courts, doctors, and insanity defences in 18th and early 19th century scotland

International Journal of Law and Psychiatry

26 (2003) 339–354

Courts, doctors, and insanity defences in 18th and early

19th century Scotland

Robert Allan Houston

School of History, University of St. Andrews, St. Andrews, KY16 9AL, Scotland, UK

1. Introduction

Writings about the early development of insanity defences in Britain have concentrated,

until recently, on the English cases of James Hadfield (1800) and Daniel M’Naughten

(1843).1 Equally significant Scottish cases have been ignored. Hadfield was brilliantly

defended by Thomas Erskine—born a Scot, but trained in England.2 The aim of this article

is not to seek the legal and intellectual roots of Erskine’s defence of Hadfield (although that

needs to be done), but to explore the evolving relations between judges, lawyers, juries, and

medical men as shown in one criminal trial held around the same time. This was the trial for

the murder of David Hunter, a labourer from Bonnyrigg in the parish of Cockpen (just

southeast of Edinburgh), held before the supreme criminal court of Scotland, the High Court

0160-2527/03/$ – see front matter D 2003 Elsevier Science Inc. All rights reserved.

doi:10.1016/S0160-2527(03)00047-5

E-mail address: [email protected] (R.A. Houston).1 N. Walker, Crime and insanity in England: Vol. 1. The historical perspective (Edinburgh, 1968). J. P. Eigen,

Witnessing insanity. Madness and mad-doctors in the English court (New Haven, 1995). R. Smith, Trial by

medicine. Insanity and responsibility in Victorian trials (Edinburgh, 1981). S. Landsman, ‘One hundred years of

rectitude: medical witnesses at the Old Bailey, 1717–1817,’ Law and History Review 16 (3) (1998), 445–494.

Medical testimony in insanity defences is discussed only briefly at pp. 464–466. R. Moran, ‘The origin of insanity

as a special verdict: the trial for treason of James Hadfield (1800),’ Law and Society Review 19 (3) (1985), 487–

519. C. Crawford, ‘The emergence of English forensic medicine: medical evidence in common law courts, 1730–

1830’ (University of Oxford PhD, 1987), contains only a few asides about mental incapacity (e.g., pp. 25, 32,

153). D. Y. Rabin, ‘‘Of persons capable of committing crimes’’: law and responsibility in England, 1660–1800’

(University of Michigan, PhD, 1996). T. O’Reilly-Fleming, ‘From beasts to Bedlam: Hadfield, the regency crisis,

M’Naughten and the ‘‘mad’’ business in Britain, 1788–1843,’ The Journal of Psychiatry and Law 20 (2) (1992),

167–190. P. Bartlett, ‘Legal madness in the nineteenth century,’ Social History of Medicine 14 (1) (2001), 107–

131. D. M. Walker, A legal history of Scotland, vol. 3 (Edinburgh, 1995), 460, 688. L. Farmer, Criminal law,

tradition and legal order. Crime and the genius of Scots law, 1747 to the present (Cambridge, 1997), pp. 121–

122. For a civil law angle, see M. A. Crowther and B. M. White, ‘Medicine, property and the law in Britain,

1800–1914,’ Historical Journal 31 (4) (1988), 853–870. I am grateful to David Adamson and David Allan for

comments on earlier drafts of this article.2 Thomas’s brother, Henry, was Dean of the Faculty of Advocates and a prominent supporter of theWhig party.

R.A. Houston / International Journal of Law and Psychiatry 26 (2003) 339–354340

of Justiciary, in Edinburgh. The alleged offence was committed on June 20, 1799; the trial

began on December 2 of that year and did not end until March 17, 1801.

The article seeks further to provide a political and ideological context for those relations. It

deals with the interface between law and the emerging psychiatric profession, stressing the

primacy of the former. The Hunter case involved a decision about an evolving area of the law.

It is important because of debates about the role of judge, juries, and evidence (particularly

expert medical witnesses compared with what modern jurisprudence calls ‘hearsay’ or

‘nonexpert opinion testimony’) in identifying criminal insanity.

Scotland’s legal systems, religious establishment, and currencywere preserved, distinct from

England’s, at the Union of Parliaments in 1707. Legal procedures differed, too. For example,

throughout the 18th century, lawyers appeared much more frequently on behalf of both

prosecution and defence in serious criminal trials than they did in England.3 In Scotland, there

was a trend towards decision making by judges rather than juries at important stages of a trial.4

In other regards, the countries followed similar legal trajectories. The increasingly central

role of medical men in the identification of insanity came out of the changing propensity to

use medical practitioners and from the desire of lawyers for objectivity, certainty, a way out of

a legal dilemma, or, in the case of counsel, for an adversarial edge.5 Changing notions of what

constituted proof, a decline of juries personally informed about or acquainted with the

defendant, and the reduced credibility of hearsay or nonexpert opinion evidence—all issues

within the realm of legal rather than medical competence— encouraged the growing use of

medical practitioners to authenticate decision making.6 Recent work has shown that medical

opinion had a part to play in identifying mental incapacity before Scottish civil courts, but it

was not privileged.7 Even in 1820, laity and lawyers formed understandings of mental

incapacity at least as much as did medical practitioners.8

7 R. A. Houston, Madness and society in eighteenth-century Scotland (Oxford, 2000). R. A. Houston and U.

Frith, Autism in history. The case of Hugh Blair (Oxford, 2000).8 Tony Ward, ‘Observers, advisers, or authorities? Experts, juries and criminal responsibility in historical

perspective,’ The Journal of Forensic Psychiatry 12 (1) (2001), 116, notes that the sovereignty of lay jurors to

decide states of mind on the basis of ‘the ordinary rules which apply in daily life’ was still recognised in Scotland

in the 1870s and beyond. Bartlett, The poor law of lunacy (p. 2), argues that even in the mid-19th century in

England, ‘doctors had little role in deciding how asylum construction would occur, and who would be placed in or

removed from county asylums.’

