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

By Valerie Argent 1978

being entered on the web by Joan Hughes


A bullet shot at George 3rd by one 'James Hadfield', on May 15th 1800, precipitated the enactment of England's first Criminal Lunatics Act. Prior to 1800 the courts dealt with insanity under the common law (see Blackstone) except in as far as Vagrancy Acts tangentially related to criminal lunatics. Hadfield was acquitted of Treason on the grounds of insanity and this seems to have created a pressing need to have statutory provision respecting criminal lunacy.

I have attempted to find out why this Act was passed. To do so I have had to work consistently through the relevant contemporary records for no other social historian appears to have investigated the passage of this Act in any but a cursory manner.

20th Century Secondary Source Material

Currently available literature contains very little on the Act at all. The details respecting its enactment are extremely scarce. I have detailed here all the 20th century material I have traced:-

Kathleen Jones in her first mental services history: "Lunacy, Law and Conscience, 1774-1845", provided an appendix on 'Criminal Lunatics'. Of this, two pages deal with the content and introduction of the 1800 Act. Jones is the only author referring to parliamentary records apart from the statute itself. (Jones, K. 1955 pp 204-205). Lunacy, Law and Conscience is now out of print, having been superseded by A History of the Mental Health Services (Jones, K. 1972)

In 1968 Nigel Walker in his authoritative study of crime and insanity in historical perspective, ( Walker, N. 1968 , criticised Jones' treatment of the subject, (see page 18 below) and perhaps because of this criticism, Jones omits the appendix on criminal lunatics from her History of the Mental Health Services. Discussion of the Act is confined to one brief paragraph in the main text (Jones, K. 1972 p.56).

Richard Hunter and Ida Macalpine in Three Hundred Years of Psychiatry 1535-1860 (Hunter, R.A. and Macalpine, I. 1963), produced an annotated collection of historic documents relating to psychiatry. Amongst these are selections from the defence speech of Thomas Erskine, Hadfield's counsel. Their annotations include two paragraphs on the content and introduction of the subsequent Act.

In George 3rd and the Mad-business, ( Hunter, R.A. and Macalpine, I. 1969 they deal with three assaults by insane people on George 3rd including that of Hadfield. Some of the contemporary psychiatric texts they have consulted refer to Hadfield and they draw on an anonymous pamphlet of 1823, "Sketches in Bedlam" by "A constant observer", for an account of what happened to Hadfield after his trial.

Nigel Walker, in Crime and Insanity in England, Volume one: The Historical Perspective", discusses the 1800 Act in nine scattered paragraphs. In these he analyses and quotes the text of the Act, but makes no other reference to the parliamentary records concerning its enactment. ( Walker, N. 1968 , pp. 52, 78, 80-81 & 224).

Finally, "The Butler Report" of the Committee on Mentally Abnormal Offenders (HMSO Cmnd. 6244, p.216), includes a short reference to the Act in an account of the special verdict.

Chapter two (The Law before the 1800 Criminal Lunatics Act) is based on these and other secondary sources.

However, in view of the lack of empirical research respecting the passage of the Act I have devoted the major part of my research effort to tracing the relevant primary records and to analysing them. In this paper the main chapters chronicle, from this material, the history of Hadfield's trial and the enactment of the 1800 Act. If my review of the literature available has not missed some other similar attempt, which I do not think it has, then this parliamentary history is chronicled here for the first time.

Primary Sources Used

Most of the contents of chapters one and three, ( James Hadfield and An Act for the Safe Custody of Insane Persons Charges with Offences), are based on texts available in the State Paper Room at the British Library. In the few instances where, for lack of time I have had to rely on a secondary source reference to a primary source I have made this clear.

Details of the sources are given in the bibliography but I will outline what these sources are. "State Trials", from which details of Hadfield" trial and much material explaining the relevant legal history have been taken, are a collection of trials of national significance.

