The performance of insanity in the Old Bailey, 1674-1800

Author: Bree Booth

Sub-editor: Avalon Welch

  Scholars of early modern insanity trials have contended that eighteenth-century jurisprudence on insanity was primarily informed by the right-wrong or ‘wild beast’ test. The test dictated that a person be considered legally insane only if they were ‘totally deprived of [their] understanding and memory and doth not know what [they are] doing, no more than an infant, than a brute or a wild beast.’ This formulation of the test, from Mr Justice Tracy’s summing up to the jury in the case of Rex v Arnold (1723), re-entered English law in the eighteenth century but the concept had been known to English law since the publication of Henry de Bracton’s treatise ‘De Legibus et Consuetudinibus Angliae,’ in the thirteenth century. Historian of crime and gender Dana Rabin argues, however, that eighteenth-century courts did not rely as heavily on the ‘wild beast’ test as some scholars have contended.

  I will contribute to the resolution of this conflict by exploring the testimony in insanity cases in the Old Bailey Online in the period 1674-1800. The records show that judges and juries did not always strictly adhere to the ‘wild beast’ test even before the widespread appearance of medical witnesses towards the end of the eighteenth century. Judges and lawyers questioned the internal psychological and emotional states of prisoners, as well as observable evidence of insanity in their speech and actions. Thus, I will argue that insanity in the early modern English court was first and foremost a performance which was informed by popular stereotypes of the raving madman but that this script was being rewritten by judges, lawyers, and witnesses to produce a more nuanced conception of legal insanity.

 My research draws on 117 records archived in the Old Bailey Online between 1674 and 1800 in which a verdict of non compos mentis was returned, or in which an insanity plea is recorded (see appendix). Almost half of all persons who presented evidence of their insanity in the Old Bailey during the eighteenth century were acquitted. 48% or 56 of 117 cases are non compos mentis verdicts. The other 78 are cases in which a formal plea of insanity was entered or in which the prisoner’s sanity was called into question by testimony. Some of the records, particularly towards the end of the eighteenth century, provide more detail than others. These later records often include details of the trial testimony and the sentencing remarks of the judge. This information can be helpful in determining the reasons why a jury might have decided to acquit or convict. However, the statistics drawn from these records must not be too hastily generalised. The decision about what to record was at the discretion of the clerk in the eighteenth-century court. Thus, there may have been numerous other cases where evidence of insanity was presented but was not considered important enough to record or was not recorded due to time constraints. Moreover, it is not possible to draw precise conclusions as to why a jury came to their decisions but given the role of the clerk in recording important information, this essay works on the assumption that the clerk might have recorded that information which was considered to have factored into the jury’s decision to acquit or convict. Thus, the sources provide a broad snapshot of what was going on in insanity trials in the Old Bailey in the period under examination.

 Insanity has been considered a mitigating circumstance in English Common Law since the medieval period, with the requirement that the legally insane not be aware of the moral character of their actions. The verdict of non compos mentis meaning ‘not of sound mind’,was well established in the lexicon of the English court by the end of the seventeenth century, when the records for the Old Bailey Online begin. By 1750, 160 English crimes were punishable by death, so insanity defences were entered into to avoid execution for crimes ranging from theft to murder. . An insanity plea could be an effective strategy as eighteenth-century English law was highly unpredictable; there was a disjunct between the severity of the ‘bloody code’ and the willingness of English Courts to mitigate punishments in a wide variety of circumstances. Moreover, with increasing economic and population pressures throughout the eighteenth century, more and more insanity cases began to appear in the Old Bailey. Until 1720, the average number of non compos mentis verdicts returned per decade was 3.2. Thereafter, this number increased to 4.4. With the rise in pleas of insanity, the eighteenth-century court became a testing ground for new legal tests of insanity which reflected the circumstances of the cases being brought before the court.

