¹ Old Bailey Sessions Papers (hereafter OBSP), l895, case 720, 11th sess., pp. 996–1018.

² In 18l3, a medical witness was compelled to respond to a prisoner's query calling for the grounds for his inference of insanity. The apothecary to St Luke's Hospital replied, “From your action, and ideas, and your general conduct told me that you were an improper person to be at liberty.” The prisoner responded sharply, “You judge from ideas; you have a good opinion of yourself.” OBSP, 18l3, case 11, 1st sess., p. 14. In the trial of Hugh Pollard Willoughby, the allegedly mad prisoner extracted from the prison surgeon, Gilbert McMurdo, an admission that if the prisoner's construction of the events were accurate, he could not be described as suffering from a delusion (OBSP, l854, case 1122, 12th sess., pp. 1361–71). For the historical importance of the OBSP for reconstructions of the courtroom, see John H Langbein, ‘The criminal trial before the lawyers’, Univ. Chicago Law Rev., 1978, 45: 263–316, and idem, ‘Shaping the eighteenth-century criminal trial: a view from the Ryder sources’, Univ. Chicago Law Rev., l983, 50: 1–136.

³ Nigel Walker, Crime and insanity in England, vol. 1, The historical perspective, Edinburgh University Press, 1968. Walker credits the testimony of John Monro, Physician Superintendent of Bedlam at the l760 trial of Earl Ferrers as the first time a medical witness appeared in an English trial to speak to insanity as a medical condition, pp. 60–2.

⁴ For the date of the l505 acquittal, “the felon was of unsound mind … [w]herefore it was decided that he should go free”, see Walker, op. cit., note 3 above, pp. 25–6. On the common law's reliance upon lay witnesses, see Joel P Eigen, Witnessing insanity: madness and mad-doctors in the English court, New Haven, Yale University Press, 1995, pp. 82–107.

⁵ Roy Porter, Mind-forg'd manacles: a history of madness in England from the Restoration to the Regency, Cambridge, MA, Harvard University Press, l987, p. 35.

⁶ The apothecary and author John Haslam famously observed in l8l7, “Ordinary persons have been much deceived by the temporary display of rational discourse … [but] … the experienced will … find by some unaccountable association, even ordinary topics are linked to—the madman's darling delusions—the map of his mind will point out that the smallest rivulet flows into the great stream of his derangement”, Medical jurisprudence, as it relates to insanity: according to the laws of England, London, C Hunter, J Hunter and Taylor and Hessey, 18l7, pp. 15–19.

⁷ Joel P Eigen, “‘I answer as a physician”: opinion as fact in pre-McNaughtan insanity trials’, in Michael Clark and Catherine Crawford (eds), Legal medicine in history, Cambridge University Press, l994, pp. 167–99.

⁸ For the years 1760–1843, see Eigen, op. cit., note 4 above. The years 1844 to 1876 are examined in Joel P Eigen, Unconscious crime: mental absence and criminal responsibility in Victorian London, Baltimore, Johns Hopkins University Press, 2003.

⁹ On Pinel's announced discovery of “paroxysms of maniacal fury, unaccompanied by any lesion of the intellect”, see Philippe Pinel, A treatise on insanity, transl. D D Davis, Sheffield, W Todd, 1806, pp. 152–4. For an analysis of the contributions of Georget and Esquirol more generally to the school of médecine mentale, see Jan Goldstein, Console and classify: the French psychiatric profession in the nineteenth century, Cambridge University Press, 1987.

¹⁰ James Cowles Prichard, A treatise on insanity, London, Sherwood, Gilbert, and Piper, 1835, p. 5.

¹¹ Eigen, op. cit., note 4 above, pp. 149–53. “Lesion of the will” was addressed specifically by Esquirol in his effort to articulate the variations of monomania. “In a third class of cases, a lesion of the will exists. The patient is drawn … to the commission of acts, to which neither reason nor sentiment determine, which conscience rebukes, and which the will has no longer the power to restrain. The actions are involuntary, instinctive, and irresistible. This is monomania without delirium, or, instinctive monomania.” J E D Esquirol, Mental maladies; a treatise on insanity, transl. E K Hunt, Philadelphia, Lea and Blanchard, 1845, p. 320.