3 P. King, Crime, justice, and discretion in England, 1740–1820 (Oxford, 2000), pp. 227–230. Discussion of

insanity defences is confined to pp. 303–304.4 J. M. J. Chorus, ‘The judge’s role in the conduct of civil proceedings: some Continental and Scottish ideas

before 1880,’ in D. L. C. Miller and D. W. Meyers (Eds.), Comparative and historical essays in Scots law

(Edinburgh, 1992), 32–46, at pp. 33–39.5 R. A. Houston, ‘Professions and the identification of mental incapacity in eighteenth-century Scotland,’

Journal of Historical Sociology 14 (4) (2002), 441–466.6 Comparable developments were taking place in contemporary England. M. Gaskill, ‘The displacement of

Providence: policing and prosecution in seventeenth- and eighteenth-century England,’ Continuity and Change 11

(3) (1996), 341–374. Landsman, ‘Medical witnesses,’ 459, 466–470, 482, 489. Crawford, ‘English forensic

medicine,’ p. 28. M. Jackson, ‘‘It begins with the goose and ends with the goose’’: medical, legal and lay

understandings of imbecility in Ingram v Wyatt,’ Social History of Medicine 11 (3) (1998), 376, 379–380.

R.A. Houston / International Journal of Law and Psychiatry 26 (2003) 339–354 341

2. Context and comparisons

In 18th century English criminal cases, Eigen finds that judges had considerable power to

influence what juries heard and to instruct them on the law in a way that shaped their verdict.9

Influential contemporary Scottish legal texts offered a different opinion. Viscount Stair

believed that juries in civil cases ‘have been of old, sole judges in brieves, the Judge Ordinary

having no more power but to call and order them: and they are yet with the Judge Ordinary or

delegate, as Judges; for they must serve, and do sometimes seal the service [judgement] with

him.’10 Sir George Mackenzie, a leading jurist of the late Stuart period, opined that, in

criminal cases, ‘the justices are only judges to the relevancy, the assizers [jurors] to the

probation,’11 the judge adding or ‘interponing’ his authority to that of the inquest.12 The

judge was there to ensure the trial was conducted properly; the jury’s role was to assess the

validity of the evidence presented by prosecutor (‘pursuer’) and defender, and the witnesses

adduced by each.13 Judges determined procedure. They might lead juries, but they could not

control them.14

Because they decided issues of fact, jurymen were crucial to criminal processes. Who were

they? Jurors were adult males with sufficient property to make them independent in their

judgement.15 In criminal cases, explained Sir George Mackenzie, the prosecutor was

supposed to draw up a roll of 45 names, which was attached to the ‘execution’ that the

court messenger served. The jury of 15 was chosen from this list by the judge on the day the

9 J. P. Eigen, ‘Intentionality and insanity: what the eighteenth-century jury heard,’ in W. F. Bynum, R. Porter,

and M. Shepherd (Eds.), The anatomy of madness. Essays in the history of psychiatry: vol. II. Institutions and

society (London, 1985), pp. 34–49. This is not to say that the judge had control over the jury in England.

Crawford, ‘English forensic medicine,’ pp. 114–115. Jackson, ‘Understandings of imbecility,’ pp. 361–380. M. J.

Weiner, ‘Judges v jurors: courtroom tensions in murder trials and the law of criminal responsibility in nineteenth-

century England,’ Law and History Review 17 (3) (1999), 467–506.10 D. M. Walker (Ed.), The institutions of the law of Scotland. . . by James, Viscount of Stair. . . 1693

(Edinburgh, 1981), pp. 705–706.11 [George Mackenzie] The laws and customs of Scotland in matters criminal, in: The works of that eminent

and learned lawyer, Sir George Mackenzie of Rosehaugh, advocate, 2 vols. (Edinburgh, 1716, 1722), vol. 2, p.

241. P. G. B. McNeill (Ed.), The practicks of Sir James Balfour of Pittendreich, reproduced from the printed

edition of 1754, 2 vols. (Edinburgh, 1962–1963), vol. 2, p. 433.12 For example, National Archives of Scotland (NAS) SC39/36/4, Janet Stevenson (1753).13 In Scottish criminal cases, the judge had: ‘no control over the evidence on which the jury proceeded, and no

duty to charge them on the law or on the facts of the case.’ J. I. Smith (Ed.), Selected justiciary cases, 1624–1650:

vol. 2. Stair Society 27 (Edinburgh, 1972), p. xiii. This does not, of course, mean that Scottish judges were

passive. Ibid., xiv–xv.14 I. D. Willock, The origins and development of the jury in Scotland (Edinburgh, 1966), p. 98. For an example

of the jury going against the express instructions of the judge, see J. Cameron (Ed.), The justiciary records of

Argyll and the Isles, 1664–1705: vol. 1. Stair Society 12 (Edinburgh, 1949), pp. 110–112. For a civil court

example, see NAS SC39/36/14 and SC39/47/6, Alexander Steill (1804).15 The post 1815 qualification was £100 a year of valued rent, or a house worth £30 a year if rented. W. Bell,

Dictionary and digest of the law of Scotland (Edinburgh, 1838), p. 546.


trial was heard, but he did not specify how.16 Jurors were mostly craftsmen and tradesmen in

the towns, and landowners in the countryside. Medical men did not dominate numerically the

lists of witnesses or the jury bench. A study of 165 civil court cases to assess the mental

incapacity of a person has shown that just 3% of jurors were medical practitioners, although

they made up a quarter of witnesses whose testimony was recorded.17

However, the fact that physicians and surgeons appeared in Scottish courts may itself be

significant (especially in the early Georgian era) because in 18th century England, ‘it was

most unusual for doctors to testify in court.’18 ‘Expert’ medical testimony of any kind was

heard only occasionally at the London Old Bailey.19 Expert testimony only began to be heard

in criminal insanity cases there from 1760.20 Between 1760 and 1843, lay witnesses testified

in approximately 70% of criminal trials before the Old Bailey and in the remainder only the

prisoner and/or a doctor gave evidence.21

On the Continent, too, medical practitioners played a role in forensic matters, but it was by

no means a dominant one. The Constitutio Criminalis Carolina, a criminal law code

16 The laws and customs of Scotland in matters criminal, vol. 2, p. 240. Objections to jurors were allowed, but

seem rarely to have been made. Following a Whig attack on the powers of judges, the English system of random

selection ‘from a jar’ was introduced in 1825. I owe this information to David Adamson.17 Houston, ‘Professions,’ pp. 441–466.18 R. Porter, Mind-forg’d manacles. A history of madness in England from the Restoration to the Regency

(Harmondsworth, 1987), p. 116. This remark seems to relate to criminal trials and to be based on T. R. Forbes,

Surgeons at the Bailey: English forensic medicine to 1878 (London, 1985), p. 21. Medical testimony was heard at

48% of homicide cases at the Old Bailey, 1730–1778, compared with 53% in 1779–1808 and 72% in 1809–

1828. Infanticide cases heard before the Northern Assize Circuit had more medical testimony. M. Jackson,

Newborn child murder. Women, illegitimacy and the courts in eighteenth-century England (Manchester, 1996).

