la communauté scientifique et par le monde politique. En avril 2014, un rapport de la National Academy of Sciences indique que le niveau d’incarcération atteint par les États- Unis ne peut plus être justifié par les bénéfices sociaux qui peuvent en résulter. La question sécuritaire revient sur le devant de la scène médiatique après chaque fusillade comme la récente tuerie de Charleston du 17 juin 2015. Bien que le jeune inculpé Dylann Roof ait été arrêté peu de temps auparavant pour détention de stupéfiant, il est passé entre les mailles du filet et a pu acquérir une arme.
40 Aujourd’hui, l’heure n’est plus à la surenchère comme du temps où la guerre culturelle faisait rage. Désormais, droite et gauche dénoncent les effets pervers du VCCLEA et notamment la création d’un système carcéral sans précédent. En 2010, le chiffre record de 2,2 ?millions de détenus est atteint44. La population carcérale du pays représente 20 % de la population carcérale mondiale alors que les Américains représentent 5 % de la population mondiale. La population noire est la plus touchée puisqu’on estime qu’un Noir né aujourd’hui a une chance sur trois de se retrouver derrière les barreaux au moins une fois dans sa vie alors que cette probabilité tombe à une chance sur 6 pour un membre de la minorité hispanique et à une sur 17 s’il est de race blanche45. Dans son livre coup de poing de 2014, l’activiste de gauche Michelle Alexander compare le système carcéral américain aux lois ségrégationnistes de Jim Crow. Elle affirme que tous deux ont eu pour effet de créer et perpétuer une « hiérarchie raciale »46. La culture populaire n’est pas en reste puisque l’émission humoristique Last Week Tonight with John Oliver du 20 juillet 2014 dénonçait aussi l’incarcération de masse. Par le biais de ses marionnettes, John Oliver mettait le doigt sur le nombre record de deux millions de
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prisonniers ainsi que sur le caractère « un peu draconien, et très raciste »47 des lois anti-drogue qui était à l’origine de l’incarcération d’un très grand nombre d’Afro- américains et de populations hispaniques.
41 Notons que l’accroissement de la sévérité pénale américaine a posé question et nourri le débat scientifique. De nombreux spécialistes américains et européens en sociologie du crime se sont penchés sur la spécificité du système répressif américain48. La tradition d’égalitarisme liée à une histoire nationale dépourvue d’époque féodale, le poids de la religion, celui de l’esclavage et le rejet de l’intervention étendue de l’État sont autant de facteurs qui ont été avancés. Le virage néolibéral qu’a pris la société américaine a également été invoqué pour établir une corrélation entre l’économie néolibérale et l’insécurité sociale ressentie. Quant au mouvement conservateur, il n’est pas en reste puisque la nouvelle pénologie considère que l’implication des élus conservateurs a intensifié la demande de sanctions par la population. Si le constat d’échec de l’incarcération massive mène les membres des blocs progressistes et conservateurs à réfléchir à des solutions nouvelles, il n’en demeure pas moins que le débat sur des sujets sensibles comme la législation des armes à feu est toujours aussi passionné. Les sondages menés par le très sérieux Pew Research depuis 1994, c’est-à-dire l’année du VCCLEA, montrent que la proportion d’Américains ayant des idées conservatives ou progressistes a doublé en vingt ans, passant de 10 % à 21 %. En conséquence, un partisan du Parti républicain a beaucoup plus de chance de présenter des idées conservatrices qu’avant et l’inverse est vrai pour un partisan du Parti démocrate49.
42 Si l’existence d’une réflexion commune réunissant progressistes et conservateurs pour réformer le système judiciaire et pénitentiaire ne semble pas forcément évidente, le caractère nécessaire et bipartisan de cette réflexion est admis par de nombreux acteurs politiques. De nombreuses initiatives bipartisanes au niveau des États ont vu le jour notamment pour lutter contre le trafic de drogue et l’explosion des incarcérations. Au niveau national, la tentative la plus tangible s’est concrétisée avec la récente sortie d’un livret du Brennan Center (un think tank progressiste spécialisé dans la lutte contre le crime) portant sur les solutions à apporter à un système judiciaire et carcéral défaillant50. On y retrouve les interventions de neuf des candidats à la présidence de 2016 avec à gauche Hillary Clinton, Martin O’Malley et Jim Webb, et à droite Chris Christie, Ted Cruz, Scott Walker, Rand Paul, Rick Perry, Marco Rubio51. Plus inattendue est la tentative de conciliation bipartisane qui unit les forces des frères Koch, multimillionnaires et libertariens, et du Center for American Progress, think tank progressiste. Depuis février 2015, tous deux mènent une campagne de réforme pénale commune intitulée The Coalition for Public Safety.
43 En somme, la question sécuritaire est posée en de nouveaux termes : comment faire baisser le taux de délinquance sans recourir systématiquement à l’incarcération ? Dans cet effort bipartisan, conservateurs et progressistes conservent chacun leur prisme propre. Les libertariens (libertarians) mettent en avant la dignité humaine et demeurent fidèles à leur demande de moins d’interventionnisme étatique. Les conservateurs fiscaux estiment que le coût du système carcéral est trop élevé tandis que les conservateurs sociaux sont plus sensibles à l’argument de la rédemption. Les démocrates quant à eux mettent en avant la cohésion nécessaire à la bonne marche de la société. Hillary Clinton évoque à ce propos les émeutes raciales de Ferguson de 2014
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consécutives la décision de jurys populaires de ne pas poursuivre des policiers blancs pour le meurtre des jeunes Noirs Michael Brown à Ferguson et Eric Garner à New York.
44 Il nous semble pertinent de s’attarder sur le début de mea culpa de Bill Clinton ainsi que sur le renouveau réformateur du côté conservateur. Au cours de l’année 2015, Bill Clinton a fait plusieurs fois état de ses regrets quant à la politique d’incarcération massive qui sévit suite au VCCLEA. Il s’adressait le 7 mai à une journaliste de CNN et le 15 juillet à la National Association of the Advancement of Colored People, l’organisation historique des droits civiques. Certes, on ne peut s’empêcher de penser que les propos de Bill Clinton s’inscrivent dans le prolongement de la campagne présidentielle de son épouse Hillary. Celle-ci a fait de la réforme du système carcéral l’une de ses promesses de campagne. Néanmoins, la reconnaissance même timide des effets pervers du VCCLEA est actée. Dans la préface du livret du Brennan Center, Bill Clinton revient sur ses choix en matière de politique sécuritaire. Il explique que les fortes attentes des Américains l’avaient amené à signer un texte de loi tel que le VCCLEA. Les Américains étaient en effet 37 % en 1994 à placer la lutte contre la criminalité en tête de leurs préoccupations : « Nous avons agi pour apporter une réponse à une crise nationale réelle. Mais beaucoup de choses ont changé depuis. Il est temps de porter un regard neuf ce sur ce qui a fonctionné, ce qui n’a pas fonctionné, et ce qui a produit des conséquences non intentionnelles et durables. Beaucoup de nos lois ont bien fonctionné, surtout celles qui ont mis davantage de policiers dans les rues. Mais de nombreuses lois étaient trop étendues au lieu d’être taillées de manière appropriée »52. Ce que Clinton passe sous silence, ce sont les pressions de la guerre culturelle qu’il subissait. Malgré le caractère vague de son discours (au demeurant compréhensible au vu du rôle prépondérant qu’il a joué dans le vote du VCCLEA), Bill Clinton reconnaît que la trop grande étendue du VCCLEA a permis certaines dérives.
45 À droite, la réforme en matière de lutte contre la criminalité a aussi pris le visage de Right on Crime. Il s’agit d’une initiative lancée par l’avocat conservateur Marc Levin en 2010 et qui est abritée par le think tank conservateur Texas Public Policy Foundation. Right on Crime s’appuie sur une stratégie du consensus par l’adhésion à des idées communes et non à une proposition de loi spécifique. Right on Crime entend convaincre les dirigeants conservateurs de souscrire aux principes suivants : la transparence, la liberté individuelle, le rapport entre coût et efficacité, la réhabilitation des détenus, l’intervention limitée de l’État, le soutien aux victimes, et une préférence pour les solutions où interviennent la famille et la communauté53. Marc Levin fait d’ailleurs partie des contributeurs du livret du Brennan Center. Enfin, notons que Newt Gingrich, l’architecte de la révolution républicaine de 1994 à la Chambre des représentants compte parmi les soutiens de Right on Crime.
Conclusion
46 Le VCCLEA demeure une étape incontournable pour comprendre l’évolution du traitement de la délinquance aux États-Unis. Il doit sa naissance à une société marquée par un virage néolibéral et la « culture du contrôle ». Les conservateurs américains y sont porteurs d’une pénologie de la vengeance et du bon droit. Leur action en ce sens a progressivement cimenté la construction d’une société néolibérale du risque. La dureté de la bataille législative pour le passage du VCCLEA a notamment exposé à la nation la
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profondeur du clivage entre les cadres de pensée progressiste et conservateur autour de la question sécuritaire.
47 La relecture du VCCLEA permet d’identifier une nouvelle et troisième phase du traitement de la question sécuritaire dans la société américaine. Si cette nouvelle phase est marquée par un début de réflexion bipartisane sur la question sécuritaire, et c’est là son trait distinctif, elle reste toutefois l’héritière de la phase précédente, autrement dit de la culture du contrôle. Les tensions partisanes sur la question de la lutte contre la délinquance demeurent même si la bataille pour l’appartenance politique ne semble plus être d’actualité. On voit mal en effet comment les conservateurs pourraient accepter des propositions progressistes telles que la dépénalisation des drogues ou la régularisation des armes. De même, les progressistes ne sauraient accepter des solutions qui agréent les conservateurs comme par exemple la privatisation du système carcéral. De plus, des sujets continuent d’agiter les partis en interne comme la peine de mort ou encore la restauration de droit de vote des anciens détenus. Enfin, les récents développements de la vie politique américaine posent la question des répercussions éventuelles de la campagne de Donald Trump sur l’effort de réflexion bipartisan actuel.
