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An Irresistible Impulse of Mind: Crime and the Legal Defense of Moral

Insanity in Nineteenth Century Australia

Jan Wilson

Pervading Gipps! whose penetrating soul The least o’erlooks, the mightiest can control.Now drowning towns, now decimating quills,Now taxing provinces, now taxing bills:Or when thy jaded spirit seeks for ease,And even mis-government has ceased to please,Just acting o’er, to dissipate thy gloom,The dread rehearsal of a felon’s doom!

Beneath the frowning gibbet see him stand,And aid Jack Ketch, with no unskilful hand:The bolt is drawn, the treacherous platform falls,A hideous echo shakes those iron walls!

There is a wretch within the inmost cell,Who knows the meaning of that sound too well;Who wakes from stupor with a horrid start.And feels the lifeblood curdling at his heart.To them ’tis sport - at worst a heartless whim - But ’tis the bitterness of death to him.’1

"Sir George and the Gibbet. A masque, rehearsed at Woolloomoolloo Gaol, on the 3rd February, instant", The Australian, Saturday, April 26, 1845.

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AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1995) 11

To what type of specialist is [the criminal] to be entrusted and what will be his ’career’; is it to depend on verdict or diagnosis?2

From the later 1830s a contest between the medical and the legal professions began to be discernible in Europe and in New South Wales. In England, the success of the medical profession in helping convince the jury in the M’Naghten case that the defendant, the murderer of Sir Robert Peel’s secretary, was insane, and in contributing to his acquittal, resulted in defensive action by the judges in the House of Lords. In 1843 they formulated a set of legal prescriptions for the recognition of the relationship between insanity and crime, known as the M’Naghten Rules. The "Rules" reaffirmed the traditional criteria for the legal interpretation of insanity in criminal cases, and they therefore represented a victory for the judges, at least in the domain of the law courts. The contest was repeated in New South Wales, where phrenological knowledge had made a powerful impact upon many liberal minded members of the professional and official classes. In 1844, it erupted in the trial of the notorious "gentleman" convict, John Knatchbull, for the murder and robbery of a female shopkeeper. Knatchbull’s defense counsel, the radical barrister and politician, Robert Lowe, caused a furore in the colony when, using the M’Naghten case as a precedent, he adduced a phrenological analysis of the workings of the human brain to support his argument that his client had murdered the shopkeeper while in a state of "moral insanity". Backed by the religious and conservative forces in the colony, the judge in the case, Mr. Justice Burton, refused to entertain such radical notions, and sent Knatchbull to the gallows. Nevertheless, this case, which was given wide publicity both in the colonies and in Britain, is indicative of the influence which phrenology had begun to exert in colonial society, and of the extent to which science had begun to vie with religion in the explanation of human nature.

On the other hand, although John Knatchbull’s execution provided ammunition for reformers appalled at the barbarising effects which, they claimed, public hangings were having on the popular consciousness, the fact that it was the prosecution rather than the defense which won out in the Knatchbull trial provides evidence of the strength of the forces of reaction in the colonies. Despite the demise of the convict system during the middle years of the nineteenth century, and the growth of a number of liberalising

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Robert Castel, "The Doctors and Judges", in I, Pierre Riviere, having slaughtered my mother, mysister and my brother....A case of Parricide in the 19th Century, Michel Foucault (ed), PenguinBooks, Harmondsworth, 1978, p 252.

AN IRRESISTIBLE IMPULSE OF MIND:

forces in colonial society, official antipathy towards penal reform within the colonies succeeded in hindering its implementation. The resistance to the abolition of public executions, and to the replacement in the penal institutions of corporal punishment with "moral management", undermines even the conventional liberal account of colonial Australia as a site of unalloyed social progressiveness and improvement, while it also demonstrates that the shift from "early modem" to "modem" regulatory practices did not occur without a number of agonising ideological struggles and a great deal of individual torment.

I

From the late 1830s onwards naturalistic psychological knowledge began to influence the drive for penal reform in Europe, when it infiltrated the legal process with a corpus of theories surrounding the connection between insanity and crime. At the core of such theories was the idea that insanity was "a disease, not of the immaterial soul, but of the brain"; that in its guise of "manie sans delire’" it manifested itself only intermittently in apparently irrational behaviour which sometimes led to the commission of crimes; and that it was only discernible by an expert in human psychology.3 Indeed, the phrenologists, with their reductionist notions, held that all crime was the product of a diseased, or pathologically constituted brain. The new claims to professional power on the part of the medico-scientific community, whose members were disseminating and applying the new psychological knowledge, were seen by the conservative judiciary as a direct challenge to the dominance of the legal profession, whose members claimed that crime was a purely legal matter, involving a simple equation between prohibited acts committed by responsible agents and exemplary and retributive punishment.4

In France, England and the United States, alientists and medical practitioners began to challenge the competency of the legal profession to judge cases

As the Phrenological Journal declared, "All respectable medical authorities are agreed that insanity is a disease, not of the immaterial soul, but of the brain". Phrenological Journal, Vol. XVI, 1843, p 183. The idea of "manie sans delire" ("insanity without delusions") was first postulated at the turn of the eighteenth and nineteenth centuries by the French alienist, Philippe Pinel (1745-1826), the progenitor of "moral management" of the insane, Philippe Pinel, Traite medico-philosophique sur Talienation mentale, ou la manie, Paris, 1801. (Quotations from the collection of primary sources published by Richard Hunter and Ida Macalpine, Three Hundred Years of Psychiatry, 1535-1860, Oxford University, London, p 605.George Stocking, Jr, "From Chronology to Ethnology. James Cowles Prichard and British Anthropology, 1800-1850", in Researches into the Physical History of Man, James Cowles Prichard, The University of Chicago Press, Chicago and London, 1973, pp ix-cx.

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where the defendant’s sanity was in question. As a writer in the Phrenological Journal declared in 1836:

Judges, jurymen, lawyers, and witnesses, act a part in deciding the fate of these unfortunate men, and yet, when we inquire what qualifications they possess for forming a sound judgment, we find that they are avowedly ignorant of the philosophy of mind in a state of health, unacquainted with the effects of organization of the mental powers and strangers to the causes and appearances of their derangement... 5

In 1838 changes were made to the French penal code which recognised the work of the innovative alienist, Jean Etienne Dominique Esquirol, a pupil of Pinel, who coined the word "monomania", which came to be used as an umbrella term to cover the various forms of partial insanity in which the reason was disordered only in specific aspects.6 It was not long before these putatively humanitarian psychiatric theories were adopted and developed by British and American alienists.7 In 1835 James Cowles Prichard, acknowledging his debt to French psychiatric thought on the subject, published his theory of "moral insanity", which postulated the existence of a type of insanity in which irrational acts might be performed while all the intellectual powers remained intact.8 The phrenologists, with their concept of the brain as a congeries of discrete organs, any one of which might become over-active or diseased, were easily able to incorporate such theories into their own system. Indeed, most alienists found no contradiction in assimilating their ideas along with those of the French school, and of Prichard, even though there were some differences between them.9 For example, these ideas are all present in the work of the American alienist, Isaac Ray, whose A treatise on the medical jurisprudence of insanity became

5 "Insanity and Crime", The Phrenological Journal, Vol X, No. XLIX, 1836-7, p 121.6 Esquirol (1772-1840) was "the unchallenged leader of the new school of mental medicine" in France.

Castel, above, n 2, pp 264, 268. He shared the phrenologists’ belief that the human skull had much to reveal about insanity.

7 The contemporary term "alienist" is employed rather the modem ’psychiatrist’ in order to avoid anachronism.

8 James Cowles Prichard (1786-1848), A Treatise on Insanity and Other Disorder Affecting the Mind, Sherwood, Gilbert, and Piper, London, 1836.

9 Eric T Carlson & Norman Dain, "The Meaning of Moral Insanity" (1962) 36 Bulletin of the History of Medicine, p 134. On this subject see also Roger Cooter, "Phrenology and British Alienists", in Madhouses, Mad-Doctors and Madmen: the social history of psychiatry in the Victorian Era, Andrew Scull (ed) University of Pennsylvania Press, Philadelphia, 1981.

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an authoritative textbook of the period.10 The application of the theories of monomania, moral insanity and their phrenological variations to the explanation of crime created an immediate challenge to legal practice. The law presupposed that individuals were ultimately responsible for their own actions. Psychological knowledge now postulated that behind the reasons for a criminal act might lie a form of insanity that was only discernible by a medical expert. Not only did such an explanatory shift challenge the religious basis of morality upon which legal theory was predicated, but it also threatened to take the ultimate responsibility for judicial decisions away from the lawyers and the laymen on the jury and to confer it upon the medical expert in psychology.

