A Cultural History of Law in the Age of Enlightenment by Rebecca Probert

Author:Rebecca Probert [Probert, Rebecca]
Language: eng
Format: epub
ISBN: 9781350079250
Barnesnoble:
Publisher: Bloomsbury Publishing
Published: 2021-03-11T00:00:00+00:00

EXPLANATIONS AND EXCUSES

Jurors used their discretionary powers to mitigate the harshness of the law and to apply it with selective rigor or leniency.24 Property offenses constituted the majority of the felony cases that filled the court’s calendar: the theft of goods valued at a shilling or more was grand larceny and a capital felony, while thefts under a shilling were petty larceny and non-capital.25 Through “pious perjury” juries often undervalued the goods stolen and reduced the crime from a capital to a non-capital offense.26 In addition to the undervaluation of goods, jurors could bring in a “partial verdict” that acquitted the prisoner of the indicted offense but convicted him of a less serious one. Jurors often reached such partial verdicts in cases of violent physical assault such as murder. By reducing a charge of homicide to manslaughter, juries avoided the imposition of the death penalty.27 Jurors mitigated on the basis of an assessment of a myriad characteristics specific to each defendant such as age, sex, rank, standing in the community, good neighborliness, and respectability. Among these mitigating factors, the nature of the offense and its place within the context of the prisoner’s life played an especially important role in the jurors’ decisions about the excusable nature of the crime.28 Strangers, those new to a community or migrating through it, were accused of crimes at a much higher rate and had a much more difficult case to make for mitigation and reintegration because they often had no one to vouch for them.29

One explanation for crime, insanity, had long served as its excuse.30 Some defendants, in their attempts to seek mitigation for their crimes, elaborated and amplified a “language of the mind” stretching the insanity defense to include various mental states that ranged from delirium to confusion. Defendants represented themselves to the authorities as less than fully accountable for their behavior, admitting they had committed crimes but denying responsibility for their actions. These defendants spoke about mental distress, drunkenness, the pain of childbirth, and financial hardship as forces that overcame them and caused them to commit a variety of crimes from sedition to murder.31

During their brief deliberations jurors negotiated between their status as property-owning leaders of the community who found natural affinity with the political elite, the protectors of property who legislated the “bloody code,” and their membership in their local community with its particular notions of acceptable or forgivable behavior. Jurors applied a flexible standard of proof which allowed them to assess the defendant’s crime in the context of his or her general character.32 They might raise the standard of proof to justify an acquittal on the grounds of insufficient evidence instead of on merciful grounds alone. Under the guise of the standard of proof, jurors could balance competing ideas about the enforcement of the law, the death penalty, and the specific character of each defendant.33

Langbein asserts that the “lawyerization” of the trial, the introduction of prosecutors and the increasing presence of defense counsel, silenced the accused.34 Nevertheless, the emphasis on character and reputation persisted and if anything became more prominent.

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