Garnham The Courts Crime and Criminal Law in Ireland 1692-1760 (1996) pp.60-61 proposes a similar thesis for contemporaiy Irish property offenders and crime.

^ ASSI 41/10.

ASSI 45/38/3 nos. 8-14. ^ King Crime pp.353-373.

The prisoners ' gender

Scholars have claimed that insanity was perceived to be experienced by females, rather than males, during the eighteenth and nineteenth centuries/^ These interpretations have also contended that the concept of “insanity” was invented and used oppressively by male, professional persons to label, curtail and control female behaviour which rebelled against customary, male-imposed norms. Such contentions have been challenged strongly by arguments that contemporary experiences and perceptions of insanity were not gendered so crudely It has also been suggested that contemporaries perceived that mental afflictions robbed persons of their ability to choose to act in the way that they did. Any “rebellion” by females was therefore implicit, rather than explicit in nature.”

Jurisdiction Ratio of Prisoners Male Female Northern Assizes 3.7 1 Southern Justiciary Court 4.8 1

Table 4.4. Gender o f prisoners during insanity and idiocy defences, expressed by ratio. Northern England and southern Scotland, J660-1829.

Amongst provincial British prisoners, mental afflictions were most regularly experienced by males rather than females (Table 4.4). This reflects the fact that

Chesler Women and Madness (1972). Showalter Female Malady (1987).

MacDonald “Women and Madness”. Busfield “The Female Malady?” and Men. Women and Madness Tomes “Feminist Histories o f Psychiatry”. Houston “Madness and Gender” and “Class, Gender and Madness”.

121

fewer females were prosecuted formally at the superior courts than males. In total, twenty-four of the northern English prisoners that were studied were female (just under one-quaiter of the English sample). In northern England, the mental conditions of thirty-seven males were evaluated for every ten females.^” Six of the thirty-five southern Scottish “pannels” were women, where the ratio stood at forty- eight males to ten females. This was not dissimilai* to the sex-ratio of persons whose mental faculties were examined at the contemporary Scottish civil courts, where around forty-four male subjects appeared for every ten females.^’ Informative analysis can be offered, despite this low sample-base of women.

Records do not reveal the social and economic standing of aromid one-third of the British women who entered defences of insanity or idiocy. Where data can be retrieved, the vast majority of female insanity and idiocy defences involved women from poor, labouring households or who were servants. All but two of the women who pled fatuity or furiosity in southern Scotland were of impoverished backgrounds. To take one example, Susan Tinny had been dismissed from service “having quarrelled with her master”, Andrew McDowal.^^ Depositions reveal that Tinny remained unemployed and in a dire state of poverty, having “no Clothes of any consequence to spare, as her clothes had been arrested for Debt”. These criminal court records reveal priceless accounts of the experiences and perceptions

The sex-ratio for litigants at England’s civil courts between the 15"' and 17"* Centuries stood at around 5 males to 1 female, Neugebauer “Mental Handicap in Medieval and Early Modem England: Criteria, Measm ement and Care”, in Bartlett and Wright (eds.). Outside the Walls o f the Asvlum - The Histoiv o f Care in the Community. 1750-2000. (1999), p.27.

Houston Madness p. 124. AD 14/15/41.

of abnormality amongst lower-order females. On the other hand, these records reveal less about the experiences of higher status women.

The occupation or social standing of males could not be deduced in around one- fifth of all the cases studied. Where vocation and status were recorded, the majority of the males whose mental soundness was questioned also belonged to the impoverished, landless orders of society. Low-status occupations such as labourers, miners and journeymen predominated. In contrast to the women studied, one- quarter of males owned land and could be identified as belonging to either the wealthier “middling sorts” or the “elites” of society. Thus, provincial British cases included wealthy landowners such as William Douglas of Luce and Charles Jackson of Carleton who pled insanity.^^ Prisoners appeared such as the merchant, John Fairbairn, and the surgeon, James Towers, who were socially superior to the landless poor and subordinate to local lairds or gentry.^'’ It was not just low status males who were formally prosecuted at the provincial criminal courts between 1660 and 1829.

British insanity and idiocy defences involved male subjects most frequently. This finding is significant because, conventionally, males were afforded greater legal, social and economic statuses than females. A verdict of mental incompetence therefore removed such antecedent distinctions from male prisoners.^^ Female mental incompetence was less likely to be established formally and publicly by

JC 12/22. ASSI 42/1 ffl63b. JC 12/9. ASSI 41/12. Houston Madness p. 125.