The seminal event in English law which defined the nexus between crime and insanity was the trial of Daniel M’Naghten, a Glasgow turner who, intending to shoot Sir Robert Peel, the Tory Prime Minister, instead accidently killed the latter’s secretary, Edward Drummond. The medical evidence presented to the court about the circumstances surrounding this crime had convinced the jury that M’Naghten had been suffering from the delusion that he was being hounded by his political enemies, that they were threatening his life and that his only recourse was to eliminate the tory leader. Until this event, no British appellate court had been called upon to state the law on the defense of insanity, and the legal pronouncements which resulted from this trial reverberated throughout the English-speaking world until well into the twentieth century. Nine medical witnesses were called by the defense to diagnose the prisoner’s state of mind, and their conclusions as to the partial nature of his insanity were supported by the Crown’s two physicians. Chief Justice Tindal’s summing up of the medical testimony stated that:

persons of otherwise sound mind, might be affected by morbid delusions; that the prisoner was in that condition; that a person so labouring under a morbid delusion might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of exercising any control over acts which had connexion with his delusion; that it was of the nature of the disease with which the

Roger Smith, Trial by Medicine, Insanity and Responsibility in Victorian Trial, Edinburgh University Press, Edinburgh, 1981, pp 38 and 44.

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prisoner was affected, to go on gradually until it had reached a climax, when it burst forth with irresistible intensity; that a man might go on for years quietly, though at the same time under its influence, but would all at once break out into the most extravagant and violent paraxysms.11

Given the increasing status of the medical profession, the members of the jury were disinclined to ignore such authoritative evidence. Nor were they likely to defy the directions of the judge, which were specifically designed to influence the verdict. The judge instructed the jury to consider whether they believed the prisoner, at the time he committed the act, to be capable of distinguishing between right and wrong, in which case he was "a responsible agent” and should be found guilty; or whether "he was not sensible ... that [his act] was a violation of the law of God or of man".12 The consensus on the part of both the defense and the Crown being that M’Naghten was clearly insane, both sides rested their case, the trial was brought to an abrupt end, and, in a decision which provoked widespread outrage, the jury found the plaintiff "Not guilty, on the ground of insanity".13

Behind the medical arguments which were presented to the court lay all the scientific and philosophical complexity of the current theorising about the nature of insanity. However, especially given the predominant, if unspecified, role which phrenological ideas played, it is clear that the verdict rested upon a physicalist rather than a mentalist theory of insanity, and thus upon medico-scientific, rather than legal knowledge. At least one of the medical witnesses at M’Naghten’s trial, Forbes Winslow, was an adherent of phrenology; and M’Naghten’s defense counsel, Sir Alexander Cockburn, had cited as authorities on the connection between crime and insanity both Jean Etienne Dominique Esquirol and Isaac Ray.14 Cockburn’s affiliation with the alienists' view of insanity was revealed when he stated that the "intellectual and moral functions of the mind may be subject to separate

11 Quoted in P W Low, J C Jeffries, Jr, R J Bonnie, Criminal Law, Cases and Materials, The Foundation Press, Inc., New York, 1986, p 659.

12 Low, Jefferies and Bonnies, above, n 11, p 659.11 Low, Jeffries and Bonnie, above, n 11, p 659; Hunter and Macalpine, above, n 3, p 919. This was

a ground-breaking case in legal history, and it is discussed in most legal works dealing with the criminal law.

14 Eric T Carlson & Norman Dain, "The Meaning of Moral Insanity" (1962) 36 Bulletin of the History of Medicine, 133.

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disease" which might lead to delusions and uncontrollable impulses.15 This medical intervention in a criminal trial - unprecedented in British law - was perceived by the leaders of the legal profession as an invasion of its sphere of influence. As the trial had been stopped and there had been no discussion of the points of law involved, the House of Lords instructed its judges to lay down an ex cathedra pronouncement upon the law governing the relationship between crime and insanity. This defining of the law took the form of the Law Lords’ answers to five questions, the combination of two of which came to be legally ratified under the rubric of the "M’Naghten Rules".16

The defining of insanity by the conservative and aristocratic judges in the House of Lords signified their antipathy to the scientific and reformist claims of the medical profession and their determination to prevent medical power from undermining legal domination in the law courts. In their view, the medical man’s role in criminal trials should be strictly incidental and his opinion not asked "as a matter of right".17 As the Lords decreed:

[T]he jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction.

In order to establish a defense on the ground of insanity:

it must be clearly proved that, at the time of committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.18

Most medical men had welcomed the verdict in M’Naghten’s trial because the jury had been asked to take cognizance of the doctrine that "insanity is

R Smith, 1981, above, n 10. p 102; R Cooter, above, n 9, Arthur E Fink, Causes of Crime:Biological Theories in the United States, 1800-1915, University of Pennsylvania Press, Philadelphia, 1838, pp 52-56.

16 10 Cl and F 200, 8 Eng Rep 718 (HL, 1843).17 This is made clear in the answer to the fifth question submitted to the Lords. Hunter and Macalpine,

above, n 3, p 922.18 Hunter and Macalpine, “The McNaughton Rules”, above, n 3, p 921.

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a disease, not of the immaterial soul, but of the brain".19 However, their reaction to the Rules themselves was distinctly adverse. Despite the physicalist arguments which were put to the judges, the latter clung to what the alientists considered to be a backward-looking and unscientific "mentalist" view of insanity and rejected both the theory of organic dysfunction and the idea that insanity could be partial or a matter of degree. Thus, they refused to accord any validity to contemporary nosology which isolated such forms of insanity as "monomania", "moral insanity" or the malfunctioning of individual cerebral organs which could result in various forms of "partial insanity". The judges recognised only one form of insanity: that which was manifestly accompanied by delusions and hallucinations. In their opinion, insanity, although imperfectly understood, was a disease of the soul, resulting in defective powers of reason and a deranged psychological state. All a jury needed to know was whether defendants in such a state of mind were capable or incapable of discriminating between right and wrong.20 This meant that the judges had little time for such concepts as "manie sans delire" monomania, moral insanity, or any theory claiming that insanity was not immediately recognisable from its outward signs. Nor were they sympathetic to the idea that criminals acting from uncontrollable impulses needed to be treated as "moral patients" rather than being subjected to brutal forms of punishment.21 As Roger Smith has rightly pointed out, the M’Naghten Rules not only signified a very public devaluation of the most advanced medical knowledge about the nature of insanity and its connection with crime, but, given the association between the new knowledge, with its underlying project of social improvement, and liberal ideas, they also represented a rejection of reformist ideals in the domain of psychological medicine.22

19 "Report of the Trial of Daniel M’Naughten for the Murder of Edward Drummond, Esq. London, 1843" (1843) XVI Phrenological Journal 183. R Smith, above, n 10, p 11.

20 The Phrenological Journal’s response to this admission was to declare that "[o]ne great cause of insanity being so little understood, is, that lawyers and the public have not yet studied it seriously as a disease of the organs of the mind, and more particularly have not considered the effects of disease affecting some organs, while other continue sound", (1843) XVI Phrenological Journal 186-7.

21 ’Manie sans delire’, or "mania without delusion", was the term employed by the innovative alienist, Philippe Pinel (1745-1826) in his nosology of insanity. This form of insanity was contrasted with "mania with delusion", which was accompanied by the frenzied behaviour conventionally recognized as madness.

22 Smith, above, n 10, p 143. Smith provides an apt quotation from a contemporary alienist: "as there is a true and a false religion, so there is a medical psychology and a legal psychology". J G Davey, "On the relations of insanity and crime" (1858) 5 Journal of Mental Science, 89.

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II

A year after the M’Naghten Rules had become law the relationship between insanity and crime was publicly and passionately debated in New South Wales in connection with the trial of John Knatchbull, a "gentleman" convict who had been transported to New South Wales in 1824. In January 1844, he murdered Ellen Jamieson, a Sydney shopkeeper and the mother of two small children. The events surrounding Knatchbull’s capture and trial, and the attempt by the defense counsel to explain his crime in terms of insanity, were reported in detail in the colonial press, with the result that many of the issues which the M’Naghten case had raised in Britain were widely debated in the Australian colonies. In the Knatchbull case passion was added to the debate because, in entering a plea of not guilty by reason of insanity on behalf of his client, Robert Lowe, for the first time in a British court, deployed the concept of "moral insanity".23 This strategy met the full approval of both local and overseas phrenologists and their liberal allies, whilst it raised the ire of colonial conservatives, who were convinced that, because it denied Knatchbull’s responsibility for his action, it was immoral and would encourage crime in the colonies. The Knatchbull trial would be of interest if only because of this deployment of the new psychological knowledge in the defense of a notorious murderer; but its significance was magnified because it raised a series of complex moral and political issues which themselves continued to be discussed in the colonies long after the defendant in the case had disappeared from the scene.

