Witnessing insanity: madness and mad-doctors in the English court

In his Trial by medicine (1981) Roger Smith gave a magisterial account of the history of forensic psychiatry in the late-nineteenth century, mainly focusing on insanity pleas in the murder trials that took place after the McNaughton Rules of 1843. Smith's basic picture is that of a titanic battle of ideas between law and psychiatry, between the two incommensurable concepts about human agency. While law regarded free will as the sacrosanct basis of responsibility and culpability, medicine embraced the somatic and organic determinism of human action. Smith's sophisticated sociology of legal and psychiatric knowledge has been virtually unchallenged for about fifteen years. At last, Joel Peter Eigen's Witnessing insanity has provided a radically different interpretation from Smith's, especially about the relationship between the two professions over the question of insanity before the McNaughton Rules. Eigen's book is conceptualized as a monograph on the making of forensic psychiatry in England in the late-eighteenth and early-nineteenth century. His core source material is formed by some 330 reports of insanity trials in the Old Bailey Sessions Papers, spanning the period from the trial of Earl Ferrers in 1760 to that of Daniel McNaughton in 1843. Having made a thorough and systematic survey of those hitherto little-used reports, Eigen demonstrates that in the early-nineteenth century appearances by medical witnesses in insanity trials sharply increased-from 10 per cent of all insanity cases in the first decade of the century to 70 per cent in the 1840s. This discovery is in itself somewhat predictable. Many historians of psychiatry-most notably Andrew Scull-have maintained that in the same period psychiatrists or "mad-doctors" tried to gain public recognition as experts on questions about insanity and to consolidate their professional status in the state machinery. What is innovative in Eigen's work is his interpretation of the causes of the increased use of the expert medical witness in insanity trials. Historians have until now asserted or assumed that psychiatrists invited themselves into the courtroom. Eigen convincingly shows that they were in fact invited by lawyers. Lawyers, not doctors, were the most important protagonists in and the initiators of the new practice of using expert psychiatric witnesses in the early-nineteenth century. Due to a new legal practice, the role of defence lawyers became more important and they became more ambitious and innovative. As a part of this mode of defence, the emerging advocacy bar often guided medical witnesses by deftly crafted questions …