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NOTES
1. Les émeutes de Los Angeles de 1992 sont nées de la décision d’un jury majoritairement blanc de ne pas sanctionner des policiers blancs qui avaient arrêté puis battu Rodney King, un homme noir, après un excès de vitesse. La vidéo de la scène avait fait le tour du pays et provoqué la colère des populations noires de la ville. 2. « My friends, this election is about much more than who gets what. It is about who we are. It is about what we believe. It is about what we stand for as Americans. There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself. (…) Friends, in those wonderful 25 weeks, the saddest days were the days of the bloody riot in LA, the worst in our history. But even out of that awful tragedy can come a message of hope. (…) Here were 19-year-old boys ready to lay down their lives to stop a mob from molesting old people they did not even know. And as they took back the streets of LA, block by block, so we must take back our cities, and take back our culture, and take back our country », Buchanan P., Discours à la convention nationale républicaine, 17 août 1992. 3. Le flou conceptuel qui entoure le recours aux termes « progressiste » (tiré du vocable du XIXe siècle) et « liberal » témoigne de la victoire des conservateurs sur les termes du débat politique. Ce point sera approfondi dans la suite de l’article. 4. Simon & Feeley (2003). 5. Garland (2001 & 2007). 6. Budge I. & Farlie, D. ?(1983). 7. « the ability to resolve a problem of concern to voters. It is a reputation for policy and program interests, produced by a history of attention, initiative, and innovation toward these problems », Petrocik (1984, p. 826). 8. Petrocik (1996) ; Petrocik, Benoît & Hansen (2003). 9. Stokes (1963). 10. Van der Brug (2004) ; Bélanger & Meguid (2008). 11. Pour dissiper tout malentendu, nous précisons que nous utilisons le terme « idéologie » et son adjectif « idéologique » dans une acception non marxiste (laquelle suppose l’existence d’un système théorique plus ou moins construit et dont la visée principale est le maintien d’une oppression de classe). Nous préférons nous limiter à un sens plus courant et moins critique : l’ensemble des idées qui structurent les professions de foi publiques et les actions proposées par un parti politique. 12. Body-Gendrot (1999). 13. « Tonight there is violence in our streets, corruption in our highest offices, aimlessness among our youth, anxiety among our elders (…) ». 14. Perlstein (2001) ; Shermer (2013). 15. On peut définir le « one Solid South » comme le regroupement d’électeurs blancs du Sud (anciennement confédéré) uniformément conservateur, raciste, opposé aux syndicats et qui a
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voté massivement pour le Parti démocrate de la fin de la guerre de Sécession (1861-1865) jusqu’au début des années 1970. 16. Black (1996) ; Shafer & Johnston (2009). 17. Depuis le recensement de 1940, le Sud est la région ayant la population la plus importante aux États-Unis. Le poids du Sud ne cesse de s’accentuer puisque le dernier recensement indique que le Sud détient le taux d’accroissement de population le plus important de la nation (soit 14,3 %) de 2000 à 2010. 18. Ils pratiquent notamment le gerrymandering. Lors du redécoupage électoral décennal, les élus conservateurs cherchent à augmenter la compétitivité de leurs candidats en regroupant l’électorat fortement démocrate dans certains comtés. 19. Saad (2015). 20. « We must reject the idea that every time a law’s broken, society is guilty rather han the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions ». 21. Nancy Reagan se servit de son statut de Première dame pour promouvoir une campagne de sensibilisation à la drogue auprès des enfants et des jeunes adultes dès 1982. Elle se rendit dans de nombreux centres de désintoxication pour les jeunes et apparut à la télévision seule (dans des programmes de divertissement) ou avec son époux (pour des allocutions plus formelles) pour promouvoir la campagne de lutte contre la drogue « Just say no ». Son message de prévention laissa la place à un plaidoyer en faveur de la lutte contre le trafic international des stupéfiants lorsqu’elle se présenta devant l’Assemblée générale des Nations Unies en octobre 1988. 22. Roesch (2013, p. 96). 23. Harcourt, 2011 ; Spector (2011). 24. Body-Gendrot (1999, p. 77). 25. Massachusetts Executive Office of Public Safety and Security, ‘Violent Crime in Massachussetts : a 25-Year Retrospective’, Annual Policy Brief (1988-2012), February 2014. 26. Traduction proposée : « Des laisser-passer du week-end pour les détenus : la position de Dukakis ». 27. Witcover (2010). 28. Le nom et adjectif community ne peut se traduire par le terme français communautaire car il recouvre un sens particulier et différent du vocable français. Community désigne un groupe de personnes vivant en un même endroit (quartier, ville) et ayant des intérêts communs. En raison parfois du peuplement de certains quartiers, community réfère aussi à l’ethnicité, la race ou la religion. 29. Kappeler & Gaines (2012). 30. Walzer (1983). 31. « More deeply, we were troubled that many Americans are rather reluctant to accept responsibilities. We were distressed that many Americans are eager to spell out what they are entitled to, but are slow to give something back to the community and to others. We adopted the name ‘communitarian’ to emphasize that the time had come to attend to our responsibilities to our communities », Etzioni (1995, IV). 32. La NRA a notamment assis son pouvoir en imposant son interprétation du second amendement de la Constitution. Cet amendement à l’origine défend le droit à l’existence d’« une milice bien organisée étant nécessaire à la sécurité d’un État libre, (et) le droit qu’a le peuple de détenir et de porter des armes ne sera pas transgressé ». Selon la NRA, ces droits collectifs sont également individuels et le second amendement garantirait donc le droit d’un individu à détenir une arme. 33. « For too long, a majority of this body has preferred politics to pragmatics. Last Congress, we had the opportunity to pass needed crime legislation that contained program after program supported by democrats and republicans alike. Instead we remained mired in disagreement over
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a few provisions that sparked political heat out of all proportion to their relative importance to effectively fighting crime ». 34. William Renhquist était l’ancien conseiller juridique de Barry Goldwater pendant la campagne présidentielle de 1964. En 1971, il fut nommé juge à la Cour suprême par le président Nixon. 35. « When I came to Washington, I would read editorials from the prominent newspapers saying that if you cared about the deficit and crime and welfare, you were stealing Republican issues. And I said, now, wait a minute. (…) I think those are American issues the Democratic Party has done very well on, and I don’t understand all this », Clinton, ?B., Remarks at a Democratic Governors’ Association Reception, November 12, 1997. 36. David B. Holian (2004). 37. Le Personal Responsibility and Work Opportunity Act de 1996 réforme en profondeur les modalités d’attribution des aides financières et alimentaires à destination des populations défavorisées. Il remplace le programme Aid to Families with Dependent Children par des sommes annuelles fixes données aux États pour le programme Temporary Assistance to Needy Families. La réforme réduit les dépenses fédérales sur les bons alimentaires, le complément de revenu social, les programmes de nutrition pour l’enfance et elle diminue les sommes allouées aux services sociaux. Parallèlement, la réforme de l’aide sociale augmente les fonds alloués à la garde des enfants issus des familles à faibles revenus. Enfin, ce texte de loi impose un critère de citoyenneté américaine pour bénéficier de certains programmes des aides sociales. 38. Baer (2000) ; From (2014). 39. La flibuste est une man ?uvre d’obstructionnisme qui consiste à faire reculer l’adoption d’un projet de loi en allongeant la durée des débats parlementaires. Seul un vote de clôture peut contrer la flibuste. Au Sénat, il faut soixante voix pour obtenir le vote de clôture. L’adoption d’un texte de loi nécessite donc non pas cinquante ou cinquante-et-un votes comme indiqué dans la Constitution mais bien soixante. 40. Le caucus noir du Congrès défend les intérêts de la minorité afro-américaine. 41. Zhao, Scheider & Thurman (2002, p. 7-32). 42. Le Government Accountability Office est une agence indépendante qui travaille pour le Congrès et dont l’objet est de vérifier le bon usage des dépenses fédérales. 43. Barack Obama, Remarks Introducing Senator Joseph Biden as the 2008 Democratic Vice- Presidential Nominee in Springfield, Illinois, August 23, 2008. 44. U.S. Bureau of Justice Statistics, Correctional Populations in the United States, 2011, 1, 3 tbl.2, Nov. 2012. 45. Report of the Sentencing Project to the United Nations Human Rights Committee : Regarding Racial Disparities in the United States Criminal System, August 2013. 46. Alexander (2014, p. 16). 47. « a little draconian, and a lot racist ». 48. Whitman (2005) ; Lacey (2008). 49. Doherty (2014). 50. Chettiar & Waldman (2015). 51. On remarquera l’absence de la liste de Donald Trump, candidat victorieux des primaires républicaines de 2016. L’étendue du populisme de sa campagne en font un candidat controversé au sein même du parti de l’éléphant. Trump cherche à courtiser les citoyens qui ont le sentiment d’être déclassés dans une nation en crise. Confronté à une carte électorale défavorable et à un Parti républicain affaibli, il adopte une stratégie de l’outrance qui vise à amener aux urnes les électeurs blancs habituellement abstentionnistes. S’attaquer à l’immigration illégale pour traiter la question sécuritaire permet de rappeler à tous l’échec de la réforme d’immigration d’Obama. Son discours d’investiture en est un exemple. Dans un contexte de fortes tensions raciales, il associe la délinquance à l’immigration illégale : « Nous serons un pays de générosité et de
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chaleur. Mais nous serons aussi un pays où règne l’ordre public. (…) Presque 180 000 sans-papiers détenant un casier judiciaire, dont l’expulsion a été ordonnée, circulent librement dans le pays et menacent de paisibles citoyens ». Cet argument va naturellement à l’encontre des études régulièrement menées sur la question lesquelles montrent que les immigrants sont moins enclins que le reste de la population américaine à violer la loi. Un rapport récent de l’American Immigration Council indique que le taux de crimes violents a baissé de 48 ? % de 1990 à 2013 tandis que le nombre d’immigrants illégaux a triplé dans le même temps (Ewing, Martinez & Rumbaut, 2015). 52. « We acted to address a genuine national crisis. But much has changed since then. It’s time to take a clear-eyed look at what worked, what didn’t, and what produced unintended, long-lasting consequences. So many of these laws worked well, especially those that put more police on the streets. But too many laws were overly broad instead of appropriately tailored », Chettiar & Waldman (2015, p. 4). 53. Keller (2015).
ABSTRACTS
The issue of crime fighting has constituted an integral part of the conservative discourse in the United States since the 1950s. The political right has gradually appropriated this key theme in an attempt to dominate the Republican Party and to throw the Democratic Party off course. This study of the Violent Crime Control and Law Enforcement Act of 1994, the most important anti- crime law of the second half of the twentieth century, reveals at the same time the cultural war conducted by the conservative movement as well as its consequences. The analysis of the origins of the VCCLEA, its implementation, and its recent revision allow the author to identify three phases in the approach to security issues in the United States. The most recent phase in the debate on crime, during the presidential elections of 2016, has been characterised by a relative relaxation in the partisan tensions, at least in what concerns the question of incarceration.
La question de la lutte contre la délinquance fait partie intégrante du discours du mouvement conservateur américain depuis son émergence dans les années 1950. Les conservateurs se sont progressivement approprié ce thème porteur afin de conquérir le Parti républicain et de mettre en déroute le Parti démocrate. L’étude du Violent Crime Control and Law Enforcement Act de 1994, la loi anticriminalité américaine la plus importante de la seconde moitié du XXe siècle, illustre à la fois la guerre culturelle menée par les conservateurs et ses dérives. L’analyse des racines et de la mise en oeuvre du VCCLEA couplée à sa relecture récente permet d’identifier trois phases dans le traitement de la question sécuritaire aux États-Unis. Dans le contexte électoral des primaires de 2016, la dernière phase est marquée par un apaisement relatif des tensions partisanes du moins sur la question carcérale.
