By D. Rabin

In the course of the eighteenth century English defendants, sufferers, witnesses, judges, and jurors spoke a language of the brain. With their reputations or lives at stake, women and men offered their advanced feelings and passions as grounds for acquittal or mitigation of punishment. contained in the court docket the language of excuse reshaped crimes and punishments, signalling a shift within the age-old negotiation of mitigation. outdoors the court docket the language of the brain mirrored society's preoccupation with questions of sensibility, accountability, and the self.

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It is clear that this language of the mind concerned legal commentators and reformers deeply because its admission in court widened the disjuncture between legal prescription and legal practice and led to erratic, unpredictable mitigation. Legal reformers in the late eighteenth century worried about the capricious nature of mitigation in the face of England’s ‘bloody code’. Some advocated strict enforcement of existing laws while others urged a reduction in the number of capital statutes to make mitigation unnecessary.

79 Although transportation had been available as an alternative to the death penalty for the century preceding the act of 1718, this legislation and 6 Geo. I, c. 80 As John Beattie has shown, evidence from the first few years after the passage of the Transportation Act illustrates the swift and significant effect it had on the English legal system. Between 1718 and 1720 transportation completely replaced whipping, branding, the pillory, and imprisonment; moreover, the availability of transportation led trial Pleas of Mental Distress in the Courtroom 35 juries to increase the use of partial verdicts, verdicts that convicted prisoners of less serious charges than those stated in the indictment.

Obviously, claims of defendant initiative are complicated. I do not dispute the fact that English elite values and agendas dominated the legal 26 Identity, Crime, and Legal Responsibility in Eighteenth-Century England system or that the assizes were a deliberately formal, intimidating, and effective display of the majesty, authority, and power of the governing classes. But patrician power does not imply plebian passivity. The evidence reflects a complex interplay between popular and elite culture in which each side was shaped by developments in the other and by their contact with each other.

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