The public first learned of John Knatchbull on Friday, 19th January, 1844, when the Sydney press reported the holding of an inquest, held at M’Kenzie’s public house on the comer of Clarence Street and Margaret Place, on the body of Ellen Jamieson, a widowed shopkeeper, who had died that morning from wounds to the head inflicted by a tomahawk. The chief witness, a builder named John Shalless, reported having been alerted to the presence, on the evening of the 6th January, of a suspicious looking man who was lurking in the vicinity of the shop where Mrs Jamieson lived with her two children. Shalless, a neighbour, watched from his verandah as the man, John Knatchbull, hovered about the shop, which he entered as the last customer left at around ten o’clock. Having become suspicious when Knatchbull failed to emerge, Shalless approached the shop to find the door locked. Hearing the sound of "something falling ... on the floor" and of

Colin Roderick, John Knatchbull. From Quarterdeck to Gallows. Narrative and Retrospect, Angus and Robertson, Sydney, 1963, p 242.

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"some strokes given as of someone breaking a coconut with a hammer", he raised the alarm among the neighbours and the nightwatch, who broke down Mrs. Jamieson’s door and forced an entry. Upon entering the shop, the men found that the woman, who was lying "insensible, covered with blood, which was flowing profusely from some wounds in her head", had been the victim of a frenzied attack. Her children lay crying upstairs.24 25 Adding details which could only further incense its readers, the Sydney Morning Herald reported the statement of one of the witnesses, Alfred Jaques, a grocer:

On lifting up Mrs Jamieson, I saw her skull was fractured, and a partof the brain protruding; I afterwards picked up a portion of her skull

25

All the circumstantial evidence pointed to the fact that John Knatchbull, who was discovered behind the front door, had been the assailant and that he had murdered the victim in the process of robbing her of £17.2s.8d. After "a minute’s consultation", the coronial jury returned a verdict of "wilful murder" and the prisoner was committed for trial.26

Word about Ellen Jamieson’s murder had spread rapidly throughout Sydney, and the inquest attracted "intense interest" from people at all levels of colonial society. Not only was M’Kenzie’s public house surrounded by hundreds of representatives of the "common people” - as the press reports termed them - during the course of the coronial inquiry, but the jury room was visited by “several military and naval officers, magistrates of the colony, and a considerable number of private gentlemen".27 The concern on the part of the Sydney elite over the fate of a convict whose social origins lay with the English gentry was to add fuel to the public outrage which the press reports were fomenting. As the Australian later commented, the "common people of Sydney" believed that the prisoner was receiving support from the highest reaches of society, and that Governor Gipps himself, being connected to the Knatchbull family, was providing financial support for his defense.28 The crowd’s suspicions were immediately raised when Knatchbull was conveyed from the inquest to gaol in a hackney coach, instead of being marched through the crowded streets in the conventional manner. Such an


24 Sydney Morning Herald, Friday, 19th January, 1844.25 Sydney Morning Herald, Friday, 19th January 1844.26 Sydney Morning Herald, Friday, 19 January 1844.27 Sydney Morning Herald, Friday 19 January, 1844.28 Australian, 26th April, 1845.

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unusual privilege was excused by the Commissioner of Police on the grounds that he feared that "the crowd about the place would lay violent hands on the prisoner for the purpose of showing their detestation of his conduct".29 As Knatchbull departed from the inquest to the accompaniment of "the hootings, hissings and cheering of several hundred men, women and children", the Commissioner’s fears were, in fact, probably justified, although it is also doubtful whether a less well-connected criminal would have caused him such concern.30

The trial of John Knatchbull, held in the Supreme Court on Wednesday, the 24th January, only six days after the inquest, became a cause celebre. The deep depression of the early 1840s had thrown the colonial economy into the doldrums, and working-class people, often unemployed and hungry, were, no doubt, not unwilling to be distracted from their own sufferings. Nor were respectable members of society in any mood to tolerate violence and theft, even though these crimes might have been committed by a member of the gentry in a disturbed state of mind. Morbid curiosity about the crime led the press to give the defendant maximum exposure and to contribute to the manufacture of the legend of his career of depravity and his criminal nature. The trial itself excited great public interest, and the Court was filled with spectators, the majority of whom were female.31 This audience found, however, that Knatchbull made an unlikely monster. Appearing much younger than his fifty-two years, he was also only five feet two and three-quarter inches tall, though "large featured for his height .... particularly in the upper part of the brow".32 Throughout the trial, his demeanour remained "very firm" and "although evidently affected, particularly at its conclusion, he exhibited little symptoms of agitation except in the tremulous tones of his voice while addressing the Court ,..".33 After some delay, caused by the fact that, when he had been arrested, Knatchbull had falsely called himself "John Fitch", he was arraigned under his own name, and when asked to plead, invoked universal disbelief by informing the Court that he was "not guilty".

29 Sydney Morning Herald, 19th January, 1844.30 Sydney Morning Herald, 19th January, 1844.31 Sydney Morning Herald, 25th January, 1844.32 Sydney Morning Herald, 19th January, 1844.33 Sydney Morning Herald, 25th January, 1844.

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The widespread suspicion that certain influential people in New South Wales were taking an interest in John Knatchbull’s fate was not unfounded.34 Two of Knatchbull’s nephews were residing in New South Wales in 1844, and his step-brother, Sir Edward Knatchbull, an English parliamentarian, member of the Privy Council and pay-master of the forces had a number of powerful acquaintances in the colony, who rallied round to provide the prisoner with some assistance. The most forthcoming among the Knatchbull contacts was Robert Lowe, the colonial barrister, editor of the influential radical newspaper, Atlas, and recently nominated member of the New South Wales Legislative Council. Before Lowe had arrived in the colony, in 1842 Sir Edward Knatchbull had provided him with a letter of introduction to Governor Gipps, whose wife was a distant relation of the Knatchbull family.35 It was either at the request of Knatchbull’s nephews, or that of Sir George Gipps himself, that Robert Lowe agreed, for fifteen pounds, to appear as counsel for the defense in the pending trial.36 By 1844 Knatchbull, the "black sheep" of his family, had already suffered a twenty-year ordeal as a convict in New South Wales, Norfolk Island and Van Diemen’s Land, and never before had any of his status-conscious family attempted to influence his fate. It is likely, therefore, that any change of heart which his indictment for murder induced among his kin was due to the publicity surrounding the case and to the fear of the ignominy which might have been attached to a neglectful family, rather than to any real concern for the defendant.37 As a humanitarian, Robert Lowe appears genuinely to have believed that his client’s propensity for getting himself into strife was due to his unbalanced mind and, strongly influenced by the success of the M’Naghten trial in


34 As the Australian later reported, "When the miserable Knatchbull took his trial for the murder of thelonely woman ... the common people, knowing this man to be highly allied in England .... theybelieved erroneously, but at the same time naturally, that the same mysterious influence, whencesoever and wheresoever it proceeded, would be once more in exercise, and procure for him a respite or a reprieve, after the sentence of death should have been passed on him", n 28 above.

35 Ruth Knight, Illiberal Liberal. Robert Lowe in New South Wales, 1842-1850, Melbourne University Press, Melbourne, 1966, p 64.

36 Ibid. This became the subject of rumour. As the Australian later reported, “Among the gossip was, that the Governor, or his lady, had given Counsel £100 to defend the man, and was most anxious for his escape, because they were intimate friends or relations of Knatchbull’s brother in Kent.” Australian, April 26, 1845. It was also reported that “Knatchbull had been supplied with every comfort by his two nephews who likewise used every exertion to save their erring relative from his disgraceful end.” Australian, 15th February, 1844.

37 The Knatchbull family patently did not share Robert Lowe’s radical and humanitarian impulses, despite their association. Sir Edward Knatchbull’s son, Charles - John Knatchbull’s nephew - appears to have shared his father’s anti-reformist attitudes. He was an active participant in the Oxford Union debates, which he used as an opportunity to speak in support of capital punishment for minor offences. Knight, above, n 35, p 64.