AUTHOR
DIANE BÉNÉDIC-MEYER Docteur en études anglophones, Diane Bénédic-Meyer est spécialiste de l’histoire politique et socio-économique des États-Unis de la fin du XXe siècle et du début du XXIe. Sa thèse de doctorat,
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soutenue en 2014, porte sur la modernisation idéologique du parti démocrate aux États-Unis de 1980 à 2011. Diane Bénédic-Meyer a publié aux États-Unis des articles sur le parti démocrate (Chapman, R.(Ed.), Encyclopedia of the Culture Wars, Issues, Voices, and Viewpoints, Armonk, M.E. Sharpe, 2009). Elle participe régulièrement à la préparation de l’agrégation d’anglais en donnant des communications et en publiant des articles dans des revues spécialisées (Les années Clinton: la personnalisation excessive de l’exécutif in Robert, F.(Dir.), L’empire de l’Exécutif: la Présidence des États-Unis de Franklin Roosevelt à George W. Bush (1933-2006), Ellipses, 2008, p. 163-176. Ses recherches en cours portent sur la notion d’entreprenariat politique dans le but d’identifier des centres de pouvoir autres que les partis politiques. - [email protected]
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Obituary
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Obituary for Herman Bianchi (1924-2015)
Pieter Spierenburg
Herman Bianchi, who died on December 30, 2015, was a remarkable criminologist in several ways. In this obituary I am concentrating on his interest in, and merits for, the history of crime and justice. Although his name may be unfamiliar to younger scholars outside the Netherlands, he was an active member of the “Dutch group” in the 1970s and participated in a number of workshops and conferences of the IAHCCJ in the 1980s. By then he already boasted a many-sided career. In 1956 he finished his PhD (which in the Netherlands usually was – and still is – a full-blown published monograph). Entitled Position and Subject-Matter of Criminology, it was also one of the rare English-language books by a Dutch practitioner of the social sciences at the time. Two years later he was appointed ‘lector’ and in 1961 professor of criminology at the Free University of Amsterdam. When I first met him, I was ignorant about his person yet. It was in 1974, in the preparatory phase of my own PhD when I had learned about the Werkgroep Strafrechtsgeschiedenis, an informal discussion group of researchers interested in the history of crime and justice. After hearing Bianchi speak two sentences, I figured that I knew a little more of him – he must be gay. As René van Swaaningen explains in Tidschrift over Cultuur en Criminaliteit, this is one of the clues to his life and work. Although he remained pretty much in the closet during several periods of his life, his sexual orientation contributed to his sympathy for outcasts of every kind, including lawbreakers. Next to this, his internment as a young man in Camp Amersfoort in 1944 stood at the basis of his life-long aversion to imprisonment and the criminal law generally. It was his great dream that criminal justice might once be replaced, at least partially, by a system of reconciliation and compensation voluntarily entered into by victims and perpetrators. Bianchi turned to history to find ammunition for his dream. He was fascinated by sanctuaries, reconciliation ceremonies and ancient anarchists. Within the Dutch group he belonged to the core members who regularly held separate meetings in the home of one of them to discuss theoretical issues. In 1975 I was admitted to this core-group and
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so I became a visitor in his apartment at the Prinsengracht. He explained that the house was built in the late 1660s just after the English had taken Manhattan, but that commercial supplies to Amsterdam continued for a few years. To American visitors, he continued, he always pointed out that the floor of his apartment consisted of wood from Central Park. It was symptomatic for his broad knowledge of history. Although his historical interest stood squarely in the service of his political and social vision, he was by all means an erudite. Yet, our approaches to historical scholarship were radically different and we had frequent discussions during the period that I regularly saw him. One of our few moments of emphatic agreement was at a dinner after one of the Paris workshops, during an extremely hot summer. Unlike the others, we thought it a disgrace that a French waiter served cooled red wine and we decided to ask him for a bottle kept at room temperature (which he provided). Internationally, the theme of infra-judicial conflict resolution – by mediators, church bodies, neighborhood associations and more – was an exciting new subject within the history of crime in the late 1970s and early 1980s. This and related subjects took center stage at the meetings of the IAHCCJ at the time, many of them at the Maison des Sciences de l’Homme in Paris. Bianchi was an active participant in several of these. Rather than presenting papers, he was a provocative discussant. It was also, perhaps, his moment of greatest glory with respect to historical “lessons” for the present. It turned out indeed that in the early modern period a lot of conflicts between neighbors and within families were handled without the intervention of judicial institutions. Without publishing much himself about such issues, Bianchi sponsored the research of several young scholars. Undoubtedly, this is his greatest merit for the historiography of crime and justice, or historical criminology. All this was interdisciplinary research and, perhaps significantly, none of the four major books resulting from it were written by investigators originally trained as historians. The sociologist Marijke Gilswijt-Hofstra pioneered with her investigation of sanctuaries within the Dutch Republic (1984), which, she found, offered refuge mainly to killers who claimed self-defense and to debtors. In 1987 Bianchi’s assistant Sibo van Ruller published his study of pardons from the death penalty granted by the Dutch king in the nineteenth century, showing how a right with great symbolic value still bolstered the position of monarchs during a period when their power steadily declined. Sponsoring research like this hardly diminished the rejection of Bianchi’s work by his major critics. When Herman Roodenburg, also trained as a sociologist, wanted to convince his supervisor to accept Bianchi as co-promotor for his study of conflict resolution by the Amsterdam consistory in the early modern period, he took me with him as mediator. My pleas that one could disagree with this idiosyncratic criminologist, but still respect his erudition, were of no avail. Subsequently, Bianchi got Roodenburg a grant and became his principal supervisor, which resulted in an innovative study in 1990. The fourth book in this series is Theo van der Meer’s thorough study of the persecution of sodomy and the rise of homosexual subcultures in the Netherlands from 1730 to about 1830. He, too, could start working due to a grant that Bianchi obtained, but since the latter retired in 1988 and Van der Meer’s book came out in 1995, the sponsor could no longer act as official “promotor”. Although these four books were published in Dutch, their results were incorporated into English-language syntheses, thus entering international debates. This sponsoring of original research remains Herman Bianchi’s lasting legacy to historical criminology.
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AUTHOR
PIETER SPIERENBURG Erasmus University Rotterdam (NL)
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Deviance & Société : concours de jeunes chercheurs
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Déviance & Société Concours de jeunes chercheurs 2017 Déviance & SociétéJunior Researchers Award 2017
Pour fêter son quarantième anniversaire, la revue Déviance & Société lance un concours ouvert aux doctorants ou post doctorants ayant soutenu leur thèse postérieurement au 1er janvier 2011. Ces jeunes chercheurs sont invités à présenter un texte portant sur l’analyse par les sciences sociales des normes et des déviances, y inclus (mais sans exclusivité) le crime et la Justice. Il peut s’agir d’un compte-rendu de recherches ou d’un état des savoirs international. Sans que les thèmes suivants soient exclusifs, un intérêt particulier est porté à : la fraude fiscale des entreprises ou des particuliers et son contrôle, y compris sa dimension internationale ; la cybercriminalité et la cybersécurité ; la délinquance environnementale et son contrôle ; les analyses quantitatives. Les lauréats seront invités à présenter leur recherche lors d’un colloque organisé à Paris à l’automne 2017 par Déviance & Société. Les textes devront être envoyés avant le 1er mars 2017 à l’adresse suivante : deviance- [email protected] avec la mention concours de jeunes chercheurs 2017. Les coordonnées des auteurs devront comprendre leur université et leur discipline, ainsi que – pour les docteurs – la date d’obtention du titre. Ils devront être rédigés en français et comprendre entre 50 000 et 75 000 signes (espaces, notes et références compris). Ces textes devront suivre les règles de présentation qui figurent à la fin de chaque numéro de la revue Déviance & Société. Il est néanmoins permis aux candidats de soumettre un texte en anglais. S’ils sont sélectionnés, leurs articles seront toutefois publiés en français. Le groupe chargé par le Comité éditorial de Déviance & Société de gérer ce concours accusera réception des textes envoyés avec la mention concours de jeunes chercheurs.
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Puis il soumettra chacun d’eux à l’avis de trois évaluateurs. Chaque évaluateur examinera le texte préalablement anonymisé et proposera au groupe de travail soit son acceptation soit son rejet. Enfin, le groupe de travail établira, avant le 31 juillet 2017, au sein des admissibles un classement des textes admis et retiendra parmi ceux-ci, pour publication, au maximum 7 lauréats. Les décisions du groupe de travail sont sans appel To celebrate its 40th anniversary the journal Déviance & Société opens a competition to doctoral students or to postdocs having defended their thesis after 1. January 2011. These junior researchers are invited to submit a paper on norms and deviance, from a social science perspective, pertaining (but not limited) to crime and justice. The paper could present research findings or consist in a comprehensive review of the international literature on a specific topic. Although not limited to the themes listed hereafter, special interest is taken in : - business or individual tax fraud and control thereof, including at the international level - cybercrime and cybersecurity - environmental crime and its control - quantitative analysis. The winners will be invited to present their research at a Déviance & Société conference in Paris in the Fall 2017 Their papers will then be published in the journal Déviance &Société. The papers are expected before 1 March 2017 at the following address : deviance-et- [email protected], with a mention Junior Researcher Award 2017. Authors’ details will include their discipline and University and, for PhDs, the date of obtaining. The papers are to be written in French, with a character count between 50 000 and 75 000 (including blanks, notes and references). Their format should comply with the instructions to authors printed at the end of each Déviance & Société issue. While submissions in English are allowed, the papers, if selected, will be published in French The Committee in charge with the competition within the Déviance &Société Editorial Board will acknowledge receipt of the papers sent with the appending mention Junior Researcher Award 2017. It will next hand over each paper to three reviewers for an anonymous evaluation. Each reviewer will notify the Committee an accept/reject evaluation. The Committee will establish the final ranking of the accepted papers before 31 July 2017 and will select for publication a maximum of 7 among them. The Committee’s decisions may not be appealed.
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Comptes rendus
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Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colourblindness, The New Press, 2012, 304 p., ISBN 978-1595586438.
David Mansley
1 Among social historians of law there is currently a keen interest in popular legalism, i.e. in the active role that ordinary people played in the judiciary and how these people experienced the law. These new strands of research takes the view that ordinary people were not necessarily the victims of legal regimes imposed upon them from above. Instead, historians increasingly highlight the ways in which ordinary people shaped the judiciary. This historiographical shift includes growing attention to low-threshold forms of conflict arbitration, such as summary courts. These were the legal institutions that people from all walks of life were most likely to interact with.
2 Both volumes discussed in this review align with these new strands in historical research. The volume edited by David Lemmings comprises a range of articles that discuss why thre was an ‘explosion’ of popular trial publishing in London and Scotland during the eighteenth century, particularly focusing on how such practices afforded new means of popular participation in the law during the so-called age of ‘lawyerisation’ of criminal trials. Thus while trials at the beginning of the period in question were commonly attended by an audience from the lower orders of society who participated in the proceedings in a sometimes noisy and disorderly fashion, the locus of such popular participation gradually shifted to the printed press and became part of the public sphere, while lawyers came to dominate proceedings in court. The volume edited by Greg T. Smith comprises fifteen books of trial proceedings from the summary London court, the Guildhall Justice Room ; these records contain hundreds of entries detailing the appearances of ordinary inhabitants of London, as plaintiffs and defendants in various conflicts and offences, before the aldermen who sat as justices of the peace. Both volumes contribute towards mapping relations between ordinary people and the law in eighteenth-century London and, to a lesser extent, Scotland.
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3 David Lemmings is a distinguished historian of law and society, and more specifically on the history of the legal profession ; he has recently turned his attention to the history of emotions and the public sphere in England from 1680 to 1820. The recent volume ‘Crime, courtrooms and the public sphere in Britain, 1700-1850’, which he presents in a substantial introduction, contains six contributions about press coverage of criminal proceedings in London (notably in the central criminal court of the Old Bailey), as well as one contribution on London and Scotland, and one exclusively on Scotland. The collection covers a crucial period of transition, especially as regards both the nature of criminal proceedings and the booming of the printed press. Criminal trials initially had been open to the general public, and included participation from a plebeian audience, which sometimes had considerable impact on the proceedings. However, with the emergence of lawyers, in the 1730’s, as well as infrastructural changes, this sort of public engagement was gradually silenced in the courtroom. Nonetheless, concomitant with the booming of the printed press, criminal trials were vastly reported in a range of printed media, thereby relocating popular participation in criminal trials to the public sphere. This volume addresses the impact of ‘lawyerisation’ on these procedures, in particular as lawyers’ theatrical cross-examinations now inspired newspaper accounts and lawyers’ reported narratives transmitted their ideas about law and justice to the public.
4 The volume largely achieves the aims outlined in the insightful introduction. Together, the eight chapters offer a broadly comprehensive examination of a varied set of printed media, including newspapers, broadside pamphlets and session papers from the Old Bailey. Evolutions that took place across the 150-year-period under scrutiny become apparent from this collection of essays. For instance, there was a gradual commercialisation of sensationalist accounts of trials, first in London, and toward the end of the eighteenth century, also in Scotland (cf. chapter by Kilday, p. 156-159). Although the bulk of attention is focused on proceedings at the Old Bailey in London, the two essays that detail research on Scotland contribute an effective comparative dimension to the volume.
