9 1 Dates Number

of trials % Property Crimes % Personal Crimes % Combined Properly & Personal Offences % Other 1660-1799 68 30.9 52.9 7.4 8.8 1800-1829 74 25^ 64.9 5.4 3.8 Overall 142 29.6 57.7 5.6 7.1

Table 3.6. Categories o f crime committed by Northern English prisoners who entered insanity and idiocy defences, 1660-1829.

A strong relationship between violence and mentally disturbed prisoners existed at the Old Bailey, despite the preponderance of insanity defences for property crimes. Personal crimes were over-represented amongst insanity defences when weighed against the general trend of indictments. Joel Eigen calculated that personal crimes were pled “three or four times [greater than] their proportion in the general caseload” during Old Bailey insanity trials."^^ No comprehensive analysis has been published regarding the categories of crime which were prosecuted in either southern Scotland or northern England.'^'* Tentative surveys can be proposed, based upon the wide sample of criminal cases examined for “hidden” insanity defences in both England and Scotland (Table 3.7). According to this research, violent transgressions appeared amongst Northern Assize insanity and idiocy defences at two-to-three times the ratio of violent offences amongst all criminal indictments."^^ By contrast, southern Scottish furiosity and fatuity defences were not grossly over-represented amongst crimes of inteipersonal violence. Accusations of

Eigen Witnessing p. 18.

Some aspects o f northern English crime have recently been discussed. Jackson “New-born child murder”. King “Juvenile Delinquency”. Mercer “Exception to a National Pattern?”.

violent offences accounted for around thirty-one-percent of fatuity and furiosity defences and thirty-eight-percent of all criminal cases tried on the southern circuit between 1708 and 1829, This suggests that there was a stronger association between interpersonal aggression and mental distraction amongst foimal indictments at England’s Old Bailey and Northern Assizes than those for southern Scotland.

Jurisdiction Number Of Trials % Property Crimes % Personal Crimes % Combined Property & Personal Offences % Other Northern Assizes 2600 59 27 10 4 Southern Justiciary 850 48 38 8 6

Table 3.7. Survey o f categories o f crime indicted at the Northern Assizes (1660- 1829) and southern Justiciary Court (1708-1829), based upon random samples

o f cases.

Amongst British insanity and idiocy defences which were entered for interpersonal crimes, a higli proportion of the victims were either related to the prisoner or else belonged to the same household (including servants, apprentices and masters).Relatives and household members were the victims in around seven- tenths of northern English insanity defences which involved violent interpersonal aggression (Table 3.8). The figure for southern Scotland stood nearer to thiee-fifths. These prosecutions reflect the development of broader perceptions that such violent

Stone, “Interpersonal violence in English Society (1300-1980)”, P&P. 101, (1983), pp.27-28 claimed that the majority o f violent, interpersonal crimes were directed towards persons who did not belong to the offender’s household or kin. This argument has been questioned by James Cockburn, who suggested that most victims o f inteipersonal violence were familiar with their perpetrator (Cockburn “Patterns in violence in English Society: Homicide in Kent 1560-1985”, P&P. 130, (1991)p.l05).

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behaviour was excessive and unacceptable. Recourse to physically aggressive conduct was condemned more widely during the eighteenth century than in the seventeenth.47

Jurisdiction % of victims belonging to same household or related to the prisoner Northern Assizes 71.9

Southern circuit of Justiciaiy 6Z3

Table 3.8. Proportion o f victims o f violent interpersonal crime who were either belonged to the same household or were related to the prisoner. Comparison o f the

Northern Assizes and Scotland's southern circuit o f Justiciary, 1660-1829.

Jurisdiction % of Males % of Females Northern Assizes 47.7 81.3 Southern circuit of Justiciary 50 100

Table 3.9. Proportion o f insanity and idiocy defences which were entered for interpersonal violence upon household members or kin, by the prisoner's gender. Comparison o f the Northern Assizes and Scotland's southern circuit o f Justiciary,

E. Foyster “At the limits o f liberty: married women and confinement in eighteenth-century England”, C&C. p.40. King “Punishing assault” pp.60-61. Sharpe, “The history o f violence in England: some observations” P&P. 108, (1985). Shoemaker,“Quarter Session records” p.206.

Shoemaker “Male Honour” Stone “Interpersonal Violence” p.32. Stone “The histoiy o f

Violent criminality was not sex-specific, but the association between intra- household violence and insanity was especially strong amongst the English and Seottish females (Tables 3.8 and 3.9). In both northern England and southern Scotland insanity and idiocy defences, around half of the violent, male prisoners had attacked household members or kin. By compaiison, such victims accounted for four of every five cases involving violence by females in northern England. Only three mentally disturbed women were prosecuted for violent crimes in southern Scotland; all of them had attacked relations.