Eigen, Witnessing insanity, pp. 108–160. For a lucid discussion of the role of doctors in investigating Italian

infanticide cases, see A. Pastore, ‘Theorie et pratiques de l’expertise medico-legale au XVIIe siecle, l’exemple de

Bologne,’ in M. Porret (Ed.), Le corps violonte: du geste a la parole (Geneve, 1998), pp. 197–221. On the ‘pre-

history’ of insanity defences, see N. D. Hurnard, The king’s pardon for homicide before A.D. 1307 (Oxford, 1969),

pp. 152–170. J. G. Bellamy, The criminal trial in later medieval England: felony before the courts from Edward I

to the sixteenth century (Stroud, 1998), pp. 138–139.19 Landsman, ‘Medical witnesses,’ p. 450. No percentages are given by Landsman, but medical testimony was

heard in between 2% and 4% of cases each year 1717–1817. V. Barras, ‘De quelques individus dangereux a

Geneve au XVIIIe siecle: un exemple des rapports entre driot et medecine,’ Cahiers de la Faculte de Medecine de

Geneve 17 (1988), 55, finds that of approximately 2000 cases heard in the 1780s, about 60 or 3% involved some

discussion of the mental state of the accused.20 Walker, Crime and insanity in England, pp. 58–63. Eigen, Witnessing insanity, pp. 1–2. Forbes, Surgeons,

pp. 176–177, dates the first medical certification of insanity at the Old Bailey to 1790. See also P. J. Corfield,

Power and the professions in Britain, 1700–1850 (London, 1995), pp. 164–165. J. H. Langbein, ‘The English

criminal trial jury on the eve of the French Revolution,’ in A. Padoa Schioppa (Ed.), The trial jury in England,

France, Germany: 1700–1900 (Berlin, 1987), pp. 13–39.21 Eigen, Witnessing insanity, p. 83. Eigen, ‘Intentionality and insanity,’ p. 42. The proportion of trials where

medical men gave evidence was low (about 10%) in the 18th century and did not rise substantially until the 1830s.

Even in the 1840s, medical witnesses only appeared in half of trials involving insanity defences. J. P. Eigen, ‘‘I

answer as a physician’’: opinion as fact in pre-McNaughtan insanity trials,’ in M. Clark and C. Crawford (Eds.),

Legal medicine in history (Cambridge, 1994), p. 171. Eigen, Witnessing insanity, 24, p. 183. D. N. Robinson, Wild

beasts and idle humours: the insanity defense from antiquity to the present (London, 1996).


promulgated for the Holy Roman Empire in 1532, envisaged that surgeons would be involved

in forensic investigations (specifically physical injuries), but did not privilege their testimony

above that of lay people close to the victim.22 The aim was simply to gather the best evidence

available in cases involving doubt. During the 17th century, courts increasingly drew

university-trained physicians as well as surgeons into forensic medical examinations. Yet

in late 18th and early 19th century Wurttemberg, identifying mental incapacity was still

largely a community matter. Medical opinion was requested from local health officers by

judges in criminal trials only in cases where dissimulation was suspected. A second medical

opinion from the Medical Faculty of the University was solicited on just seven occasions

between 1760 and 1824, compared with 41 times in 1824–1860.23

Nor did French (or Swiss) criminal judges invariably use doctors in assessing madness and

they did not always accept their findings.24 Writing of 18th century Paris, Abbiateci finds that

testimony from the ‘physicians and surgeons of the court’ was routinely used in cases where

fire raisers appeared to the court to be insane. However, he notes that medical reports tended

to be superficial or summary, and that equal weight was given to the testimony of the

chaplain, warden, and turnkey of the prison where the accused was housed; the accused was

also cross-examined.25

The English and Continental patterns may not be so different from Scotland.26 The figures

just cited and the discussions surrounding them refer to criminal rather than civil cases.

Scottish criminal court juries and the witnesses who informed them were equally dominated

by lay opinion. The 12 cases involving insanity defences (all but one involving interpersonal

offences) that came before the High Court of Justiciary 1739–1818 were all heard by juries

comprising exclusively craftsmen and tradesmen, with the exception of eight landowners who

joined them in presiding over the trial of Sir Archibald Gordon Kinloch.27 Lawyers and

22 T. Robisheaux, ‘Witchcraft and forensic medicine in seventeenth-century Germany,’ in S. Clark (Ed.),

Languages of witchcraft. Narrative, ideology and meaning in early modern culture (London, 2001), 197–215, at

pp. 199–203. E. Fischer-Homberger, Medizin vor Gericht: Gerichtsmedizin von der Renaissance bis zur

Aufklarung (Bern, 1983).23 D. Kaufmann, ‘Boundary disputes: criminal justice and psychiatry in Germany, 1760–1850,’ Journal of

Historical Sociology 6 (3) (1993), 278. For an interesting discussion of the identification of feigned physical

illness, see A. Pastore, ‘Maladies vraies et maladies simulees. Les opinions des juristes et des medecins (XVIe–

XVIIe siecles),’ Equinoxe 22 (1999), 11–26.24 G. Aubry, La jurisprudence criminelle de Chatelet de Paris sous la regne de Louis XVI (Paris, 1971), p.

224. For Switzerland, see V. Barras, ‘Folies criminelles au XVIIIe siecle,’ Gesnerus 47 (3–4) (1990), 294, and

Barras, ‘De quelques individus dangereux a Geneve,’ p. 55. For Italy, see A. Pastore, Il medico in tribunale: la

perizia medica nella procedura penale d’antico regime (secoli XVI–XVIII) (Bellinzona, 1998).25 A. Abbiateci, ‘Arsonists in eighteenth-century France: an essay in the typology of crime,’ in R. Forster and

O. Ranum (Eds.), Deviants and the abandoned in French society (Baltimore, 1978), 157–179, at pp. 160–161.26 In English coroners’ inquests into suicides, medical experts were rarely used except for physical injuries. M.

MacDonald and T. R. Murphy, Sleepless souls. Suicide in early modern England (Oxford, 1990), pp. 225–226.

