Odds Laws and Legal Proceedings

I just read Judith Flanders's The Invention of Murder and discovered a bunch of small, throwaway details that would actually combine to make an interesting post about how random Victorian law could be at times.

1.) "Engagements were oral contracts; a broken engagement was a broken contract, and a woman's loss of reputation could be financially quantified" (149, footnote). It was basically a way to protect women from men who said they'd marry them in order to get sex, and then didn't. Presumably it didn't work the other way around. This might seem like a weird double standard or a gross commodification of virginity and a woman's body, but I actually think it was remarkably reasonable. The law was saying, "Our society puts emphasis on a woman's reputation and her virginity at marriage. Therefore, if a man, in essence, steals that from her by breaking promises, she is entitled to legal compensation for what amounts to a violation of her body. If he has ruined her chances of future marriage, and therefore future fiscal protection, he must be made to pay for it."

2.) "Public opinion aside, legally there was no crime called infanticide: murder was murder, said the 1803 Offences Against the Person Act. If it could be proved that a child had been born alive, then killing it was murder; if a live birth could not be proved, then from 1828 a charge of 'concealment of birth' could be brought against the mother. The law, however, failed to define what constituted a live birth: if the baby cried? breathed?" (224)

Considering that circumstances for children of very poor families or children who were born to servants or out of wedlock were often quite desperate, many people at the time viewed the quick smothering of a baby preferable to the slow starvation or the horrors of the workhouse that it would surely face if it lived. "Thus the sudden death of an infant frequently suited everyone: it cost the parish nothing; the mother could go back to work; and the employers did not lose their servants. The Church, too, sometimes appeared to agree that it was better all round if these children died" (224).

So basically, here is how you used to be able to get away with infanticide, in gross mishandlings of the legal system:
a.) You can give birth alone–maybe don't even tell anyone you're pregnant. You smother the baby and bury it. If you are not caught, then fine.
b.) If you are caught, you say it was born dead and you get a slap on the wrist for "concealing a birth".
c.) Your can give birth with a trusted friend helping, who will swear that the child was a stillborn.
d.) You give birth, kill the child and then report it to someone, saying the birth came on so fast you didn't have time to ask for help.

Concealment was the real problem, not the killing of the baby–which they didn't particularly care about, but had to prosecute if it was proved that the infant was murdered. Obviously this only worked with an infant, not with an older child.

3.) "The executioner, as a matter of right, got the clothes [a murderer] died in, and also the rope" (55). "Honey, I'm home! I got paid in rope again!" Actually, it may sound awful (who wants a dead person's clothes and the thing that killed him?) but if you were selected as executioner for a really high-profile murderer, you could make more money by selling bits of the clothes and rope as souvenirs than you would make in a whole year. It's amazing what people would pay for macabre relics of an execution.

4.) If you were executed for murder, your corpse became the property of the state, to do with as they wished. It was almost always donated to science. However, if you were executed only for attempted murder, your family has the option to buy back your corpse from the government for private burial. (193)

Considering some of the things I have read about the poorer Victorians' views on death vs. funerals, it would not surprise me to learn that families chose to save up their money to buy back the corpse, rather than provide their accused family member with a competent legal team to rescue them in the first place. This is pure speculation on my part, but funerals were a huge status symbol in the Victorian era, and there was nothing worse than the neighbors seeing your family only be able to provide a pauper's burial. There are plenty of reports of someone being deathly sick, but if the family fetched a doctor and got medicine there was a 50/50 chance the person would pull through. So the family would decide to let the person die and be guaranteed a decent funeral, rather than waste their money on medicine that might not work, and have no money left over to buy the nice casket, the nice flowers, etc.

While the book doesn't report on this in legal cases, I would conjecture that the mentality was entirely the same and there were probably instances of scrimping on legal defense for someone who was clearly, to their eyes, already dead.

5.) In Scotland (which had a different legal system than England), there were three verdicts: Guilty, Not Guilty, and Not Proven. The last was deeply troublesome, because it meant the jury thought you did it, but couldn't prove it, so they had to let you go. It was deeply stigmatized, so you had many innocent people who were thought of as criminals because they were never acquitted of the crime, but instead were just turned loose on society. Wilkie Collins's 1875 detective novel The Law and the Lady dealt with the stupidity of just such a verdict.

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3 Responses to Odds Laws and Legal Proceedings

  1. Actually, if you think about what is behind the US verdict of Not Guilty, Not Proven is actually quite similar. A jury has to give a verdict of Not Guilty if they can’t prove beyond a reasonable doubt that the person is guilty.

    Given the way society deals with Not Guilty verdicts of those who are commonly perceived as having committed the crimes (and frequently may have done so; OJ, I am looking at you) I am not sure we function much differently these days.

    Obviously the biggest issue is the sensationalism of trials.


    • Well, it is and it isn’t. I get what you’re saying and I agree with it, but the public holding the opinion that “that person is probably guilty but got acquitted” was and is not nearly as horrific as having a legal verdict that says “You ARE guilty, we just can’t prove it”. Having an official legal stamp on that mindset caused an awful lot of problems for people who received that verdict.


      • Well, I definitely prefer the two pronged system. But I like the premise of not putting people in jail when there isn’t the evidence to support it. I think it was a great stepping stone for the presumption of innocence. The Scottish legal system has a lot of influence on the US system has always seemed to me to be more fair than the common law system in England at the time.

        Also, not proven was the alternative to the proven verdict for some time before the Scots had guilty and not guilty. Not guilty was a new idea. It still exists though it is under review frequently.

        PS Most of my information comes from a fascinating, yet biased source, How the Scots Invented the Modern World, by Arthur Herman.


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