Abstract
In crime-obsessed cultures, the rudimentary trajectories of criminalizing processes are often overlooked. Specifically, processes of accusation that arrest everyday life, and enable possible enunciations of a criminal identity, seldom attract sustained attention. In efforts at redress, this paper considers discursive reference points through which contextually credible accusations of ‘crime’ are mounted. Focusing particularly on the ethical dimensions of what might be considered a ‘lore’ (rather than law) of criminal accusation, it examines several ways that exemplary cases reflect paradigms of accusatorial practice, accuser identity formation and accused response. With such assumptive grids in mind, the paper signals the potential value of rescuing accusation from fundamental attachments to (a criminally defined) order and disorder, as well as images of a distinct accuser and accused offender. It then alludes to the prospect of pursuing justice through less exclusive forms of accusation
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Notes
The same dictionary provides another, seemingly more remote definition, as follows:
“lore2|... noun Zoology
the surface on each side of a bird’s head between the eye and the upper base of the beak,
or between the eye and nostril in snakes.
ORIGIN early 19th cent. from Latin lorum ‘strap.’”
Though the zoological differentiations may appear relatively far removed from our concerns here, there is a between law and order to which we will have reason to return.
I use the term archive in the in the sense of playing with the commencement and commandment that this term simultaneously names—the governor’s place. But I will resist portraying my role as that of an archon with the power to access and interpret the documents with certainty, with authority. The “impression” of the archive is explored largely as a “memory of the future” (See Derrida, 1998).
This, notwithstanding Nancy’s (2000) useful reminder that ontology may be seen as itself making an ethical claim.
See Derrida (1977: 13).
More specifically, the following article gestures towards senses and uses of the word “accusation” that render governmental performances of displacement meaningful. The emphasis on traces is one that proceeds without the usual securities, the entrenched comforts of empiricism, metaphysics and an associated realism. Akin to Derrida’s (2002) gestures elsewhere, my address will take form “without alibi”, but with a specific sense of at least two conditions. First, the “axiomatics” of the “sovereign subject and autonomous responsibility” is not taken to be present a priori (Derrida, 2002: xxvii). In context, that is, neither accused, accuser, authority nor witness can be presumed to exist as fixed, free and stable subjects who are “present without alibi”. If there, presence remains a contextual accomplishment forged as shifting residues of temporarily staid deferrals. Addressing such nominal entities is an uncertain gesture, “without alibi”. Secondly, when analyzing this Lore, one need not evoke,
“a predeconstructive thinking of pure and untouched presence of every trace, thus of every referral to the elsewhere of the other (place, moment, who, or what), which would come down to saying, “This presents itself, or I, myself, conscious subject, I present myself intentionally without alibi”(Derrida, 2002: xxvii–xxviii).
Traces of accusation are not universally present entities to be discovered. Speaking such traces into a different sort of discursive being has its own reasons; such as the political one of spurning a tyranny that comes with allowing a meaning horizon to fix itself as necessary. The meaning of crime, for example, is necessary only to the extent that deferrals to accusatory processes are denied, or the traces sustaining criminal accusation ignored. And yet when trying to address accusatory traces, one is dogged by the “perhaps.” Accusation thus is always—in this sense, at least—without alibi.
My discussion of this case is based on the archival work of Toerien’s (2004) Die Wegraak van Frans Joosten [The Disappearance of Frans Joosten]. The material for this Afrikaans text defers to the CJ document series, the Council of Justice Records (in old Dutch), housed at the National Archives of South Africa’s Cape Town Repository. I wish to thank Johan Van der Walt for his assistance in translating some Afrikaans passages. The role of accusation in the inquisition is clearly central and may question commentators, like O’Connor (1984), who tend to draw a sharp distinction between the two.
The Afrikaans is: “Dit is uiters onfatsoenlik om ander mense se slawe op te hou en met wyn te trakteur.”
Etymologically, the Latin noun, crimen connotes “judgment, accusation, illegal act.” It derives from the Latin root cernere meaning “verdict, accusation, crime” (Negrier-Dormont, 1994: 12; Partridge, 1958: 130). This root, in its turn, originates from the Greek “krinein” (decide), and shares an etymological heritage with words like certain, crisis, critic, discrete, excrement, secret, riddle (Ayto, 1990: 145). As well, as Ayto points out, the Latin noun crimen, “...passed via Old French crimne (later crime) into English, where traces of the original meaning “accusation” survived until the 17th-century” (1990: 145).
The link between law and order aspects of the Lore has a complex lineage. For example, as a way of extending sovereign rule over a kingdom, King Henry’s Assize of Clarendon instructed justices to discover,
“...whether there be in their hundred or vill any man accused or notoriously suspected of being a robber, murderer or thief, or anyone who is receiver of robbers or murders or thieves since the Lord King has been King. And let the justices inquire among themselves and the sheriffs among themselves” (cited in O’Connnor, 1984: 354).
The importance of accusation for legal discovery and sovereign rule is implicit and spells out the well ensconced duties of accusation, even in an inquisitorial juridical process.
Old Bailey Proceedings Online, 16th September 1812, Trial of Francis Evans, (Ref: t18120916-52). Please note that all subsequent references to these proceedings are from the http://www.oldbaileyonline.org (consulted between 1st June and 14th September, 2005).