See also Forbes, Surgeons, p. 21. Of Britain as a whole Crowther and White write: ‘the legal system has always

called in medical experts as casual labour.’ M. A. Crowther and B. White, On soul and conscience: the medical

expert and crime (Aberdeen, 1988), p. 3.27 NAS JC3/47, June 29, 1795 to July 15, 1795. The other jurors were three merchants, a druggist, a baker, a

bookseller, and an apothecary, all from Edinburgh.


medical practitioners never served on such juries, which were based on the constables’ rolls

of adult male householders’ liability (largely notional in the 18th century) for watch and ward

duty.28 No writer (legal clerk), Writer to the Signet (solicitor), or advocate (the approximate

equivalent of an English barrister) gave any testimony either.

Surgeons and physicians appeared only occasionally to speak to the mental state of a

prisoner, although they testified more frequently in cases of murder and wounding to the

nature of the victim’s injuries and likely cause of death.29 Unlike some 18th century German

states, where judges unsure of a person’s soundness of mind were required to call for an

(advisory) medical opinion, the calling of medical witnesses in Scottish trials involving an

insanity plea was, in the first instance, the responsibility of the defence counsel.30 Legal

representatives also conducted examination of witnesses, unlike English criminal trials.

Counsel in trials before the High Court of Justiciary were advocates, who also had the

monopoly of pleading before the supreme civil court, the Court of Session, located in

Edinburgh; Writers to the Signet had the right to manage such cases.31 Local lawyers who

worked in the inferior courts used titles like ‘procurator’ or pleader: Glasgow and Aberdeen

had societies or ‘faculties’ of procurators.32 In 18th century Justiciary trials, the accused was

usually represented, even if poor.

Only in four out of the twelve trials heard 1739–1818 was it thought necessary to seek out

medical opinion about sanity. The case of William Gates illustrates what might happen. ‘The

lords having examined two medical persons and the keeper of the jail it appeared that the

panel [accused] laboured under such a degree of fever that they could not say whether he was

insane or not at this moment.33 This was an assessment, initiated by the judges, of a person’s

fitness to stand trial since the mad could not be tried while ‘furious’ (the legal term for

madness or lunacy) because they could not plead and could not participate in their defence.34

More usually a link between the practitioner and accused preceded the immediate case,

meaning that the medical man was simply another person who happened to have knowledge

28 R. A. Houston, Social change in the age of Enlightenment. Edinburgh, 1660–1760 (Oxford, 1994), p. 34.

On the Southern Circuit, men of the law did appear on juries. I owe this information to David Adamson.29 An obligation to provide forensic testimony had been included, for example, in the 1599 charter to the

Faculty of Physicians and Surgeons in Glasgow. J. Geyer-Kordesch and F. Macdonald, Physicians and surgeons in

Glasgow. The history of the Royal College of Physicians and Surgeons of Glasgow, 1599–1858 (London, 1999),

pp. 8–10. W. S. Craig, History of the royal college of physicians of Edinburgh (Oxford, 1976), p. 67. For

contemporary debate on exemptions, see NAS JC4/1, 110–112 (July 17, 1799).30 Kaufmann, ‘Boundary disputes,’ pp. 277–278. See also R. W. Ireland, ‘Eugene Buckley and the diagnosis

of insanity in the early Victorian prison,’ Llafur 6 (1993), 5–17.31 R. A. Houston, ‘Writers to the signet: estimates of adult mortality in Scotland from the sixteenth to the

nineteenth century,’ Social History of Medicine 8, 1 (1995), 39.32 J. S. Muirhead (Ed.), The old minute book of the faculty of procurators in Glasgow, 1668–1758 (Glasgow,

1948).33 NAS JC8/8, August 22, 1811.34 The same was true of the profoundly stupid, who were termed ‘fatuous’ or idiotic or as in a state of ‘idiotry’

or ‘fatuity.’


of the person’s character. Dr John Wallace was a personal friend of axe murderer Robert

Spence— in whose case he was the only medical professional to give evidence on state of

mind.35

In assessing guilt and fitness for punishment, what the judge and jury really wanted to

know was whether the accused had committed the act (usually murder) and whether he or she

was in their right mind when they did it.36 They wanted to hear the testimony of neighbours

or friends who could certify a furiosity that preceded the crime or immediate eyewitnesses

who could affirm that it was manifest at the time the deed was committed. That would

determine whether the deed had been done with or without intent and thus whether it could be

punished normally or not at all. They also wanted the opinion of jailers or fellow inmates who

had a quotidian knowledge of the accused during the weeks or months they usually spent in a

‘tollbooth’ or jail awaiting trial. That would allow the court to assess the persistence of mental

problems, or indeed whether the accused was dissimulating.37 The other eight cases before

the High Court depended solely on such testimony and the jury’s appreciation of the accused

in court. Both criminal and civil court cases show that ‘expert’ medical testimony was neither

sufficient nor necessary.38

3. The pleading of the case

The trial for the murder of David Hunter, which began in December 1799, allows

discussions of many of the issues outlined in Section 2. In June of that year, Hunter shot a

widow woman in the neck while under the mistaken apprehension that she had smothered his

mother. ‘Procurators for the panel’ (i.e., defence counsel) argued that the trial should be

postponed on the grounds that their client was insane and unable to plead:

35

NAS

Mari

readi36

evide

defen

pleas

Eige37

the e

was

Part38

was

enter

on examining their unhappy client, they found him utterly incapable of furnishing them

with either information or instructions and, so far as they were able to judge, incapable of

NAS JC7/25, June 29, 1747. Additionally, two surgeons in the case testified about the victim’s injuries.

JC26/135/D2362. R. A. Houston, ‘New light on Anson’s voyage, 1740–1744: a mad sailor on land and sea,’

ner’s Mirror 88 (3) (2002), 260–270. Eigen, Witnessing insanity, p. 124, suggests that doctors were more

ly accepted as experts because of prior acquaintance with the accused.

Insanity defences were almost always presented for the murder of adults by men, and the same pattern is

nt in Ireland at a later period. P. Gibbons, N. Mulryan, and A. O’Connor, ‘Guilty but insane: the insanity

ce in Ireland, 1850–1995,’ British Journal of Psychiatry 170 (1997), 467–472. In contrast, English insanity

, put forward in some 331 trials at the Old Bailey 1760–1843, were predominantly made in cases of theft.

n, Witnessing insanity, p. 6.

