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Alan Challoner MA MChS
AS A DEFENCE
One of the earliest uses of insanity as a defence was described by Richard Cosin in his account of the conspiracy of William Hacket, Edmund Coppinger and Henry Arthington in connection with their attempt to overthrow the government in the last decade of the sixteenth century. Hacket was the chief conspirator and he was led into his mischief by a newly acquired religious fervour. He believed that he was the messenger of Jesus Christ who was coming to judge the earth and England in particular. He called for general repentance and styled himself as King of Europe. His treasonable activity was to imply that the Queen had forfeited her crown by actions that ought to deprive her of her majestical rôle. At his trial Hacket behaved abominably and brought great astonishment and horror to those present not only by the blasphemies that he spoke but the words that he used in describing the alleged heresies. The Judges were inclined to believe that this was just a show to try and make out that he was mad. But Cosin understanding that some of his testimony was lucid and pertinent concluded that his supposed insanity may not be entirely feigned. He based his approach on the distinctive degrees and varieties of mental illness in relation to legal responsibility. In Hacket's case he sort to show that the doubt should be set against the reality in that it was not what was done that mattered here but the reasons for it. He sought to persuade that Hacket and his cohorts were guilty as their avowed purpose was to overthrow the monarchy and the Established Church. Hacket was subsequently found guilty and hanged. Coppinger went on 'hunger strike' and died in jail. Arthington sincerely and unreservedly repented. This case pointed the way to another policy that is pursued in actions of conspiracy that the only necessary treatment in cases of communicated insanity is to separate the inducer from those induced.
MENTAL HEALTH ACTS
One of the earliest Acts of Parliament which dealt with those who were mad or mentally deficient was brought into being under Henry VIII in 1540. Under this Act the Court of Wards and Liveries was established. Immediately prior to this Act such people and their property, if they were incapable of managing it, came under the auspices of the Court of Chancery. At an earlier time such control was with the Exchequer, and before that under the baron of the land held. By 1672 due to various irregularities that had occurred and had not been foreseen in the Act of 1540, Charles II brought the care and protection of the non compos mentis back within the control of the Lord Chancellor.
The way in which these early Acts worked has been documented by one of the physicians of Bethlem Hospital, Dr Helkiah Crooke. It concerned one of his private patients, Edmund Francklin, who was found to be unable to manage his estate in Bedford. In 1630 the responsibility for the estate was handed over to his brothers, George, Nicholas and John Francklin. Edmund was committed to a house and not to the hospital. During his time there he was found to have behaved in a violent and outrageous manner over a period of two years and was interviewed at home by Doctor Crooke. Having satisfied himself that complaints were well founded Crooke transported Edmund to his own house in London and there treated him according to his infirmity. Whilst separated from his estate he took no part in its management nor received any rents or other moneys from it. The estate did however provide two hundred pounds a year for the food and care that Edmund received including the provision of two menservants. Robinson Crusoe as a product of the pen of Daniel Defoe has survived far longer than his other writings which had a much more substantial sociological impact at the time. Daniel Defoe is now mainly thought of as a novelist but this is not how his contemporaries regarded him. His reputation in his lifetime was as a poet, a journalist, and a polemical writer on political, economic and social affairs. The quantity and range of his writings is unparalleled in English Literature, and few writers have made such a lasting impact in so many literary genres. Two important areas of reform which he advocated were eventually brought into the area of statutory law. One concerned natural fools and idiots, as they were called in his day, which were institutionalized together with all types of patients with mental illness. Defoe took a stand on the need to separate them, and house the mental defectives separately. He wrote eloquently and touchingly in support of their care. “I think 'twould very well become this wise age to take care of such; and perhaps they are a particular rent-charge on the great family of mankind, left by the Maker of us all; like a younger brother, who tho' the estate be given from him, yet his father expected the heir should take some care of him. “ “If I were to be asked who ought in particular to be charged with this work, I would answer in general, those who have a portion of understanding extraordinary. Not that I would lay a tax upon any man's brains or discourage wit, by appointing wise men to maintain fools; but some tribute is due to God's goodness for bestowing extraordinary gifts, and who can it better be paid to than such as suffer for want of the same Bounty?”  He put forward the unique proposal that such places might be paid for by a 'Tax upon Learning'. This, he suggested, should be a payment by authors from the sale of their books. Another area of concern for Defoe was the way in which the madhouses were regulated. He pin-pointed this in his periodical, A Review of the State of the English Nation, in 1728. He took umbrage at the lack of legal supervision of the
doctors who ran these institutions. He drew particular attention to a case of a patient in the care of Dr Edward Tyson. 1 In general he reviled those husbands who sought to have there wives removed to the madhouse on any pretext when they wanted to transfer their favours to some other woman; and of course those doctors who facilitated this. He called it, “The height of barbarity and injustice in a Christian country, it is a clandestine inquisition”. He followed this with even more invective. “If they are not mad when they go into these cursed houses they are soon made so by the barbarous usage they there suffer ... Is it not enough to make anyone mad to be suddenly clapped up, stripped, whipped, ill-fed, and worse used? To have no reason assigned for such treatment, no crime alleged or accusers to confront; and worse, no soul to appeal to but merciless creatures who answer but in laughter, surliness, contradiction and too often stripes?” Some twenty years later he reactivated his reforming zeal, recommending that private madhouses should be licensed and inspected. Eventually, in the wake of his proposals, a Parliamentary Committee was set up. This resulted in the 1774 Act for Regulating Madhouses. The Act was limited to the safeguarding of the liberty of private patients and did not include in its provisions any of the insane paupers. The main provisions were: 1. No person was to keep more than one lunatic in his house without a licence, which were to be granted in the London area by five fellows of the College of Physicians, designated Commissioners. In the provinces it was the Quarter Sessions that granted the licences on payment by the 'keeper' of £100 plus two further sureties of £50 to be of 'good behaviour'. The houses were to be inspected at least once a year and minutes were to be kept of the findings. Every madhouse keeper was to notify admission of a patient within three days if located in London, or within fourteen days if located in the provinces. No person to be admitted without having an Order in writing under the hand and seal of a physician, surgeon or apothecary. Any complaints against the keeper were to be heard in the course of common law; and any infringements of the Act for harbouring more than one lunatic without a licence called for a fine of £500.