Of the three series of "State trials" most reference has been made to material in the series edited by T.B. Howell in 33 volumes between 1816 and 1828. These volumes cover the period 1163 to 1820. Reference is made in the project to one trial in the "New Series", (1820-1858), where a footnote refers to the consequences of the 1800 Act.

To trace relevant trials the "General Index to the Collection of State Trials" by David Jardine (1828) was used. (The index was on open access in the main reading room shelf ref. 2019,a. The volumes were stored at Woolwich and required three days notice. Remaining material was in the State Paper Room at he time of my research.)

Bills when printed are bound in volumes titled "Public Bills".

The "Journal of the House of Commons" records in formal style the business of the Commons. It states, day by day, what motions were debated, who sponsored them, whether the House was in committee, etc. It does not contain any details of debates.

There is no complete record of debates for this period. "Cobbett"s Parliamentary History", the predecessor of 'Hansard', records such speeches as a reporter was present at and considered worth recording.

Acts of Parliament are bound in chronological order in volumes titled "public Acts". ("Statutes in Force" contains only what its titles indicates.)

Primary Sources not Used

It is possible that certain ambiguities concerning the passage of the Act could have been clarified by detailed consultation of the papers issued to M.P.'s daily, (Notices of Motions and Orders of the Day}, this was not done. Nether did I have time to consult any but secondary sources to establish the identity of Members of Parliament.

Final Chapter

In my final chapter (Administrative reform or panic legislation?) I attempt to place Hadfield's trial; and the Criminal Lunatics Act in its historic context, and to argue that it was not simply administrative reform in the field of mental health legislation, but an example of counter-revolutionary panic legislation.



Two Pistol Shots at the Opera

On the first night of 'Le Nozza di Figaro' at Richard Sheridan's Drury Lane Theatre, the King and Queen and their party were just entering their box when two pistol shots reverberated through the theatre. They were not part of the dramatic plot, and the bullets only narrowly miss His Majesty's royal head. ( Brooke, J. 1972, pp 314-316).

It is not a good day for the King. That morning when he had been inspecting a parade of his soldiers another bullet shot, which two historians state was meant for him, wounded a member of his party. ( Walker, N. 1968, p.74. Pain, N. 1975 , p.116.)

The King was no stranger to assaults from his subjects, but this assault caused more consternation than others. For one thing, James Hadfield, the member of the audience who had fired the shots, appeared to be quite sane when he was interviewed immediately after the event by the Duke of York in the presence of Sheridan and those of the audience who were close enough to have seen what had happened. (2).

Margaret Nicholson who had attacked the King with a knife in 1786, and John Frith who had thrown a stone at him in 1790 had been clearly demented. "No, I am not hurt", George had said in 1786, "take care of the woman - do not hurt her, for she is mad." ( Hunter, R.A. and Macalpine, I. 1969, pp. 310-311.)

Margaret Nicholson: See Walker, N. 1968 , p.185. Hunter, R.A. and Macalpine, I. 1969 pp 320- 323
John Frith: See State Trials 1790. Walker, N. 1968 , pages 185 and 223-224 and Walker, N. + Mcabe, S. 1973, p.250

Not only did Hadfield appear to the Duke of York "to speak as connectedly as could possibly be", but, "in talking of the enormity of the crime he had been committing, he said, I think in exactly these words: "The worst has not happened yet" or "has not come yet". (State Trials 1800 v.27 Duke of York's evidence.)

The Charge is Treason

Hadfield was committed for trial at the 'bar of the court of the King's Bench' on June 26th 1800, charged with High Treason. ( Hunter, R.A. and Macalpine, I. 1963, p.567. The actual indictment in State Trials is very wordy.)