In 1770, William Harries, formerly a merchant in Ayr, was condemned to hang for forgery of banknotes on

vidence of three men and a woman who worked in Edinburgh’s jail and who felt that his apparent madness

feigned. NAS JC3/36. R. A. Houston, ‘Institutional care for the insane and idiots in Scotland before 1820:

1,’ History of Psychiatry 12 (1) (2001), 3–31; Part 2, 12 (2) (2001), 177–197.

Forbes, Surgeons, p. 21, seems to be in error when he asserts without qualification that ‘medical opinion

required in certain common law actions’ such as whether an individual was mentally competent to marry or

into a contract in early modern England.

3

crim4

Lobb

the c

572.

Law4

4

4

man

(Edi4


understanding the nature of his own situation; of the crime charged against him; of the

danger to which he was exposed; or even of the confinement of which he suffered. That

the opinion they formed of his insanity was confirmed by every inquiry they had made on

the subject: by the concurring opinion of his relations and acquaintances who had known

him from his earliest years; by the whole tenor of his life; and, in particular, by many

striking acts of madness which he had exhibited as well as by his behaviour when

apprehended and during his subsequent confinement.39

The catalogue of behavioural examples used to justify this opinion was based largely on

hearsay or nonexpert opinion testimony.40 This extract is quoted at length in Appendix A

because it encapsulates traditional notions of evidence so clearly.

There was no doubt about Hunter’s mental state. Instead, counsel took positions on what

was the more acceptable form of proof. The defence relied for corroboration on ‘the

Testimony of all the Neighbourhood’ coupled with that of the people who knew Hunter

while in prison awaiting trial.41 Counsel argued that the jury was the proper arbiter of

sanity:

the trial of insanity by jury is recommended by the general rule on which our criminal

practice seems to be founded of referring all questions of fact to a jury, leaving points

of mere law to the undivided attention of our judges. . . [In this case] a decision

[should be made] on evidence in mere matters of fact on which every man of plain

common sense is equally qualified to form a competent judgement. . . In this case, the

insanity is not to be determined on the opinion of physicians alone, but mainly or

solely depends on the opinions of neighbours and on a proof by witnesses of facts and

circumstances.42

Counsel ultimately sought secure ground by reference to a general or common standard

of what constituted normal mental functioning.43 In short, he stated explicitly that doctors’

opinions were only as good as those of other witnesses’ accounts of fact, medical testimony

being ‘an opinion in point of fact.44 At least one of the defence advocates was a prominent

9 NAS JC8/1, December 8, 1800. Compare Mackenzie, The laws and customs of Scotland in matters

inal, vol. 1, p. 59.0 L. Bonfield, ‘Testamentary cases in the prerogative courts of Canterbury, 1660–96,’ in C. Brooks and M.

an (Eds.), Communities and courts in Britain, 1150–1900 (London, 1997), p. 152. S. Landsman, ‘The rise of

ontentious spirit: adversary procedure in eighteenth–century England,’ Cornell Law Review 75 (1990), 564–

J. H. Langbein, ‘Historical foundations of the law of evidence: a view from the Ryder sources,’ Columbia

Review 96 (1996), 1168–1202.1 NAS JC4/1, 165.2 NAS JC8/1, December 8, p. 1800.3 The phrase ‘common sense’ is normally associated with Thomas Reid, Essays on the intellectual powers of

(Edinburgh, 1785), essay 1, chapter 2, quoted in A. Broadie (Ed.), The Scottish Enlightenment: an anthology

nburgh, 1997), p. 94.4 NAS JC4/1, 417.


Whig, John Peter Grant, who wrote elsewhere, condemning the latitude given to judges at

the Court of Session.45 Politically, he opposed oligarchy.

The prosecuting advocate (Robert Dundas of Arniston) had no objections to the plea in

general, but he did require stronger proof than that offered (the defence’s assertion of his

condition). In particular, he argued that it was the ‘Court’ or bench that should decide on

insanity. His Majesty’s Lord Advocate, Dundas, was a Tory appointee and part of a powerful

family of political managers; he was Henry Dundas’ nephew.46 Thus, he described favouring

juries as ‘popular,’ a practice that did not help the standing of the law or the Court. Instead,

‘the opinion of physicians, which had not then been taken, was an indispensable requisite to

the due trial of insanity.’ ‘In every case of insanity, it is by a reference to the opinion of

medical persons that your lordships can be entitled to draw any just conclusions with regard

to the true state of the fact.47

Both counsel agreed that the law was unclear on this subject. The Court therefore deemed it

necessary to investigate a precedent and make a decision in principle to inform future

procedure:

45

pp. 5

Scotl

other46

47

Lord

oppo48

49

have

1818

insan

trial.

It was further suggested, from the chair, that it was highly proper that the opinion of

physicians on the panel’s situation ought to be taken, and that, as the question of form and

procedure, though not of much interest to the parties in this trial, was one of which the

regularity of our criminal procedure required a final decision, it would be proper for the

counsel on both sides to lay before the Court, in their defences and answers, what

information they could collect on the subject.48

Investigation of the previous century’s proceedings showed that insanity in bar of trial had

been pleaded before any Justiciary Court in Scotland in just nine cases between 1737 and 1799:

in four, the point was determined by the Court and in the remaining five remitted to the

knowledge of an ‘assize’ or jury.49 It was not until 1801 that the judges in the case ruled that the

decision should lie with the Court, who was informed by the opinion of a physician and a

N. T. Phillipson, The Scottish Whigs and the reform of the Court of Session, 1785–1830 (Edinburgh, 1990),

3–54. J. P. Grant, Some observations on the constitution and forms of proceeding of the Court of Session in

and; with remarks on the Bill now depending in the House of Lords for its reform (London, 1807), p. 57. The

defence advocate was Joshua Henry Mackenzie.

Phillipson, Reform of the Court of Session, pp. 19, 24.

NAS JC4/1, 457. The other prosecuting advocates were Robert Blair, His Majesty’s Solicitor General (later

Advocate), and George Abercromby. Blair was a staunch (if highly respected) conservative and an outspoken

nent of juries in civil cases. Phillipson, Reform of the Court of Session 103, 114–123.

NAS JC4/1, 407.