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Britain, he seized the opportunity of setting a precedent in the colonies by using partial insanity as a defense in a court of law.38

The Knatchbull trial constituted a test case in which conservative and liberal attitudes to crime, and, by extension, to social regulation in general, were illuminated in a fatal clash of incommensurable social paradigms. Representing conservative thought in the colony were the judge, William Westbrook Burton, and the Attorney-General, John Hubert Plunkett, who acted for the Crown. On the other side, Robert Lowe employed the discourse of nineteenth century liberalism, with its humanitarian language, individualistic precepts, and recourse to the psychological investigation of human behaviour. Opening the case for the Crown, Plunkett informed the jury that they were to ignore the public excitement about Ellen Jamieson’s death, and to treat it as "an ordinary case of murder", a crime which he lamented was "too common in this colony". Despite the notoriety which was attached to the prisoner, there was "no reason why any distinction should be made upon that ground between this and any other case of a similar description".39 Calling upon the witnesses who had appeared at the inquest, the Attorney-General established, without any elaboration, that on the 6th January, 1844 John Knatchbull had used a tomahawk to attack and rob a young widow, who had died twelve days later of wounds to the head. These were the simple facts and, if they were proved, the jury had no other choice but to recommend the execution of the prisoner. Lowe’s response, to the contrary, was to encourage the jury to move beyond "the narrow imaginations of their forefathers, which would confine the attention of a jury to the simple fact of whether a person charged did or did not commit the crime of which he was accused". He confided to them his hope for "the dawning of a brighter day, when their attention might be extended also to a full enquiry into the motives which had led to that crime". In responding to crime by becoming mere "avengers of blood" they would both diminish themselves and undermine the peace and welfare of society.40

In articulately counterposing two such antithetical approaches to crime and punishment, Plunkett and Lowe were acting as representatives of legal and phrenological paradigms that were locked in combat with each other

38 Colonists such as the Quaker, Joseph Phelps Robinson, who subscribed to humanitarian views, argued that Knatchbull should never have been transported in the first place, being "an object fitter for a lunatic asylum than for a convict ship". Knight, above, n 35, p 67.

39 Sydney Morning Herald, 25th January, 1844.40 Sydney Morning Herald, 25th January, 1844.

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throughout the Western world during this period. The transformation from a framework within which the event of the crime itself was the only concern to one in which the motives, and the psychological constitution of the "dangerous individual" who committed it was eloquently described by Michel Foucault, when he wrote:

.... to add the notion of psychological symptomatology of a danger to the notion of legal imputability of a crime was not only to enter an extremely obscure labyrinth, but also to come slowly out of a legal system which had gradually developed since its birth during the medieval inquisition. It could be said that hardly had the great eighteenth-century legal reformers completed the systematic codification of the results of the preceding evolution, hardly had they developed all its possibilities, when a new crisis began to appear in the rules and regulations of legal punishment. "What must be punished, and how?" That was the question to which, it was believed, a rational answer had finally been found; and now a further question arose to confuse the issue: "Whom do you think you are punishing?41

It was at the point where the criminal’s psyche became a determining factor in the assessment of the criminal act itself, and where the psyche began to be understood in terms of the functioning of the brain, that crime and insanity became conflated, and both became matters for medical expertise. Only the doctor, trained to understand the cerebral constitution in terms of human biology could determine how its malfunctioning could influence pathological behaviour. Inspired as Lowe was with what he considered to be the most advanced liberal thought of his time, he saw the essential task as being the analysis of Knatchbull’s mental constitution and the reasons behind his commission of a crime which Lowe construed as completely irrational. Only then could society deal with the problem of crime in the most rational manner. At the same time, Lowe sought to portray his opponents as beknighted reactionaries, adhering to the mores of a bygone era. What the economically ravaged labouring class observed was the rallying round of the gentry to protect one of their own, and the possibility that Ellen Jamieson’s murder might go unavenged.

41

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Michel Foucault, "The Dangerous Individual", in Michel Foucault. Politics, Philosophy, Culture. Interviews and Other Writings, 1977-1984, Lawrence D Kritzman (ed) Routledge, New York and London, 1988, p 128.


In his defense of John Knatchbull’s "not guilty" plea, Lowe did not bother to place any emphasis upon the circumstantial evidence surrounding the case, nor upon his client’s insistence that, had he been allowed more time, he could have produced a witness to support his alibi that he had been drinking in a local public house at the time of the murder. He also dismissed the possibility that Knatchbull had committed murder in course of a robbery committed in order to acquire sufficient funds to marry his intended bride, Harriet Craig, the following day.42 Instead, Lowe placed the burden of his defense upon the proposition that "the prisoner was ... one of those persons for whom laws had not been made, and who ... ought not to be held responsible for his actions".43 He informed the jury that it was of vital importance that they include among their considerations the question of whether the prisoner:

provided he committed the crime at all, had laboured under a condition of mind which rendered him unable to control his actions - had acted under an invincible and unavoidable necessity.44

If, after hearing what he had to say about the condition of the prisoner’s mental constitution, the jury agreed that he could not be held responsible for his actions, they would be “doing justice to their country" if they acquitted him.

Before they could decide upon the question of the prisoner’s responsibility for the crime (provided he committed it), the members of the jury needed to be made aware of the theories about the workings of the human mind which modem science had produced. Lowe’s exposition to the jury on this subject shows clearly that he had devoted some study to the subject, particularly in its relation to the M’Naghten case. When he asserted that insanity was not necessarily immediately recognisable from signs of delusion, he was following the division recognized by Pinel, Esquirol and their followers between mania and monomania. As he informed the court, "[i]nsanity was

42 The Dispatch suggested that this was the motive for the murder, reporting that "the prisoner was engaged to be married, but ... was not possessed of the means to defray the expense of the ceremony". Dispatch, 13th January, 1844. The contemporary Roman Catholic lawyer and member of the Legislative Council, Roger Terry, also believed that his impending marriage and his impecuniousness were the motives for Knatchbull’s murder of Ellen Jamieson. See his discussion of the events in Sir Roger Therry, Reminiscences of Thirty Years Residence in New South Wales and Victoria, London, 1863, pp 102-3.

43 Sydney Morning Herald, 25th January, 1844.44 Sydney Morning Herald, 25th January, 1844.

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generally accompanied with a delusion of some some kind or another .... Thus an insanity affecting the intellect of the patient was invariably attended by the frenzied delusions which the disordered state of the intellect could not fail to produce".45 However, there was another kind of insanity that was not so easily recognisable by the layman, because it was not accompanied by the usual signs of disordered reason. This was "insanity of the will", the effect of which was to "urge on the unhappy person labouring under its influence with an irresistible and overwhelming influence to the commission of crimes which in themselves were of the most atrocious nature, but which, under such circumstances, could not be said to entail any actual guilt upon to the unfortunate perpetrator".46 It was the idea of "insanity of the will" which lay behind James Cowles Prichard’s nosological formulation of "moral insanity" - a subset of Esquirol’s species of "monomania".

Prichard defined "moral insanity" as "the mental state of persons who betray no lesion of understanding, or want of the power of reasoning and conversing correctly upon any subject whatever, and whose disease consists in a perverted state of the feelings, temper, inclinations, habits, and conduct".47 Following the Scottish "common sense" philosophers, Prichard had divided the faculties into "intellectual:" and "moral" powers, while according to the “will” a controlling influence. While Prichard defended the existence of the "soul" as the ultimate basis of all phenomena of consciousness, his conversion to the phrenological belief in the brain as the organ of the mind led him to the more materialist argument that God, having created the world, left its governance to nature’s laws. Indeed, with some modifications, Prichard accepted Gall’s and Spurzheim’s arguments as to cerebral localization and the most influential nineteenth century British alienists tended to operate with a theory of insanity which incorporated ideas from Esquirol, Prichard and the phrenologists.48 Phrenology maintained a dominant presence in New South Wales, particularly among liberal-minded colonists, and Lowe did not disappoint followers of the science when he informed the court that:

45 Sydney Morning Herald, 25th January, 1844.46 Sydney Morning Herald, 25th January 1844.47 D Hack Tuke, in Especial Relation to Mental Science, Prichard and Symonds, Churchill, London,

1891, p 14.48 George Stocking, above, n 4; James Cowles Prichard, Researches into the Physical History of Man,

University of Chicago Press, Chicago and London, 1973, p xxix.

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The human mind was so divided in its various faculties that it was not necessary, to constitute insanity, for the person labouring under that misfortune to betray a loss of all his intellect; for one faculty might become impaired, vitiated, or, indeed, totally destroyed, without affecting the strength of the others, and it was very common to find that a person who was perfectly insane in some points, was in most others fully possessed of his mental powers.