The offence of forming the intention to kill the King, and displaying it by an overt act, had been one of the three modes of treason defined by the Statute of Treasons in 1352. (25 Edward 3rd stat.5. cap 2. cited Maitland, F.W. 1963, p.227)

The 'Advantages' of Being Charged with 'Treason'

Treason carried the obscene penalty of being hanged, drawn and quartered (as well as having one's lands and goods confiscated). Perhaps because of the seriousness of the penalty, various rules and procedures were observed at Treason trials that were not observed on other charges. These mainly benefited the accused. F.W. Maitland indicates that several of these rules had been introduced in an Act of 1696 that appears to have been designed to protect the aristocracy against the King. (Maitland, F.W. 1963, p.319)

The advantages that Hadfield had at his trial in consequence of the charge were outlined to the court by his defence lawyer. (see State Trials 1800 v.27 cols. 1308-1309 including fotnote.):-

    i) He was provided with counsel of his own choice.

    ii) He was given a copy of the specific charge against him ten days before the trial.

    iii) He was given the names, descriptions, and addresses of all prosecution witnesses.

    iv) He was given the same for the members of the jury.

    v) There was a statutory delay of fifteen days between indictment and trial.

Wiser Than An Infant, A Brute, Or A Wild Beast

The two leading law officers of the Crown: Sir John Mitford, the Attorney General, and Sir William Grant, the Solicitor General with several junior counsel, conducted the prosecution of Hadfield before the Lord Chief Justice, Justice Kenyon and two other judges. In his opening speech the Attorney General stated the law on insanity as he believed it to have been established by precedent:-

"It is not every idle and frantic humour of a man that will exempt him from justice and the punishment of the law: a man must be totally deprived of his understanding and memory, and who does not know what he is doing any more than an infant, than a brute, or a wild-beast." This definition is taken, almost word for word, from Mr. Justice Tracy's direction to the jury in the case of Edward Arnold, tried for shooting Lord Onslow, in 1724 (State Trials 1724 v.8 p.886).

It was a very influential definition in the eighteenth century, and has become known as the "Wild Beast Test". ( Walker, N. 1968 , p.57. Jones, K. 1955, pp.203+205.)

Mitford raised this issue because Hadfield, now a London labourer, had been discharged from the army "partly on account of the state of his mind". But, Mitford argued, Hadfield's insanity was not constant and it was not of such a degree as to meet the criteria that would exempt him from criminal responsibility. Hadfield had been capable of the business of buying two pistols without occasioning remark, had given lucid reasons for his action before and after shooting at the King, and had made his shot efficiently, standing on his seat to secure good aim and avoid having his arm knocked down by another member of the audience, and missing his target by only 14 inches. When interrogated he had shown that he was aware that he was committing a crime and that he knew the penalty. (State Trials 1800 v.27 Mitford's speech).

Erskine's Defence Speech (State Trials 1800 v.27 cols 1307 to 1330)

Hadfield's counsel was Thomas Erskine, the lawyer who had defended Lord George Gordon, Thomas Paine, Thomas Hardy, Thelwall. and Horne Tooke. (5).

Erskine acknowledged that Mitford had "stood undoubtedly upon the most revered authorities of the law"' when he laid down that "to protect a man from criminal responsibility there must be TOTAL deprivation of memory and understanding. (col. 1312. Emphasis as in the report of the speech.) These were the "very words" used by Lord Coke and Lord Hale, but if by them

"it was meant that to protect a man from punishment he must be in such a state of prostrated intellect as not to know his name, nor his condition, nor his relation towards others...then no such madness ever existed in the world. (col 1312.)

A strictly literal interpretation of the Wild Beast test was thus unreasonable. Hadfield, Erskine sought to show, was insane to a degree that any reasonable test would exempt from criminal responsibility.

"I admit", he said, "that nothing like insanity appeared to those who examined him", (col.1313),.....but "insane persons frequently appear in the utmost state of ability and composure, even in the highest paroxysms of insanity." (col 1317)

Becoming a soldier in 1793 Hadfield had served as orderly to the Duke of York himself, (col 1319), and Erskine asserted:-

"The King himself, whom he was supposed to have so malignantly attacked, never had a more gallant, loyal or suffering soldier." (cols. 1319-20)

"His gallantry and loyalty will be proved",

Erskine continued, (He called soldiers to testify to them as his first witnesses. (State Trials 1800 v.27 cols. 1330 following),

"his sufferings speak for themselves."