123

legal processes/^ In the context of criminal hearings, it seems probable that the legal and social principles that subordinated women within society also sheltered them from prosecution and subsequent debates concerning their mental fitness. Women could thus avoid the social and legal corollaries which accompanied verdicts of insanity or idiocy, such as the stigma which was attached to mental infirmity or the prospect of indefinite incarceration on such grounds.

Victims and prosecuting officials could decide not to prosecute deranged persons. Thus, the offender’s unsound mental state could inform pre-trial discretionary mitigation of both males and females in Britain.^^ In 1810, William Masterman was apprehended for “shooting and wounding” a corporal of the Suffolk militia, who was billeted in Carlisle.^^ Newspapers reported that the prosecution against Mastennan was dropped before trial “on account of insanity”. Six years later, Elizabeth Ward was found guilty of poisoning her sister at the Yorkshire Assizes. Petitions for Ward’s pardon, grounded upon her “weak-mindedness”, were entered subsequently.^^ It was noted amongst these pardoning-papers that “about a fortnight” before Elizabeth Wai’d had poisoned her sister (unwittingly), Elizabeth had stolen “a box of ribbands” fiom “the shop of one Mr. Effingliam at Rothwell”. Elizabeth then proceeded to distribute “the greater part of these ribbands on the same day and within twenty yards of the shop ... to women and children gratis”.'”’

O f course, female insanity and idiocy could be announced by other means, such as by admission to madhouses or asylums.

See King Crime for a recent investigation o f pre-trial discretion in England regarding (sane) offenders against property.

Carlisle Journal

ASSI 41/12 and 45/49. York Herald July 27"’ and September 7"’ 1816. HO 13/29 and 47/55. HO 47/55/109-109, Viscount Lascelles to Lord Sidmouth, 3T ‘ August 1816.

Ward’s activities signalled her imbecility. Elizabeth’s distribution of the “ribbands” so close to the shop indicated that she did not understand that she had committed a crime, whilst her dispersal of the goods for free suggested that she had no comprehension of their financial worth. Ward’s mental condition informed Mr. Effingham’s discretionary decision not to prosecute, although Effingham’s amicability was also influenced by Ward’s impoverished father, who agreed to pay for the pilfered goods. Victims may have shown such discretion less readily towards poor prisoners who were imable to rely upon friends and family to provide suitable compensation.

Jurisdiction

Male Female

No. of

prisoners successfril% prisonersNo. of successful%

Northern Assizes 81 79 23 69.6

Southern Justiciary Court 29 69 6 66.7

Table 4.5. Proportion o f defences where the prisoner’s mental debility was proven successfully, expressed as a percentage 1660-1829.

Women were not more successful than men in proving that they suffered from debilitating mental conditions during criminal trials (Table 4.5). Amongst the small southern Scottish sample, around two-thirds of both male and female fatuity and furiosity defences were proven at court. In northern England, a greater proportion of

125

male prisoners were acquitted than females during the long eighteenth century. If contemporaries did regard women to be more susceptible to mental infirmity, then such preconceptions were not reflected by the outcome of provincial insanity and idiocy defences. Eigen reached a similar conclusion in his study of gender and insanity defences at the Old Bailey, finding generally that acquittal-rates were unaffected by the prisoner’s gender.'^’

In her study of contemporary literature, Elaine Showalter suggested that there was an explicit relationship between females and the transient condition of insanity.'’^ By contrast, insanity was neither experienced nor perceived to be a “female malady” in Britain’s criminal courts. Amongst non compotes who were insane, rather than idiotic, females were outnumbered by males at both the Northern Assizes and in southern Scotland (Table 4.6). Nor were women more liable to be acquitted when pleading insanity, as the success-rates for insanity alone followed the general patterns at the provincial criminal courts (Table 4.5).

Jurisdiction: Male : Female Northern Assizes 4.54 : 1 Southern Justiciary circuit 3 : 1

Table 4.6. Ratio o f prisoners pleading insanity (not idiocy) in northern England and southern Scotland, 1660-1829.

Eigen “Did gender matter?” pp.418-419. Showalter Female Malady pp.3-4.

