Counter-Revolutionary Panic and the Treatment of the Insane: 1800

Erskine next called his medical witnesses. He had used the period before the trial to have Hadfield examined in Newgate by Mr. Henry Cline, of St. Thomas's Hospital, a famous surgeon and anatomist and by Dr Alexander Chrichton, of Westminster Hospital, author of "Inquiry into the Nature and Origin of Mental Derangement" who was one of the foremost psychiatric authorities of the period, and had made a particular study of crime and insanity.

Cline said that from the type of wounds Hadfield received, and from the immediate and continuing result of his derangement,

"I would conceive it would be permanent."

"In every respect rational."

Chrichton confirmed this.

"I have not the smallest doubt that he is insane; it requires that the thoughts which have relation to his madness should be awakened in his mind, in order to make him act unreasonably--"

The surgeon of Hadfield's regiment also gave evidence of his wounds, insanity and consequent discharge from the army.

Hadfield's family were also called to give evidence of his disturbed behaviour in the week preceding the offence, when he had tried to kill his baby son.

Hadfield had not sought to kill the king but to give the appearance of doing so in order that he himself would be killed:-

"...because he would not be guilty of suicide...he wished that by the appearance of crime his life might be taken away from him by others." (col 1321)

But at this point, Lord Kenyon interrupted him:-

"Mr. Erskine, have you nearly finished your evidence?"

"No my Lord; I have twenty witnesses still to call."

Turning to the prosecution, Lord Chief Justice Kenyon asked if the Attorney General had any evidence to contradict Erskine's, since if he had not:

"I will throw it out to your discretion...whether it is necessary to proceed further...the facts proved by witnesses...and bring home conviction to one's mind that at the time he committed the offence...he was in a very deranged state."

Mitford had no evidence to contradict Erskine's and:-

"The circumstances which have now been stated were perfectly unknown to me."

Prosecution and Bench thus concurred with the Defence that Hadfield was insane. The remaining part of the report of the trial is occupied by a discussion between Bench and counsel respecting the right course to be followed and the consequences of acquitting.

Prosecution and defence counsel both agreed with the Bench that should the jury find Hadfield not guilty because he was insane; for the protection of society he should not be set at liberty.

"VERDICT. We find the prisoner is not guilty; he being under the influence of insanity at the time the act was committed."

The Bill received its first reading on the same day.(C.P.H col.389) As its title indicates, this Bill contained two parts. The second part became on July 28th 1800: "An Act for the Safe Custody of Insane Persons Charged with Offences." (P.A./94)...39 + 40 Geo.3. cap. 94). It was not customary to provide a short title within an Act itself in those days and later social historians have tended to use the arbitrary short title of "the 1800 Criminal Lunatics Act" for this legislation. (see footnote 4 to Chapter 1.)

The first part of the Bill became the 1800 "Act for Regulating Trials for High Treason and Misprision of High Treason in Certain Cases."

The provision of this Act is concisely outlined in a footnote to the case of Regina v. Robert Pate in 1850:- (S.T.N.S. 8)

"In 1800, after Hadfield's attempt on the life of George 3 it was provided by 39+40 Geo.3 c. 93, that where the alleged overt act of treason was the assassination of the King, or any direct attempt against his person, by which his life might be endangered, or his person suffer bodily harm, the case should be tried with the same procedure as an ordinary murder."

THE PROVISIONS OF THE "SAFE CUSTODY" PART OF THE BILL

The second part of the Bill, that relating to the safe custody of insane persons charged with offences, had additional clauses added during its passage. As first introduced, (P.B.), the Bill provided in this part that:

If a court found a person unfit to plead because of insanity, or if it acquitted an accused on the grounds of insanity; then the court HAD to order that person to be confined "at His Majesty's Pleasure", i.e. indefinitely with the power to release resting entirely with the king or his responsible minister. The court had no option. The place and form of the confinement were at the King's discretion. The provisions were to be retroactive, applying not only to insane persons charged with offences after its enactment but also to:-

"all cases where any person, before the passing of this act, has been acquitted of any such offences on Ground of Insanity at the time of commission thereof, and has been detained in custody as a dangerous person by order of the court before whom such person has been tried, and still remains in custody."(cited from P.A.94, SECTION 1).

The bill thus provided for the "safe custody" of James Hadfield.

("The Special Verdict"). Whereas previously there was no requirement that a jury acquitting should state if the grounds of their acquittal were insanity at the time the prisoner committed the act, the Bill stated that:

"The jury should be required to find specially whether such person was insane at the time of commission of such offence and to declare whether such person was acquitted by them on account of such insanity."

The wording of this clause has lead to this verdict being known as "The Special Verdict".