¹² OBSP, 1840, case 1877, 9th sess., pp. 464–510. For the political context in which the Oxford trial took place, see Richard Moran, ‘The punitive uses of the insanity defense: the trial for treason of Edward Oxford (1840)’, Int. J. Law Psychiatry, l986, 9: 171–90.

¹³ McNaughtan's trial can be found at OBSP, 1842–43, case 874, 5th sess., pp. 721–63. The McNaughtan Rules resulted from the questions asked by the House of Lords of the judges in the celebrated trial, to be found in McNaughtan Case, 10 Clark and Finnelly, pp. 203–14. Reactions from contemporary jurists can be found in Richard Moran, Knowing right from wrong: the insanity defense of Daniel McNaughtan, New York, Free Press, 1981, see esp. pp. 168–75.

¹⁴ Joel P Eigen, ‘Delusion in the courtroom: the role of partial insanity in early forensic testimony’, Med. Hist., 1991, 35: 25–49.

¹⁵ Although the McNaughtan Rules provided criteria for judicial instructions, neither the Court of Crown Cases Reserved nor indeed any other English court delivered a definitive ruling regarding the relationship of insanity to criminal responsibility. McNaughtan's status as an authoritative ruling was “doubtful” according to the most esteemed jurist of the era, James Fitzjames Stephen. In part this was because the nature of insanity was argued anew at every trial. Assertions to expertise were proffered; judges, attorneys, and juries reacted in ways that had more to do with the particular elements of the offence than with the formal legal strictures. See James Fitzjames Stephen, A history of the criminal law of England, 3 vols, London, Macmillan, 1883, vol. 2, p. 153.

¹⁶ For examples, see OBSP, 1849–50, case 1300, 9th sess.; OBSP, 1851–52, case 572, 7th sess.; OBSP, 1866–67, case 912, 11th sess. The centrality of delusion to law can be found in both legal and medical opinion. See, respectively, Stephen, op. cit., note 15 above, and Alfred Swaine Taylor: “The acts of the insane generally arise from motives based on delusion”, in The principles and practice of medical jurisprudence, London, J Churchill, 1865, p. 1106.

¹⁷ Some medical authors had long been contemptuous of the elevation of delusion as the sole criterion for inferring insanity. “Is deluded imagination a significant characterization for the naked wanderer? [T]hose who recover describe it no otherwise than a total suspension of every rational faculty”, John Monro, Remarks on Dr. Battie's treatise on madness, London, John Clarke, 1758, p. 6.

¹⁸ OBSP, 1875–76, case 413, 11th sess., pp. 495–7.

¹⁹ The Times, 9 Feb. 1877, p. 5f. The trial of Frederick Treadaway can be found at OBSP, 1876–77, case 246, 4th sess., pp. 434–60.

²⁰ HM Adv. v. Fraser (l878), 4 Couper 78: 70–78.

²¹ The medical witness published his own review of the trial and the grounds for inferring unconsciousness. Dr Yellowlees, ‘Homicide by a somnambulist’, J. Men. Sci., l878, 24: 451–8.

²² Joel P Eigen, ‘Sense and sensibility; arsenic and insanity in nineteenth-century England’, in R A Melikan, Maureen Mulholland, and Brian Pullan (eds), The trial in history: politics, crime, and the state 1699–1900, Manchester University Press, 2003, pp. 21–35.

²³ The wording of the insanity acquittal was the subject of parliamentary action in 1883, prompted by a request from the palace following a third assassination attempt on the Queen. Since madmen were likely to respond to the idée fixe of their delusion, the palace averred, could not the fear of conviction also work on their mind? Although both verdicts yielded the same disposition—indefinite detention awaiting the sovereign's pleasure—a finding of “guilty but insane” was conceived to function as a deterrent, even for the deluded. For an analysis of the political context in which the 1883 Act took hold, see Joel P Eigen, “‘An inducement to morbid minds”: politics and madness in the Victorian courtroom’, in Markus D Dubber and Lindsay Farmer (eds), Modern histories of crime and punishment, Stanford University Press, 2007, pp. 66–87.

