The Rise of Rationality in
Our goal in this chapter is to sketch the evolution of the law of confessions toward Wigmore’s rationalism and away from the Hawkins-Leach dictum that gripped the law of confessions in the nineteenth century. Part of the reaction to crime and threats at the turn of the twentieth century was the third degree used by police when they thought the suspect was guilty and he did not oblige with a confession. We will treat the third degree separately in chapter 6 because, long hidden, it had little effect on legal doctrine. Moreover, the third degree was not in any way a triumph of rationality. As we will see, it was the antithesis of rationality based on the blindly held belief of police that they could determine which suspects were guilty. Without that assumption, the third degree was not only immoral but also illegitimate and irrational. Given enough torture, almost every innocent suspect will say whatever his torturer demands.
To sketch the rise of rationalism, we begin in England, returning to the years when the Hawkins-Leach dictum ruled the confessions world.
Setting off cultural movements with dates is imprecise at best. Though it overlaps a few years with our coverage in chapter 3, we will focus on the reign of Queen Victoria, 1837 to 1901, to continue our study of the connection between cultural changes and the English law of confessions. Victoria died a year into a new century that, three years later, would see the publication of Wigmore’s supremely rational treatment of confessions. She became queen three years after Parliament made it a crime to disobey the rules of a Poor Law Commissioner, a regulatory body created for “management of the poor”1 Problems besetting the densely packed English cities of the time, particularly London, included barely adequate food supplies; the proliferation of debtor’s prisons; and urban pockets “notoriously blighted by crime, pollution, and disease.”2