THE BILL'S SPONSORS

I said at the beginning of this chapter that the Bill was prepared by the Government, and did so on the basis of the list of sponsors given in the Journal of the House of Commons. These were:-

(Cabinet Ministers)

Mr WILLIAM PITT (Prime Minister)

Hon. WILLIAM WINDHAM ("Secretary at War", a special post meaning he had special responsibility for the ongoing war with France.)

(The two leading Law Officers of the Crown)

Sir WILLIAM GRANT (Solicitor General. He had acted for the prosecution at Hadfield's trial.)

Sir JOHN MITFORD (Attorney General. He had led the prosecution at Hadfield's trial.)

THE ATTORNEY GENERAL EXPLAINS THE BILL.

Sir John Mitford introduced the Bill for its first reading on June 30th 1800. Respecting its provisions for the safe custody of insane offenders he said to the Commons:-

"I do not particularly allude to what has previously happened; but all those whose duty calls them to attend to the proceedings of the courts of justice must think it important that some provisions should be made on this subject, because it has been found that persons who have done the most shocking acts, and who have been acquitted on the ground of being deranged in their intellects, having been allowed to go at large, have afterwards committed similar acts again: there are several instances of His Majesty's subjects who have lost their lives for want of a due provision in this respect."

"By the common law, when a person of this kind is acquitted, the court before which he is tried have full power to direct the safe custody of such a person: but then the law has so little regulated that custody, and is so silent as to the rules to be observed in regard to it, that it may be said to be defective in this particular and on reflection, I think that it will be impossible to lay down any positive rule, with regard to the manner of that custody, and therefore much must be left to the discretion of the executive government: but when we consider the circumstances of these unhappy persons, that generally they are of low habits and connections, and seldom have any friends to take care of them, it will appear to be humane to give to the executive government some discretion to dispose of them." (C.P.H. col. 389.)

BETWEEN REPORTED DEBATES

Cobbett's Parliamentary History reports briefly on the debate on the 1st reading, (30/6/1800), and a debate on July 11th when the Bills, (see below), came back from their committee stage. To find out what happened between these dates we must first turn to the formal report of the actions of the House of Commons contained in its "Journal."

ON 1st JULY 1800, the Journal records that the second Reading of the Bill took place and that the Bill was committed to a "COMMITTEE OF THE WHOLE HOUSE" for July 4th. (A Committee of the Whole House, in which the committee chairman takes the Speaker's place whilst details are discussed, was a normal stage in the course of legislation in those days. "Standing Committees"' as general today, were a late 19th century development. (TAYLOR, 1963 p.179).

An instruction to the Committee is recorded "that they have power to turn the said Bill into two Bills if they think fit." (J.H.C. p.720).

ON 4th JULY 1800 : Mr. Bragge took the Chair of the Committee. Mr. Bragge reported from the Committee, that they had.......turned the said Bill into two Bills, and had made no other amendments to the said Bill than such as were necessary for that purpose. Ordered that the Report of the said Bills be received on Monday morning next." (J.H.C. p.730)

On the following Monday, (July 7th), the House was inquorate. (J.H.C. p. 733).

There is no other reference in the Journal, that I can trace, to the Bill/s until July 11th when instead of Mr. Bragge reporting back to the House:-

JULY 11th 1800: "The Attorney General accordingly reported from the said Committee, "(sic), "that the Committee had gone through the first of the said Bills for Regulating Trials for High Treason in Certain Cases; and had directed the same to be reported to the House without any amendment.........

The Attorney General also reported from the said Committee, that the Committee had gone through the other of the said Bills, for the Safe Custody of Insane Persons charged with Offences and had made several amendments thereunto...." (J.H.C. p.754)

There are clearly a number of ambiguities (4) in this record with respect to what did happen between the debates recorded in Cobbett's Parliamentary History, but it is clearly stated that "several amendments" were reported to the House on July 11th 1800.

THE AMENDMENTS

I have attempted to determine what these amendments were by comparing the printed Bill, (P.B.), with the full text of the Act. (P.A. 94).

Sections 1 and 2 of the Act do not differ, except for minor word changes, from analogous clauses in the Bill. Two sections, sections 3 and 4, are however in the Act which do not exist as clauses in the printed Bill.

SECTION THREE provides for the indefinite detention of persons suspected of being insane, and suspected of intending to commit an offence. They could be detained under a special warrant from a Justice of the Peace as 'dangerous persons'. The section precludes private bail, and only allows for their release by a higher court.