On 13th May 1794, (Date given by Major Edward Micheal Ryan. (State Trials 1800 v.27 col 1330),

"About five miles from Lisle," Erskine told the jury, "upon the attack made on the British Army this unfortunate soldier was in the 15th light dragoons, in the thickest of the ranks, exposing his life for his prince, whom he has supposed today to have sought to murder:- the first wound he received is most materially connected with the subject we are now considering; you may see the effect of it now." (Footnote to text: "Mr. Erskine put his hand to the prisoner's hand who stood by him at the bar of the court").

The wounds that Hadfield received then had apparently left their marks clear for the jury to see... at one point on Hadfield's skull a sword wound had left it so that the membrane of the brain was still exposed. (7)

Erskine had made good use of the statutory minimum of fifteen days between indictment and trial that the charge of Treason required. (see above):-

"When the court put the prisoner under my protection, I thought it my duty to bring Mr. Cline to inspect him in Newgate." (Col. 1320)

Henry Cline, (1750-1827), was surgeon to St. Thomas's Hospital, ( Hunter, R.A. and Macalpine, I. 1963 p.568). It can be inferred from a number of diffuse textual references that Cline was a notable authority on the anatomy of the brain. (8).

"The effects of the prisoner's wounds"' Erskine continued, "were known by the IMMEDIATE event of insanity, and Mr. Cline will tell you, that it would have been very strange indeed if any other event had followed. (col.1320. Emphasis as in the report.)

The wounds had led to the permanent brain damage which Erskine's medical witnesses agreed had been the cause of several subsequent fits of madness that Erskine detailed to the jury. The specific effect of the injuries was, however, that Hadfield was mad only with respect to one set of ideas and on all other subjects he would appear to those who questioned him as sane. (This pattern of disease the 19th century referred to as monomania) (9)

Erskine exposed to the court the specific area of madness that had escaped the attention of the Duke of York, and made it clear how it related to Hadfield's actions at Drury Lane:-

"He imagined that he had constant intercourse with the Almighty Author of all things: that the world was coming to a conclusion; and that, like our blessed Saviour, he was to sacrifice himself for its salvation." (Col. 1321)

"The idea that had impressed itself, but in most confused images, upon this most unfortunate man was that he must be destroyed but ought not to destroy himself." (col.1323)

"...he went to the theatre to perform, as he imagined, that blessed sacrifice." (col.1321) "There was not an idea in his mind from beginning to end, of the destruction of the king." (col. 1322)


Esrkine called a very long list of witnesses to Hadfield's insanity.

His first witnesses were soldiers in Hadfield's former regiment, who testified to his loyalty as a soldier, and to his insanity after he was wounded.

Major Ryan testified that in September 1795, when Hadfield came to his lodgings:

"He appeared to me extremely incoherent - and showed manifest symptoms of derangement."

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."
and that from his experience, nothing would prevent his appearing, at certain times,

"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)

The Lord Chief Justice stops the trial

Erskine called a large number of witnesses to corroborate his statements; soldiers, members of Hadfield,s family and some of the foremost experts on insanity at the time. He had intended to call many more, including some to testify to Hadfield's indignation when:-

"a song indecent as it regarded the person and condition of his majesty was sung."

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.

The Consequences of Acquitting James Hadfield

The following paragraphs are arranged in indexed paragraphs for ease of reference back as various points made are referred to several times in the following chapters.

A) Lord Kenyon stated that though Hadfield might be acquitted it was imperative that he was not set at liberty:-

"The prisoner for his own sake, and that of society at large, must not be discharges: for this is a case which concerns every man of every station, from the king upon his throne to the beggar at the gate: people of both sexes and all ages may in an unfortunate hour fall a sacrifice to this man, who is not under the guidance of sound reason, and therefore it is absolutely necessary for the safety of society, that he should be properly disposed of...for the sake of the community, undoubtedly, he must somehow or other be taken care of..."

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.

