Witnessing Insanity: Madness and Mad-Doctors in the English Court (review)

Following the examples of Nigel Walker and Thomas Forbes, ¹ Joel Peter Eigen has carefully and thoroughly pored over the Old Bailey Sessions Papers. As Eigen explains:

Beginning in 1674 these pamphlets report the trial outcomes of every prosecution at the Old Bailey, the London trial court that adjudicated felonies committed in the City and the contiguous county of Middlesex. . . . In 1775, the Common Council for the City of London ordered the publication of these papers, thereby institutionalizing a practice already undertaken by “enterprising commercial printers” who had dispatched shorthand writers to the Old Bailey to record the proceedings.

(pp. 7–8)

The author has selected several trials for particular review. He provides the reader with quantitative analyses and graphs to illustrate specific trends in that universe of 331 trials.

This book is the result of many years of intensive review of primary source material with a particular focus on the history of English insanity pleas. Eigen is challenging, imaginative, and provocative. His book definitely is worth reading, but with two caveats.

First, I believe that Eigen misconstrues Matthew Hale’s definition of partial insanity as consisting of “duration” of insanity (as if it is equivalent to “lunacy,” with its periods of lucidity punctuated by periods of insanity) and of “degree” (p. 179). Eigen quotes Hale’s definition of partial insanity: “Some persons that have a competent use of reason in respect of some subjects, are yet under a particular dementia in respect of some [other] particular discourses, subjects or applications; or else it is partial in respect of degrees” (p. 37; emphasis in original). Clearly the two variables intended by Hale were a generalized degree of insanity, and insanity manifested only on particular subjects (e.g., those who appear to be rational on all subjects but one or a few, such as the witness mentioned by Erskine in Rex v. Hadfield [1800] who appeared to be perfectly sane on all subjects until Erskine alluded to his identity as Jesus Christ). This is equivalent to Esquirol’s “intellectual monomania,” ² or what some present-day psychiatrists would call an “encapsulated delusion.” Duration is neither mentioned nor alluded to by Hale in his discussion of partial insanity in his History of the Pleas of the Crown (1736), nor did he ever indicate that he would have departed from the traditional view that lunatics were lawfully responsible for their behavior during their periods of lucidity and not responsible during their episodes of insanity. In his book Institutes of the Laws of England (1853 reprint), Edward Coke explicitly included the idea that insanity could be of limited duration; this type of insanity was one of the four classes of non compos mentis included in his discussion of Beverly v. Snow.

My second caveat refers to Eigen’s assertion that “witnesses in English courts were traditionally permitted to impart only such ‘knowledge’ of the crime as they had apprehended through sensory impressions. Only ‘facts’ that the witness had directly experienced—that he or she saw the accused fleeing the scene, heard the gunshot, smelled the sulfur escaping from the pistol barrel—could be reported to the court” (pp. 110–11). He cites, as his authorities, John Henry Wigmore, Evidence in Trials at Common Law (1985); Judge Learned Hand’s paper on “Historical and Practical Considerations Regarding Expert Testimony,” Harvard Law Rev., 1901, 15: 45; and James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (1898), esp. pp. 194–97. These were all commentators on American, not British, law. New Hampshire Supreme Court Justice Charles Doe, in his dissenting opinion in State v. Pike (1869; pp. 408–44), presented his carefully documented study of the British legal tradition on this issue and concluded that the British did allow opinion testimony by lay or “fact” witnesses; this practice, he explained, gave the jury access to the best available evidence. He identified Poole v. Richardson (1807), an early Cambridge, Massachusetts, probate case...