SECTION FOUR gives power to senior Ministers of the Crown to order the indefinite detention of any person trying to gain access to the King or his residences, if they were suspected of insanity and it was believed the King might be endangered by reason of such insanity. Insanity was to be determined by a commission, and if found insane the person might be confined for as long as it was considered that they might constitute a danger to the King.

These two additional sections of the Act, which I believe were the amendments reported by the Attorney General on 11th July 1800, considerably increase the scope of the Bill. The Bill at first concerned "insane persons charged with offences", but with the new parts the Act gives powers for the indefinite detention of those SUSPECTED of insanity and SUSPECTED of the INTENTION to commit an offence.

The removal of the legal safeguards in a trial for Treason where the "Treason" was a direct physical assault on the King, (page 23 above), the retroactive clause allowing the legislation to apply to James Hadfield, (page 24 above), and now this special provision added for the detention of persons suspected of insanity trying to gain access to the King or his residences, all show this legislation to have been peculiar in its specific relation to historic events. It is an Act that can only be understood in its immediate context however general the subsequent application of its provisions has been.

THE DEBATE ON THE AMENDED BILL

In the debate on July 11th it became clear that the sponsors of the Bill and the House meant the provisions of the Bill to be punitive and repressive. Opening the debate, William Wyndham, the Secretary at War said:-

"He could not but wish that some punishment might attach on any attempt upon the life of the sovereign, notwithstanding the plea of insanity. It was, no doubt, revolting to one's feelings, to think of punishing an insane person; but there was something revolting in all punishments, particularly capital punishments; they were inflicted, however, not for vindictive motives, or any notion that even in cases of the greatest atrocity they afforded any compensation to society for the offence committed, but with a view of preventing any repetition of it on the part of others. If the subject were viewed in this light, the propriety of capitally punishing attempts on the part of a madman against the life of anyone, would perhaps be admitted, and much more would these considerations apply, with respect to an attempt on the life of the sovereign, which, if successful, might have the effect of dissolving the whole fabric of society...The only ground on which the measure he now suggested could be opposed, was, that madmen were not capable of being influenced by the fear of punishment; but he conceived that they were influenced by the fear of punishment far more than by any other consideration and to a degree much beyond the impression it made on other men. At Lord Ferrer's trial a question was put to a witness, whether his lordship was in a state to distinguish right from wrong. He should have thought the proper question would have been, whether he was in a state to which he could feel a dread of punishment."

Only one member of the House objected, a Mr. Nichols, (who had already attacked the Treason part of the Bill at first reading,) :_

"..there was never a time", he said when by the law of England, a madman was regarded as a fit object for punishment. Formerly, indeed, a design to commit murder, if fully proved, incurred a capital punishment, according to the maxim 'volantas pro facto reputabitar". But never did the law of England sanction the punishing of a madman. The will was necessary to commit a crime 'actio non est rea, nisi mens sit rea'. The very word 'demens' expressed a man who had not reasoning powers to judge of punishment. He admitted that the attention of madmen was attracted by prominent objects: but as the punishment of a madman could not hope to act as a prevention, he hoped the sentiments delivered would never again be brought forward."

Mr. Nichols' hopes were quickly dashed: William Grant, the Solicitor General argued that the punishment of madmen "derived countenance from the law of England. By the ancient law, madness in certain cases was not allowed to be an exception from punishment." Lord Coke "stated an attempt of this nature as an exemption from the general rule that madness was not punishable." Lord Hale "likewise stated this to be a safe and wise exception." It was not possible, in all cases, to discover whether the madness was real or feigned; and therefore the ancient law, that killing the king was treason, from whatever quarter it proceeded. In case of a man's being influenced by the fear of punishment, he questioned whether the plea of madness, with regard to any crime, could be admitted; and it was doubtful whether there were many such persons so mad as not to be influenced by such a fear. (Quotations pages 29 following from C.P.H. record for 11/7/1800. Column number not noted.)

THE HOUSE OF LORDS

I have not yet been able to follow the passage of the Bill through the House of Lords. Kathleen Jones, however, gives an account of a debate there on July 23rd 1800:-

"These two last clauses, (3 and 4), drew a protest in the House of Lords from Earl Stanhope, on the grounds that they constituted an attack on the liberty of the subject. The question of whether a person was about to commit a crime was an extremely difficult one to decide in some circumstances, and the latter clauses held possibilities of victimisation. Stanhope moved a series of amendments providing that persons confined under the Act should not be denied medical or legal assistance, the use of writing materials, or reasonable access to their friends; but both Houses of Parliament appear to have had recent events rather than future contingencies in mind, and the Bill received no other opposition of note. This is not surprising when one recalls that the same administration had shortly before carried out the suspension of Habeas Corpus among other repressive acts. The word liberty was politically suspect during the war with Jacobin France and Earl Stanhope was a Foxite who supported the revolutionary doctrines.." (JONES 1955. pp. 214-215)

None of Stanhope's amendments appear in the Act, so, as one would expect, they could not have been carried.

