In 1885, during the year of the conflict known as the North-West Resistance, three Cree men in Manitoba were sentenced to death for the murder of an elderly woman from their community.
Despite the expected severity of colonial justice — killing was always punishable by death, and that year leader Louis Riel and eight other resistance fighters were swiftly executed by the Canadian government — the three men were imprisoned but never hanged.
The fate of Charles Ducharme, Wawasehowein and Wahsahgamass epitomizes much about British imperial justice in the late 19th century. Their story is one of many tales of crime and punishment recounted in Unsound Empire: Civilization & Madness in Late-Victorian Law, a new book by Catherine L. Evans, assistant professor at the Faculty of Arts & Science’s Centre for Criminology & Sociolegal Studies.
In the period studied by Evans, the justice system reflected how citizens were treated within the Empire. While the book offers a penetrating discussion of criminal responsibility in general, “for me it’s also about personhood and subjecthood more generally,” says Evans. “And thinking about who belongs in the Empire: who is a full subject, and who can claim to be free and a free-choosing person.”
I think it’s important to hold both those things in your mind at the same time: the way that people can be so humane in one way — and so brutal in another.
Frequently, questions of race and gender factored into whether an accused person was deemed criminally responsible for their actions. “There were all these different ways where if you were a white Victorian man, you represented the pinnacle of freedom and rationality. Yet it was believed that the vast majority of human beings didn’t meet that threshold. And if that is sort of an axiomatic part of what it means to be an imperialist, how does that translate into responsibility and the law?”
In the Canadian case, the Cree men believed the woman they killed to be a “wendigo,” or cannibal spirit. “That case is really interesting because it shows a few things quite well,” Evans says. “One is the existence and vitality of Cree law. The evidence is pretty convincing in my view that the Cree community knew what was going to happen, and these men who were appointed to execute her did it as part of their judicial system. She was agreed to be unwell — and even she thought she was unwell.”
Colonial authorities supported this view, and as a result the three men had their death sentences commuted. But this action, says Evans, was not taken out of respect for Cree law. Rather, it spoke to the colonial system’s condescending view of the accused.
“One of the generative tensions is the clash between what it means to be a responsible person and an irresponsible person,” Evans says. “So if you are not responsible, then that seems to line up with a lot of the broader civilizational, racial, pseudoscientific theories that were floating around at this time.
“The idea that if you are not white, not English and not male, then you are more primitive and you don’t understand as well as other people do. That’s an idea that really activates and justifies Empire. But in the criminal court, that can often act as a shield to maximum punishment and maximum liability — because if you don’t understand in principle, then the law should treat you more gently.”
This thinking was also frequently applied in cases where women killed their children; such women often escaped death sentences, as it was thought that their perceived fragility and emotional weakness diminished capacity for true responsibility.
At the same time that the Empire’s justice system could be patronizing — and thus forgiving — of its colonized subjects, it was also becoming influenced by a growing sophistication in how human psychology was understood.
During this time, “Ideas about interiority became important,” Evans says. “This is the age where we see the birth of the novel and the growth of liberalism. The autonomous liberal subject starts to become more politically and culturally important.” In the 1840s, a famous test for insanity known as the M’Naghten rule became the gold standard by which criminal liability would henceforth be evaluated. Specifically, the rule assessed whether an accused person was able to understand the nature and quality of the act or that it was wrong at the time of a crime’s commission.
Evans started work on Unsound Empire as she began her PhD dissertation at Princeton University in 2010. Her continuing interest in the subject of justice in the British Empire emanates both from her extensive legal training — she also has a law degree from Oxford University — and from her own heritage: because her neuroscientist father was originally from Wales, she spent her childhood summers with family in the United Kingdom.
This fall, she will be teaching a course called Crime and Mind, which delves into legal issues such as criminal intent, self-defence and transcultural psychiatry. Then she’ll continue work on her next book, which deals with the historical intersection of fire, crime and the law.
The book will continue to examine the contradictory and complex nature of colonial justice — whose administrators often married what appeared to be a surprisingly modern sense of understanding with shockingly outdated views.
A final example is that of Charles Kirk Clarke, a Canadian “alienist” or psychiatrist, who worked at the Kingston asylum with patients whose crimes had been attributed to mental incapacity. “Clarke was very big into the idea that his asylum was a hospital, not a prison; that his patients should be allowed to perform in musicals, and go skating, and decorate for Christmas,” says Evans.
“Reading that, you think that’s so modern and so humane. But it’s important to remember that Clarke also had a late career turn toward eugenics; he became a really important proponent of the mental hygiene movement, which was trying to bar “mental defectives” from entering Canada. So I think it’s important to hold both those things in your mind at the same time: the way that people can be so humane in one way — and so brutal in another.”