5 The volume offers contextualisation to the proceedings of the Old Bailey, the reports on criminal trials that were published eight times a year under the auspices ies of the Corporation of London from the 1670s onwards. As those proceedings have been digitized and made fully available for research (http://www.oldbaileyonline.org), the appropriate contextualisation of these sources is particularly welcome. For instance, in his meticulous examination of the reporting strategies behind the proceedings of the Old Bailey, Robert Shoemaker shows how prosecution cases and trials that led to convictions were prioritised, while markedly less attention was paid to defence counsel and to acquittals. By combining the proceedings with other source materials on reporting strategies, Shoemaker underscores shifts in reporting strategies over time ; he warns historians who use the proceedings for their research not to confuse changes in criminal trial procedures with changes in the reporting strategies behind the published proceedings. Indeed, during the ‘golden age’ of reporting in the latter half of the 1770s and the 1780s, it was rare for the defence council to be widely reported. This was primarily to reassure the public – in the context of social tensions before and during the Gordon riots – that equitable justice was being rendered in the Old Bailey. Such reporting strategies changed again in the late 1780’s, this time out to avoid dissuading prosecutors from initiating cases and to prevent that criminals should draw
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the ‘wrong lessons’ from criminal trials. Similarly specific attention to editorial choices is found in other chapters, such as those by Andrea McKenzie and by Rosalind Crone.
6 The book examines the editorial choices made in the reporting of trials and punishments. It is argued that these provide an indirect means of assessing the wider public’s preferences about - and thus popular attitudes to - the law. The sales figures for such reportage indicate the existence of a public that was fervently interested in criminal trials. In the contributions by Anne-Marie Kilday and David Lemmings, both of whom address the Scottish case, different voices are heard, notably about Scottish justice. In his chapter ‘Negotiating Justice in the New Public Sphere’, David Lemmings discusses the use of the press by an individual seeking to influence a particular trial before the Old Bailey (p. 138-142). He also evokes the fervent discussions in the coffee houses and taverns which came to be inherently associated with the emergence of the public sphere in eighteenth-century London.
7 Such lively discussions are less at the fore in the majority of the chapters, though “the critical ‘quality’ of public discussion” is presented as a principal theme of the volume (p. 18). The relocation of popular participation in the court room to the public sphere is first and foremost approached through the printed press, yet such items offer only indirect understanding of popular attitudes and discussion. Moreover, the different contributions exemplify both the mediated nature of such ‘participation’ and the ways that press coverage of criminal proceedings was informed by governmental concerns that such reporting should legitimate the outcomes. Rosalind Crone states that the emergence of the mass media in the years 1820-1855 further increased the exclusion of ordinary people from the courtrooms and redefined them as spectators. These spectators were dependent on a printed press that was characterized by selectivity and bias and that, rather than “educating or equipping the masses with skills that would encourage a critical interaction with the law, may have limited people’s interaction and assisted in further isolation” (p. 212). It seems that similar claims may apply to some extent to the eighteenth century. This raises questions about the press editors – for instance, the editors of the ‘select trials’ examined by Andrea McKenzie – not least as to who they were and what their relations with government officials were. In view of the similarity in the messages or reporting strategies they conveyed and the government- sponsored session papers of the Old Bailey, their editorial choices seem to reflect a new vision of the public sphere as a creation and extension of the state rather than the free- debate culture of a critical bourgeois public, as argued by Jürgen Habermas. The research underlying the volume would have allowed a more explicit reflection on and contribution to the conceptualisation of the “public sphere”, even though not all chapters explicitly engage in discussions of the “public sphere”.
8 This also applies to the question concerning the extent to which commercial interests were part of the new public sphere, which appears to have been the case from early on. Relatedly, the role of literary traditions in crime reporting and the overlap between journalistic and literary production is striking. The chapter by Simon Devereaux particularly addresses the “arts of public performance” on the part of barristers as represented in the press. Similarly, the article by Allyson N. May on literary representations of the early nineteenth-century criminal courtroom, explains that such accounts paint an “overwhelmingly negative portrait… of the criminal courtroom” (p. 168). Such depictions particularly focused on how lawyers undermined their clients’
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case by being disruptive during the trials. It also evidence the overlap between literary and journalistic representations and commercial interests.
9 The volume on “Summary justice in the city”, edited by Greg T. Smith, comprises the edition of summary proceedings before the magistrates of London in the Guildhall justice room for the years 1752-1781. It is the 48th volume of edited primary source material to be published by the London Record Society, as part of its efforts to stimulate research into the history of London. A wider public will also benefit from the volume. As the editor rightly states at the beginning of his introduction, “the common point of entry into the criminal justice system in England was the local justice of the peace”. Historians have increasingly considered the crucial role of these low-threshold judicial officials in English criminal law, as recent publications by Peter King and Drew Gray exemplify. However, summary justice operated by its nature in informal ways ; consequently, source materials that disclose interactions between justices of the peace, plaintiffs, defendants and witnesses are scarce. This volume of a range of records created by clerks of the Guildhall justice room is therefore a particularly welcome addition to recent editions of various notebooks and minute books belonging to those justices of the peace who worked predominantly in a rural context.
10 The volume contains a helpful introduction that discusses the role of the Lord Mayor and the twenty-five sitting aldermen of the city of London who performed duties as justices of the peace, sitting (in rotation) daily during fixed hours in the Guildhall justice room. These hearings were largely open to the public and, according to Smith, many London newspapers reported on the proceedings. This offers an interesting parallel to the volume edited by David Lemmings. An attorney worked as clerk, keeping notes of the hearings in the Guildhall justice room, so as to have a record both of the financial side of summary justice and of legal issues. In the London Metropolitan Archive, fifty-five minute books, covering the years 1752 to 1796, have been preserved. This edition comprises full transcription of the first fifteen of these books.
11 The hundreds of entries allow for examining the crucial role of the justices of the peace in the early stages of criminal proceedings, as well as in the settlement of civil conflicts, the administration of Poor Law and the regulation of the labouring population. When inhabitants of London had a complaint, they went first to the justices of the peace, who acted as gatekeepers to other, more formal courts. Thus, a wide range of issues is found in the minute books, including felony cases and misdemeanour cases that were supposed to be forwarded to the Old Bailey and the county quarter sessions or city’s sessions of the peace, respectively. However, Smith describes how the aldermen assumed considerable discretionary powers and took an active role both in investigating these disputes and in gathering evidence. In the large majority of the cases, magistrates would settle minor disputes on the spot and impose punishments before formal complaints were filed, thereby helping to keep litigation levels low. The arbitration of minor conflicts and the advancing of felony and misdemeanour cases to formal courts happened in a strikingly efficient and prompt way, though this was often at the cost of defendants not having sufficient time to organise their defence. Nonetheless, as Smith suggests, the minute books show how the pre-trial proceedings before the justices of the peace helped to secure confessions and to negotiate settlements before formal complaints were filed. Such informal settlements were of interest to both defendant and plaintiff.
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12 The crucial role of constables in policing the metropolis also becomes apparent in the edited source materials. These authorities were in charge of arresting and detaining people who had been accused and of bringing forward people who disobeyed vagrancy laws or contravened public order and moral regulations. Greg Smith intimates a certain specialisation among the constables, who for instance became particularly involved in cases relating to moral regulations. The controlling role of the aldermen over the (sometimes overzealous) constables also becomes apparent in the edited minute books.
13 A wide range of topics relating to social history, urban history, labour history and the history of crime can be investigated via edited minute books. Greg Smith has successfully managed to make this edition resemble as much as possible the structure of the original primary sources. Similarly, he explains his editorial decisions with much clarity at the end of the introduction. The minute books are by their very nature not an easily accessible source for research. As such, it is helpful that the volume includes an overview of the most commonly used abbreviations ; nonetheless, the exact meanings of a considerable number of abbreviations remain unclear. The edited source is supplemented with over 200 explanatory notes that are particularly valuable, as well as a lengthy index of names and surnames. However, it is to be hoped that the London Record Society will also provide a digital version of the edited sources. While it is highly beneficial and valuable that names can be consulted in the index, it would be particularly helpful if researchers could similarly access a digital edition and systematically search for types of crime, the appearance of constables in the proceedings, or the use of the word ‘poor’ in the minutes, to name just a few potential research strategies. A digitized version of this volume would doubtlessly enable a wide range of additional research approaches. This would not only help to further valorise the meticulous and important work carried out by Greg Smith, but would also contribute towards advancing a range of insights and approaches related to popular legalism.
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Jonathan Davies (ed.), Aspects of violence in Renaissance Europe, London : Ashgate, 2013, 276 p., ISBN 978-1409433415. Sanne Muurling
Sanne Muurling
1 While the big debates within the history of violence have largely been inspired by quantitative assessments of homicide rates, there has also been an increasing interest in the examination of violence as a cultural issue. This volume, edited by Jonathan Davies, is a recent contribution to this cultural approach to violence. It consists of nine essays from various disciplines, divided into the three sections (interpersonal violence, war and justice) that intend to shed light on the varieties of violent behavior that cannot be fully captured by homicide statistics alone.
2 The volume opens with a chapter by Hannah Skoda on student violence in 15th century Paris and Oxford. By primarily studying students’ letters and poetry, it examines violence as a tool to engage with and manipulate the labels attached to the dichotomous stereotypical social identities of being a conscientious, pious learner versus a violent, drunken, and sexually uncontrolled deviant. In the analysis of four key aspects of student identity – peer groups, masculinity, geographical provenance and the relationship with townspeople – she shows the specificity of violent behavior. Skoda argues that the different institutional structures and specific demographic and political contexts are responsible for the variations in form and functions of violence in Paris and Oxford.
3 The second chapter by Joëlle Rollo-Koster consists of a cultural re-examination of the 1527 Sack of Rome. Rather than a political view focusing on the pope’s failure to keep the European power-balance in check or a religious view that attributes the violence to the Lutherans and their anti-popery, Rollo-Koster embeds the Sack of Rome within the cultural framework of traditional interregnum violence that existed within Roman and papal culture. Based on historical events that preceded the Sack, such as the 1050 death of a bishop and the 1378 papal election in Rome, she points at recurring elements such
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as looting, violence related to political dissatisfaction, and counter liturgy and carnivalesque behavior. She argues that the main offenders of the Sack, the Lutheran Landsknechte, drew upon a scripted tradition of customary violence that transcended confessional lines.
4 The 1546 murder of the Spanish Evangelical expatriate Juan Díaz by his Catholic brother Alfonso, a lawyer at the papal curia’s highest court of appeal, is central in Miriam Hall Kirch’s third chapter. Preceding the Schmalkaldic War between Charles V and the Lutheran Schmalkaldic league, it explains how the dissemination of reports and broadsheets of this murder that took place in Neuburg was shaped by the ambitions of Neuburg’s prince, the exiled Ottheinrich. The Neuburg’ government publicized their protests against Charles V’s stopping of the prosecution of the Catholic killer. During the surrender of Neuburg by the Spanish emperor several months later, they used the murder again to draw a parallel between the murder of Juan Díaz for his evangelical beliefs and the refusal of Ottheinrich to abandon his Protestantism at the emperor’s request, whipping up emotions against the emperor, foreigners and the Catholic establishment. Hall Kirch argues that the accounts of this murder should therefore be understood within this specific political context.
5 The last contribution provides a deeper reading of Claude de Rubys’ 1577 Discours sur la contagion de peste. Within the context of France’s sixteenth-century religious conflicts, it focuses on the religious and political agenda of this plague treatise and argues that it should be seen as a religious polemic that blurred the lines between civic healthcare and ritual purification. According to the treatise, the high Protestant mortality in the city of Lyon during the plague of 1576-1577 reflected God’s sovereignty and the purging of blasphemous defilement that polluted the body of Christ. Deepening the categories of difference between Catholics and Huguenots, it provides a written record of the dehumanization of the Protestants of the city.