Lowe’s view of insanity was phrenological: it was caused by cerebral disease; and if the brain was affected in that part where the "will" was located while the intellectual faculties remained untouched, "it naturally followed that the person so circumstanced might with a full knowledge of what he was doing, feel compelled - irresistibly compelled, to crimes which if a perfectly free agent he would be the last to commit".49 To the phrenologists' delight, Lowe’s interpretation went beyond that expounded by the judge in the M’Naghten trial and conformed in most of its details to a phrenological analysis of the conflation between insanity and crime.50

The theory of heredity which Lowe adduced also conformed to phrenological principles. According to Lowe, John Knatchbull had probably inherited his mental infirmity from his family, which was tainted with insanity, and this explained his having plummeted from the highest reaches of British society to the depths of the penal colonies.51 He informed the jury that Knatchbull had begun life with "fair prospects", having been bom into the gentry. As a young man in the British Navy, he had been rapidly promoted to the rank of Commander for his acts of gallantry during the Napoleonic wars and once he had left the Navy he continued to have the advantage of "high Parliamentary interest". Knatchbull’s plan to be married on the morning after the night of the murder was adduced as an additional factor supporting the irrationality of the crime. According to Lowe, robbery was an unlikely motive, as Knatchbull was found to possess a number of uncashed bills from his brother, Sir Edward Knatchbull. Finally, the prisoner had murdered Ellen

49 Sydney Morning Herald, 25th January, 1844.SQ This was manifested clearly in an article reproduced from the British phrenological journal, Zoist in

Lowe’s newspaper, Atlas. As the writer stated, "We felt great pleasure whilst perusing the speechof Mr. Lowe [in the Knatchbull trial].....and although the newspaper report is very much condensed,we nevertheless possess enough to prove that the arguments were drawn from our science; and that he no doubt laid down the doctrine of philosophical necessity with clearness and precision. He could not have chosen a more fitting opportunity; and we heartily wish that the same truths may soon be advanced before all the judicial benches of our own country." The Atlas, 5th March, 1845, pp 174-5.

51 Sydney Morning Herald, 25th January, 1844.

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Jamieson without taking any precautions against getting caught.52 Thus, as Lowe argued:

The impulse under which the prisoner had acted, if really guilty of the crime laid to his charge, might be almost designated as one of a childish nature, for no man possessing of his faculties would have perpetrated such an offense as this .... It was clear that a man who had acted so must have been under the influence of an uncontrollable desire to do the deed alluded to.... 53

It was no more just to send such a man to the scaffold than publicly to execute "any savage animal which had done an act of cruelty with similar want of a controlling power over its actions".54 Given his nobility of birth and his privileged position in society, what possible explanation for Knatchbull’s plunge into a "mad career of vice" could there have been, other than that he had inherited the strain of insanity which was the bane of his family?

Lowe’s crucial tactic was to refer the jury to the M’Naghten case, which had been reported in the Sydney press and which he saw as lending legal authority to his own argument for the defense. Lowe could still invoke the ruling given by the judge in the M’Naghten case to support his own argument because, as Roderick has pointed out, the Rules laid down by the judges in the House of Lords had not yet "penetrated the fastnesses of the legal process" in New South Wales.55 Lowe directed the jury to draw from the M’Naghten case the appropriate inferences when he declared that, although there was no doubt that M’Naghten had committed the crime laid to his charge, "upon evidence being produced of his insanity, the Judges did not hesitate to direct the jury to return a verdict of acquittal in his favour".56 Lowe admitted that he was not in a position to call any witnesses to testify

52

53

54

55

56

This part of Lowe’s defence was epitomised in the Australian in the following terms: "...there existed [in the Knatchbull family] an hereditary taint of insanity, and ... the prisoner at the bar must have been afflicted with that peculiar infirmity, or he would not, brought up as he had been, have been led step by step through a mad career of vice, till he arrived at the one last maddest act of all, and which more than any other proved the unsound state of his mind; as he could not otherwise have persevered (watched as he was by the witness Shalless) in committing [sic] a crime, under circumstances wherein he could not escape detection." The Australian, 20th Janury, 1844.Sydney Morning Herald, 25th January, 1844.Sydney Morning Herald, 25th January, 1844.Colin Roderick, above, n 23, p 242.Sydney Morning Herald, 25th January, 1844.

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to the state of John Knatchbull’s insanity.51 * * * * * 57 However, he urged upon the jury that :

if they found the prisoner guilty of the fact, and yet believed him to be impelled to the crime he had committed by an irresistible impulse of the mind, they would be running counter to the laws of England in similar cases if they did not give the benefit of that opinion.58

Lowe reassured the jury that even if Knatchbull were to be acquitted on the ground of insanity he would never be given his liberty, but would have to remain "confined for life in a lunatic asylum to avoid his again being let loose upon society with so dangerous a disposition".59 Here Lowe was expressing one of the critical elements of the phrenologists" reform policy, according to which criminals should be placed "under restraint" and treated as "moral patients".60 Knatchbull would be treated as a "confirmed madman" and "separated for ever from the society to which his vices would render him a scourge".61 Hence, he assured the court, no great boon was being asked of the jury.

51 It is certain that the New South Wales medical fraternity, strongly infiltrated as it had become with phrenological beliefs, would have concurred with the argument that John Knatchbull was suffering from some form of "monomania". Indeed, Robert Lowe’s wife, Georgiana, wrote in one of her letters that ’[t]he medical men all agree in opinion: this wretched man [John Knatchbull] was afflicted witha species of insanity and that the authorities were to blame who let him loose .... on society’. (Ruth Knight, above, n 35, p 67). However, the rapidity with which Knatchbull was brought to trialallowed Lowe insufficient time to find medical witnesses who would testify to his client’s insanity, a problem which lay behind Lowe’s constant attempts to delay first the trial, and later the executionof the resulting sentence. As Lowe had connections with the colonial phrenologists - for example, he had engaged the emancipist medical practitioner, William Bland, to advise him on his own health problems - it seems surprising that he should have found any difficulty in immediately locating such a witness. If any impediments were put in his way, this may have been because of the conflict in which Lowe became embroiled with his fellow political liberals over such issues as the land laws, and the status of emancipists. Lowe’s contradictory backing of the interests of the squatters overthose of small land-holders, and his opposition to the emancipist cause - positions which later contributed to his earning of the epithet, "illiberal" liberal - may well have deterred the very medical men who would have concurred with his diagnosis of Knatchbull’s mental state from lending himtheir support. His increasingly antagonistic relationship with William Bland, moreover, is wellknown. Notwithstanding the resulting weakening of his case, Lowe relied upon his own knowledge and treated the jury to a lecture on the science of human psychology and its legal and penological implications.

58 Sydney Morning Herald, 25th January, 1844.59 Sydney Morning Herald, 25th January, 1844.60 George Combe, "Penal Colonies - The Management of Prisoners in the Australian Colonies’ By

Captain Maconochie, R N, K L, Late Superintendent of Norfolk Island" (1845) XVIII Phrenological Journal 122.

61 Coombe, above, n 60.

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In spite of Lowe’s impassioned plea and his appeals to medical science and its contribution to the moral progress of society, the jury could not be swayed. Their resistance was largely due to Judge Burton’s scandalized reaction to Lowe’s eloquent appeal. It was not necessary for the M’Naghten Rules to have reached the colonies for Burton and his judicial confreres, with their conservative political ideology and their high church morality, to have communicated their spirit. In his summing up speech, Burton instructed the jury that they had only to decide upon three main points: whether the deceased had met her end by the injuries described in the information; whether the prisoner at the bar was the person who had inflicted those injuries; and, most importantly in this case, whether Knatchbull had been "in such a state of mind as to be accountable to the law", if and when he had committed the murder.62 As there was little dispute over the first two questions, it was the third which had the most material bearing upon the case; whereupon Burton proceeded to expatiate upon his views on crime, insanity, morality and the law.

The judge admitted that, for a crime to be legally construed as such, the perpetrator had to be "in possession of his mental faculties", for, "if he had no mind, he was without responsibility". However, in order for it to be accepted that the defendant was "not responsible", it had also to be proved not only that he was a lunatic, but that he was incapable of distinguishing between right and wrong, at the moment when he committed the crime. A "depraved will" was no excuse. Indeed, the judge declared that he had never before heard claimed in a court of law the "doctrine" that a defendant was "of a character likely to commit crime through the influence of an overpowering internal impulse" and that "on this ground he was not to be held accountable for his actions".63 He was, moreover, sceptical that such a phenomenon was any more than an imaginary construct created by "the philosophers of Europe". The twelve reasonable men before him would, he was confident, dismiss such "abstract reasoning" and "throw far from their consideration any question of justification on the ground that the prisoner was impelled to the commission of the crime by the existence of an innate desire, or ... a necessity for so doing". Any such belief would destroy morality in the colony, for it could be invoked at any time "in palliation of crime of the most dreadful nature", providing an excuse for any man who, like the prisoner, could not resist the instructions of the devil. Thus, Burton asserted categorically, whatever place such an argument had in the theories of

63

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Sydney Morning Herald, 25th January, 1844.Sydney Morning Herald, 25th January 1844.


philosophers, it had Mno place in the law of England".64 Throughout the trial, the only type of insanity that Burton had been willing to recognize had been one from which Knatchbull had clearly not been suffering: what he called "insanity in the true sense of the term", that is, the type of insanity which alienists referred to as "insanity of the reason". With such an adversary, Lowe’s case, based as it had been upon reformist ideology, had very little chance of success. Accordingly, the jury, without even leaving the jury box, voted "Guilty" and the judge sentenced John Knatchbull to death.

