In 1883 Broadmoor Superintendent William Orange delivered his Presidential Address before the Medico- Psychological Association. Referring to insane convicts he declared, ‘Many of […] [Broadmoor’s] patients were really lunatics at the time of being sentenced.’[i] In 1890 the Home Office commented on the case of attempted murderer O. R. who had been sentenced to twenty years penal servitude. O.R. was ‘Apparently a very dangerous mad man […] He had been previously in an asylum, and it is strange he was not found insane at the trial.’ Such cases were not unusual. The question of why such men were not found insane thus arises.
The decisions to find some defendants sane were sometimes obscure and the reasons not always straightforward. An examination of the evidence highlights a number of reasons why a verdict of insanity was not reached. The reason defendants were not found insane when tried for petty crime was, according to Broadmoor Deputy Superintendent John Baker, straightforward. He attributed the large number of insane male convicts in Broadmoor to failings in the legal process:
there is room for improvement in the legal procedure connected in with the administration of justice in the case of minor offences […] When cases are summarily dealt with, the question of insanity is rarely raised, no interest is felt in the accused, and fines or imprisonment follow as a matter of course [ii]
Explanations why prisoners had not been found insane were sometimes provided. In 1868 T. M. was convicted of arson. At his trial he declared that he was possessed by the devil but was not taken seriously because, as the chaplain of the prison where he had been held reported, ‘as no particular symptoms of insanity had been seen during his imprisonment – these words were treated as an attempt to sham insanity.’ In 1868 W. B. was sentenced to death alongside R. S. for the murder of a man. Following the sentence, W. B. took full responsibility for the murder. R. S. was exonerated and W.B.’s sentence commuted to penal servitude for life. W. B. was incarcerated at Taunton Prison where the Prison Medical Officer quickly questioned his sanity. Consequently, the Chief Constable of Somersetshire was ordered by the Home Office to conduct an inquiry. He reported that W. B. was an illegitimate child and had been insufficiently fed and clothed, and he was also of weak health and intellect. Furthermore, he alleged that W. B. suffered from fits brought on by seeing a man killed by a falling stone in a coal pit. After hearing this evidence, the Home Secretary, Henry Bruce, commuted W. B.’s sentence because he was ‘satisfied that he really was not morally responsible for his actions.’ It was reported in the press:
At the trial [W.B] was defended only by a counsel assigned to him at last minute by the Judge; and nothing was put to evidence but the events on the night on which the murder was committed. But the facts since brought to light tally in a remarkable manner with the absence, noticed at the trial, of any motive in [W.B.] for the commission of the murder, and with its special circumstances, and they are not less consistent with the insanity which is now proved to exist.
It was implied that had the defence not been brought in at the last minute, and had all of the facts been put forward, then W.B. would have been found insane when tried.
In some cases there was clear evidence of premeditation. Prior to the attempted murder of his wife, J.W. had been in prison from where he reportedly wrote to a friend asking him to tell her ‘to prepare to meet her God, as it would be the last chance she would have.’ J.W.’s previous imprisonment may also have worked against him. Indeed, previous convictions seem to have made some judges and juries less likely to consider whether defendants were insane. G. M., for instance, had been sentenced forty-three times for violent assault.
Two final reasons why an insanity verdict was not reached are related to the nature of the crimes committed. Cases of manslaughter or attempted murder were not punishable by death and thus there was no need to save defendants from the gallows.[iii] Finally, attitudes towards the type of crime committed appear to have had some bearing on the verdict. An examination of cases involving the rape of women suggests an uneven application of medical diagnosis in the courtroom. J. S. was convicted of rape. It emerged at his trial that he had previously been imprisoned and whilst serving his sentence was transferred to Bicton Lunatic Asylum. The judge remarked that it was ‘one of the worst cases of the kind that had ever come before his notice in an experience of nearly half a century’ and recalled a time when Smith would have hanged for the crime.[iv] He decided against charging J. S. with the robbery that had occurred alongside the rape because it was ‘perfectly true that at one period of his life the prisoner had been in a lunatic asylum.’ However, ‘Whether, being in gaol at the time, he had shammed madness he did not know […] In any case, it appeared from the statement which had been made to him by the medical men […] that he was discharged perfectly cured and perfectly responsible for his actions.’ In her study of sexual crime in the early-nineteenth century, Anna Clark shows that ‘experts’ (judges and alienists) ‘viewed rape as a moral problem which tainted the victim more than her assailant.’[v] The case of J.S. lends support to historians who have found that as the century progressed, rape was increasingly viewed by judges and juries as a despicable and violent crime.[vi] When passing his sentence the judge told the courtroom: ‘Young women must be protected from outrage by marauders like him, and in the interests of justice, and in order that it might act as a warning to prevent a repetition of so hideous a crime, he sentenced him to be kept in penal servitude for 25 years.’ The heinous nature of Smith’s crime seemingly overrode what in other cases may have been acceptable evidence of a predisposition to madness. Moreover, the case itself is an interesting example of judicial impatience with medical excuses when it came to certain crimes.
[i] William Orange, ‘Presidential Address, delivered at the Annual Meeting of the Medico-Psychological Association, held at the Royal College of Physicians, London, July 27, 1883’, Journal of Mental Science, 29 (October 1883), 329-354.
[ii] John Baker, ‘Epilepsy and Crime’, Journal of Mental Science, 47 (1901), 260-277.
[iii] Following the Criminal Law Consolidation Acts (1861) murder was almost the only capital offence remaining. As the nineteenth century progressed there was growing unease towards capital punishment. V.A.C. Gatrell, The Hanging Tree: Execution and the English People (Oxford: Oxford University Press, 1994).
[iv] When rape was a capital offence defendants were unlikely to hang. In her Women’s Silence, Men’s Violence: Sexual Assault in England 1770-1854 (London and New York: Pandora, 1987), Anna Clark shows that ‘The death penalty for rape was thought to prevent juries from reaching guilty verdicts; when it was finally amended to transportation for life in 1841, the conviction rate increased from 10 per cent between 1836 and 1840 to 33 per cent between 1841 and 1845.’
[v] Clark, Women’s Silence, p. 74
[vi] For example, Joanna Bourke, Rape: A History from 1860 to the Present Day (London: Virago, 2007); Martin Wiener, Men of Blood: Violence, Manliness, and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004).