NAS JC4/1, 170–171. There were three Justiciary Court circuits: South, West, and North. Just 12 cases

been identified where there was any discussion of insanity before the High Court of Justiciary, 1700–

. These included cases where the accused was found to be faking; where he or she was found guilty but

e and therefore not a fit object of punishment; and three of the cases where insanity was pleaded in bar of


surgeon.50 According to newspaper reporting, opinions were delivered ‘at considerable

length.51 This was indeed a legal landmark because it meant that the judges would, in the

future, decide on insanity in bar of trial at least by listening to medical experts. Yet the trial

remained in many ways adversarial. It was the responsibility of the defence counsel to produce

medical witnesses. They remained observers rather than advisers, and they hardly claimed (let

alone were allowed) authority. The only matter on which 18th century judges found their own

advisers was when pregnancy was pleaded to delay trial or punishment. Then ‘persons of skill

are appointed by the Court to enquire into the fact, and to report their opinion, upon which the

Court themselves decide.52

That the Court listened closely to medical men does not necessarily mean that judges used

only this sort of ‘expert’ as witnesses. The testimony of those with a quotidian knowledge of

the accused was still prized because it was harder to keep up a pretence of insanity with one’s

jailer than it was with a doctor who made a 20-minute visit.53 Furthermore, doctors had to

give a clear line for the Court to follow, offering strength of conviction as much as technical

expertise.54 Thus, Dr. Alexander Monro, senior, gave evidence on March 13, 1801 to the

effect that Hunter ‘was in a state of perfect imbecility and weakness of mind approaching to

idiotry, and incapable of judging of the propriety of his actions, or of reasoning with propriety

upon them.55 Further, he was ‘perfectly satisfied that the panel’s imbecility is not feigned or

affected but is perfectly natural and real,’ and that his ‘being allowed to go at large might be

attended with dangerous consequences as he might be provoked to commit acts of violence

without good cause and that it does not appear to the deponent that there are any probable

grounds for expecting his recovery from his present state of mind.’

Physicians were better educated, richer, and more socially elevated than surgeons: they

offered a different quality of medical opinion.56 In contrast with Dr. Monro, the surgeon

50 NAS JC8/1, February 16 and March 12 1801. Their statements are also in JC4/1, 746–750. The legal

arguments on which the decision was based can be found at NAS JC4/1, 405–429 (defence), 430–463

(prosecution).51 The Edinburgh Evening Courant 13, issue number 13, 911 (February 19, 1801).52 NAS JC4/1, 448. My research student David Adamson has shown that on the southern Justiciary circuit,

there was pretrial collusion between advocates on both sides, if not the judge, too, in quite a few cases, meaning

that the Advocate Depute could be instrumental in the arrangement of an insanity defence. Thus it could be argued

that all involved were making inquisition into the facts of the case. Indeed, Chorus, ‘The judge’s role,’ p. 33,

stresses the shortcomings of seeing processes dichotomously as either ‘inquisitorial’ or ‘adversarial.’53 See, for example, the case of William Gates. NAS JC8/8, August 22, 1811.54 Crawford, ‘English forensic medicine,’ pp. 125–128.55 NAS JC4/1, 748.56 As Andrew Wear has written: ‘although the explanation in its form and much of its content was accessible

to the patient, being part of a common experience (a story structure and qualitative description), the tone of the

story presupposes an unraveling, an explanation of complex workings—as such it is a specialised knowledge

possessed by the physician alone.’ A. Wear, ‘Medical practice in late seventeenth- and early eighteenth-century

England: continuity and union,’ in R. French and A. Wear (Eds.), The medical revolution of the seventeenth

century (Cambridge, 1989), p. 302. On distinctions between branches of the medical profession, see L. Rosner,

Medical education in the age of improvement. Edinburgh students and apprentices, 1760–1826 (Edinburgh,

1991).


called to give evidence, James Russell, was found wanting on account of his prevarication.

Russell concluded of Hunter: ‘altho[ugh] he appeared to the deponent to be a man of very

inferior capacity, he cannot take upon him to say whether he is in such a situation as to be fit

to stand a trial or not.57 Another surgeon, called a few days later to give a more robust

testimony, was only slightly less equivocal, but the judges were able to stop the trial on March

17, 1801. According to extensive newspaper reporting of the case, the Court ‘pronounced an

interlocutor, finding the panel incapable, from the state of his mind, to stand trial; deserted the

diet against him pro loco et tempore, and recommitted him to the tollbooth of this city, to be

taken care of until the pleasure of the Court be further known.58

The Justiciary Court papers contain no further mention of David Hunter. Unable to try him,

the Court had but two options. Judges could order people to be confined in jail until relatives

found surety to restrain them elsewhere, for kin were responsible for such people in the first

and last instance. This solution seems to have worked for the well-off, but not for paupers.

Sending the criminally insane to an institution to be cared for ‘in loco amicorum’ (so to

speak) became increasingly common in the early 19th century.59 The crown usually footed

the bill, but even this was being contested in an age of profound social and economic

change.60 Other than committal to the tollbooth, secure institutions specifically for the insane

were rare in Scotland before the 19th century. The High Court of Justiciary was fortunate in

having the Edinburgh ‘Bedlam’ from the 1740s.61 An adjunct of the Charity Workhouse of

the city, it took paupers and paying patients.62 With no relatives willing or financially able to

57 NAS JC4/1, 749. Eigen points to a growing number of physicians rather than surgeons and apothecaries

giving evidence at the Old Bailey. He suggests ‘that the basis of professional opinion was moving away from

descriptions of madness based on acquired experience with those afflicted, to a more theoretical abstraction of

‘‘disease’’.’ Eigen, ‘Intentionality and insanity,’ p. 43.58 For example, The Edinburgh Evening Courant, issue number 13, 923 (March 19, 1801). The reporting

paraphrases the court records without adding much analysis or commentary.59 A court case of 1815 confirmed that the Justiciary Court could not order asylums to take criminal lunatics,

although with financial guarantees some did so. Parliamentary Papers (henceforth PP) 1816, VI, p. 374. The

Scottish poor law was being reinterpreted around this time to exclude parish responsibility for the able-bodied

poor. R. Mitchison, ‘The making of the old Scottish poor law,’ Past and Present 63 (1974), 88–92. On lunatics in

prison, see J. Cameron, Prisons and punishment in Scotland from the middle ages to the present (Edinburgh,

1983), pp. 158–181.60 The early 19th century saw a lively debate about who should be responsible for pauper criminal lunatics:

crown, parish of settlement, or parish where apprehended. See, for example, the Court of Session processes 1817–