6 In the fifth chapter Alan James calls for a rethinking of the Peace of Westphalia in 1648 from a cultural perspective. According to James, the Peace is too often viewed as a watershed moment marking the birth of modern, sovereign nation states. Rather than measuring early-modern warfare against the rhetoric of the military revolution, he argues for an examination of the contemporary cultural values, motivations and strategic purposes of war such as dynasticism, legitimacy, religious conviction and personal honor and reputation.
7 That wars could also provide representational dilemma’s for contemporaries is described in Sarah Covington’s contribution on the literary representation of the English Civil War of 1642 to 1648. She describes a deviation from the traditional epic form of high poetry to a certain indeterminacy of the civil-war genres, responding to the violence with anything from silence, satire, factual documentary approaches, to a fascination with wounds. Covington explains the myriad of literary representations by pointing out that traditional literary forms did not fit the destructive realities of warfare ‘at home’ as experienced by contemporaries.
8 Marina Daiman sheds new light on painter Peter Paul Rubens’ attitude to war. His allegorical depictions of war and peace, which focus on the horrific aspects of combat, have traditionally been interpreted as proving his pacifist intent. Based on Rubens’ correspondence Daiman however argues that his views were more ambiguous. As a person, he lamented war in his homeland, as a diplomat he worked for war in France and peace in the Netherlands, and as an artist he delighted in depicting war.
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9 The volume’s final section on justice is initiated by Lucien Faggion with an examination of new forms of social regulation and practices of conflict resolution in two Venetian 16th century rural communities. In the context of a rising number conflicts by the nobility, Faggion describes how a system emerged in which violent disputes between family or kin members had to be settled through the use of compromise. A mediator (often a notary) was delegated the responsibility to resolve these disputes, linking criminal and civil justice, and resulted in the writing up of deeds for compromise and peace acts. While research into law and legal practice traditionally tends to focus on civil or criminal court records, Faggion shows how the notarial archives can be used to gain insight into violence in urban and rural societies.
10 In the last contribution Amanda Madden examines the peace brokering process regarding the Bellencini-Fontana vendetta in late-sixteenth century Modena. She argues that factional violence may have been a less disruptive obstacle to efficient rule and civic life than has been presupposed and may in fact have been part of the ‘functional politics’ of governing elites. Regrettably the chapter does not explicitly provide arguments supporting this statement, but Madden seems to suggest that the duchy’s need for cooperation of the nobility in the peace brokering and the peace enforcement provided a greater group cohesion that served both the centralizing interests of the duchy and those of the nobility pressured to subsume itself into ducal politics.
11 While individually the case-studies lack a shared, overarching focus, the collection does achieve what it sets out to do: illustrating the specificity of violent behavior and the need to contextualize it through a cultural lens. However, as this cultural approach has already been successfully pursued by other scholars for several decades (as is also indicated in the volume’s introduction), it is regrettable that the volume does not address how the case-studies presented here alter or complement the outcomes of this existing body of literature, rather than primarily contrasting it with the dominant quantitative debates. The volume would furthermore have benefitted from a contribution on non-elites, since their involvement in and experiences of violence have traditionally been overlooked in scholarship in favor of the elites’. Nevertheless, this collection of case-studies succeeds in showing the importance of examining how, when and why violence occurred and what it meant within that specific context, above all illustrating the potency of a cultural analysis of violence.
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Marc Bergère, Vichy au Canada. L’exil québécois de collaborateurs français. Rennes : PUR, 2015, 328 p., ISBN 978-2-7535-4173-3.
Jean-Marc Berlière
1 On connaissait relativement bien les exils — sud-américain, scandinave, suisse, et surtout espagnol — d’un certain nombre de responsables politiques, écrivains, journalistes, miliciens… engagés dans une collaboration plus ou moins active avec l’occupant qui, peu soucieux d’affronter les foudres d’une justice sous influence et les débordements d’une épuration sanglante, ont choisi l’exil pour mettre quelque distance et quelques frontières entre eux et l’article 75 du Code pénal.
2 On connaissait très peu, en revanche, l’exil de quelques figures de la collaboration au Québec, province du Canada lié au camp allié, ce qui n’allait pas sans poser de multiples problèmes aux autorités politiques et religieuses de la Belle Province dont le catholicisme et certaines analyses communes lui avaient fait considérer le régime, l’idéologie, la « Révolution nationale » du maréchal Pétain avec une sympathie qui a permis de parler d’un « pétainisme sans l’Occupation » (Marc Ferro) ou mieux encore d’un « pétainisme sans collaboration »1.
3 Le premier mérite de cet ouvrage, que Marc Bergère a tiré de son mémoire d’HDR2, est donc de nous plonger dans une période de l’histoire du Québec mise au jour depuis les années 1990 par l’historiographie — le rêve d’un « Vichy sur Saint Laurent »3 — et de le faire par ce biais en abordant de plain-pied les difficultés – diplomatiques, politiques, morales… - posés par ce choix logique d’une poignée de miliciens. Comme le rappelle Marc Bergère « moins que leur importance numérique […] c’est l’écho significatif de leur présence et les soutiens non négligeables dont ils ont pu bénéficier au sein de la société québécoise » qui furent à l’origine d’une « mobilisation politique et sociale qui s’apparente de fait à une véritable ‘affaire d’état’ ». Cette affaire d’état, l’auteur la restitue avec précision à partir de sources québécoises variées, précises et souvent passionnantes. Il en montre également les limites : celles d’un épiphénomène
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circonscrit à certains groupes politiques et religieux activistes. Le rappel de cette hésitation entre Vichy et la France libre qui ne caractérise pas le seul Canada, s’inscrit par ailleurs dans un mouvement historiographique qui s’intéresse depuis une bonne dizaine d’années à Vichy « hors les murs », notamment à l’étude des relations et relais diplomatiques d’un régime qui incarnait et représentait le pouvoir légal et reconnu de la France, ou encore à l’enracinement - très divers - de l’idéologie pétainiste dans l’empire4.
4 Un autre intérêt de ce travail est de s’attacher, parmi les miliciens ayant choisi l’exil québécois, à la figure de Jacques Dugé de Bernonville qui cristallisa toutes les passions soulevées par Vichy, la collaboration, l’épuration5. Le chapitre consacré à cet activiste d’extrême droite, monarchiste, catholique fervent, ce vrai faux aristocrate, engagé volontaire en 1916 dans les chasseurs alpins, décoré de la Légion d’honneur à titre militaire – comme Darnand ou Bucard – militant d’Action française, camelot du Roy, qui fut de tous les complots d’extrême droite (UCAD, OSARN…) avant-guerre est passionnant. Adhérant d’enthousiasme à la Révolution nationale, Bernonville va, comme beaucoup d’autres « nationaux » oublier son patriotisme et, au service du nouveau régime, collaborer avec le vainqueur et l’occupant. On le retrouve ainsi dans pratiquement toutes les officines policières ou militaires, parallèles, officielles ou officieuses, nées de la situation si particulière de l’Occupation : les Groupes de protection du colonel Groussard, le Service d’ordre légionnaire de Darnand, le Commissariat général aux questions juives, « l’équipe », police occulte initiée par le docteur Ménétrel, mais manipulée par l’Abwehr, la Milice française, la Waffen-SS, le Corps des volontaires français (CVF)6, etc…
5 Homme des missions occultes, cet ultra de la collaboration va plonger au coeur de la guerre civile qui peu à peu s’installe en France : on le retrouve chef milicien à Glières, dans le Vercors, puis à la tête du Maintien de l’ordre en Bourgogne puis à Lyon. Parti en Allemagne, parachuté en France, il disparaît, sans doute protégé et caché dans des établissements religieux avant de réapparaître au Québec.
6 On comprend pourquoi le séjour entre 1946 et 19517 d’un tel personnage, il arrive au Québec déguisé en ecclésiastique, ait pu susciter polémiques et passions.
NOTES
1. Éric Amyot, Le Québec entre Pétain et De Gaulle, Montréal, Fides, 1999. 2. La Postérité de Vichy au Québec. L’affaire des « réfugiés politiques » français après 1945 : retour sur l’événement, sa mémoire et l’écriture de son histoire (Paris I, 2003). 3. Esther Delisle, Mythes, mémoire et mensonges : l’intelligentsia du Québec devant la tentation fasciste, 1939-1960. Montréal, Robert Davies, 1998. 4. Sur ce « Vichy colonial », Cf. Jacques Cantier, L’Algérie sous le régime de Vichy, Odile Jacob, 2002 ; Eric Jennings, Vichy sous les tropiques. La Révolution nationale à Madagascar, en Guadeloupe et en Indochine. Grasset, 2004 ; Vincent Joly, Le Soudan français de 1939 à 1945. Karthala, 2006 ; Jacques Cantier, Eric Jennings (dir.), L’Empire colonial sous Vichy, Odile Jacob, 2004.
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5. Yves Lavertu, L’Affaire Bernonville. Le Québec face à Pétain et à la collaboration. Montréal, VLB, 1994. 6. Les passages concernant l’école de Taverny et le CVF montrent quelque confusion entre ce CVF et le Selbstschutz mis en place à l’instigation d’Oberg. 7. Qu’il quittera pour le Brésil où il est mort en 1972.
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Frédéric Chauvaud, Pierre Prétou (dir.), L’arrestation. Interpellations, prises de corps et captures depuis le Moyen Âge, Rennes : PUR, 2015, 367 p., ISBN 978-2-7535-4256-3.
Jonas Campion
1 L’actualité a remis la pratique de l’arrestation au cœur des discours médiatiques, politiques et judiciaires. En effet, les attentats de Paris, les enquêtes qui les suivent mais surtout la menace terroriste omniprésente interrogent ce « moment » du travail policier et judiciaire selon deux angles particuliers : d’une part, celui de la multiplication des arrestations et coups de filets dans les milieux extrémistes (en l’occurrence islamistes), mobilisant souvent au sein de la police d’importants moyens humains et matériels. D’autre part, du fait de l’idéologie des terroristes, l’apparition d’une nouvelle équation, largement inédite dans le processus répressif. Il s’agit de l’impossibilité-même d’envisager des arrestations, puisque les criminels sont prêts à mourir pour leur cause, obligeant autorités, police et justice à repenser les logiques de leurs interventions. On le voit au prisme de ce retour à l’avant-plan, la notion d’arrestation constitue un objet pluriel, difficile à appréhender. Tant ses modalités pratiques que le sens qui lui est attaché sont des réalités inscrites dans le temps et l’espace. Bien qu’omniprésente dans les sources, l’imaginaire collectif, la littérature ou les arts, la « prise de corps » n’a pourtant été que peu étudiée pour elle-même et dans ses particularités par la recherche en sciences humaines et sociales.
2 Réunissant près de 16 contributions sous la direction conjointe de Frédéric Chauvaud et de Pierre Prétou, ce livre ambitionne d’être une des premières synthèses historiques consacrées exclusivement à l’arrestation. Il offre en effet un parcours nuancé pour définir à travers le temps, l’acte d’appréhender un individu pour le priver de liberté. Les perspectives adoptées pour étudier ce phénomène sont multiples. Sans être exhaustifs, les quelques exemples ci-dessous en démontrent les richesses. Les sujets
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abordés par les contributeurs vont de l’analyse de représentations graphiques du Moyen Âge, relatives notamment à l’arrestation du Christ (contribution d’Anne Lafran) ou à celle de Charles de Navarre par Jean Le Bon en 1356 à Rouen (contribution de Xavier Pindard) ; à des analyses de dessins de presse de la Belle-Époque (contribution de Laurent Bihl) ou à l’observation des arrestations dans des bande-dessinées de la seconde moitié du XXe siècle (contribution de Frédéric Chauvaud). Marco Cicchini réfléchit quant à lui aux relations entre police et justice pour penser l’arrestation au tournant du XVIIIe siècle, alors que plusieurs études de cas, basées sur des faits divers, mettent en lumière petites et grandes affaires criminelles de la France des XIXe et XXe siècles (affaire Violette Nozière par Anne-Emmanuelle Demartini, ou affaire du « vampire du Bois-du-Chêne » par Laurent Lopez).
