Unsound Empire: Civilization and Madness in Late Victorian Law by Catherine L. Evans (review)

Central to the governing of nineteenth-century Britain, at home and as it spread its power and influence worldwide, was the principle of the rule of law. It was praised again and again as the glory and the justification of British rule, a model for all other states. Yet for all Britain’s material and cultural triumphs in that era, this principle was never as secure as it seemed. It rested on an implicit assumption that came in the course of the century to be recognized as fragile: that the individuals whose behavior it was governing were basically rational and autonomous and could be responsible subjects. Ironically, an equally celebrated aspect of nineteenth-century British civilization, the advance of science, was undermining that assumption. This unforeseen contradiction between two great liberal ideals was not merely a philosophical problem, but, as Catherine Evans is at pains to show in Unsound Empire: Civilization and Madness in Late Victorian Law, a political one: both Great Britain and the colonies in its expanding and diverse world empire were governed by law. Yet repeatedly those who administered the law—lawyers, judges, civil servants—were confronted, on occasion at home but daily abroad, with the difficulty in making rule by law also rule of law—that is, the (as boasted) universal and equal treatment of persons according to definite and known principles.

The advance of science into questions of human psychology, in the guise of the growing number of medical men professing expertise in mental illness and disability, was animated by optimistic hopes of making clear for the first time the workings of the human mind. Yet in the courtroom it tended to produce just the opposite effect—extending mental illness from cognition to the wider realms of will and affect; here medical men created the treacherous concept of “moral insanity” (insanity of the will, but not necessarily the intellect), which greatly blurred the boundaries of sanity and made it more difficult to determine legal responsibility (70). Criminal offenders appeared ever more like victims—of their heredity, their environment, or both—rather than villains, and many thoughtful persons saw in this development an ominous threat to long-established moral norms. What had been simply evil was being reframed, they objected, in terms of illness or debility. “And so,” Evans writes pointedly, “controversies about moral insanity spread around the British world like knives secreted in the pockets of common-law jurisprudence” (93).

Evans begins her story at home in the British world—specifically, Great Britain along with Australia and Canada—with British offenders and their trials, revealing the growing tension between medical science, abetted by rising humanitarian sensibilities, and the sharp and strict common-law distinctions popularized by the M’Naghten Rules. Soon her focus moves to the nonwhite regions of the Empire, where the ideal of the rule of law was presented with a greater challenge. Law justified and upheld the Empire, but it also presented obstacles to traditional moral clarity. In the Empire, defining legal responsibility was made still more difficult by the inability of most Englishmen, or Europeans for that matter, to imagine non-Europeans as similar by nature to them. This inability turned what was an exceptional situation at home of so-called abnormally behaving persons, into a far larger problem, a civilizational or racial chasm that increasingly challenged the moral claims of British (and, though not addressed here, all European) imperialism.

To explore these controversies and difficulties, Evans has chosen the rich field of criminal cases at home and throughout the Empire—specifically, murder cases. Since the only sentence for a guilty finding of murder was death, these cases were simultaneously intense human dramas and what Evans aptly calls “responsibility contests,” focusing the attention of both participants and observers on closely examining the defendant’s psychic state (8). Such a case method, while necessarily highly selective, has the great advantage of illustrating how similar criminal...