The Performance of Insanity in the Old Bailey, 1674-1800 Bree Booth Scholars
of
early
modern
insanity
trials
have
contended
that
eighteenth-century
jurisprudence on insanity was primarily informed by the right-wrong or ‘wild beast’ test. The test dictated that a person be considered legally insane only if they were ‘totally deprived of [their] understanding and memory and doth not know what [they are] doing, no more than an infant, than a brute or a wild beast.’ This formulation of the test, from Mr Justice Tracy’s summing up to the jury in the case of Rex v Arnold (1723), reentered English law in the eighteenth century but the concept had been known to English
law
since
the
publication
of
Henry
de
Bracton’s
treatise
‘De
Legibus
et
Consuetudinibus Angliae,’ in the thirteenth century. Historian of crime and gender Dana Rabin argues, however, that eighteenth-century courts did not rely as heavily on the ‘wild beast’ test as some scholars have contended.
I will contribute to the resolution of this conflict by exploring the testimony in insanity cases in the Old Bailey Online in the period 1674-1800. The records show that judges and
juries
did
widespread
not
always
appearance
strictly
of
adhere
medical
to
the
witnesses
‘wild
towards
beast’ the
test
end
even
of
the
before
the
eighteenth
century. Judges and lawyers questioned the internal psychological and emotional states of prisoners, as well as observable evidence of insanity in their speech and actions. Thus, I will argue that insanity in the early modern English court was first and foremost a performance which was informed by popular stereotypes of the raving madman but that this script was being rewritten by judges, lawyers, and witnesses to produce a more nuanced conception of legal insanity.
My research draws on 117 records archived in the Old Bailey Online between 1674 and 1800 in which a verdict of non compos mentis was returned, or in which an insanity plea is recorded (see appendix). Almost half of all persons who presented evidence of their insanity in the Old Bailey during the eighteenth century were acquitted. 48% or 56 of 117 cases are non compos mentis verdicts. The other 78 are cases in which a formal plea of insanity was entered or in which the prisoner’s sanity was called into question by testimony. Some of the records, particularly towards the end of the eighteenth century, provide more detail than others. These later records often include details of the trial testimony and the sentencing remarks of the judge. This information can be helpful in determining the reasons why a jury might have decided to acquit or convict. However, the
statistics
drawn
from
these
records
must
not
be
too
hastily
generalised.
decision about what to record was at the discretion of the clerk in the eighteenth-
21
The
