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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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
Robert Castel, "The Doctors and Judges", in I, Pierre Riviere, having slaughtered my mother, my
sister and my brother....A case of Parricide in the 19th Century, Michel Foucault (ed), Penguin
Books, Harmondsworth, 1978, p 252.
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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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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
where the defendant’s sanity was in question.
Phrenological Journal declared in 1836:
(1995) 11
As a writer in the
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.
140
AN IRRESISTIBLE IMPULSE OF MIND:
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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AN IRRESISTIBLE IMPULSE OF MIND:
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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AN IRRESISTIBLE IMPULSE OF MIND:
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 25Adding 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 part
of 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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AN IRRESISTIBLE IMPULSE OF MIND:
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 the
lonely woman ... the common people, knowing this man to be highly allied in England .... they
believed 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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AN IRRESISTIBLE IMPULSE OF MIND:
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
150
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.
AN IRRESISTIBLE IMPULSE OF MIND:
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.
152
AN IRRESISTIBLE IMPULSE OF MIND:
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 speech
of 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.
153
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(1995) 11
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
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.
53
Sydney Morning Herald, 25th January, 1844.
54
Sydney Morning Herald, 25th January, 1844.
55
Colin Roderick, above, n 23, p 242.
56
Sydney Morning Herald, 25th January, 1844.
154
AN IRRESISTIBLE IMPULSE OF MIND:
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 with
a 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 trial
allowed 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 execution
of 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 over
those 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 him
their support. His increasingly antagonistic relationship with William Bland, moreover, is well
known. 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.
155
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(1995) 11
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
Sydney Morning Herald, 25th January, 1844.
63
156
Sydney Morning Herald, 25th January 1844.
AN IRRESISTIBLE IMPULSE OF MIND:
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
Sydney Morning Herald, 25th January, 1844.
65
William Allen, "Punishment of Death" (1842) XV Phrenological Journal, pp 237-8.
157
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1995) 11
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.
158
AN IRRESISTIBLE IMPULSE OF MIND:
"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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(1995) 11
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.)
160
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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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
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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.
162
AN IRRESISTIBLE IMPULSE OF MIND:
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.
164
AN IRRESISTIBLE IMPULSE OF MIND:
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
Atlas, 8th March, 1845, p 174.
100
Atlas, 8th March, 1845, p 174.
101
Atlas, 8th March, 1845, p 174.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
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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 their
disposal and not appoint to positions of trust individuals physically,
and therefore morally, inefficient, - in a word, if the truths of
cerebral physiology were recognized and practically enforced, there
would be an end of the cases of the distressing character we are now
witnessing.10
•
•
?
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.
166
AN IRRESISTIBLE IMPULSE OF MIND:
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.
167
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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.
168