Ill

Phrenologists, like many other social reformers, were opposed to capital punishment. In Britain, the United States and the Australasian colonies they figured prominently among lobbyists aiming to replace the execution of criminals with a policy of “moral reform” in Benthamite-style penitentiaries, and their science supplied them with a cogent rationale for their position. As William Allen, Chairman of the British Anti-Capital Punishment Society, wrote in the Phrenological Journal:

... the penalty of death, as an example, is momentary, and of no beneficial effect: - it disgusts the good, and brutalizes the bad, who witness the spectacle of man cruelly destroyed by man; - as an act of extreme violence, it teaches violence to people: - as an act of deliberate homicide, it diminishes the regard due to the sanctity of life and renders murder less revolting to the uninstructed mind.65

Because of the pressure exerted by the movement for penal reform, executions in England and Wales had been steadily decreasing in number from the 1820s, no resulting threat to property or person and "reflecting men" began to ask why capital punishment should be retained at all. In true humanitarian style, Allen argued:

It is true that the punishment of death is judicially said, like all other punishment, to be, not for revenge but example: - but as it has notoriously failed in the way of example, what purpose can its infliction serve unless the gratification of revengel Let it then be entirely repealed, and some punishment substituted which does not

65

Sydney Morning Herald, 25th January, 1844.William Allen, "Punishment of Death" (1842) XV Phrenological Journal, pp 237-8.

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shock the natural feelings of mankind, and is therefore more capable of uniform execution!66

Despite the adherence of many colonists to phrenological principles the movement for penal reform was slow to penetrate the Australian colonies, and judicial authorities like judge Burton did nothing to encourage it. Burton’s approach to punishment was calculated to appal the phrenologists. For example, in his charge to the jury in 1835, Burton had expressed the opinion that convicts ought to be forced to work in chains in order to keep down the crime rate; and throughout his twelve year judicial tenure in New South Wales, he had presided over an increasing number of executions.67 It was, therefore, not surprising that any attempt to mitigate John Knatchbull’s sentence would be to no avail, as Robert Lowe discovered when he tried to invalidate the verdict handed down by the jury, first on the ground of technical irregularity, and then by at last presenting Judge Burton with medical affidavits swearing to the prisoner’s insanity.68 Nor was there any evidence that the general populace objected to capital punishment.69 Defensive about the convict origins of the colonies, the response of most immigrants to the Knatchbulls in their midst was to stigmatise them as abnormal "criminal types".

With their phrenological museums and their private bust and skull collections, Australian colonists had already constructed their own pantheon of reprobates, and it was not long before John Knatchbull’s mythological status as a gruesome monster activated by his animal propensities ensured that he would join it. Shortly after the trial, the Herald carried an advertisement for a "correct likeness of this inhuman monster taken from life, as he appeared in the Supreme Court ... for the atrocious murder of Mrs. Ellen Jamieson of Sydney".70 The affair was recounted in legend upon the

66 Allen, above, n 65, p 238.67 "Appendix. - No.3. Charge delivered by His Honour Judge Burton to the Jury, at the close of the

Sessions of the Supreme Court of New South Wales, for the Year 1835", in New South Wales; Its Present State and Future Prospects: being a Statement, with Documentary Evidence, Submitted in Support of Petitions to His Majesty's Parliament, James Macarthur, London, 1837, pp 47 & 36.

M The Australian, 1st February, 1844.69 As the Australian later reported, "[t]he common people ... longed to see this man walk forth on the

fatal scaffold"; but the report also included the cryptic remark that the people "hardly believed in what they wished". I interpret this to mean that, while the "common people" were not necessarily in favour of capital punishment, they were glad to see the "gentleman" who murdered one of their own kind meet his end on the scaffold. Australian, April 26, 1845.

70 Sydney Morning Herald, 5th February, 1844.

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"all of the City walls", which were "placarded by catch-penny announcements in reference to the proceedings in the late dreadful affair".71 The Australian expressed the anxiety of the colony’s moral guardians, who worried at the effect the "revolting doctrines" which the trial publicised would have upon "the lower classes":

there can be no question at all, that such appeals to the curiosity and sympathies of the lower classes, emblazoned as they are by all the art of the writers and limners, are productive of the most demoralizing effects, and are most pregnant with mischief to public morals.72

Indeed, the Australian protested that those who, "by the attractive embellishment of revolting doctrines", widened the sphere of their influence "must share, and share very largely too, in the moral guilt which is contracted by the original criminals".73 Emphasising his point, the writer fulminated:

...we should ill perform our duty if we did not declare our firm belief that the publishers, printers, and writers of such dreadful panderings to a vitiated and depraved taste, are, in the contemplation of every religious and moral law, deep partakers of every crime to which the embellishments they circulate may give rise. The question admits of no argument.74

While the wall placards disseminated the "revolting doctrines" used by Robert Lowe to vindicate his client, the press manufactured John Knatchbull as an unredeemable character, whose corrupt nature was first revealed while he was still a child. The Sydney Dispatch, published a lengthy article, full of erroneous details, in which Knatchbull was represented as a degenerate member of the British aristocracy whose life, both in England and in the colonies, had consisted of one episode after another of crime, vice and debauchery.75 Subsequently embellished and enlarged, this material was published by the Sydney Sun as a sixpenny pamphlet, and the exaggerated

71 Australian, 1st February, 1844.72 Australian, 1st February, 1844.73 Australian 1st February, 1844.74 Australian, 1st February, 1844.75 "A Memoir of Knatchbull, the Murderer of Mrs. Jamieson. Comprising an Account of His English

and Colonial History", Dispatch, 3rd February, 1844. A similarly exaggerated account of Knatchbull’s criminal escapades was published under the title, "Distinguished Convicts" by Simmond’s Colonial Magazine, July, 1844.

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myth to which John Knatchbull was to be irrevocably tied was thus widely disseminated.

Even as a schoolboy, the Dispatch writer claimed, Knatchbull had been distinguished from his fellows by his "selfish gratification of his appetites, an impatience of restraint, and a treacherous disposition", while during his youth in the British Navy he was said to be "proud and overbearing to his inferiors, cringing and servile to those in authority".76 The crime for which he was transported, the picking of the pocket of John Henry Frederick de Dompierre in the crowd in Vauxhall Gardens on the night of 30th June, 1824, was reported without any cognisance being given to the dubious nature of the accusation against him. Nor were any doubts allowed as to his involvement in a series of crimes and revolts against authority in New South Wales and Norfolk Island while he was a convict. In fact, as Colin Roderick has established, the evidence suggests that it is doubtful whether John Knatchbull actually committed the crime for which he was originally convicted, and that he was, rather, the victim of Sir Edward Knatchbull, his hostile older brother, who objected to his having disgraced the family by being dismissed from the Navy for indebtedness, and used the pickpocketing episode as an opportunity to banish him from view.77 Two crimes for which he was held responsible in the colonies, the leading of convict revolts on board the Governor Phillip on the way to Norfolk Island and during his time of imprisonment there, were likewise erroneously attributed to him, although it is probable that he did commit the forgery that resulted in his term of secondary punishment.78 Nevertheless, the actuality of John Knatchbull’s life could never compete with the myth of his inveterately criminal nature, once this had begun its inexorable trajectory. In the people’s eyes, his ultimate crime was to have murdered one woman in order to acquire the wherewithall to marry another.79

76 Australian, 1st February, 1844.77 Knatchbull himself claimed that his brother was behind his conviction and transportation. John

Knatchbull, A Life of John Knatchbull. Written by Himself 23rd January-13th February, 1844, in Colin Roderick, above, n 23, p 73 and pp 158-9.

78 For a comparative view of the various accounts of John Knatchbull’s life which exist, including his own memoir, see the primary sources which are collected together in Roderick, above, n 23.

79 The myth of John Knatchbull’s inveterate criminality has died hard, even though Colin Roderick established as long ago as 1963 that he was convicted only three times: first in 1824, for the crime of pickpocketing for which he was transported to Australia; second, in 1832, for forging a draft for £6 10s, for which he was sent to Norfolk Island for seven years; and third, in 1844, for the murder of Ellen Jamieson. (Roderick, above, n 23, p 11) In her study of Robert Lowe, for example, Ruth Knight uncritically repeated the myth that John Knatchbull was "a ‘gentleman’ convict with a long history of crime". (Knight, above, n 35 , p 64.)