There was little express vigilance demanded by this Act and it relied on the integrity and initiative of the Commissioners and the Justices.
Tyson conducted anatomical experiments and dissections and published anatomical accounts of the lumpfish, rattlesnake, shark and porpoise. He was known for work on a chimpanzee which he viewed as an intermediate between humans and apes. Tyson was also elected a fellow of the Royal College of Physicians and later he served as a censor of the college. In 1684 Tyson was appointed to two positions which had just become vacant – the Ventera readership in anatomy at the Surgeons Hall, from which he retired in 1699, and physician to Bethlehem and Bridewell Hospitals, the world’s oldest psychiatric hospital, now the Royal Bethlehem Hospital. He later served as its governor. In 1686 Tyson was elected a member of the Philosophical Society of Oxford.
At the beginning of the eighteenth century an important legal differentiation was made between common disorderly persons such as vagrants, rogues and vagabonds, and pauper lunatics. An Act of Parliament in 1714 reduced the laws relating to such people into one Act of Parliament, and brought about the more effectual punishment of the wrong-doers whilst protecting those who were in need of care. It had been the case that many such people were simply shipped out of the parish or county and became someone else's problem. The pauper lunatics became a charge on their own native parish, wherever they were being cared for, as did their wives and children. Their case was considered by two JP's and directions were given for their future. The Act exempted the pauper lunatics from the whippings which had been their lot prior to this separation. By 1740 the treatment of insanity was the responsibility of the physicians, but those in asylums were cared for by the keepers. There developed a great concern for the inmates of these asylums as there were many reports of mistreatment. The earliest demands for reform therefore came from those who were not directly involved in the care or treatment of the inmates. These complaints encompassed the confinement of persons who were not mad, and for which there was little redress unless the person had access to formidable resources. The proposals of Defoe in 1728 and later suggestions to safeguard the population from untoward restrictions became law in 1774. This included the inspection of the premises by the College of Physicians if located in London, or by a physician and a JP if outside the metropolis. There was a compulsory requirement for the notification of all those detained in asylums, and punishments were listed for those who did not fulfil the regulations. This movement towards regulation eventually culminated in the current Mental Health Acts. An associated inequality was perpetrated on those who were considered not capable of managing their estates. At that time an idiot or natural fool was assessed to be so by some very simple expedients. These included the inability to count to twenty, measure a yard of cloth, name the days of the week, give his parent's names or his own age, beget a child or learn to read. A significant and well documented case of this sort involved Henry Roberts. He was born in 1717, his father dying the following year. The only other child was a daughter. When Henry had reached the age of sixteen a report was made out on him that he had been too infirm to gain advantage from school and his care and future education was entrusted to his brother-in-law. Henry was the natural successor to his father's estate which had been placed in the care of Trustees until such time as he was of age. When Henry Roberts achieved his majority in 1739 the Trustees were called to account for their handling of the estate in the years that had passed since his father's death. There seemed to be a great deal of money missing, and this was accounted for by various stories of misfortune. Not wishing to be denied any more of his inheritance Roberts sought to have the Trustees relieved of any further responsibility for managing the estate. In answer, the Trustees filed motions for a Commission of Idiocy and a cause for a hearing was brought for 1743. The jury was told by the chairman of the court that they must seek to understand whether Roberts was inadequate to manage the extent of his late father's estate, or if he was defective by dint of lunacy. He was questioned by
the Commissioners, members of the jury and various officers of the court for six hours in a manner that was reported to have been disgusting and derogatory. Finally the jury decided that Roberts was 'a person of unsound mind, and that he had not enjoyed a lucid interval of reason for twelve years past'. However a new trial was granted and took place in 1744. Witnesses were brought to court to make statements which brought no merit to Roberts' case even though it might have seemed obvious that such people had been 'bought'. The jury considered again but repeated their first verdict which was similar to that of the earlier hearing. He was then seen by a group of doctors who elicited from him answers to the type of questions that he had been asked. He told them of the following: “They asked me questions speaking all together without giving me time to answer. They asked me what a lamb and a calf were called at one, two and three years' old. They gave me a sum of money to tell which I miscounted. Then I heard them say, ‘he is not capable of managing his affairs we will return him incapable’." Another asked him, ‘From Doncaster to Ferrybridge was ten miles but now there are fifteen mile posts set up is it not now further than before?’ And, ‘Pray take three shillings out of a Guinea, how much change must you have?’ Then another questioned him, ‘Pray how many pots of sugar did your plantation in Barbados yield last year?’ Roberts said he could not remember. Again he was asked, ‘How many pots of sugar fill a hogshead?’ He could not tell. They were convinced that he could not be left to cope with the management of his estate and he was placed into the care of the Court of Chancery. His custodian was given an allowance of £400 a year with an extra £30 for clothes. This case indicates the type of examination that was made when persons were supposed to be of poor ability and was in use until the standardised intelligence tests came into use towards the end of the nineteenth century. One of the foremost contributors to the law during the eighteenth century was Sir William Blackstone. He was a judge, professor of English law at Oxford, and also a Member of Parliament. He published a four-volume edition of Commentaries on the laws of England during the period 1765-9. Two important areas that were covered in respect of mental health were the differentiation in law between those who were 'idiots' and those who were 'lunatics'. The importance for the differentiation was to do with custody. Blackstone described an 'idiot' as a 'natural fool ... one that hath no understanding from his nativity; and therefore is by law presumed never likely to attain any'. Following a change in the law the custody of idiots and there property was now vested in the King as the general conservator of his people. Previously it had been in the hands of the local lord of the see. The King was entitled to have wardship and to take the profits 'without waste or destruction', but also had to provide for the necessitous needs of the individual concerned. Following the death of the ward the King had to return the estate to the heirs of the deceased. Before the King could assume wardship the person had to be summoned by a writ to enquire if he was an idiot or not, and for this purpose he was tried by a jury of twelve men.
A lunatic was one described as having had understanding but having lost it. Blackstone wrote of a lunatic having lucid intervals sometimes being sound other times being not, 'and that frequently depending upon the change of the moon'. The legal term for such a person was non compos mentis and this covered those who also were subject to 'frenzies, or who lose their intellects by disease; those that grow deaf, dumb and blind, not being born so; or ... as are by any means rendered incapable of conducting their own affairs'. The King was also the guardian of such people but in a different sense because the law provided for the possibility that the person's mental standing might improve. If this occurred then the lands or other possessions would be returned to them. Should they die before such an improvement then the property would revert to their successors. The formal custody of a person who was deemed non compos mentis was with the Lord Chancellor. After a formal enquiry that proved this state his care was entrusted to his 'committee', which in practice was a suitable person who would look after his needs with an allowance being paid for his attendance and care. This was never his next heir as it was considered too risky to have the responsibility with someone who might benefit from the patient's death. However it was considered satisfactory for it to be his next of kin, provided that person was not his heir. Another important area of law was addressed by Blackstone, that of criminal responsibility. He asserted that to make a complete crime which was recognized by law there must be both a will and an act. He showed that there were three cases in which the will did not join with the act. 1. 2. Where there is a defect in understanding. Where there is a sufficiency of will and understanding but which was not there at the time, i.e. the act was committed by chance or ignorance. Where the action is constrained by some outward force or violence. The will not being entered deliberately but by some compelling force.
The aspects of will in each and every case may also be subject to some defect in the person concerned. These include: infancy, idiocy, lunacy and intoxication; additionally and separately: misfortune and ignorance; and finally a third case, compulsion or necessity. Thus it can be seen that idiots and lunatics were not seen as being responsible for their otherwise culpable actions. Blackstone also considered that if a man committed a capital offence whilst sane but became mad before he could be arraigned for it then he should not be tried as he would be unable to make his defence. However he could be tried again later if he recovered his sanity. If there was any doubt about his state of mind then it should be determined by a jury. The mad criminal was of course not allowed his freedom but was imprisoned in whatever conditions were considered appropriate. As for the crime carried out under intoxication it was considered to be an aggravation of the offence and not an excuse for it. An example of an early record from a parish register (1691) shows a police constable's account book entry of 8s/6d for 'taking up a distracted woman watching her and whipping her next day'.
It will be seen from the foregoing that attempts to segregate certain people from society have been a regular procedure for several centuries. What is remarkable is that although there have been those who sought more understanding and tolerance for persons who were not well-equipped to take a normal place in society; there is still continued intolerance and there is much progress to be made in both accepting and making adequate provision for those people.