  The popular conception of the madman in early modern England was reflected in and informed by the character Tom O’ Bedlam, who possibly emerged from an anonymous seventeenth century ballad known as Tom a Bedlam’s Song. The ballad, written from the perspective of Mad Tom himself who describes his adventures:

With an host of furious fancies
Whereof I am commander,
With a burning spear and a horse of air,
To the wilderness I wander.
By a knight of ghosts and shadows,
I summoned am to a tourney
Ten leagues beyond the wide world’s end:
Methinks it is no journey.

Yet I will sing, Any food, any feeding,
Feeding, drink, or clothing…

 Wandering aimlessly, he is sometimes described as walking about ‘bare armed, and bare legged,’ or alternatively ‘dressed in cloathing fantastic and ridiculous,’ begging for alms across the English countryside. Tom O’ Bedlam’s madness inheres in his eccentric appearance and demeanour. This image of the madman as a bedraggled nomad informed popular conceptions of what insanity looked like in the eighteenth century. It represented a regression to one’s animal nature and thus stood in unfavourable contrast to the enlightenment ideal of the man of reason.

 The ‘wild beast’ test can be understood as the translation of the Tom O’ Bedlam stereotype into a legal context. In the eighteenth-century, however, witnesses began to challenge this conception, instead contending that disordered emotions and passions, a ‘lesion of the will,’ to borrow Eigen’s term, constituted a mode of legal insanity. To the jury in the 1709 trial of Elizabeth Cole ‘it appear’d plain that she had for a considerable time been under a great trouble of Mind, and in a disponding Condition.’ There is evidence that this shift had begun to occur even earlier, as the trial of a woman known only as H.S. in 1691 states that ‘she had always been a Melancholy Woman,’ and was therefore acquitted. Thus, in the eighteenth century a shift in popular and legal conceptions of insanity was underway.

  Juries resisted the shift in standards of legal proof well into the eighteenth century. There were two reliable indicators of conviction in an insanity case. Firstly, a person who could string together a sentence or a coherent plea in front of a judge did not fit the popular conception of the incoherent madman and it was therefore unlikely that a jury, as representative of the public, would find them insane. Secondly, if a defendant could not produce credible witnesses to testify to their insanity or if the prosecutor produced witnesses who contradicted the diagnosis of insanity, then a prisoner would likely be convicted. Of the cases in which insanity was not accepted as a mitigating circumstance, 22 out of 78 could not produce sufficient evidence of their insanity, and 7 of 78 spoke coherently in their own defence. Thus, when John Newman pled that he was a ‘lunatick’ during his trial for theft in 1720, but ‘called none to prove it,’ he was found guilty.  Likewise, in 1780 when Thomas Taplin’s landlord of nine years testified that he had for some time been ‘void of his senses,’ but admitted that the prisoner regularly paid his rent, Taplin was found guilty and sentenced to death.  This shows that while defence witnesses often challenged the legal definition of insanity, the kinds of proofs accepted by juries continued to be informed by the ‘wild beast’ stereotype.

 When testimony was equivocal or when credible testimony as to the soundness of the prisoner’s mind was presented, juries tended to err on the side of conviction. Historian Dana Rabin argues that the tendency of juries to convict was informed by the enlightenment conception that ‘every man is a creature reasonable,’ and madness was a rare disorder of the natural human condition of reason. This contention is largely borne out by the evidence from the trial records. In the trial of Mary Hindes for murder, the husband of the victim and acquaintance of three years, claimed he ‘never observed any marks of madness’ in her, while the landlord of the prosecutor claimed ‘she never appeared to be insane at all.’ William Morron, indicted for theft in 1784, is described by a medical witness as ‘flighty’ but not insane. William Frankland made the mistake of allowing his jailers to witness a change in his behaviour from ‘quite frantick’ to speaking calmly. All three prisoners were convicted and sentenced to death. Thus, equivocal or unfavourable testimony was a reliable indicator of conviction; in no cases where there was vastly contradictory testimony was an acquittal returned.