1818 contained in Signet Library, Session Papers 501/43–44, 507/40, 514/22–23, 517/21. A. M’Neel-Caird, The

poor-law manual for Scotland (Edinburgh, 1851), pp. 68–70. The statute 55 George III cap. 69, XV–XVI,

allowed Sheriffs to make regulations about the confinement and management of the insane, subject to the approval

of the Lord Commissioners of Justiciary. See also R. Smith, Trial by medicine. Insanity and responsibility in

Victorian trials (Edinburgh, 1981), p. 21. See G. D. Collinson, A treatise on the laws concerning idiots, lunatics,

and other persons non compotes mentis. . . (London, 1812), p. 507, for the English situation, changed by 39 and

40 Geo. III, ca. 96, which allowed JPs to order a parish to pay for the keep of a pauper criminal lunatic.61 Two earlier examples of pauper criminal lunatics sent there are Robert Spence (NAS JC7/25, June 29, 1747;

JC26/135/D2362, JC7/27, 334–8) and Jean Blair (NAS JC3/41, March 13, 1781).62 R. A. Houston, ‘Care of the mentally disabled in and around Edinburgh, ca. 1680–1820,’ Book of the Old

Edinburgh Club forthcoming (2003/2004).


look after him, it is likely that David Hunter ended his days in Bedlam. Very different was the

fate of Sir Archibald Gordon Kinloch (see below), who shot his brother at his house in

Athelstaneford, East Lothian, in April 1795.63 Attended by keepers employed by his family

(who had been obliged to enter into a substantial bond to prevent him offending again),

Kinloch lived on in his own mansion until his death from natural causes.

4. Conclusion and perspective

A number of significant legal issues were raised during the Hunter case. It marked a new

definition of the roles of judge, jury, and medical witnesses in pleas of insanity in bar of trial.

A decision about fitness to stand trial was thereafter taken by Scottish judges, although the

sovereignty of lay jurors to decide on the state of mind of a person at trial (and on the basis of

‘the ordinary rules which apply in daily life’) was still recognised in Scotland in the 1870s

and beyond.64 This distinguished Scottish from English procedure, as noted by both counsel

in the case and in English legal texts.65 The case also draws the historian’s attention to the

significance of political context to debates on the reform of legal practice.66 Finally, it shows

that ‘hearsay’ or ‘nonexpert opinion testimony’ could be as robustly sustained in legal

argument as ‘modern’ conceptions of evidence. Scotland’s criminal court procedures had

been adversarial throughout the 18th century. The Hunter case shows that different under-

standings of evidence could be part of adversarial debates, rather than there being a necessary

connection between adversarial forms and a ‘modern’ law of evidence.67

63 NAS JC3/47, June 29, 1795 to July 15, 1795.64 Ward, ‘Observers, advisers, or authorities?,’ p. 116. Juries were nevertheless becoming less important in

certain types of Scottish trial. For example, in 1828, the Lord Advocate presented a bill to Parliament which,

among other things, proposed dispensing with jury verdicts in cases where a criminal pleaded guilty. D. G. Moir,

‘Extracts from an Edinburgh journal, 1823–1833 (Part I, to 1828),’ Book of the Old Edinburgh Club 29 (1956),

180.65 NAS JC4/1, 447. Collinson, A treatise on the laws, 499, ‘no. 35. In case a person of sane memory commits

an offence, and becomes noncompos before his arraignment, he shall not be arraigned, because he is unable to

plead with that advice and caution that he ought, no. 36. But a jury shall be empanelled to try, whether he be really

noncompos, or only apparently so through covin and dissimulation.’66 Politics were crucial to many areas of social and cultural life at this period, including university education

and the foundation of lunatic asylums. L. Walsh, ‘‘The property of the whole community’’. Charity and insanity in

urban Scotland: the Dundee Royal Lunatic Asylum, 1805–1850,’ in J. Melling and W. Forsythe (Eds.), Insanity,

institutions and society, 1800–1914. A social history of madness in comparative perspective (London, 1999), pp.

180–199. Advocates like Andrew Duncan could be ruthless in their manipulation of political and public opinion.

Duncan was probably the author of Observations on the bad effects which are to be dreaded from the

establishment of a foundling hospital at Edinburgh: and on the benefit which may be expected from a proper

lunatic asylum (Edinburgh, 1800).67 ‘The essential attribute of the modern law of evidence is the effort to exclude probative but problematic oral

testimony, such as hearsay, for fear of the juror’s inability to evaluate the information properly.’ Langbein,

‘Historical foundations,’ p. 1172.


The 1790s and beyond also saw important developments in insanity defences that were

pleaded to a judgement before Scottish as well as English courts. Five years before Hadfield,

a defence similar to that pleaded by Erskine was offered by advocates David Hume (who

conducted most of the defence), Charles Hope (who summed up), William Rae, and David

Moneypenny in the case of Sir Archibald Gordon Kinloch, a case extensively reported in

periodicals like the Edinburgh Magazine.68 Kinloch successfully pleaded partial insanity,

stating in his pretrial declaration that he believed himself well enough to be tried, ‘altho[ugh]

still at times when particular thoughts come across him he feels a temporary derangement.’69

In its reporting of the case, the Edinburgh Magazine described the guilty-but-insane verdict as

‘a special one.70

Illustrating the role of medical men in insanity defences, the Hunter case also occurred at a

time of important change for the emerging psychiatric profession. Medical practitioners were

taking more of a role in identification and authentication, although still forced to operate

within a heavily politicised and legalised context. Doctors and surgeons remained at the call

of judges and counsel. And when the chair of ‘Medical Jurisprudence and Medical Police’

(forensic medicine) was established at Edinburgh in 1807 (its title shows the subordination of

medicine to law), the appointment was in the Faculty of Law.71

By 1815, medical practitioners had begun to play a central role in the authentication of

madness and in its treatment in a civil as well as a criminal context. In that year, a House of

Commons Committee began an investigation into the care of the mentally afflicted

throughout the British Isles. This was an important landmark in official thinking about the

role of asylums in the care of the insane and about state concern with madness. Sheriffs-

Depute of ‘five of the most populous counties in Scotland’ (Edinburgh, Lanark, Forfar,

Renfrew, and Aberdeen), whose reports are recorded among the papers of the Committee,

described the process of committal to an asylum (or confirmation thereof) as, in effect,

dependent on a certificate from a physician or surgeon, preferably belonging to one of the