²⁴ Table 1 lists only the most frequently cited terms; many others were mentioned by medical witnesses, but as the focus of the present work is the salience of key terms employed by forensic-psychiatric witnesses as measured by the frequency of their appearance, only those terms mentioned six or more times were included. It should also be noted that these terms were often mentioned in connection with one another; delusion and melancholia might appear together, melancholy and puerperal insanity could similarly be described by the same witness. The separation of melancholy (a disposition) from melancholia (a disease entity) follows the distinctions drawn in courtroom testimony. Clearly it is possible that melancholy and melancholia were used interchangeably by some witnesses, yet they were usually treated separately in both medical text and medical testimony. Further, there were cases in which no causal agent was given; medical witnesses merely characterized the prisoner as “depressed” or of “unsound mind”.

²⁵ In his effort to bring nineteenth-century descriptive psychopathology in line with evolving clinical, scientific medicine, Esquirol sought to free mental derangement from traditional humoral grounding. He retained melancholia's association with an idée fixe, but replaced the spectre of a sorrowful disposition with an expansive, indeed, explosive temperament. The resulting term, monomanie, featured instinctive and homicidal variants.

²⁶ For a comprehensive historical analysis of melancholia, both in medical and cultural context, see Stanley W Jackson, Melancholia and depression: from Hippocratic times to modern times, New Haven, Yale University Press, 1986.

²⁷ Taylor, op. cit., note 16 above, pp. 1101–2.

²⁸ OBSP, 1902–03, case 113, 2nd sess., pp. 228–33.

²⁹ OBSP, l850, case 1300, 9th sess., pp. 374–88; OBSP, 1852–53, case 725, 8th sess., 215–18; OBSP, 1861–62, case 745, 9th sess., pp. 300–13.

³⁰ Contemporary scientific literature explained the phenomenon of behaviour unattended by thought with the concept of reflexes: the “ideo-motor principle of action” put forward by Carpenter, who argued that an idea could act directly on motor processes, bypassing the mental processes of reflection and volition. See William B Carpenter, The doctrine of human automatism: a lecture, London, Sunday Lecture Society, 1875, and Thomas Laycock, ‘Reflex, automatic, and unconscious cerebration: a history and a criticism’, J. Men. Sci., 1876, 21: 477–98. Popular entertainments including music hall hypnotism and salon mesmerism also demonstrated the possibility of behaviour unattended by consciousness. For a comprehensive history of these cultural diversions, see Alison Winter, Mesmerized: powers of mind in Victorian Britain, University of Chicago Press, 1998.

³¹ Defence attorneys could also enlist delusion as the agent of the prisoner's crime. In 18l2, a medical witness stated, “the old delusion, acting on his mind, will lead him to do any act”, OBSP, 18l2, case 527, 6th sess., p. 333.

³² OBSP, 1842–43, case 874, 5th sess., p. 761.

³³ OBSP, l898, case 621, 11th sess., p. 1171.

³⁴ OBSP, 1842–43, case 874, 5th sess., p. 763.

³⁵ “Overshadowing darkness” would return later in the century during the trial of Mary Ann Brough, to be discussed shortly. Brough's trial was among the first to enlist homicidal mania as the grounds for an insanity defence.

³⁶ OBSP, 1895–96, case 504, 9th sess., p. 881.

³⁷ Ibid., p. 882.

³⁸ For lay images transported to the courtroom, see Eigen, op. cit., note 4 above, pp. 82–105.

³⁹ OBSP, 1879–80, case 428, 7th sess., p. 103.

⁴⁰ This language was picked up in criminal trials as well: “a tendency … to child murder” (OBSP, 1879–80, case 428, 7th sess., p. 101; an “uncontrollable impulse to kill” (OBSP, 1887–88, case 407, 6th sess., p. 800); “impulse to take a life” (OBSP, 1900–1, case 142, 3rd sess., p. 199; OBSP, 1910, case 366, July, p. 378).

⁴¹ ‘Baron Rolfe's charge to the jury in the case of boy Allnutt, who was tried at the central criminal court for the murder of his grandfather, on the 15th of December, 1847’, J. Psych. Med. Men. Path., 1848, 1: 193–216.