A minority of the British prisoners who were investigated were found to be idiotic, as opposed to insane. A mere ten-percent of northern Assizes non compotes

were considered to be idiotic or imbecilic, whereas over one-third of the southern Scottish prisoners studied were either fatuous or “weak-minded”. A larger proportion of Scottish defendants were proven to suffer from idiocy because of the “Rule of Proportions”, which stated that a partially debilitating form of imbecility could be presented as a sound legal defence in mitigation of sentence.

Overall, the lower proportion of “imbecility” defences may indicate that fewer British criminals suffered from idiocy than insanity, but it could also reflect contemporary ideas that idiocy was a less threatening (if incurable) form of mental affliction than insanity.'’^ The behaviom- of idiots was understood to be more predictable than manic forms of insanity. Imbecilic persons were also perceived to be totally incapable of forming criminal intent or plamiing crimes, but were susceptible to being duped into offending by nefarious crooks. This may suggest that persons afflicted by idiocy may have offended less frequently than insane persons, or that greater discretion was shown towards idiots who committed crimes.

Peter Rushton has found that idiocy more regulai'ly afflicted males than females, at a ratio of three-to-one, within north-eastern English Quarter Session records.'’'’ The sex-ratio of idiocy defences at the Northern Assizes was more evenly balanced.

Andrews “Idiocy ... part I” p.66. Rushton “Idiocy” p.42.

127

at five males per thiee females, although more male than female prisoners suffered from idiocy at the Northern Assizes (Table 4.7). A greater proportion of women prisoners were afflicted by imbecility (Table 4.8). Of the northern English females whose mental faculties were examined in court, just over one-fifth of them were deemed to be idiotic or weak-minded, which contrasted with a mere five-percent of northern English males. This could reflect contemporary archetypes that women were more prone to being weak-minded or mentally deficient than males.'’^

Jurisdiction: Male : Female Northern Assizes 5 :3 Southern Justiciary circuit 5 : 1

Table 4.7. Ratio o f prisoners pleading idiocy (not insanity) in northern England and southern Scotland, 1660-1829.

On Scotland’s southern circuit, male outnumbered female fatuity by a ratio of five-to-one (Table 4.7), including cases of imbecility or “weak-mindedness” which were pled in mitigation of punishment. The subjects of Scottish civil court “brieves” of fatuity were predominantly male, at a ratio of just over four men per woman assessed.'’^ The proportion of southern Scottish males and females who were considered to be imbecilic or else “weak-minded” was very similar, however, accounting for about one-third of the cases for both sexes (Table 4.8). So, in

Andrews “Idiocy ... part I” pp.81-82.

contrast to northern England, idiotic forms of mental deficiency were not more likely to be associated with women than men during southern Scottish criminal defences.

Jurisdiction

Male Female

No. of

prisoners prisoners% of prisonersNo. of prisoners% of

Northern Assizes 6 7.4 5 21.7

Southern Justiciary Court 11 37.9 4 66.7

Table 4.8. Proportion o f northern English and southern Scottish male and female prisoners whose defence rested upon idiocy (as opposed to insanity), 1660-

The admission of mentally distressed persons to private madhouses and public asylums could depend upon their marital status in Britain and France/^ The offender’s marital status could also affect whether prisoners were prosecuted or their mental states were evaluated foimally at court. The six Scottish women whose mental condition was evaluated at court were single, although three were widowed. Just over two-thirds of the English women studied were either “singlewomen” or widows. Marriage may well have shielded mentally disturbed women from formal prosecution, with husbands or household accepting responsibility for their

Digby Madness. Morality p.l75. Houston Madness pp. 144-151 and “Madness and Gender” pp.314-317. Ripa Women and Madness p.55, although Ripa focuses upon the female experience of admission.

129

behaviour/^ Single females lacked such shelter, especially those who had no living kin, or whose relatives refused obligations to supervise them. The widow Susan Tinny was one such unfortunate woman. Susan’s dismissal from service was compounded by her father’s refusal to accept his troublesome, mentally disturbed daughter back into his household.'’^ Michael Tinny had ejected Susan from his house and refused to take responsibility for his daughter’s criminal actions. Susan lacked kin who were willing or able to take responsibility for her. Such mentally troubled persons were perhaps at most risk of being prosecuted formally for their crimes.