Old Bailey Proceedings Online, 20th May, 1795, Trial of Helena Holman (Ref: t17950520-57). The full charge is listed as follows: “298. HELENA HOLMAN was indicted for feloniously stealing, on the 29th of April, one hundred and sixty-nine copper halfpence, value 7s. 2d. 1/2 twelve farthings, value 3d. ten pieces of copper, called medals, value 4d. one hundred and sixty-two halfpence, value 6s. 9d. nine farthings, value 2d. eight half crowns, value 1l. three shillings and five sixpence; two pieces of metal, value 1d. two pieces of silver, value 6d. four metal cloak pins, value 1s. six brass hooks, value 6d. an iron knife with a wooden handle, value 4d. and an iron fork with ditto, value 2d. the goods of Thomas Dolly. (The case opened by Mr. Gurney.)”
Old Bailey Proceedings Online, 10th September, 1823, Trial of Charles Coe Kallmeier (Ref: t18230910-44): “1035. CHARLES COE KALLMEIER was indicted for stealing, on the 22d July, at St. George, Bloomsbury; (being servant to George Gold Sadler) in his dwelling-house, 14 yards of woollen cloth, value 15 l., the property of the said George Gold Sadler, his master.”
Old Bailey Proceedings Online, 6th December, 1809, Trial of John Hughes (Ref: t18091206-27). In particular, “26. JOHN HUGHES was indicted for feloniously stealing on the 14th of November, a hat, value 10 s. the property of Thomas Edwards.”
Another case of stealing in a domestic setting can be found at Old Bailey Proceedings Online, 3rd June, 1824, Trial of Catharine Keenan (Ref: t18240603-88).
A contrasting case in the same year with a different outcome is found in the following: Old Bailey Proceedings Online, 1st November, 1809, Trial of Samuel Harvey (Ref: t18091101-95). “903. SAMUEL HARVEY was indicted for feloniously stealing on the 10th of October, three pecks of oats, value 3 s., the property of Armand Dyson.” The prosecutor, Dyson, describes himself as a “horse dealer”: “On the 10th of October I had ten quarter of oats brought in a waggon from Bear key, the prisoner was the carman. After the waggon was unloaded, my man came to me, I came back with him, and went into the waggon, there I saw a bushel measure nearly full of oats, I accused the prisoner of stealing the oats.” It is noted that he is located in Park Lane, and is asked whether he is alone in business; he answers that he is in business with his father and two brothers. The Accused is in this case found not guilty.
Old Bailey Proceedings Online, 29th November, 1832, Trial of Catherine (Ref: t18321129-155).
In a not unrelated fashion, a husband who is accused of throwing his wife out of a window offers the same sort of narrative in a different case. His wife, before her death, deposes his innocence, but alleges bad treatment. He, by contrast, testifies thus: “My Lords, and gentlemen of the jury, trembling under the awful situation in which I am now charged with a crime of the most brutal enormity, appearing before this Honorable Court with all the mischievous consequences created against me by public prints/, &c. I most humbly appeal; confident, however, popular clamor may condemn me, a conviction of my innocence, to which I call God to witness, and of your humane and impartial hearing, that you will permit me to submit to your consideration those matters irresistibly attached to the case, which will convey to the Court the impossibility of my guilt....” He alleges that his wife was unable to “govern her passions’, was often drunk and had placed them in debt. His confidently tempts fate: “My Lords, and Gentlemen of the Jury, I once more appeal to God that I have set forth the truth, and nothing but the truth, and hope, when you consider the case fully, which I rest satisfied you will, you will easily convince yourselves of the improbability of my being her murderer. God forbid. Were I so, the sooner I quit this earthly career the better. Pardon me...” He too is found not guilty. See Old Bailey Proceedings Online, 16th September, 1812, Trial of Francis Evans (Ref: t18120916-52).
Old Bailey Proceedings Online, 15th January, 1812, Trial of Thomas Hunt (Ref: t18120115-31).
The Times, January 2, 1812, p. 4, Issue 8489, Col E. (Source: Times Digital Archive)
The Times article refers to a John—rather than Thomas—Hunt.
Here one might refer to the “strange” case of Adolph Beck who was convicted twice (1895 and 1904) on the strength of apparent calumnies and misidentification. The accused’s foreignness may have impeded his ability to account for his innocence in both cases (although he is later pardoned)—see Uncovered Editions (1999).
See also Pavlich (2006) for an account of Socrates as the accused.
His concept of the “singular-plural” reinforces the idea that the words “being”, “singular” and “plural” are closely interrelated concepts such that,
“Being is singularly plural and plurally singular. Yet, this in itself does not constitute a particular predication of Being, as if Being is or has a certain number of attributes, one of which is that of being singular-plural ... On the contrary, the singular-plural constitutes the essence of Being, a constitution that undoes or dislocates every single, substantial essence of Being itself” (Nancy, 2000: 28–29).
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Acknowledgements
The author would like to thank Charles Barbour, Ronnie Lippens, Peter Fitzpatrick, Erik Claes and Anthony Duff for their helpful comments on a previous version of this paper. An earlier version of this paper was presented on the occasion of the symposium on “Criminal Law and Philosophy”, October 2005, London.
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Pavlich, G. The lore of criminal accusation. Criminal Law, Philosophy 1, 79–97 (2007). https://doi.org/10.1007/s11572-006-9004-z
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DOI: https://doi.org/10.1007/s11572-006-9004-z