The crime was the disease

Mike Jay

  • Mad-Doctors in the Dock: Defending the Diagnosis, 1760-1913 by Joel Peter Eigen
    Johns Hopkins, 206 pp, £29.50, September 2016, ISBN 978 1 4214 2048 6

A diagnosis of mental illness has many meanings, not all of them clearly stated. It confines itself to the language of the clinic but its reach extends far beyond it. It confers many, often hard-won, legal rights to employment, treatment, educational support and state benefits; equally it can remove your children from you, oblige you to undergo treatment against your will or take away your liberty. Whether psychiatrists acknowledge or even want these powers, they come with the territory. It’s ironic, to say the least, that conditions whose biomedical basis is so uncertain should generate diagnoses that are so consequential.

These statutory powers aren’t a recent addition. Mental diagnosis began not in the hospital or the laboratory but in medieval courts of law. Under the Saxon legal code, justice had been conceived primarily as the restitution of wrongs. Everybody was straightforwardly liable for their actions, and if the crime was committed by someone of unsound mind, their family owed the forfeit on their behalf. The canon law of the Normans introduced the idea of moral guilt, which involved judging the intentions and mental state of the perpetrator. The first recorded acquittal on grounds of unsound mind dates from 1505, though the principle was by then long established. The 13th-century jurist Henri de Bracton, who formalised the growing body of case law under Henry III, had stressed that ‘in misdeeds we look to the will and not the outcome,’ and consequently ‘a madman is not liable.’

From this point on, madness was defined by legal concepts such as mens rea (guilty intention) and non compos mentis (unsound mind). ‘Madness’ itself came to specify a temporary condition, in contrast to ‘idiocy’, which was congenital and incurable; the property of the mad was held in trust pending their possible recovery whereas that of ‘idiots’ or ‘fools’ reverted to the crown. Non compos mentis was rendered in English as ‘insanity’, a word first recorded in a court case of 1590. It was only at this point that ‘sanity’ took on its modern meaning: previously it had referred, like the French santé, to general health. In this limited sense it was the insane who defined the sane, not vice versa.

During the 18th century mad-doctoring emerged as a medical specialism; by the late 19th, its practitioners were referring to themselves as ‘alienists’ and eventually ‘psychiatrists’. Over this period Joel Eigen’s contention is that ‘by far, the most powerful structural element in the evolution of medical psychology, and particularly diagnosis’, was the courtroom. Mad-Doctors in the Dock is the concluding volume in a trilogy spanning twenty years based on Eigen’s now exhaustive study of the Old Bailey Session Papers, the transcripts of every criminal case in London’s central court from the 17th century until 1913. Nearly a thousand of these cases involved questions of insanity (between four and eight per thousand, by Eigen’s estimate) and they track the evolution of mental diagnoses into ever more precise and legally inflected forms.

Until 1800, Eigen has established, ‘English legal opinion had mandated that only a total madness – a complete want of understanding and memory’ – could compel a not guilty verdict. After that date the category of ‘unsound mind’ began to be qualified and refined by such concepts as delusion, delirium, monomania, moral insanity, masked epilepsy and melancholia before reaching this final volume’s emblematic diagnosis, homicidal mania. Eigen’s first volume, Witnessing Insanity (1995), surveyed the evidence presented in insanity pleas and its reception in the courts; the second, Unconscious Crime (2003), focused on pleas involving somnambulism, epilepsy, hypnosis and other twilight states of consciousness in which the accused was said to be legally ‘absent’. Mad-Doctors in the Dock recapitulates elements of both, and of the work that undergirds the whole project, Nigel Walker’s Crime and Insanity in England, Vol. I (1968). Although it breaks less fresh ground than its predecessors, its focus on diagnosis propels it to the heart of the matter. As he puts it in his preface, after thirty years scrutinising the Session Papers for answers, ‘now I know the question.’

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