B) They proceeded to discuss the precedents for confining someone acquitted because of insanity:- Lord Kenyon:-

"A case is put into my hands of a person tried for felony, who, appearing to the court to be mad and dangerous to society, was ordered by the Court to be remanded to a proper place of confinement. I do not think that is the hing to be done here. I apprehend that he should be at present confined"' (The context suggests that "as at present confined" conveys Kenyon"s meaning.)," till properly disposed of."

C) Mr. Attorney General-

"It is laid down in some of the books, that by common law the judges of every court are competent to direct the confinement of a person under such circumstances."

D) Lord Kenyon:-

"That may be, Mr. Attorney General, but at present we can only remand him to the confinement he came from, but means will be found to confine him otherwise, in a manner best suited to his situation.'

E) Mr. Garrow, (one of the junior prosecution counsel):-

"Would it not be for the benefit of posterity, if the jury would state in their verdict the grounds on which they did it, namely, that they acquit the prisoner of the charge, he appearing to them to have been under the influence of insanity at the time the act was committed? There would then be a legal and sufficient reason for his confinement."

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

What happened to Hadfield after his trial?

Walker, N. + MCabe, S. 1973, page 2, have the following account without a source reference:-

"Hadfield went back to Newgate immediately after his trial, but was escorted to Bethlem a few months later by the Newgate 'keeper'. Two years later, he and another inmate, John Dunlop, escaped, and Hadfield seems to have got as far as Dover, before being retaken and returned, for security's sake, to Newgate. (The steward of Bethlem was formally censured by the governors for going in immediate pursuit of him without reporting and obtaining permission, but the minute of censure was later obliterated, although it is still legible.)"



A summary of the established law and practice of confining criminal lunatics, explaining the alternatives for dealing with Hadfield open to the Court.

Richard Hunter and Ida Macalpine make the comment on the verdict at Hadfield's trial that:-

"This verdict led to the judicial difficulty what was to be done with him, since to release him would have been dangerous to the community as well as to himself, but no legal title existed to detain him." ( Hunter, R.A. and Macalpine, I. 1963 p.568).

That this oversimplifies the legal situation prior to the 1800 Act is clear from what I have already transcribed from the trial record. Both Kenyon and Mitford referred to precedents for his detention, (B. and C. above), and Hadfield was in fact detained. (D. above, including note).

The extent to which it oversimplifies the situation will become clearer when I have reviewed some of the precedents.

Kathleen Jones has made an even more sweeping generalisation about the legal situation prior to the 1800 Act, and one that we shall see is that much further from the truth:-

"Criminal Insanity as such", she says, "was not recognised before 1800 and insane persons committing crimes were held in law to be fully responsible for their actions." Jones, K. 1955, p.214.)

Criminal lunatics acquitted and discharged

With respect to Hunter and Macalpine's statement that the court had no legal title to detain Hadfield if he was acquitted on the grounds of insanity, it is true that cases do occur in the records of people being released in these circumstances. In an addenda to the trial of John Frith in State Trials, (1790), quoting Hume on the practice of the Scottish courts, we read:-

"The Lords Hailes and Henderland having considered the depositions of Dr. Skene and Dr. Bannerman,...., find it sufficiently thereby instructed that the pannel Ann Simpson is at present insane, and not a proper object for trial, they therefore desert the diet against the said Ann Simpson." This woman, having been liberated was afterwards found guilty of another child murder, for this was the turn of her insanity." State Trials 1790 addenda

Walker quotes an English case of 1292 where:-

"A lunatic who had burned a man's house was convicted by the justices but released on their authority." ( Walker, N. 1968 , p.24)

Whatever these occasional cases prove, they do not prove that the courts could not detain a person found not guilty by virtue of insanity. They may show - and this is not clear as one relates to 1292 and the other to Scotland - that a court did not have to detain such a person. (Which they did have to do after the 1800 Act, see p.24 below.)

Common Law

As we have seen the Attorney General was of the opinion that by common law the judges of every court were competent to direct the confinement of someone in Hadfield's circumstances (see above C.) and he reiterated this opinion far more strongly when he came to introduce the 1800 Bill in Parliament. (see p.26 below.)