The Bill received the Royal Assent on July 28th, becoming law within a month of the verdict on Hadfield. (JONES, 1955, p.214., HUNTER & MACALPINE 1968 p. 569.)

HOUSE OF COMMONS PROCEDURES ON BILL after 11/7/1800.

The Journal of the House of Commons reports that the Bill was "taken into further consideration" on 14th and 15th July and that the second and third readings occurred on the 16th and 17th respectively. But no further debates in the Commons are reported in the Parliamentary History during that period.

pp. 31-32. "Cobbett's Parliamentary Register" VOl. II. (see note page 28 above. Stanhope's amendments were to clauses introduced by the Lord Chancellor.)

As if this were not enough, Pitt was already considering negotiating for peace because of the internal economic situation. In June 1800 he told Addington, the Speaker of the House:-

"The question of peace or war is not itself half as formidable as that of the scarcity with which it is necessarily combined, and for the growing dangers of which I see no adequate remedy."

In the meantime Pitt's other great concern, the Irish Union Bill, was still being pushed through Parliament and the parliamentary session had nearly ended. (see JARRET, 1974, pp 188-200)

As we have seen from the parliamentary speeches of Wyndham, Grant, Coke and Hale, (see pages 29 to 31 above.), the Act was intended as a punitive measure. All four speakers suggested that punishment might be desirable for assaults on the king even if the assailant were found to be insane:-

"with a view to preventing any repetition of it on the part of others", Wyndham explained, "an attempt on the life of the sovereign,...if successful,might have the effect of dissolving the whole fabric of society." (already quoted pages 29-30 above.)

Now let us look beyond the claustrophobic bounds of court and parliament to which we have hitherto confined ourselves:-

"I have not forgot the English Reign of Terror"

Ebenezeer Elliot, the nineteenth century anti-Corn Law poet once wrote. (cited "Poor Man's Guardian" 17/11/1832. THOMPSON 1968 p. 199). He was speaking of the internal political situation during our wars with France, and what he was referring to is made clear by G.D.H.Cole in his essay "A Study in Legal Repression"' (COLE, 1945, pp. 99-116). Amongst the Acts of this period that Cole lists are the Combination Acts, the Newspaper Act, the suspension of Habeas Corpus, Acts proscribing ????????Constitutional ??????? ?????? ?????? of unlawful assembly, sedition and treason, and of this mass of legislation he writes:-

"This ....formed part of a large body of punitive legislation enacted during the years which immediately followed the French Revolution. Indeed, the period of the French Wars and the troublous years which followed them were plentifully besplattered with laws designed to crush out every form of Radical Agitation......Nor is this legislation of merely historical interest even today; for a...a surprising number of these repressive measures of more than a century ago are still on the statute book, and might even today be evoked in an emergency.... certain of them have been used in quite recent years." (COLE, 1945, pp. 101-102).

The 1800 Criminal Lunatics Act seems much of a piece with the legislation Cole refers to. It was counter-revolutionary panic legislation pushed rapidly through parliament without any concession to the minority voices of Nicholls and Stanhope who protested that:-

"never did the law of England sanction the punishing a madman" (Nichols page 30 above.) and that the Act:-

"constituted an attack on the liberty of the subject." (Stanhope page 31 above. q.v.)

Nor do we need to look far in the cultural records of this period to find the ideas structures that made the Hadfield issue a particularly powerful stimulant of panic and reaction. The association of insanity with the revolutionary spirit in France runs throughout the most influential conservative political treatise of the time: Burke's "Reflections on the Revolution in France" and insanity and Jacobism were frequently linked in the cartoons of the period. (JARRET, 1974. p. 145).

An attack on the King was symbolic of what the conservative elements in society feared most from England's own "revolutionary mob". The war with France was unpopular, (THOMPSON 1968, p. 158) and so, with the radicals, was the King, (Thompson, 1968. Ch. 5 passim). (4) There was even evidence of cached arms and conspiracies to kill the King and overthrow the government. (5). (HUNT, 1905. pp. 335-358,). "No King" was shouted at riots (4) and to have tried to assault George 3rd was a matter to boast of in some circles. (THOMPSON, 1958 p. 168).

BY WAY OF CONCLUSION.

I do not wish to make any generalisations about the consequences of the 1800 Criminal Lunatics Act. It was, however, one of the foundations of English Mental Health Law and its contents and the spirit in which it was passed may suggest that we should look a little critically at the edifice that surmounts it.