 Despite the resistance of juries to new conceptions of insanity, witnesses in eighteenth century insanity proceedings drew on both the emotional state of the accused as well as their observable behaviour as proof of insanity. Such testimony became more and more prevalent as medical witnesses who specialised in insanity entered the courtroom. MacDonald contends that there was a shift towards secular medical explanations of insanity from the end of the seventeenth century, however medical witnesses specialising in insanity do not begin to appear in large numbers in the Old Bailey until 1760. Before 1760 most medical witnesses knew the defendant in a private capacity or were employed by prisons or asylums where the accused had been held.  Having a medical witness testify on one’s behalf could be beneficial, and only became more so as the field of psychology was established in the nineteenth century. In the eighteenth century, a medical witness appeared for the prisoner in 12 of 56 cases or 21% of cases in which a non compos mentis verdict was handed down. This proportion increases to 38.1% between 1760 and 1800. In 3 cases in which the defendant was found guilty, a medical witness appeared who contended that the prisoner was legally sane. The rise of the medical witness corresponds with a rise in the nuance which judges and juries were willing to accept in their explorations of insanity. The eighteenth century was a period wherein witnesses routinely challenged the legal conception of insanity, against the traditional right-wrong test. While insanity remained largely performative, the notion of the insane person as akin to a wild beast was not an exclusive standard by which insanity was determined in the eighteenth-century English court.

I have demonstrated that the ‘wild beast’ test was not the only standard used to judge legal insanity in the eighteenth-century English court. Of the 117 cases surveyed here, a variety of reasons for conviction or acquittal emerge which do not focus on the outright behaviour of the accused. The accused were convicted or acquitted based on their behaviour, but also based on medical and lay testimony which challenged the notion of the ‘wild beast’ madman. This emerging nuance corresponds with the rise of the medical witness in the English court from around 1760. Hence, madness was first and foremost a performance but the conditions of the performance were changing in the eighteenth-century court to include nuanced medical categories of derangement which interacted with popular conceptions and social categories.

Image credit

Nevilley, Old Bailey, London, 14th June, 2004, courtesy of Wikimedia.

Appendix

Non compos mentis verdicts 1674-1800

Reason for acquittal:
IDIOCY: 4

LUNACY: 52

TOTAL: 56

Source: https://www.oldbaileyonline.org/stats.jsp?y=verdictCategory&x=&countBy=&render=&_offences_offenceCategory_offenceSubcategory=&_verdicts_verdictCategory_verdictSubcategory=notguilty_nonComposMentis&_punishments_punishmentCategory_punishmentSubcategory=&_defendantNames_defendantGender=&defendantAgeFrom=&defendantAgeTo=&_victimNames_victimGender=&victimAgeFrom=&victimAgeTo=&_divs_fulltext=&kwparse=and&fromMonth=&fromYear=1674&toMonth=&toYear=1800

Evidence presented

HISTORY OF INSANITY: 22

PRISON/COURT BEHAVIOUR: 12
NO HISTORY: 20

MEDICAL WITNESS: 12
MADNESS DUE TO INJURY/DISEASE: 3

Guilty Verdicts in which evidence of insanity is presented 1674-1800

TOTAL: 78

Evidence presented

PERIODIC/TEMPORARY MADNESS: 5

EVIDENCE AGAINST: 15

INSUFFICIENT PROOF: 22

LIQUOR: 6

SPOKE IN OWN DEFENCE: 7

OTHER: 1

Source: https://www.oldbaileyonline.org/stats.jsp?y=verdictCategory&x=&countBy=_offences&render=&_offences_offenceCategory_offenceSubcategory=&_verdicts_verdictCategory_verdictSubcategory=guilty&_punishments_punishmentCategory_punishmentSubcategory=&_defendantNames_defendantGender=&defendantAgeFrom=&defendantAgeTo=&_victimNames_victimGender=&victimAgeFrom=&victimAgeTo=&_divs_fulltext=lunatick%2C+lunatic%2C+lunacy%2C+soul+disease%2C+insanity%2C+insane+&kwparse=or&fromMonth=&fromYear=1674&toMonth=&toYear=1800

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