This pattern was also true of males, especially those who were youthful, impoverished and unmarried. Where marital status is recorded, two-fifths of Scottish and one-third of English male prisoners were unmarried, excluding widowers. Just like women, socially isolated males, who lacked kin or whose families refused to take responsibility for them, were particularly exposed to formal prosecutions. In 1786, fourteen-year-old Samuel Pirrie, “Post-boy or Rider of the Mail betwixt Ballantrae and Stramaer”, was prosecuted for the theft of moneys fi*om the mail packet.T he jury deemed that Pirrie had not developed fully his use of reason and had been duped into committing the crim e.Sam uel’s father and his step-mother were suspected of instigating the offence, but both denied any involvement and they refused to be obliged formally for their son’s actions. Just

Houston Madness p. 151. ‘‘^AD 14/15/21.

^ JC 12/19 and 26/240.

like women of a similarly subordinate social and economic station, the impoverished Samuel Pirrie was isolated and especially vulnerable to prosecution. Samuel was found guilty and sentenced to be hung, although the jury recommended mercy on account of his weak-mindedness. Accordingly, Pirrie’s sentence was reduced to Transportation for seven years.

Offenders who were unfamiliar to the communities where they committed their crimes, such as foreigners and “vagrants”, were also detached socially and hence prone to prosecution.^^ The lay community continued to be integral to the identification of mental afflictions. Purportedly mad or idiotic strangers were disadvantaged because local communities lacked the long term knowledge of their character, actions, appearance and speech which informed contemporary assessments of mental conditions. Jean Stowrie who “lived on the Country by soming, oppression and begging” for “several years”, was prosecuted in 1725 at the Jedburgh Assizes for child-murder.^^ The local population were suspicious of vagabonds and supported the prosecution against the unfamiliar Stowrie, whose insanity defence collapsed because she could not produce any “friends” who might have spoken to her mental condition. Likewise, when the Dutch smuggler James Rice murdered his friend and shipmate, Thomas Wastdell, at Staiths in 1775, he killed the only individual within the community who had a long term and intimate knowledge of him and his state of mind. Rice was truly a “foreigner” in Staiths.^'’ Only a letter from an old employer in Holland, Helleman Van Eyeckelenberg,

King Crime p.28 and p.32. Shoemaker “Quarter Sessions records” p. 153. JC 12/4.

131

indicated that Rice had a history of behaving “foolishly” like “one out of his Senses”/^ Rice was vulnerable to prosecution and his defence of insanity failed in 1777 because he lacked friends and family to prove his history of mental debilitation and suffering.

Conclusions

Mental maladies were experienced predominantly by men amongst the provincial criminal cases that were investigated. This adds further weight to the argument that insanity was not a “female malady” during the long eighteenth century, at least within the context of the Britain’s civil and criminal aienas.^^ The incidence of these types of defence follows the broader patterns of prosecution, whereby males predominated amongst the ranks of British prisoners between 1660 and 1829. Nor were women more successful at proving their mental incompetence at court. Notions that females were more susceptible to mental distress were not reflected by the incidence or success-rates of British insanity and idiocy defences.

In England, few prisoners were found to be idiotic. In Scotland, the “Rule of Proportions” allowed for partial degrees of fatuity (“weak-mindedness”) to be entered as a defence in mitigation of sentence. Upwards of one-third of southern Scottish defences therefore rested upon the prisoner’s imbecility rather than madness. At the Northern Assizes, a similarly small number of males and females

ASSI 45/32/2 no. 140.

suffered from idiocy, but a greater proportion of female prisoners were understood to be thus afflicted. This reflected broader perceptions that females were more prone to being “weak-minded” than males. No such pattern emerges from the small southern Scottish sample, where around one-third of both males and females were found to be idiotic or imbecilic rather than insane. Future research is required in order to establish whether imbecility was less associated with females in Scottish society.

The occurrence and success-rates of insanity and idiocy defences cannot be explained by the prisoner’s gender alone. Single persons were most vulnerable to being prosecuted for tlieir crimes, even if they were considered to be mentally disturbed. These persons were isolated socially and economically, whilst they also lacked kin, family and household who were willing and able to take responsibility for them and their mental debilities. Such isolation left mentally disturbed persons most vulnerable to formal prosecution at law.

The vast majority of insanity and idiocy defences involved persons of low social and economic standing. Criminal prosecutions were not merely brought against persons hailing from the lower-orders, however. The local middling sorts and elites of British society could be prosecuted and found insane, which indicates that the criminal law was not merely wielded as a tool of social control by persons of high standing. On a different tack, this study also illustrates that persons from all social