Common law is traditional law which is common to the whole land. It is un-enacted, unlike statute law, and includes precedents established by previous court decisions. (Maitland, F.W. 1963, p.22).

The Attorney General cited "some of the books" in support of his contention, (C. above), and amongst the books he was referring to would probably be "Commentaries on the Laws of England", (1765-1769), by the contemporary legal authority Sir William Blackstone.

The following excerpt from Blackstone, reprinted in Hunter and Macalpine, 1963, follows on from a discussion of the degree of insanity necessary for the acquittal of an accused person:-

"Yet, in the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control, and in particular, they should not be suffered to go loose, to the terror of the king's subjects. It was the doctrine of our ancient law, that persons deprived of their reason might be confined till they recovered their senses, without waiting for the forms of commission or other special authority from the crown; and now by the vagrant acts, a method is chalked out for imprisoning, chaining, and sending them to their proper homes." (quoted: Hunter, R.A. and Macalpine, I. 1963, p.437.)

Unfit to plead, and acquittal on the grounds of insanity

There were two main ways in which insanity in an accused person was taken into account by the courts under the common law.

A person who was insane at the time of his trial could be found "unfit to plead":-

John Frith, for instance, threw a stone at the coach of George 3rd in 1790 and was brought to trial before Lord Chief Justice Kenyon on the charge of Treason.

Despite the fact that Frith strongly protested his sanity and fitness to stand trial, the court set the Jury to try his sanity. The jury heard medical evidence that he was insane and that "there was an order concerning him". They found him unfit to plead and remanded him. ( State Trials 1790 col.307) It is not known if Frith was ever brought to trial. (see Walker, N. + MCabe, S. 1973, p.250)

(Margaret Nicholson, who tried to stab George 3rd with a blunt table knife in 1786 was not ever brought to trial. The Privy Council committed her to Bethlem Hospital after examination by Drs. John and Thomas Munro. (see Hunter, R.A. and Macalpine, I. 1963 p.569 and 1969 pp. 310-13).

Alternatively, if a person was tried, they could be proved to have been insane at the time of the offence and found not guilty on that ground.

In neither case do the courts appear to have had any problem about ordering the confinement of the accused.

Walker on the confinement of criminal lunatics

Nigel Walker has made an extensive study of 18th century cases and in the following passage, criticising Kathleen Jones's account, makes it clear that accused persons found insane were generally confined:-

"In most historical accounts of this subject"' he writes, "the eighteenth century is usually dismissed in a sentence or two." "Insanity was until 1800 ineffective as a defence against a criminal charge" says one social historian: "in certain cases an individual jury might refuse to convict where the prisoner was obviously insane, but as a general rule the criminally insane went to gaols and bridewells in exactly the same way as other prisoners." This is doubly misleading. In the first place, gaols and bridewells were the places to which offenders were sent if they WERE found insane; it was the gallows or plantations which awaited most of those who were not. More misleading still however, is the myth that the year 1800 marked the birth of the defence of insanity." ( Walker, N. 1968 , p.58)

Diversity of common law practice

Common law practice on the disposal of accused persons found to be insane appears, in fact, to have been far more sophisticated and diverse than such authors as Kathleen Jones have led us to believe. A few examples may be given to illustrate this.

Susanah Millicent, charged with stealing a petticoat, (1794), was found unfit to plead and remanded for two sessions in the hope she would become fit for trial. When she was brought before the court again, she was still obviously deranged, but the court decided to try her, acquitted her, and she was confined as insane. ( Walker, N. 1968 , pp 273-4.)

