Joanna Baillie: Speculations on Legal Cruelty

Abstract

In Introductory Discourse to plays (1798), Joanna Baillie claimed from reading her plays judges, magistrates, advocates and, by implication, all those who administered would acquire discernment of character and administer punishment with sympathy. Subsequently, legal system would become more just since justice appears to us severe only when it is imperfect (15). In 1798 plays, Baillie is concerned with two contemporary judicial issues: jury competence and capital punishment. While magistrates and jurists granted jury's ability to judge facts based on standards of probability and rational doubt (Shapiro 13), they were divided over its competence to find law without judicial guidance. According to Thomas Green, jurors needed only a general sense of civil rights and general sense of right and wrong ... not deep grounding in Scripture, custom, or common law (335). While Fox's Libel Act in 1792 seemed to overcome last barrier to jury's power to find law, reformers feared juries could still be influenced by conservative judges. The government thought juries should diverge from letter of to condemn political reformers for sedition and treason (see Erskine 3: 304-5, 312-13). Green concludes Act allowed tenor of times to take its toll by subjecting judicial decisions to the volatility of jury attitudes (354). Baillie dramatizes power of spectators' scrutiny over persons scrutinized, giving psychological and context to jury's responsibility. As for capital punishment, second issue, number and range of crimes punishable by death in Britain during eighteenth century were scandalous (Radzinowicz 3-7). But avoiding capital punishment was equally scandalous: grand juries refused to indict, judges persuaded prosecutors to accuse defendant of lesser offense, and trial juries found defendants not guilty in spite of evidence and often with connivance or direct instruction of judges. Judges proceeded on assumption while statutes called for great many executions, judicial system was to select those offenders who, deserving punishment most, would serve as examples. Judges never intended hanging everyone who might have been guilty on evidence, according to J. M. Beattie. Instead, they adhered to an ideal of personal and particularistic administration of law (421). They assumed that men who committed most serious offenses had been led to point by gradual corruption of their morals (421) and such moral collapse was irreversible (422). On this assumption, judges and juries had to determine [t]he character of prisoner ... his disposition and his (440), and trial for specific crime became trial of prisoner's entire life. Defendants spoke for themselves and judges and juries evaluated defendants and accusers alike by what they said and by how they said it (Beattie 349). Yet given brevity of eighteenth-century trial (Beattie 376-78), judges and jurors could not conduct careful scrutiny of character, and considerations of rank and reputation influenced their judgment (Beattie 422, 440-42). Baillie advocates close attention to rise and progress of passions in her characters, inviting her readers to develop skills in scrutiny jurors require. Writers on both sides of reform discussions believed court's sympathy with accused had compromised judicial system and even endangered common good. Defending system, William Paley argued casting wide net of intimidating laws, but condemning to death only few whose fate would serve as examples to rest, served as deterrent (533). Nevertheless, he considered juries (not judges) reluctant to inflict punishment, accepting slightest evidence in order to acquit (550-51). The reformers, however, also faulted jurors for failing to apply laws consistently, and thereby, according to William Eden, encouraging criminal behavior (Green 297-98). …