3 Cette variété de perspectives et de méthodes historiennes répond en fait à trois axes principaux de réflexions, constituant le plan de ce travail collectif et lui donnant sa cohérence : penser et imaginer l’arrestation ; figures puis pratiques de l’arrestation. Dit autrement, les textes envisagent d’abord la définition et la codification d’une pratique, ils en éclairent ensuite certains acteurs ou affaires « matricielles » d’une période ou d’une dynamique, avant d’envisager le déroulement, avec ses heurts et malheurs, de l’acte d’appréhender un individu. Le caractère construit du livre vient également de la stimulante contribution introductive, et de chacune des introductions de parties qui resituent brièvement mais efficacement les grandes problématiques abordées.
4 On l’aura compris, les apports au débat historique du livre coordonnée par Chauvaud et Prétou sont réels. Le volume interroge avec finesse les multiples sens et débats autour de l’arrestation, à la fois aboutissement et commencement de l’action de punir. D’une action relativement rare et parfois honteuse sous l’Ancien Régime, elle se transforme progressivement en acte certes courant, mais garantissant largement les droits et la sûreté individuelle après le Siècle des Lumières. L’arrestation est en effet progressivement largement codifiée. Avec les auteurs, on s’interroge sur les conditions de son succès. L’importance de sa médiatisation prend ici toute sa pertinence, dans le chef d’une volonté de légitimation de l’action publique. Surtout, on s’interroge sur son sens au sein de nos sociétés. Le vocabulaire utilisé en est un révélateur parfait : arrestation, interpellation, capture ou prise de corps témoignent d’autant de nuances quant à ses fondements. À la fois acte technique – nécessitant méthodes, pratiques et objets dédiés – et acte de politique criminelle, l’arrestation se lit comme participant au monopole étatique de la violence étatique et se fait donc reflet de son processus de construction ou d’affirmation au sein de l’espace public : le débat sur les acteurs de l’arrestation, civils, agents de la force publique ou de l’État, qui traverse les contributions est à particulièrement pertinent à cet égard. Également, comme le montre la contribution de Jean-Marie Augustin consacrée aux arrestations de Juifs, résistants et réfractaires au STO dans le département de la Vienne entre 1940 et 1944, la logique individuelle ou collective des cibles de l’arrestation permet de penser plus en avant ce processus.
5 Le résultat donne un ensemble riche, pionnier à bien des égards. Sans aucun doute, s’il ne constitue pas la synthèse définitive sur l’arrestation (et ce n’était pas son intention), le livre pose les jalons pour souvent en initier, ou plus rarement en renouveler, l’étude par les historiens. Cet appel à des recherches complémentaires nous permet de souligner deux regrets mineurs face aux choix opérés.
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6 D’une part, celui du terminus chronologique envisagé. Mis à part la contribution déjà citée sur la bande-dessinée, aucun texte n’envisage de période plus récente que la Seconde Guerre mondiale. Or, sans aucun doute, le second vingtième siècle offre de nouveaux terrains d’observations stimulants, si l’on envisage à la fois la transformation sociale, la complexification du droit, et le processus de démocratisation qui y a cours. L’on peut s’interroger sur les continuités et ruptures autour de l’arrestation, après l’exceptionnelle crise de la Seconde Guerre mondiale, où celle-ci a connu une extension sans précédent en nombre, en populations cibles, et dans ses atteintes au droit. Dans quelle mesure et de quelle manière observe-t-on une normalisation de l’interpellation après le conflit ? Plus récemment, face aux discours sécuritaires et à la crise de l’insécurité, quels sens peut-on donner aux pratiques et aux fondements idéologiques de l’arrestation ? La recherche pourrait s’intéresser à des lieux inédits (comme les banlieues), des méthodes nouvelles (la spécialisation des unités de police), mais aussi des moments particuliers (comme les manifestations, par exemple) pour comprendre les logiques contemporaines de l’arrestation.
7 D’autre part, il est frustrant de constater que le livre se concentre uniquement sur l’espace français, à l’exception de l’article de Marco Cicchini, qui envisage pour partie le cas genevois. L’on aurait aimé d’autres perspectives géographiques, qu’elles soient européennes (vers des sociétés marquées ou non par les conquêtes de la France révolutionnaire) ou extra-marines. A cet égard, le terrain colonial représenterait un vis-à-vis fascinant en termes de différentiations, de transferts et de circulations des pratiques et conceptions de l’arrestation.
8 Ces limites, loin d’être rédhibitoires, constituent au contraire un appel à approfondir le champ. Il faut espérer, dans la continuité des études de cas rassemblées dans ce volume pionnier, voir se multiplier plus en avant ces approches riches car multiples – parfois presqu’ethnographiques – des actes et moments constitutifs du droit du punir.
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Francesco Benigno, La mala setta. Alle origini di mafia e camorra 1859-1878. Torino : Einaudi, 2015, 403 p., ISBN 978-88-06-22441-7.
Michel Huysseune
1 This book is an important contribution to the debates on the origins of organized crime in Italy and, because of the historical role of Italy in the emergence of the phenomenon, therefore also highly relevant for an understanding of organized crime in general. It explicitly proposes itself as revisionist, since it intends to contest the presently dominant narrative that argues for an organizational continuity of Mafia and Camorra since their ill-understood origins generally dated in the mid-nineteenth century, and tends to project the present characteristics of organized crime into the past. This paradigm, itself emerging after the important court cases against organized crime of the 1980s and 1990s, definitely attested the importance of the organizational structure of the Mafia in particular, hence putting an end to controversies on its very organizational existence.
2 Against this approach, La mala setta proposes to take a new look at the period between 1859 and 1878, preceding and following Italian Unification in 1860-1861. This interest is not new, since studies on the origins of the Mafia and the Camorra have often focused on this particular time-period, when contemporary sources first mention these organizations, or rather use the terms Mafia and Camorra. In the past, these studies did not reach entirely convincing conclusions, but they did draw attention to the importance of the political context, and in particular raised the question of the relationship between criminals and various political actors, especially groups involved in violent action. This is exemplified by the obvious parallels between the initiation rituals of, for example, the Mafia and those of freemasonry and of the Carbonari.
3 Benigno’s research returns to this period. It focuses on the two most important cities in the former monarchy of the Two Sicilies, Naples and Palermo, each of them loci of power with a concentrated presence of regional political and social elites, but also cities
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that the new Italian authorities perceived as dangerous and turbulent. Benigno proposes to reread both official and unofficial sources on Naples and Palermo from the period 1859-1878. Instead of scrutinizing them for clues that would reveal the presence of Mafia and Camorra as previous research tended to do, he highlights two important elements. In the first place, he draws attention to the confusion that effectively characterizes these sources, and how a comprehensive overview of these sources provides very few, if any, elements that would confirm the existence of organized crime. Secondly he analyses how many sources in fact offer pre-set narrations on criminality. Following a discourse that originated in post-revolutionary France, he highlights these sources as reflecting a society focusing on the “dangerous classes”, whereby the dangers of social upheaval and criminal behavior coincided. As he points out, official Italian interest in crime, not surprisingly, always increased with political upheavals, in particular a revolt in Palermo in 1866 and the Paris Commune. In those years, various forms of unlawful behavior were routinely attributed to criminal groups – often referred to as criminal sects – that were at the same time denounced as ‘internationalists’, partisans of the First International, while the effective partisans of this organization were denounced as criminals.
4 This discourse on the dangerous classes was accompanied by the practice of authorities and police forces to manipulate political and criminal groups, a practice particularly well established in the case of France. Benigno’s research sheds new light on the importance of similar practices in Italy, highlighting how they were not limited to Southern Italy. He draws attention to a forgotten example of police manipulation of criminal activities in pre-Unification Turin, and a better known example of persecution of political opponents as presumed criminals in Ravenna. While previous authors tended to perceive this phase as a moment when authorities made use of existent criminal networks, Benigno’s hypothesis is exactly the opposite, namely that as far as the existence of such groups can be established, they were often set up by the very authorities that denounced them. His book provides numerous examples of such involvement of authorities, and these examples allow him to hypothesize that criminals were in fact moulded by a process whereby marginalized groups learn to adapt themselves to the models of criminality provided by mainstream culture, such as the criminal sect.
5 Benigno’s book situates itself within the so-called cultural turn in criminology which highlights the importance of contextual interpretations and understandings of crimes. However, in line with recent scholarship on southern Italy he also intends to deconstruct prevalent negative stereotypes on the region. Particularly in the study of organized crime, scholars have frequently argued that its continuous presence in some regions reflects its social and cultural embeddedness in the societies concerned. A number of canonic texts published in the 1870s have played a crucial role in this process and are still important references in contemporary Italian debates on organized crime : Pasquale Villari’s Lettere meridionali, and the L’inchiesta sulla Sicilia by Leopoldo Franchetti and Sidney Sonnino. What these texts have in common is their association of cultural backwardness and the presence of organized crime, in what Benigno denounces as a tautological circle whereby organized crime is both cause and consequence of backwardness. At the same time, these texts all omit what is crucial for understanding the emergence of Mafia and Camorra : the active intervention of authorities to support such groups for political reasons, a habitual manipulation of violence that was not limited specifically to this period (an example would be the
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opaque relations between extreme right terrorism and parts of the state apparatus in the 1970s), nor to Italy.
6 As many deconstructive and revisionist contributions, La mala setta raises as many questions as it answers. The author himself points out that his essentially urban outlook should be extended to research on smaller towns and the countryside, and also to renewed studies of the banditry that played such an important role in rural southern Italy in the decade after Unification. The book nevertheless provides a convincing critique of prevalent interpretations of the origins of organized crime, and important clues to a new understanding of this crucial historical phase. As such, it provides both a stimulus and a number of methodological tools for a more comprehensive revision of the early history of organized crime in Italy.
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Dominique Kalifa et Jean-Claude Farcy, Atlas du crime à Paris du moyen âge à nos jours, Paris : Éditions Parigramme, 2015, 220 p., ISBN 978-2-84096-872-6
Clive Emsley
1 More than a hundred years ago mile Durkheim shocked his contemporaries by suggesting that crime was a normal social fact ; it was, after all, to be found in every society even though it shifted its form since the actions defined as crime might change as some activities were removed from the lists of those demanding penal sanction while others were added or modified. Dominique Kalifa and Jean-Claude Farcy do not discuss Durkheim in this book, but their exploration of Paris over some 800 years lend considerable weight to his suggestion – a suggestion that some today might also find shocking, and one that politicians and policemen avoid as they promise new laws and practices that they insist will win the war against crime.
2 As readers of this journal will know, Dominique Kalifa and Jean-Claude Farcy are two of the best historians of crime and the many issues and problems surrounding it currently at work in contemporary France. This book is a work of synthesis aimed at a much wider readership than the purely academic one. The authors declare their aim as being to provide a long-term identity of criminal Paris. They justify starting in the Middle Ages, specifically at the time of the Hundred Years War, by drawing attention to the shortage of documentation for the subject in the periods before the fourteenth century. Even so, the book has to race through time – 800 years in 220 pages. Overall, it wears its authors’ learning lightly. It is beautifully and copiously illustrated and, as is to be expected from an atlas, it contains informative maps which, in this case, highlight places noted for different forms of crime at different times as well as jurisdictional divisions under the old regime, old regime and modern police districts, sites of prisons and executions. There are seven chapters, each covering a chronological period and
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each subdivided into key issues or major, dramatic incidents. A glance at the contents page therefore makes it relatively simple to follow across time issues such as the perceptions of crime and criminals, prostitution and sexual crimes, and shifts in penal and policing institutions. Even so, a formal index at the end of the book would have been useful to enable the reader to do some cross checking without having to depend on memory. Having spent so much in producing such a fine and colourful book, the lack of a proper index is difficult to understand.