The statutory crime of child-murder informed these different patterns for males and females, though few child-murderers entered insanity defences at court (Table 3.10).“^® Exactly half of northern England’s female prisoners who were mentally disturbed had killed their infants, a figure which replicates Eigen’s findings for the Old Bailey."^^ In Scotland, two of the three violent female offenders studied were arraigned for child-murder. In Britain, the statutory offence of child-murder was principally restricted to women who concealed and killed illegitimate progeny.^® Women accounted for the vast majority of persons who committed “neonaticide”, or the murder of new-born children.^* Contemporaries included children up to the age of seven in their conception of “infanthood”, so studies of “infanticide” should

In their study o f child-murder, Hoffer and Hull found that 90% o f assaults against children were t

performed by women and that these were typically domestic crimes, Murdering Mothers p.xviii and 4

98. Kilday found a similar pattern in her study o f southern Scottish child-murder, “Maternal I

Monstem” pp. 164-165. See also Symonds Weep not for me p.83 and “reconstructing rural I

infanticide” p.65. j

Eigen “Did Gender matter?” p.418. |

For England, 21 Jac I c.24 (1624). For Scotland, 2 Chas II c21 (1690). !

Hoffer and Hull Murdering Mothers p.xiii. They employ the term “Filicide” to describe the |

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be extended to include physical assaults upon children and new-born babies. Depending upon the interpretation of “infanticide”, this crime was not as sex- specific as some studies seem to suggest. Males could kill infant offspring and be acquitted owing to mental distraction, but the murder of infants accounted for a lower proportion of violent crime amongst males than fem ales.T he murder of infants accounted for fourteen-percent of the violent offences committed by insane males in northern England, compared with eighteen-percent in southern Scotland (Table 3.10). Both men and women could be perceived to transgress norms regarding domesticity and parenthood by murdering children. In both countries, such activity was associated with mental instability amongst adults of both sexes.

Jurisdiction

Proportion of violent offences that were “child-murders” (%)

Males Females

Northern Assizes 14 50

Southern circuit of Justiciary 18 n/a^^

Table 3.10. Proportion o f violent offences committed by criminal insane and idiotic which were perpetrated against infants, northern England and southern Scotland

Blackstone Commentaries IV p.24. Dalton Countrev Justice set the upper limit at nine-years-old. Beattie Crime p.l35. Sharpe Crime pp.l 14-115.

See, for instance the trials o f Jonathan Swift at Yorkshire in 1785 (ASSI 41/8,41/9 and 45/34/4) and James Connacher at Ayr in 1823 (JC 12/35 and AD 14/23/7).

Only three women committed violent offences and entered pleas o f fatuity or furiosity in southern Scotland, two o f them were accused o f child-murder.

Although violent crime could be associated strongly with mental imbalance, not all violence was perceived to be insane or idiotic in nature. Contemporaries believed that they could distinguish between “bad” and “mad” deeds, violent or otherwise. The context of the prisoner’s criminal behaviour, rather than their crime

per se, indicated their mental state. Violent conduct was most persuasive as an indictor of insanity where such behaviour was unusual in the prisoner, thereby suggesting an altered state of mind. John Gibson’s failed defence of madness, at Jedburgh in 1814, illustrates this.^^ Gibson believed that his wife, Janet Renwick, was engaged in an extra-marital affair and was trying to poison him. Gibson confronted his wife, they argued and in the struggle which ensued, Gibson stabbed his wife to death^^|i^itnesses were convinced that such behaviour represented Gibson’s “violent and irritable temper, rather than the alienation of mind”. Aggressive belligerence was typical of Gibson’s usual character and demeanour. The violence represented Gibson’s usual, rather than an altered, state of mind; thus he was deemed to have been sane and guilty of his crime.

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Global patterns o f success

The English “success-rates” are based upon the proportion of known insanity and idiocy defences where the prisoner’s mental distraction was proven, either earning an acquittal or postponement of trial. Joel Eigen has followed the same methodology.^^ English (and Scottish) prisoners could earn a full pardon or mitigation on the grounds of their insanity or idiocy, via post-trial applications to clemency. Few documents relating to English pardons exist before the 1780s and the resources are unsystematic before the nineteenth century.^® An examination of minutes, newspaper reports and papers relating to applications for pardon unearthed a mere five northern English prisoners who benefited from formal, post-trial mitigation because of mental infirmity. Fom of these prisoners were tried between 1816 and 1829, when records are more complete. Pardons therefore account for less than five-percent of the northern English sample of “insanity defences”.