Hunter and Macalpine say that, "the practice had been to confine insane offenders in madhouses without necessarily bringing them to trial." (Hunter, R.A. and Macalpine, I. 1963, p.569) This generalisation conflicts with Walker's, (above.), and his would seem to be the most authoritative. Hunter & Macalpine, however, do quote examples that show that this was a practice, though not the practice. Apart from the case of Margaret Nicholson already cited, they refer to a "known lunatic" who in 1777, "was sent for life to William Perfect's madhouse for matricide"' and to Charles Lamb's sister, Mary Lamb, who,

"in 1796 ...was sent by the authority of the Coroner's Court to Hoxton House Asylum for murdering her mother whilst suffering from temporary insanity." Hunter, R.A. and Macalpine, I. 1963, 1963, p.569).

Walker quotes a case in 1787 in which the relatives were given custody of the accused:-

"What was probably a common arrangement is described in Mr. Justice Gould's report on the case of Mathew Clay, the insane burglar..... Clay's father was willing to take care of him, and the judge proposed that the father should enter into a recognisance - for the considerable sum of 20 pounds - before a justice of the peace, which would bind him to take 'due care' of his son and prevent him from committing future offenses. It is true that in Clay's case the jury had failed to acquit him; but the judge took the view that he should be acquitted, and was proposing the sort of arrangement that would no doubt have followed an acquittal." ( Walker, N. 1968 , pp 42 and 198-200.).

Statute law: the vagrancy acts

The 'vagrant acts' referred to by Blackstone, are the Vagrancy Acts of 1714, (12 Anne cap.23) ,.1740 ...and 1744, (17 Geo 2 cap. 5.) which allowed two magistrates to confine the 'furiously mad' for as long as 'such Lunacy or Madness shall continue' and to return them to their parish of settlement in the same way as the other potential nuisances covered by the Acts: "rogues, vagabonds, sturdy beggars, vagrants, etc. (see Hunter, R.A. and Macalpine, I. 1963, pp 299-301).

Although the relevant sections of the Vagrancy Acts provided for the detention of the insane generally, and made no specific reference to insane persons charged with offenses, Walker cites two cases that show that they were used as one way of confining criminal lunatics before the passage of the 1800 Act.

In the case of William Walker, (1784), a pauper accused of murdering his wife while an inmate of a workhouse, Nigel Walker quotes the judge, Baron Eyre, as saying:-

"This man must not be discharged, unless the parish officers, to save the expenses, come and take him away: he must be carried before a magistrate, confined and taken care of." ( Walker, N. 1968 pp 42-3)

The second example is Miss Broadric's case. In 1795 she was tried and acquitted on evidence of insanity, for the murder of her lover; Mr. Errington. Mr. Const, (counsel), applied to the Chief Baron, i.e the judge):-

"to detain the prisoner in safe custody with a view to having her taken care of, on the statute of 8th of Anne [which is?], and 17th of George 2 the jury having found her lunatic. The Chief Baron said this was extremely proper, and accordingly he ordered the prisoner to be detained." ( Walker, N. 1968 pp 275-277. See also 64-65).

The problem in Hadfield's case

The court cannot thus, in Hadfield's case, have been faced simply with the problem that "no legal title existed to detain him." Many legal precedents could be quoted, and the Attorney General was adamant that title for Hadfield's detention did exist. It is possible that uncertainty existed in the minds of some about the power of that particular court to detain Hadfield other than in Newgate. This is a possible explanation of Lord Kenyon's comments on the applicability of the precedents to Hadfield's case. (D. above)

This is the explanation that Walker suggests. If the Attorney General was resting his argument on the Vagrancy Acts, or if the Lord Chief Justice believed he was, then Kenyon could have been thinking that the Vagrancy Acts gave powers to magistrates and not to his court:-

"He", (Lord Kenyon), "seems to imply that all he could do was send Hadfield back to Newgate gaol; and this appears to be confirmed by what Baron Eyre said in 1784 after the acquittal of William Walker: "This man must not be discharged, unless the parish officers to save the expenses, come and take him away: he must be carried before a magistrate, confined and taken care of." Eyre too seemed to think that he himself could not make the necessary order and that this must be done by the justices. All that he could do was direct that Walker should not be released until the necessary arrangements for his confinement had been made." ( Walker, N. 1968 pp. 42-43.)

