Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 21 September 2011

On the trial of Madeleine Smith (1857)

There are few murder trials that are better known in the history of  Scots law than that of Madeleine Smith in 1857 which has been the subject of books, plays and even Hollywood films.

A sketch from the trial

A young girl of respectable background was accused of the poisoning of her lover, Emile L’Angelier. At the trial personal letters were produced as evidence by Crown which implied a sexual relationship between the couple, a fact which both scandalised and fascinated respectable middle class opinion of the time. The focus in the literature on this trial to date has been on the character of Madeleine Smith, on mistakes made by the Crown or the quality of the defence, or the reconstruction of how, if she did it, the fatal deed was carried out. Yet the intense speculation that has swirled around the question of her guilt or innocence – an issue left conveniently unresolved by the verdict of not proven – has stood in the way of developing a more detailed understanding of the legal and social context of the case. Fortunately a new book on the case, by social historians Eleanor Gordon and Gwyneth Nair takes a new, and refreshing approach to the case. Largely foregoing speculation on the issue of Smith’s innocence or guilt in favour of a more contextual approach, Gordon and Nair use the records of the trial to investigate the social mores and customs of Victorian Scotland and thereby throw a great deal of new light on the case.

Using Smith’s letters to l'Angelier as an entry point, they comment on shops and shopping, leisure activities, dress and fashion, sexual mores and so on - and along the way they briskly correct the claims or misunderstandings of previous writers about the case, based on their greater depth of knowledge of this social context. In addition, they provide an account of Smith’s life after the unlikely not proven verdict, tracing her marriage into the social circle of William Morris in London and subsequent emigration to the United States. And while this part of the story is not unknown, it seems less unlikely in the light of the more detailed understanding that they offer of her character and earlier life.

These kind of case studies have become increasingly common as social historians have woken up to the fact that the records of certain trials - and especially murder trials - provide an invaluable record of a particlar social moment. This is clearly more interesting than the speculations about motive, method and guilt that have dominated writings in this genre up until now. This is good news for lawyers too, in expanding our all too meagre knowledge of the history of our own system, even if it runs the risk of feeding the obsession with murder that can distort our understanding of the criminal law.

[The book is called Murder and Morality in Victorian Britain. The Story of Madeleine Smith, and was published by Manchester University Press in 2010]

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