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An IRRESISTIBLE IMPULSE OF MIND:

As Knatchbull observed the public manufacturing of his identity, his response was to re-invent himself in a memoir, which he wrote in his prison cell between the 23rd January and the 13th February, the day of his execution, and in which he declared:

I will open the eyes of the world to such persecutions and deprivations that the hardest of hearts would bleed and commiserate with me in my sufferings and perhaps when dead and gone will say I am an injured man.80

While his account is characterized by the writer’s desire to justify himself as a blameless and misunderstood character, a Naval hero who was the victim of a series of injustices, it also reveals a man who was, indeed, both a product and a victim of the careless and brutal mores of his own class. His mother died when he was ten years old, his father, Sir Edward Knatchbull remarried for the third time and produced eight children in addition to the six he had already fathered.81 In conformity with the mores of the male gentry, John was sent away to school at an early age, entered into the Navy as a midshipman at the age of fourteen, and saw active service in the war against the French, with all the brutalizing consequences which bloody battle entailed.82 With the death of his father, and the accession to the baronetcy of his hostile older brother, Sir Edward, John was left alone in the world, and as his memoir reveals, his subsequent experience of life as a convict in New South Wales and on Norfolk Island completed the creation of a shattered being, whose alienating experiences rendered him capable of the impulsive murder of a vulnerable woman.

Knatchbull began writing his memoirs while in a state of denial. He exaggerated or invented his feats of heroism, obliterated his weaknesses, and ignored the reality of his identity as a murderer.83 Since his arrest he had been receiving regular visits from a number of evangelical philanthropists and missionaries, including a certain Mrs. Latham, the Reverends Robert Ross, John Elder and Lancelot Threlkeld, who saw it as their task to draw a

80 The Life of John Knatchbull. Written by Himself 23rd January - 13th February, 1844 in Darlinghurst Gaol. Printed in Colin Roderick, above, n 23.

81 Roderick, above, n 23, pp 137-8.82 Roderick, above, n 23, pp 140-148.83 As Roderick has shown, Knatchbull invented a good deal of that part of his memoir in which he

described the heroic part he played in the navy, Roderick, above, n 23, pp 255-259.

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confession from him, to persuade him to repent and thus to save his soul.84 On the 10th February, having learnt that his execution was inevitable, Knatchbull confessed before the Rev. Robert Ross, Minister of Christ’s Independent Chapel, to the murder of Ellen Jamieson.85 He remained chary of baring his soul to the world, of sullying the self-portrait he had drawn, and the reference in his memoir to his confession remains oblique. He merely remarks that, two days before his execution, he was visited by his friends, Dr Ross and Mrs Latham, to whom he "unbosomed" his mind and unloaded himself of a "burthen". The successful saving of a soul "eased the mind of my dear Mrs Latham, who went home in good spirits".86 In short, a dual attempt was being made to save John Knatchbull. The secularized liberals had deployed their medico-scientific doctrine of the human psychological constitution to divest him of responsibility for his deed and, while denying his sanity, to save him from the judicial system. The religious zealots equally saw it as their task to draw from him a confession in which he acknowledged his responsibility for the murder and begged for forgiveness. Their aim was to save his soul. Knatchbull never revealed his own reasons for murdering Ellen Jamieson.

On the day before Knatchbull’s execution a high gallows was erected outstide the north gate of the gaol on Darlinghurst Hill, a position which, as the Dispatch reported, was visible from all over Sydney.87 Whether or not Sydney people were convinced by the "catch-penny announcements" of the phrenological doctrines explaining Knatchbull’s crime, which they read on their walls, upward of ten thousand of them congregated around the gaol to witness his execution.88 As the Australian reported:

84 Rev. Robert Ross was minister of the Pitt Street Congregational Church (the Independent Chapel), a representative of the London Missionary Society and secretary of the Auxiliary Bible Society of New South Wales and of the Australian School Society. (Tegg’s New South Wales Pocket Almanac for 1844, Sydney and Roderick, above, n 23) Rev. John Elder was Gaol Chaplain, and Threlkeld, a New South Wales missionary.

85 Knatchbull’s confession, forwarded to Governor Gipps, was worded as follows: ’Condemned Cells Woolloomooloo Gaol, 10th day of February, 1844. In the presence of Almighty God. Amen. I am Guilty of the Horrid Deed for which I am justly to suffer Death and May the Lord have mercy upon my Soul - Amen. John Knatchbull. To The Reverend Doctor Ross, Minister of Christs’ Independent Chapel, Sydney, New South Wales. John Knatchbull. Certified by J Long Innes, Visitg Magte, Henry Keck, Governor of the Gaol. Historical Records of Australia, Series 1, Vol 23, p 406.

86 Knatchbull, above, n 77, p 128.87 Dispatch, 17th February, 1844.88 Australian, 15th February, 1844.

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At the early hour of six on [Tuesday morning], swarms of human beings - men, women and children - might be seen pressing across the Race Course from all parts of the town to the vicinity of the Darlinghurst Gaol.89

The reporter was shocked at the number of women who had arrived to see Ellen Jamieson’s murder avenged, exclaiming, "What! Can no other object afford gratification to the female portion of our community than the dismal tragedy of the scaffold!" Every countenance depicted an "intense desire to witness the awful tragedy". Although "here and there might be heard the heartless levity and unfeeling laugh of the unthinking, or the callous and reckless jeers of the hardened", the majority in the crowd appeared "deeply impressed with the solemnity of the occasion".90 As Knatchbull stepped into view, dressed as a gentleman in a mourning suit donated to him by Lady Gipps, a "breathless silence" prevailed among the thousands of spectators, and the prisoner’s prayers, directed by the Reverends Elder, Sharp, Ross and Threlkeld, were clearly audible.91 According to the Australian, Knatchbull was devout, and "in no one act did he evince any other demonstration of feeling than that of deep and hearfelt repentance".92 As so often happened with such executions, death came slowly and painfully because the knot of the noose had slipped round to the back of the neck.93 Upon his death, in the presence of "most of the medical gentlemen of Sydney", a cast of the murderer’s head was taken by Messrs. Abrahams and Shaw "for phrenological purposes", a woodcut of which was subsequently offered for sale to the public.94 The body was deposited in a coffin and the next day,

89 Australian, 15th February, 1844.90 Newspaper reporters noted the lack of rabble-rousing more than once. In a retrospective article

dealing with the Knatchbull affair, the Australian stated that the ”[t]he common people of Sydney were, between the time of this man’s sentence and execution, in a state of commotion - a commotion indeed peaceful; confined to whisperings and gossiping". Australian, April 26, 1845.

91 The reporter for the Sydney Record was impressed with this fact, writing that, "a]t least ten thousand persons were present, but amongst the vast assemblage no one was inhuman enough to disturb the last moments of the culprit: there was not even a murmur, and this fact deserves to be recorded". 15th February, 1844. As the Australian later reported, "At length the murderer stepped forth on his last stage. The people were satisfied and preserved a reverent silence; not imitating the mob in London, which has been known on such occasions to cheer - not indeed from feelings of insult towards the culprit - but from gratification at the impartiality of the law". Australian, April 26, 1845. According to Ruth Knight, "Lady Gipps ... is said to have provided [John Knatchbull] with a new suit of black broadcloth to be hanged in". Knight, above, n 35, p 65. However, this gift appears to have constituted the sum total of the Gipps’s help to Knatchbull.

92 Australian, 15th February, 1844.93 Dispatch, 17th February, 1844.94 Australian, 15th February, 1844; Knight, above, n 35, p 69.

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after a service conducted by Dr Ross, was buried in the Dissenting burial ground. As an object of discourse and a cultural invention, John Knatchbull lived on: according to religious discourse, as one of the most reprehensible children of the Devil ever to have inhabited the colony; according to the scientific discourse of medical psychology, as the unfortunate victim of an unbalanced mind.95...............................................................

The year after John Knatchbull’s execution, Robert Lowe’s New South Wales newspaper, the Atlas ran a substantial article from the English "phrenological journal, the Zoist, which established the connection between phrenology, or "cerebral physiology", as the Zoist termed it, and the movement for penal reform and, at the same time, corroborated the arguments which Lowe had deployed in the celebrated trial.96 Reiterating the salient features of the recent enactments which had reduced the crimes for which capital punishment was the penalty, the article informed its readers that, between 1805 and 1841, 2,190 people had been executed in England and Wales, only 384 of these for murder. The vast majority of executions during this period were for relatively trivial offences against property. Due to the exertions of the penal reformers, by 1845 murder was the only crime to earn the penalty of "death punishment".97 Opposition to penal reform had long been maintained by the "Christian bishops"; but the phrenologists’ philosophical (or, in modern terms, "scientific") arguments would establish, once and for all, why crime and punishment should be reconceptualised, and new approaches to punishment adopted.98

One cogent reason for abandoning capital punishment lay in the disgusting spectacle of thousands of people, all seized by the emotion of revenge,

95 The public suspicion that influence was being exerted by people close to Governor Gipps was allayed when Knatchbull was actually hung, while those people who had hoped for the commutation of his sentence were bitter, as the poem, "Sir George and the Gibbet. A masque, rehearsed at Woolloomoolloo Gaol, on the 3rd February, instant", published in the Australian one year later, attests. The Australian, Saturday, April, 1845.