Papers relating to around 400 pardons (from all England’s regional courts) between 1782 and 1829 were examined to establish whether mental affliction was regular cause for clemency outside of northern England. The prisoner’s state of mind was considered directly in only five of these applications, or just over one- percent of the cases studied. This research therefore reinforces Dana Rabin’s conclusion that post-trial alleviation was granted rarely in England on the grounds

Eigen Witnessing pp. 18-30 Series HO 13 and 47.

of the prisoner’s mental incompetence.^^ Nor was insanity the only cause for clemency in the few cases discovered. In 1785, for instance, a pardon was mooted for George Oliver because of the prisoner’s insanity and the presiding judge’s belief that Oliver had been convicted “on circumstantial Evidence”.^^

Comparisons between the “success-rates” of insanity defences in England and Scotland are tempered by the alternative conceptions of criminal responsibility that existed within these neighbouring countries. In Scotland, guilty pleas were entered alongside express attempts to procure mitigated sentences owing to reduced degrees of insanity. In 1759, for instance, John Fairbairn’s weak-mindedness and youth were argued to restrict his sentence, but he also pled guilty to his crime and petitioned to be banished.^^ It was presented successfully that Fairbairn’s mental state should earn him a mitigation of sentence, but no full acquittal. Scottish juries could also consider prisoners to be guilty but worthy of recommendations to mercy on account of “partial” degrees of imbecility or madness. The failure to include these types of verdict within the quantitative analysis would misrepresent Scottish perceptions of mental affliction and criminal responsibility. Trials such as John Fairbaim’s were “successful” because it was proven that the prisoner suffered from a debilitating mental condition.

Rabin “Law and Responsibility” p. 138. HO 13/228-230.

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Dates:

Northern

England: Scotland:Southern Total insanity and idiocy defences % successful Total insanity and idiocy defences % successful 1700-1759 31 77.4 9 44.4 1760-1799 28 67.9 6 6&7 1800-1829 74 64.9 20 70 Overall 1700-1829 133 68.4 35 6Z8

Table 3. 11. Global success-rates during insanity and idiocy defences at the northern English and southern Scottish circuit courts, 1700-1829.

Overall, insanity and idiocy defences were more successful in northern England than in southern Scotland. Compared with southern Scottish hearings, these types of criminal defence were almost twice as likely to succeed in England before the 1760s (Table 3.11), although failed hearings can be difficult to trace. Acquittal-rates in provincial England and Scotland followed divergent trends throughout the long eighteenth century. Between 1760 and 1799, the success-rate rose in Scotland, but fell at both the Noilhern Assizes and Old Bailey. About fifty-percent of Old Bailey cases ended in the proof of madness during the 1760s, dropping to a low of thirty- seven percent during the 1790s, before increasing again after 1800.^^

The success-rates of both northern English and southern Scottish defences are appreciably higher than published figures for insanity defences. Nigel Walker has suggested that only one-third of English insanity defences were proven during the eighteenth century. Joel Eigen has demonstrated that, with the exception of two anomalous decades, the acquittal-rate during Old Bailey insanity defences stood at around fifty-percent between 1760 and 1843. At both provincial circuits, the success-rate hovered at aroimd two-thirds of all insanity and idiocy defences between 1760 and 1800 (Table 3.11). Undoubtedly, failed insanity defences have been veiled by the vagaries of the provincial criminal materials that were investigated. This failing has been corrected somewhat by the surveys of depositions and narratives. Comparisons between Eigen’s work and this research must be considered carefully, yet it would seem that criminal defences of insanity and idiocy were more successful in provincial England and Scotland than at the Old Bailey, at least after 1760. In contrast to Walker’s conjecture, the provincial prisoner’s insanity or idiocy was proven in the majority of northern English and southern Scottish cases. Such high proportional success-rates suggest that the provincial courts were not predisposed to regarding all insanity and idiocy defences with scepticism.