3 Well supported by the maps, Kalifa and Farcy argue that there has been a significant shift at least in the ‘dangerous’ areas of the city where the majority of those brought before the courts are to be found. From the Middle Ages until the nineteenth century the hurly-burly of the narrow streets in the city centre with their bars, churches and markets were the places for picking fights, planning and also committing all kinds of thefts. Some of these narrow streets, notably on the left bank around La Sorbonne and directly opposite over the Seine and Île de la Cité in the district of St. Merri, survived the building developments and social segregation of the Second Empire, but generally Haussmann’s Paris saw the beginning of a significant shift to the outer quartiers. From the late twentieth century there was a further shift to the banlieues. Across time ‘criminals’ were considered to exist primarily among the poor, especially recent migrants drawn to the city by the promise of a better life. There is a hint in the comments about most offending being petty, that these people were the victims as often as the perpetrators of crime. Overall, however, historical studies of the hot spots of petty crime are few and far between. Some of this is because of the shortage of evidence to explore the issue ; but it could also be the case that the victims chose either not to report an offence because of fear of the perpetrators or of the police, or because they hoped to enact their own revenge in their own way.
4 While most crime is petty, this does not make for good news stories. As might be expected given Dominique Kalifa’s earlier work there is much here on media portrayal of criminality, especially in the form of newspapers, romans-feuilletons, romans- policiers and the memoirs of both policemen and major criminals. Pierre-François Lacenaire, for example, who saw himself as a poet of crime and wrote as such from the death cell, has a sub-chapter to himself. So too does Albert Soleilland whose murder of 11-year-old Marthe Erbelding was used by the press to campaign for the preservation of the death penalty and tough punishments. Yet while the novels and memoirs are well-represented, it might have been useful to have had something also on modern television equivalents : Engrenages, for example, set in contemporary Paris has a sixth series in production and covers many of the contemporary panics about sex murders, trafficking, drugs, police officers pushing the boundaries and corrupt officials.
5 But my quibbles are all very minor. Perhaps there will not be much here for the academic well-versed in the history of crime and penal institutions in France and in Paris in particular, though the maps and the splendid illustrations, together with the period sweep will make the book invaluable for quick reference. It should however, be required reading for politicians and media hacks who insist that crime is getting worse and come forward with what appears to be increasing regularity claiming to have found new and guaranteed solutions to old problems – to normal social facts perhaps, but that remains an area where the academic debate will continue.
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Luigi Lacchi (ed.), Il diritto del duce. Giustizia e repressione nell’Italia fascista, Rome : Donzelli, 2015, xxxviii + 313 p., ISBN 978-88-6843-242-3.
Jonathan Dunnage
1 Centred on the relationship between repression and the administration of justice in fascist Italy, Il diritto del duce presents a stimulating collection of essays. These can be situated in the context in which, as stated by Luigi Lacchi in the introduction to the volume, Mussolini’s regime desired that, beyond a merely repressive function, the criminal justice system reflect the fascist ‘spiritual Revolution’, giving shape to the ‘“new” morality of the Italians’, and establishing a ‘state of justice’ around which to build consensus (p. xxxviii). What measures, then, were taken to ‘fascistize’ the Italian criminal justice system ? How did legal concepts evolve during the years of the ventennio, and how were judicial procedures and punishment of crime affected as a result ? In what ways did the organs of justice and their personnel respond to these transformations and how much professional and cultural independence did they maintain from the regime ? What continuities with the justice system of the Liberal State are evident, and how did fascist criminal justice compare to that of Nazi Germany and to the legal systems of coexistent liberal orders ? In addressing these questions, the volume offers a set of detailed and often fascinating insights into the fascist justice system and the juridical culture underlining it.
2 Several of the essays in the collection consider the impact of Mussolini’s rise to power on the judiciary. Indicating continuity with the Liberal State, Antonella Meniconi notes in her contribution that the relationship between the judiciary and the fascist regime largely rested on the former’s traditional respect for the ‘juridical orientation of government’, whatever the political colour of that government (p. 80). Fascism’s hold over the judiciary was mainly achieved through an intensification of hierarchical
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control exercised by the Minister of Justice. Nevertheless, Claudia Storti suggests that some magistrates were disposed towards fascist forms of justice well before Mussolini came to power. In her analysis of judicial interpretation and application between 1900 and 1922 of laws governing the right to strike and to association, she argues that the Court of Cassation attempted to guarantee ‘the prevalence of principles of order over those of freedom’ (p. 29) by intervening to annul lenient sentences handed out by judges of lower courts who, partly influenced by socialist ideas, were sympathetic to the rights of workers. However, as Floriana Colao illustrates in her examination of trials of anti-fascists in the early years of fascist government, some magistrates continued to operate according to liberal principles, refusing to recognize the ‘penal relevance of “intention” and “suspicion”’ (p. 51) advanced by the new regime.
3 A number of contributions reveal new evidence about the Special Tribunal (Tribunale speciale per la difesa dello Stato), set up in November 1926 to ensure that threats against the state were addressed more effectively and expeditiously than the existing courts. Leonardo Pompeo D’Alessandro analyses the contradiction inherent in the military structure of the Special Tribunal and its political objectives. This, he argues, was resolved from the late 1920s through the transfer of responsibilities relating to the running of the Tribunal from the War Ministry to the Head of Government, and the gradual replacement of military judges. Underlining the extent to which the autonomy of the judiciary was compromised by fascism, D’Alessandro notes how the eligibility, from 1928, of ordinary judges to exercise their profession at the Special Tribunal encouraged a large number of applications, in many cases motivated, it would seem, by opportunity for rapid career advancement, though selection still depended on possession of fascist qualities. Alessandra Bassani and Ambra Cantoni identify in disproportionately severe sentences meted out by the Special Tribunal for betrayal of state secrets (segreti politici) the political function of fascist justice, which punished individuals as subjective ‘enemies’ of the Fascist State, when the offences committed did not seriously undermine state security. In a moving contribution, Matteo Petracci considers Special Tribunal sentences to criminal mental asylums in the broader context of fascism’s embracing of positivist criminal anthropology for repressive purposes. Petracci hypothesises that certification of a pre-existing state of madness often served to conceal the fact that mental ‘illness’ exhibited by political ‘offenders’ was in reality a consequence of severe trauma caused by police beatings during interrogation.
4 The activities of the Special Tribunal should be considered as part of a new juridical order, which, in dealing with crime, was not inclined to consider extenuating circumstances. As Monica Stronati illustrates, under fascism the number of individuals pardoned and spared the death penalty dropped notably in comparison to the early years of the Liberal period. In a propagandistic show of his ‘loftiness of spirit’ and of the re-educational function of punishment, Mussolini restricted pardons to individuals sentenced to confino (internal exile) for ‘minor’ crimes (p. 136). In a preliminary analysis of the more-or-less unexplored justice system of the Italian Social Republic (1943-1945), Toni Rovatti examines the creation of special courts dealing mainly with fascist betrayal following Mussolini’s first fall from power in July 1943, and the resurrection of the Special Tribunal. However, punishment of the ‘internal enemy’ was increasingly entrusted to a large number of fragmented and competing military organs, leading to highly arbitrary forms of administration of justice.
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5 In one of three comparative essays featuring in the volume, Barbara Bushart distinguishes fascist criminal law, animated by the concept of a strong ‘personified’ state, which ‘cannot refuse legality’ (p. 119), from the Nazi concept of ‘people’s law’. In this vein, Giuseppe Speciale analyses the interpretation which many Italian magistrates gave to fascist anti-Jewish race legislation from the late 1930s, identifying their desire to inhibit the attempted domination of the judicial order with new racial principles. Thus, the majority of Italian judges ‘did not renounce their role as interpreters of the legal system’ (p. 261), when during the same period in Nazi Germany judges were expected to identify the law in the will of the people. In his analysis of the Nazi People’s Court (Volksgerichtshof), Thomas Vormbaum identifies judicial procedures founded on a heuristic principle, as well as a popular style, responding to demands voiced during the 1920s, especially by the Left, to overcome ‘the extraneousness of justice from the people’ (p. 242). Similarly stressing continuity with previous political orders, Camilla Poesio notes how the application of fascist confino and Nazi Schutzhaft (protective custody) – in the context of both regimes’ violation of the principle of nullum crimen, sine lege – amounted to a re-introduction of measures which had been applied for illiberal ends in Liberal Italy and the Weimar Republic. In an essay which underlines the need to consider possible similarities between fascist law and that of contemporary liberal orders, Stephen Skinner compares the formulation and application of the crime of ‘vilification of the state’ (vilipendio dello stato) in the 1930 (Rocco) criminal code with that of ‘seditious libel’ in English common law. In the face of a perceived communist threat, under both systems lack of a clear definition of these offences permitted a suspension of rule of law for the purpose of preserving the power of the state, placing ‘the law at the service of politics’ (p. 59).
6 Among the many perspectives contained in the volume, the attention – which for lack of space I cannot elaborate on – that several contributors in the course of their analyses pay to the roles and careers of individual members of the judiciary, during the dictatorship, should also be highlighted. Contributing to a growing body of work which explores the many dimensions of fascist criminal law, this collection of essays will prove highly informative and inspiring to scholars of legal history and fascist repression.
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Richard M. Ward, Print Culture, Crime and Justice in 18th-Century London, London : Bloomsbury Academic, 2014, 256 p., ISBN 9781472507112.
Clare Wilkinson
1 In the ever-widening body of work on media representations of crime, eighteenth- century England has received particular attention, with notable contributions from historians such as Esther Snell, Peter King and Robert Shoemaker. Richard Ward’s book is a valuable addition to this work, not least because he examines a range of different genres of print culture while most other studies have been limited to one genre. Specifically, he looks at metropolitan newspapers, social policy pamphlets, graphic prints, the Old Bailey Proceedings (the accounts of trials at London’s central criminal court) and the Ordinary’s Accounts (descriptions by the chaplain of Newgate of the lives of criminals condemned to death). Ward is interested in the impression print crime literature gave of crime and the administration of justice. However he also wants to explore the interaction between this crime literature and the justice system. To investigate this, he focuses on London during the relatively short period of 1747 to 1755. Mid-century London makes an interesting test case firstly because there was an unprecedented, wide range of publications covering crime and secondly because it experienced something of a crime wave following the end of the War of Austrian Succession.
2 In the first substantive chapter, Ward uses diaries to show that print literature was indeed an important source of information on crime for Londoners, particularly as they had little or no direct experience of serious crime. He provides evidence that the entire range of genres in his study were consumed by people in the eighteenth century. The next chapter deals specifically with property crime. Prosecutions for crimes of this nature tended to fall during wartime and rise as war ended, and the period following the end of hostilities in mid-1748 was no exception. Various explanations have been proposed for this pattern, such as the sudden influx of demobilised troops. Ward argues
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that changes in print crime news, which he characterises as a moral panic, may also have influenced prosecution practices. Newspaper crime reports started to increase in number and concerns voiced about rising crime as early as 1747. Moreover both newspapers and the Old Bailey Proceedings gave a distorted picture of property crime by concentrating on violence theft. This was construed as a serious problem requiring stringent responses and tougher sentencing. A key factor driving the fluctuations in crime reporting seems to have been the amount of important foreign news : as the war effectively came to an end, crime news increased, but fell again when peace negotiations started.
3 In Chapter Four, Ward looks at the representation of policing in print literature. Snell has contended that the eighteenth century saw a fundamental change in the representation of the justice system. Whereas traditional criminal biographies showed criminals getting their just deserts, newspapers, with their need to publish stories as they emerged rather than when justice had been done, presented a less comforting picture that emphasised the weakness and failings of the justice system. Ward on the other hand argues that print literature gave a relatively positive and reassuring picture of policing. Thus half of newspaper crime reports mention the offender being detained, and both the press and the Old Bailey Proceedings regularly celebrated the efforts of the police. In fact the Fielding brothers actively used the press to publicise the activities of their Bow Street runners.