96 Zoist was a London-based journal of phrenology and mesmerism which ran from March 1843 (Vol. 1) to 1856, comprising thirteen volumes in total. It was founded and edited by Dr John Elliotson (1791-1868), founder of the London Phrenological Society. His belief in mesmerism caused great controversy in phrenological circles. Despite his resignation from his professorship in 1838, because of his refusal to abjure his mesmeric beliefs and practices, Elliotson remained an influential medical teacher and practitioner in London. For a lively account of the dispute over mesmerism, see Jonathan Miller, "A Gower Street Scandal" (1983) 17, 4 Journal of the Royal College of Physicians of London, 181-191.

97 The Atlas, 8th March, 1845, p 174.98 Atlas, 8th March, 1845, p 174.

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rushing in to witness ’’the display of legalized destructiveness", and manifesting the same excitement as they would display at a bull-fight or a boxing match. Even more disturbing was the effect which the witnessing of an execution had on the observer. As colonists read:

What portend the groans, the yellings and hootings, which unite with the toll of the prison bell, and usher the poor wretch to his doom?Are these fiendish sounds the natural manifestations of wounded Benevolence and Conscientiousness? .... They indicate a thirst for blood, they are the promptings of excited Destructiveness, and are analogous to the war-whoop of the Indian, or the roar of the wild beasts of the forest before they rush on their prey. But the example!Can it be supposed that the destruction of a fellow creature will produce any moral effect upon those who could witness such a sight?"

Gazing upon the destruction of a fellow creature did not have the moral effect which was desired. The writer supported his contention with figures cited by a member of the House of Commons which showed that, out of 167 persons who had been executed, 164 had been present at executions, and with the assertion by the ordinaries of Newgate that "it is very rarely that any one suffers at the Old Bailey who has not previously been a witness at a similar scene".* 100 Far from inspiring terror in the observer, public executions actually instigated criminality by stimulating the cerebral organ of Destructiveness in the observers while "wounding" their organs of Benevolence and Consciousness.

The Zoist’s writer was impressed with the Knatchbull case ("one of the most instructive on record") because of the way in which it exemplified his argument about the phenomenon of criminality and the measures which needed to be taken to circumvent its effects.101 Uncritically accepting Knatchbull’s legendary status as "a criminal of the worst class", the writer explained that the murderer’s life-long criminality was due to "the manifestation of the usual signs of a large animal region to his brain", and that "his brain must have been of a very inferior type" for him to have exhibited the acts of tyranny which were attributed to him while he was still a naval officer, as well as the "innumerable immoral acts" which he had

100

101

Atlas, 8th March, 1845, p 174.Atlas, 8th March, 1845, p 174.Atlas, 8th March, 1845, p 174.

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committed throughout his subsequent career. The types of behaviour which were consequent upon such a cerebral structure could be rationally dealt with "[i]f men were acquainted with the laws governing their actions". If, on the basis of phrenological principles, parents became familiar with their children’s cerebral organisations, they could ensure that the latter were prevented from joining unsuitable professions. If they knew that one of their children possessed an inferior brain structure, they could ensure that they did not join professions where they had control over the lives and happiness of other people. As the writer emphasised:

[i]f men in authority would use the means science has placed at theirdisposal and not appoint to positions of trust individuals physically,and therefore morally, inefficient, - in a word, if the truths ofcerebral physiology were recognized and practically enforced, therewould be an end of the cases of the distressing character we are now

• • 10?witnessing.

Given John Knatchbull’s cerebral structure the naval authorities were fully justified in dismissing him, and thus precluding him from continuing with the "tyrannical ways" he evinced while in the service.102 103

In fact, the writer argued, "the Government is responsible for this man’s crimes". It was due to the lack of surveillance on the part of the Government that Knatchbull had been provided with the opportunity to progress "[f]rom bad to worse - from crime to crime [and to rush] recklessly and blindly on ...". Had the men in Government taken cognizance of the scientific discoveries about "cerebral physiology", they would have known that John Knatchbull was destined to act as his cerebral structure dictated, for "how could such a brain keep its possessor free?"

His past career proved that he was an unfortunate being - the victim of an organisation so unfairly balanced that the ordinary temptations of life could not be withstood; nay more, the victim of an organism

102 Atlas, 8th March, 1845, p 174. This early employment of the concept of "efficiency" with regard t<o the relationship between physical and mental functional "fitness" is worth noting, as such concepts are generally associated with the Darwinian theory of natural selection and post-Darwinian biological! and social thought.

103 Knatchbull was actually "demobilised" and put on half-pay because of the ending of the Napoleonic Wars. Due to his inability to manage his finances, he accumulated debts which he was unable to repay, and with which his family refused to help him. It was this which caused him to be dismissed from the navy, not his "tyrannical behaviour". See Roderick, above, n 23, pp 154-156.

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which prompted him to shed blood, if more than ordinary difficulty presented to prevent him from gaining his ends.104

It was the Government’s duty to protect society from such an individual, to apply the methods of the science of cerebral physiology to predict his behaviour, to regulate his organism "from the beginning to the end of his course". Capital punishment was quite unjustified. As the writer asked:

Is it ... a mark of enlightenment and civilization to destroy such a being, - a being not only neglected, but absolutely placed by authority in a position where his animal impulses could run riot? Is it just to take away his life for an offence committed through the carelessness and ignorance of those in authority? Is it right to take revenge upon a being who, under certain circumstances, has acted in accordance with the promptings of his organism?105

The solution to the problem posed by such men lay not in judicial murder, which was hardly appropriate for a Christianised and civilised people. To exonerate them from their crimes, and then to remove their liberty from them was far more effective. Such people required "confinement and benevolent care" in an asylum.106 This solution, proposed by men who allied themselves with political liberalism, was, therefore, itself profoundly illiberal.

Robert Lowe’s defense of John Knatchbull thoroughly impressed the Zoist writer, who saw it as the very embodiment of the science of phrenology. At the same time, the writer poured scorn upon Judge Burton’s response, in which the latter was said to have embraced the "irrational opinions ... regarding the freedom of the will" which religious teachers inflicted upon the people.

They tell their pupils that they are free agents, and that by "faith" and "the Grace of God" they can lead a virtuous life. They denounce crime and immorality, but declare that punishment must visit the

104 See n 103.105 See n 103 above.106 That such a "benevolent" policy could actually kill its subjects with "kindness" was demonstrated

in the case of Pierre Rivi_re, who committed suicide not long after he had been committed to a lunatic asylum for his murderous deeds. Michel Foucault, ed., above, n 41, p 171.

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offender, because by his own wilfulness he has arrived at his present state.107

How, the writer asked, could such doctrines improve a people? They were unscientific, for "philosophy" (i.e. science) proved that every human being’s character was the complex product of a combination of the peculiar organisation of the individual brain (“nature”) and of the "innumerable circumstances which have acted upon it" ("nurture").108

We therefore say that the actions of a man must necessarily result from his organic constitution, and the circumstances which surround him at any stated period. This is a law, and it is not in the power of man to resist.

Human behaviour was, therefore, entirely inevitable and predictable and John Knatchbull was no different from the many other subjects reported upon in the daily press "whose propensities are so energetic, and so little under the control of their feeble intellectual and moral faculties" that their lives were comprised of one act of profligacy after another. Such people carried their "mark" with them, and yet the Government obstinately refused to act upon the knowledge which could preclude the damage which such individuals inflicted upon society. Nor were "the people, as a mass" yet "sufficiently enlightened" with regard to their own structure, and the formation of their own character to entertain benevolent views concerning one who has offended them, and thus to influence government policy. It was left for the few to instruct the many, for "the rational to instruct the irrational", for "the humane to soften and enlighten the inhumane", and "on all occasions to enforce the views our science teaches". By such means the period when the system of criminal jurisprudence would accord with the dictates of reason and justice would be hastened into existence.109 With such a discourse, moreover, "cerebral philosophers" set in train the long tradition of social intervention by "scientific experts" which was later to be exemplified in English speaking countries by Progressives, Fabian Socialists and New Liberals.

107 See above, n 106 and Foucault, above, n 41, p 175.108 Such an early statement of the argument for the interconnection between ’nature’ and ’nurture’ is

significant because it provides an indication of the provenance, and early currency of the theory which Francis Galton enunciated towards the end of the nineteenth century, the conceptual components of which are usually attributed to him.

109 See above, n 108.

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