⁴² OBSP, 1912, Jan., p. 577.

⁴³ Defence attorneys were only given a scope of advocacy that we normally associate with this role today—addressing the jury, summing up evidence, actually pleading a defence—with the Trial for Felonies Act of 1836, commonly referred to as the Prisoner's Counsel Act. Before this, defence attorneys were routinely restricted to questioning witnesses. After 1836, they were afforded access to pre-trial testimony and were free to “nourish growth in the law of evidence”. For a comprehensive history of the evolving role of the defence attorney, see David Cairns, Advocacy and the making of the adversarial criminal trial, 1800–1865, New York, Oxford University Press, 1998.

⁴⁴ OBSP, 1912, Jan., p. 576.

⁴⁵ Dr Ardin-Delteil, ‘L’épilepsie larvée’, Le Progrès Méd., 29 Dec. 1900, 3rd série, no. 52, p. 495. The lack of stealth—both in committing the crime and in the conspicuous indifference to detection—reminds the medical historian of the criminal activity attributed to the morally insane. In both cases, there is a perplexing purposelessness to the fatal action that challenged the law's central tenet of culpability: intentional behaviour.

⁴⁶ Henry Maudsley, Responsibility in mental disease, London, Henry S King, 1874, p. 166.

⁴⁷ Ibid., p. 334.

⁴⁸ OBSP, 1894–95, case 814, 12th sess., p. 1119; OBSP, 1893–94, case 612, 10th sess., p. 860.

⁴⁹ OBSP, 1891–92, case 225, 3rd sess., p. 415.

⁵⁰ OBSP, 1893–94, case 612, 10th sess., p. 860.

⁵¹ OBSP, 1910–11, case 251, May, p. 255.

⁵² OBSP, 1893–94, case 612, 10th sess., p. 860.

⁵³ Ibid.

⁵⁴ Medical witnesses could show exquisite sensitivity to the implications of their testimony, even when asked directly to comment on the prisoner's responsibility for the act. These questions could sometimes be rather indirect, but on other occasions reveal point-blank inquiry, as in the trial of Edward Oxford (1840) when the judge asked, “What is the limit of responsibility a medical man would draw?” With obvious deference to the legal forum, the medical man responded, “This is a very difficult point—it is scarcely a medical question … it is very difficult to draw the line between eccentricity and insanity.” (OBSP, 1840, case 1877, 9th sess., p. 505).

⁵⁵ Thorne Thorne, ‘Masked epilepsy’, J. Men. Sci., Jan. 187l, 16: 580–4, p. 583. Other voices in the medical community could be no less adamant. According to the French clinician Falret, the epileptic who, in a state of post-ictal delirium, attempted or committed suicide, homicide, or arson, “had not the slightest responsibility for ‘violent acts committed by him in the midst of this completely automatic, though short delirium”’, “‘they strike mechanically, without motivations, without interest, without knowing what they do or, at least, with a vague consciousness of their actions’,” quoted in Oswei Temkin, The falling sickness: a history of epilepsy from the Greeks to the beginnings of modern neurology’, Baltimore, Johns Hopkins University Press, 1971, p. 321.

⁵⁶ Shelley Day, ‘Puerperal insanity: the historical sociology of a disease’, PhD thesis, University of Cambridge, 1985; George K Behlmer, ‘Deadly motherhood: infanticide and medical opinion in mid-Victorian England’, J. Hist. Med. Allied Sci., 1979, 34: 403–27; Mark Jackson, “‘Suspicious infant deaths”: the statute of 1624 and medical evidence at coroners’ inquests’, in Clark and Crawford (eds), op. cit., note 7 above, pp. 64–86. Most recently Hilary Marland has considered the incidence of cases of puerperal insanity in asylum admissions in “‘Destined to a perfect recovery”: the confinement of puerperal insanity in the nineteenth century’, in J Melling and B Forsythe (eds), Insanity, institutions and society, 1800–1914: a social history of madness in comparative perspective, Routledge, 1999, pp. 137–56.