4 The final substantive chapter makes the case for print crime literature influencing the 1752 Murder Act. This act increased the humiliation of the death sentence for murderers. In the period leading up to the act, sensational media coverage of murder cases turned murder into a coherent theme demanding urgent attention. The measures eventually adopted of dissection of the body and hanging in chains were being advocated as effective penal practices in the print discourse. The influence of the print media can also explain the timing of the act. The Felonies Committee, which proposed the bill, was established in February 1751 but it was only in February 1752 that the committee first made mention of measures to combat the crime of murder. This was seemingly out of the blue, yet Ward is able to show that this coincided with a peak in the press coverage of murder trials.
5 Throughout the book, Ward engages in a lively debate with the arguments and findings of other historians of crime in eighteenth-century England, sometimes coming to very different conclusions, as noted above. In this way, the book actively builds on the existing scholarship. Ward also makes sensitive use of his sources, discussing their limitations at some length and recognising the many factors at play. Thus his attempt to analyse changes in sentencing is hampered by a sudden change in prosecution practice in around 1750 whereby grand larcenies were ‘fictionalised’ as petty thefts and tried in a lower court.
6 This book demonstrates the benefit of concentrating on the minutiae of a relatively short period. By looking at month-by-month developments in crime news and the administration of justice, Ward is able to draw conclusions about the relationship between crime news and prosecuted crime that would otherwise be lost in the broad sweep. He shows that crime print literature had its own dynamics and was not simply a reflection of actual crime or actual crime prosecutions. Ward is on less sure ground when discussing the effect of print literature on readers’ perceptions and the operation of the justice system. In the example of the Murders Act, where the members of the
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Felonies Committee are known and where there is some evidence that they were consuming the relevant print genres, his argument for the influence of crime news reporting is certainly plausible. In other situations, any conclusions about the effect of crime literature, for example on the readiness of victims to prosecute, must remain speculative, as indeed Ward recognises. However he might have been able to say more if he had given a clearer picture of the target readership for the print literature in question. Ward refers to them consistently as ‘propertied Londoners’, which suggests that he has an idea of the type of person involved, but he never defines this term. To what strata in society did they belong ? In particular, to what extent would they have overlapped with the victims of crime in the metropolis and with the juries, judges and magistrates responsible for the prosecution of crime ? This background information would have helped in assessing the potential impact of crime reporting.
7 Despite this caveat, Ward offers an interesting and thought-provoking account of crime literature and its relationship with the administration of justice at a time when there was an unprecedented array of different publications covering crime. His main contribution is in examining a range of different genres and thereby providing a richer, more comprehensive picture of crime in print culture that comes closer to the actual experience of readers in the eighteenth century.
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Lionel Dorthe, Brigands et criminels d’habitude. Justice et répression à Lausanne, 1475-1550, Lausanne : Bibliothèque historique vaudoise, 2015, 522 p., ISBN 978-2-88454-142- X.
Diane Roussel
1 Issu d’une thèse de doctorat soutenue en 2013 à l’Université de Lausanne, le livre se veut « une passerelle entre l’histoire du droit et l’histoire sociale, étendue à l’histoire politique lausannoise » (p. 10) et propose de renouveler une historiographie régionale importante, fruit d’une longue tradition lausannoise d’histoire du droit médiéval, fortement teintée d’enjeux identitaires. La sorcellerie vaudoise et sa répression par l’Inquisition ont été l’objet d’études nombreuses et anciennes. Les sources locales sont ici visitées à nouveaux frais pour étudier non pas la petite criminalité « ordinaire », écartée par l’auteur, mais les autres cas exceptionnels ou « énormes » jugés par la procédure inquisitoire extraordinaire, délaissés jusqu’alors : la criminalité d’habitude et le brigandage. Le sujet traité est ainsi défini par les sources et aurait sans doute gagné à être reformulé car la démonstration manque parfois de clarté et se dilue dans des analyses denses et parfois répétitives au fil des dix chapitres qui composent l’ouvrage. Peut-être s’agit-il d’une thèse devenue trop vite un livre. L’entreprise archivistique demeure importante et l’édition en annexe d’une cinquantaine de pages de documents en latin, français et allemand témoigne de l’épaisseur documentaire. Par ailleurs, l’auteur fait le choix de dépasser les césures académiques entre Moyen Âge et époque moderne en étudiant la série des archives laissées par la cour séculière de la principauté épiscopale de Lausanne depuis 1482 jusqu’aux années 1550, soit au-delà de la rupture traditionnelle de 1536, date de la conquête bernoise du pays de Vaud.
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2 L’étude des mécanismes judiciaires occupe l’essentiel du livre et débute par une présentation très minutieuse de l’histoire des institutions lausannoises, puis du fonctionnement de l’appareil judiciaire. Durant la période épiscopale, la juridiction temporelle de l’évêque est exercée par le bailli ou son lieutenant, qui président audiences et débats. La spécificité de Lausanne repose sur le droit, essentiellement politique mais réel, dévolu aux habitants de la ville : nobles et citoyens, formés au droit pour nombre d’entre eux, siègent aux côtés des officiers épiscopaux comme assesseurs, présents lors des interrogatoires des prévenus et composant les prud’hommes qui rendent la sentence à l’issue des procédures. Au lendemain de la conquête bernoise de 1536, la juridiction temporelle de l’évêque passe aux Bernois et la justice est scindée en deux institutions distinctes, le bailli bernois et la seigneurie de Lausanne. L’analyse de la pratique démontre toutefois que la réorganisation judiciaire s’est faite dans le respect des libertés et des franchises anciennes et selon une certaine continuité administrative et juridique puisque, en matière criminelle, le Plaict Général de 1368 demeure la principale source du droit jusqu’en 1618. Avant les années 1540-1550, qui voient le renforcement effectif de la tutelle bernoise, la coopération entre les cours se manifeste par les copies de documents et autres extraits de procès que s’échangent les tribunaux. Le morcellement juridictionnel n’a donc sans doute pas profité aux criminels puisque l’entraide judiciaire a, au contraire, contribué à l’amélioration administrative. Quant au passage de la procédure accusatoire à l’inquisitoire extraordinaire, il s’agit aussi d’un processus complexe et ancien. L’auteur retrace les transformations d’une combinaison longtemps mixte, dans laquelle habeas corpus et clame persistent jusqu’en 1536, alors que depuis le XIVe siècle, l’instruction d’office progresse et le pouvoir discrétionnaire du juge se renforce, au profit de l’évêque et au détriment des bourgeois de Lausanne.
3 La procédure inquisitoire extraordinaire s’impose comme la norme pour juger non plus seulement les sorciers vaudois, mais aussi les crimes commis par les brigands et les criminels d’habitude, de plus en plus considérés, par la société comme par la justice lausannoises, comme les plus graves. À la fin du Moyen Âge, la criminalité d’habitude entre dans la catégorie des « crimes énormes » dont la menace à l’ordre public justifie le développement de la saisie d’office et la procédure inquisitoire. L’instruction repose avant tout sur l’obtention des aveux et la dénonciation des complices. Pièce maîtresse du procès, la confessio peut être obtenue par la torture judiciaire (décidée sur autorisation de la cour séculière des bourgeois et appliquée à environ 1/3 des prévenus), mais souvent sa seule menace suffit. Dans 30 % des cas, la justice récolte des informations et constitue des dossiers permettant de poursuivre, par la transmission de signalements et par des expéditions dans le Jorat, d’autres criminels. Enfin, la pénalité est adaptée aux délits : la plupart des voleurs sont pendus, les meurtriers roués, les sorciers brûlés. La sentence est prononcée par les jurés, après délibération à huis clos sur la peine requise par le procureur à l’issue de l’enquête préliminaire. Si le rôle des bourgeois se réduit peu à peu à une pure formalité, la dimension politique et la mise en scène de la communauté devant la foule présente le jour du jugement demeurent importantes puisqu’elles sont nécessaires à l’approbation rituelle de la décision et permettent de « garantir la vérité du procès mais aussi la vérité du pouvoir » (p. 228).
4 La seconde partie du livre est consacrée aux crimes et aux criminels. Lionel Dorthe s’attache notamment à déconstruire la mythologie des « brigands du Jorat », fameux hors-la-loi réfugiés dans les forêts, déjà présents dans la littérature de l’époque
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moderne mais dont la fortune littéraire du modèle du bandit social, protestataire et frondeur, date surtout de la fin des années 1960. En dépit des difficultés terminologiques, l’auteur a sélectionné 81 procès de « criminels d’habitude », c’est-à- dire relevant du cumul d’infractions dont le total de 1 600 crimes est composé de meurtres, de brigandage et parfois de sorcellerie, mais essentiellement de vols. Toutefois, la plupart des vols (86,5 %) sont commis sans violence et le recours à celle-ci est généralement réservé au vol d’argent et apparaît en recul sur la période. Ainsi la répression à l’égard des criminels d’habitude exprime surtout la sensibilité au vol dans le contexte spécifique de lendemain des guerres de Bourgogne : comme l’ont observé Claude Gauvard et Valérie Toureille pour la France d’après la guerre de Cent Ans, un fort désir d’ordre accompagne le retour à la paix et la reprise démographique et économique. L’inquiétude des populations soutient le développement des valeurs du patrimoine, de l’ordre public et de l’autorité ; parallèlement, la notion d’incorrigibilité se développe au XVe siècle, définissant juridiquement un animés delinquentis dont l’enracinement dans le crime par la répétition l’emporte sur la gravité même de l’infraction commise.
5 Pas plus que l’étude de ces crimes ne dessine de zone géographique particulièrement criminogène ni de spécificité criminelle du Jorat, le profil des criminels « habitudinaires » n’est spécifique. Difficile toutefois de démêler le stéréotype de la réalité sociale lorsqu’il s’agit de mener l’enquête sur la supposée marginalisation de brigands constitués en bandes professionnelles. Pour l’auteur, la description des fraternités criminelles de soudards liées par des serments ritualisés révèle surtout la mentalité des juges, contaminée par la tradition démonologique et influencés par la filiation avec les pactes des sorciers. De même, la multiplication des procès au cours de la période, et en particulier après la conquête bernoise, refléterait moins une criminalité galopante qu’une forte hausse de l’activité judiciaire. L’auteur identifie une dynamique répressive ostentatoire dans la volonté du pouvoir judiciaire d’imprimer sa marque dans la mémoire collective par l’écrit et par des rituels soignés. Ainsi par exemple la forte hausse au XVIe siècle des dépenses d’apparat de la justice témoigne-t- elle des enjeux politiques de l’exercice de la justice, dans le cadre de la concurrence entre la ville et l’évêque puis dans la lutte contre l’autorité de Berne. En dernière analyse, le développement de la justice criminelle séculière et de la procédure inquisitoire, façonné par la chasse aux sorcières et aiguillonné par une demande sociale d’ordre, soutiennent la lente construction de l’État moderne à Lausanne.
6 Au final, le livre contribue au renouvellement de l’historiographie locale par son érudition et par la discussion serrée de la bibliographie existante. Plus largement, l’étude concourt au développement de l’histoire des justices locales et seigneuriales par une attention minutieuse aux méthodes (dès lors, il est dommage que le traitement quantitatif des archives soit desservi par des documents statistiques souvent mal présentés, incomplets ou peu lisibles), le croisement des sources (en particulier l’apport judicieux des sources comptables) et des approches institutionnelles, juridiques, sociales et procédurales qui permettent d’observer comment le travail ordinaire de la justice participe des transformations sociales et politiques.
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Crime, Histoire & Sociétés / Crime, History & Societies, Vol. 20, n°2 | 2016