Walker may have misread the situation however, for the Attorney General refers consistently to powers under "the common law", (C. above and page 16 below.), and not to statute law or, (specifically), the Vagrancy Acts. If it is accepted that the Attorney General was referring to law other than the Vagrancy Acts then no problem with Hadfield's detention has been identified.

If, alternatively, Walker has read the situation correctly, then the court still did have "legal title to detain" Hadfield. They could, and possibly did, direct that Hadfield should not be released "until the necessary arrangements for his confinement had been made." (see above)

On the basis of the parliamentary material that I present in the next chapter, I would suggest that the problem that pre-occupied the court was not the legality of confining Hadfield, but the problem of how secure that confinement would be.



Lord Justice Kenyon had said that means would be found of confining Hadfield "in a manner much better adapted to his situation." (para. D, page 13 above.) The Government were, in fact, already preparing legislation to meet this end.

The trial of Hadfield began on Wednesday June 26th 1800, (S.T.27 (H) col.1281), and on the following Monday June 30th, (J.H.C. p.716), leave was given in the House of Commons to bring in:-

"A Bill for Regulating Trials for High Treason and Misprision of High Treason in certain cases, and for the Safe Custody of Insane Persons Charged with Offences."(P.B.)

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 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".


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.)


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.)


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.


In Cobbett's Parliamentary Register" Vol. 11 , pages 445-6. Valerie later found evidence that these amendments were introduced in the HOUSE OF LORDS not the House of Commons.

July 22nd (or 23rd) 1800. The Lord Chancellor proposed two clauses in amendment. 1. Prevention of Bail. 2. Intruders to Palaces. The text is given in the Journal of the House of Lords. (J.H.L. XLII p. 635-6...July 23rd) and corresponds to sections 3 & 4 (Val did NOT actually compare).


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.


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.)


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.)


STANHOPE, Earl of. Kathleen Jones' description would appear to be of Charles Stanhope, the 3rd Earl, half brother of Lady Hester Stanhope, the traveller, and Pitt's brother-in-law, who held the title from 1786-1816.

Her statement of his politics was confirmed by other writers. (The Chathumites, Peter Brown, MacMillan 1967, p.171. "Kings, Lords & Wicked Levellers". Weidenfield and Nicholson 1975. p.163).


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.)



Jones;(1955), Hunter and Macalpine; (1963 and 1969); and Walker; (1968), have each in their separate ways interpreted the 1800 Criminal Lunatic Act simply as mental health legislation. They have considered it as what we might term 'administrative reform' in a minor area of social policy and have not related it to the general political context of its time. It must from the material already surveyed be clear that this abstract approach has serious deficiencies and in my final chapter I wish to draw attention to some of the reasons why the 1800 Act must be interpreted in its historic context. I suggest that it should be regarded as punitive and repressive legislation, enacted in a period of general panic amongst the aristocratic ruling elites at the perceived possibility of a revolutionary uprising similar to that which had taken place in France between 1789 and 1794. (An uprising in the course of which the French Monarchy and much of her Aristocracy had been guillotined.)

The high powered sponsorship of the Bill/s' (see page 25 above.), does not support any view of this Act which considers it anything but a matter of central political concern to the government. More particularly so, as the Bill came before the House at a time of serious political crises. Consider what issues the Prime Minister and Secretary at War were detaching their attention from to attend to mental health reform:-

Britain had been at war with France since 1783, and the war was not going well. On June 16th 1800 Napoleon Bonaparte had decisively defeated Britain's Austrian allies at the battle of Marengo; an event which, according to Jarret, one of Pitt's latest biographers:-

"Not only established his", (Bonaparte's) "control of France beyond any doubt, but also spelt the end of Pitt's coalition."

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).


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.

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chapter one:
James Hadfield

Wild Beast Test

chapter two:
The law before the 1800 Criminal Lunatics Act

chapter three
An Act for the safe custody of insane persons charged with offences

chapter four Administrative reform or panic legislation?