⁵⁷ OBSP, 1856–57, case 480, 6th sess., pp. 722–3.

⁵⁸ Karl Danziger, ‘Mid-nineteenth-century British psychophysiology: a neglected chapter in the history of psychology’, in William R Woodward and Mitchell G Ash (eds), The problematic science: psychology in nineteenth-century thought, New York, Praeger, 1982, pp. 119–46.

⁵⁹ Roger Smith, Trial by medicine: insanity and responsibility in Victorian trials, Edinburgh University Press, 1981, pp. 52–3.

⁶⁰ For a survey of pre-trial associations between medical men and prisoners before 1843, see Eigen, op. cit., note 4 above, pp. 120–32.

⁶¹ Forbes Winslow, testifying at the McNaughtan trial, is perhaps the best example of this. Winslow makes repeated appearances at the Old Bailey, often visiting prisoners prior to the trial. Another author, Arthur Luff, referred to a book of his while testifying (not named, but likely to be his Text-book of forensic medicine and toxicology, London, Longmans, Green, 1895) as well as his visit to prisoners in their cells, giving both as the grounds for his courtroom opinion. Luff's volume is also referred to by prison doctors in their testimony.

⁶² With adamantine insistence, McMurdo famously refused to find anything aberrant in the account of the ship's captain, Noah Pease Folger, who, at the mention of his supposed enemy's name, stripped off his clothes, broke windowpanes with his bare fists, danced a jig on the broken glass, and completed the display by jumping bareback on a passing whale. Denying the existence of “any symptom which he has exhibited to make me come to the conclusion of his being of unsound mind”, McMurdo's opinion stood alone. OBSP, 1833, case 815, 4th sess., p. 402.

⁶³ Responding to the prosecuting attorney's insistence that he address the prisoner's intellectual capacities, John Conolly replied testily, “I am perfectly aware that is the question.” The judge interrupted, “If that is the question, it can surely be answered?” to which the medical witness answered, “I do not think it can absolutely be answered: I think it can only be answered in the manner in which I have answered it.” The doctor's preferred focus was the prisoner's “power of controlling or resisting a train of thought tending to criminal actions”. OBSP, 1850–51, case 1502, 9th sess., pp. 368–9.

⁶⁴ For an overview of judicial attitudes, which sometimes could find sharp expression—“Haven't you been here before, as a Jew physician, trying to get someone off on insanity?”—see Eigen, op. cit., note 4 above, pp. 55–7. The foregoing sentiment was anomalous; with the exception of insanity defences based on moral insanity, judicial posture regarding insanity was, on balance, traditionally more solicitous than contemptuous.

⁶⁵ Marc Bloch, The historian's craft, transl. Peter Putnam, New York, Alfred A Knopf, 1953, p. 34.

⁶⁶ Smith, op. cit., note 59 above, p. 111.

⁶⁷ Roger Smith, ‘Defining murder and madness; an introduction to medicolegal belief in the case of Mary Ann Brough’, in R A Jones and H Kulick (eds), Knowledge and society: studies in the sociology of culture past and present, 4 vols, Greenwich, CT, JAI Press, 1983, vol. 4, pp. 173–225, on p. 197.

⁶⁸ Ibid., p. 209.

⁶⁹ Eigen, op. cit., note 4 above, pp. 82–107.

⁷⁰ G E Berrios, ‘Epilepsy and insanity during the early nineteenth century’, Arch. Neurol., Sept. 1984, 41(9): 978–81.

⁷¹ Roger Smith, Inhibition: history and meaning in the sciences of mind and brain, University of California Press, 1992.

⁷² Bénédict-Augustin Morel, Traité des dégénérescences physiques, intellectuelles et morales de l'espèce humaine, Paris, J-B Baillière, 1857, p. 77.

⁷³ Morel's ideas were embraced by Maudsley, op. cit., note 46 above, p. 337.

⁷⁴ “Let us admit frankly [Esquirol asserted] that … pathological anatomy has shed little light on the immediate seat of epilepsy.” Quoted in Temkin, op. cit., note 55 above, p. 273.

⁷⁵ Maudsley, op. cit., note 46 above, pp. 29–30.