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Explaining success-rates: types o f crime committed and associated sentences

Joel Eigen has provided a lucid explanation for the changing rates of acquittal in Old Bailey insanity defences. Eigen bifui'cated the prisoners’ transgressions into offences against persons and property, finding significantly different patterns of acquittal for “personal” and “property” crimes. Successful insanity defences for interpersonal, violent offences rose sharply from around forty-percent in the 1790s to over sixty-percent in each decade between 1800 and 1830. By contrast, the success-rate in property offences did not alter significantly.^^ Eigen argued that the increased acquittals in violent crime were connected to the Criminal Lunatics and Safe Custody Acts of 1800, which were drafted and implemented following James Hadfield’s infamous insanity defence.^^

Similar* trends were not perceptible in either northern England or southern Scotland. The Scottish acquittal-rate fell from sixty-seven-percent in the late-1700s to forty-percent between 1800 and 1829 (Table 3.12). In souther*n Scotland after 1800, in contrast to both northern England and the Old Bailey, a higher proportion of insanity and idiocy defences were successful in relation to property offences (Table 3.13). Some Parliamentary statutes regarding criminal insanity were not applicable to Scotland, such as the terms included in the 1744 Vagrancy Act for the detention of “dangerous” persons who were mentally disturbed.^^ The Criminal

Eigen Witnessing pp.22-23.

^ Walker Crime and Insanity I pp. 74-82. Moran “Origins” pp.487-504. Eigen Witnessing p.23. Houston “Poor Relief and the Dangerous and Criminal Insane in Scotland during the long eighteenth century” (unpublished paper) p. 1.

Lunatics and Safe Custody Acts of 1800 did apply to Scotland, however. These acts neither sparked nor regularised a higher acquittal rate amongst fatuity and furiosity defences which were pled to exculpate violent interpersonal crimes on the southern circuit of Justiciary.

Northern

England SouthernScotland 1760-1799 83% 67% 1800-1829 76% 40%

Table 3.12. Proportion o f insanity defences W’hich were successful in response to violent crimes against the person. Northern England and southern Scotland 1760-

7(929.

Northern

England SouthernScotland 1760-1799 57% 67% 1800-1829 57% 73%

Table 3.13. Proportion o f insanity defences which were successful in response to property offences. Northern England and southern Scotland 1760-1829.

After 1800, the acquittal-rate also fell in northern England regarding insanity defences for violent offences. Eighty-three-percent of such cases earned acquittals between 1760 and 1799, whilst the success-rate fell to seventy-six-percent between 1800 and 1829 (Table 3.12). Eighteenth century sources may have masked failed

1 0 3

defences, thereby hiding a real increase in success-rates after 1800. It seems unlikely, however, that the acquittal-rate at the Northern Assizes rose by twenty- percent as occurred at the Old Bailey between 1760 and 1843.^® For such a proportional increase to have occurred in northern England, a further fifteen cases (sixty-percent of the total already discovered) would need to be uncovered for the period between 1760 and 1799. All of these cases would need to be failed defences for violent crimes. It seems unfeasible that such a bulk of cases would evade scrutiny, especially given that court records relating to 1,400 cases and 2,000 printed narratives were examined for the period 1760-1829 in an effort to identify failed insanity defences. It is more realistic to suggest that Hadfield’s trial, and the legislative changes which followed, did not have the same impact upon acquittals in northern England as at the Old Bailey.^^

^ Eigen Witnessing p.23.

It might be possible to speculate that such famous cases led to an increased awareness o f criminal lunacy and the ramifications o f such a verdict at law, although adequate proof is lacking to support such a thesis.

Capital offences

The success-rate of insanity and idiocy defences for capital offences fell in both regions after 1800. The northern English acquittal rate in “capitals” fell by twenty- percent after 1799 (Table 3.14). A less dramatic decline in success-rate occurred in southern Scotland. An enlarged number of specific offences carried the death penalty over the course of the long eighteenth century within both legal traditions. Despite this, capital punishment was regarded increasingly with distaste and was reserved as an exemplary punishment for serious crimes. Aversion to hanging was epitomized by British juries who mitigated sentences by returning “partial verdicts”, whilst there were Parliamentary calls to reform judicial codes from the late eighteenth century.^^ If insanity or idiocy was used as a simple means of mitigating harsh penal codes, then an enhanced acceptance of this type of plea might be reflected by an increased success-rate at court. That the opposite was tme suggests that false pleas of mental distraction were not accepted or invented as a regular form of mitigation in capital cases. Courtroom participants applied the concepts of mental disability and distraction selectively, rather than indiscriminately.

S. Devereaux, “The Making o f the Penitentiary Act, 1775-1779”, HJ, 42, 4, (1999) pp.408-412. A.J. Draper, “Cesare Beccaria’s influence on English discussions o f punishment, 1764-1789”, History o f European Ideas. 26, 3-4, (2000), passim.

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Northern

England SouthernScotland 1760-1799 83% 78% 1800-1829 62% 70%