Edinburgh or Glasgow bodies such as the Faculty of Surgeons in Glasgow.72

An Act of 1815 required annual licensing of private asylums, and twice-yearly

inspections by the Sheriff-Depute and medical practitioners.73 Sheriffs-Depute also

68 NAS JC3/47, June 29, 1795 to July 15, 1795. Edinburgh Magazine new series 6 (August 1795). Prosecuting

advocates were Robert Dundas, Robert Blair, and John Burnett. The first two participated in the Hunter case. The

judges were Robert MacQueen (Lord Braxfield), David Rae (Lord Eskgrove), andWilliam Nairne (Lord Dunissan).69 NAS JC26/282.70 Edinburgh Magazine new series 6 (August 1795), p. 156.71 J. G. Smith, The principles of forensic medicine (London, 1821), vi, wrote of medical jurisprudence: ‘in

Britain it has been suffered to remain in relative obscurity until this day.’ The Law Faculty at Edinburgh was more

Whig-inclined than that of Medicine Faculty.72 ‘Third Report of the Committee on madhouses in England, etc. (June 1816),’ PP 1816, VI, pp. 353–400.73 ‘An act to regulate madhouses in Scotland (June 7, 1815)’: 55 George III cap. 69. Medical certification of

reception orders was not essential, as the Sheriff had only to ‘satisfy himself as to the propriety of granting such an

order, by the certificate or report of medical persons, and otherwise, as the circumstances of the case may seem to

require’ (paragraph VIII). J. Andrews, ‘They’re in the trade. . . of lunacy. They ‘‘cannot interfere’’—they say.’ The

Scottish Lunacy Commissioners and lunacy reform in nineteenth-century Scotland, Wellcome Institute for the

History of Medicine, Occasional Publications, no. 8 (London, 1998), pp. 2–6.


concurred in the aspiration of some physicians and surgeons to have the mad

housed in asylums, preferably purpose-built according to their guidelines.74 But again,

politics and the law structured the development of medicine. Some politicians of the

early 19th century chose to side with reformers like Andrew Duncan, junior, in part

because of his humanity, but also because he advocated that doctors should only

advise civil authorities on issues of health.75 Rather than becoming more autonom-

ous, medical practitioners after the Act of 1815 were more integrated into a

centrally controlled administrative apparatus, albeit one which was weaker and less

centralised than the dirigiste Continental models on which Duncan based his

proposals.76

In other regards, Scotland did draw closer to the Continental system, and the

Hunter case demonstrates this and other developments. The regularisation of the role

of judges as sole arbiters of insanity in bar of trial challenges any notions that the

Scottish criminal justice system was moving towards being purely adversarial. The

development made it resemble more closely the inquisitorial systems found on the

Continent. The importance of medical opinion to courts became plain. Specifically, the

case saw the regularisation of the use of a physician and a surgeon in deciding

whether a person was fit to stand trial. Yet, before and after the Hunter trial, the

opinion of a gaoler—admittedly an official, but without any professional qualifica-

tions—was also regarded as important. Forms of evidence remained contested as much

as the ‘facts’ of the case and the law relating to it. Finally, the significance of

political leanings to changes in legal practice is clear from the Hunter case. Thus, in

many ways, it highlights at least as well as does Hadfield both the complex structures

and contingent dynamics of the workings of the law of criminal insanity defences

before M’Naughten.

74 William Stark, Remarks on the construction of public hospitals for the sure of mental derangement.

Read to a committee of the inhabitants of the city of Glasgow. . . (Edinburgh, 1807). T. A. Markus,

‘Buildings for the sad, the bad and the mad in urban Scotland, 1780–1830,’ in T. A. Markus (Ed.), Order in

space and society. Architectural form and its context in the Scottish Enlightenment (Edinburgh, 1982), pp.

25–114.75 Crowther and White, On soul and conscience, p. 9. Yet a Whig like Duncan might, as a reforming

physician, benefit from the preference of Tory lawyers like Dundas of Arniston for decisions on insanity defences

to be made by judges on the basis of the opinion of medical men.76 Crawford, ‘English forensic medicine,’ pp. 145–189, has a supremely lucid outline of the

inquisitorial system, which prevailed in areas of Europe that used Roman–canonical law. Eigen,

Witnessing insanity, pp. 112–113, summarises Crawford. Only the Court of Session, where a body of 15

judges decided cases, resembled the Continental civilian tradition. Phillipson, Reform of the Court of

Session, 42, pp. 56–60. Yet even here the way judges informed themselves was neither as consistent or

as clearly laid out as in Europe prior to the reform of the Court of Session in the early years of the 19th

century. G. Gorla and L. Moccia, ‘A ‘‘revisiting’’ of the comparison between ‘‘Continental Law’’ and

‘‘English Law’’ (16th–19th century),’ Journal of Legal History 2 (1981), 143–56. Pastore, Il medico in

tribunale.


Appendix A

Statement by counsel for David Hunter, December 24, 1799:77

77

‘‘No

Bartl

(Lon

It appears from the Testimony of all the Neighbourhood, where the panel has resided, that

his mother and all her family were remarkably weak in their understandings. His mother

is described as a haveral [half-witted] body, and none of her family was known to be any

better. Her two brothers were worse than herself, and hardly fit to take care of themselves;

the only employment they were capable of all their lives was herding a parcel of beasts,

which they were unable to number, and indeed they were hardly able to count their own

fingers. The panel’s sister is an absolute idiot, unable to do anything that can contribute to

her own maintenance, and is supported by the pittance of rent drawn for a house that was

the property of their father, and which a relation manages for her and her brother, they

being neither of them capable, from the extreme weakness of their intellects, of managing

their own affairs. The panel has always been thought a half-witted man. But since

Whitsunday, he has been considered much worse. He was at some times perceptibly

worse than at others, and various instances of his extravagances are related. He was in the

use of playing different antics in Church. He would tie a book to the end of a stick and

hold it over the Minister’s head while he was preaching without seeming to feel that he

was doing anything out of the way. He used to decorate his hat with different coloured

ribbons and tassels such as children wear. He used to stand in the street, sometimes

talking to himself, some times looking up for a considerable time to the sky with his

mouth open. He used to fancy himself at different times different characters. Sometimes

he was a Thief catcher and pursued people in order to apprehend them. At other times he

would get up of a sudden, and imagining urgent business, at Leith, or Edinburgh, or some

other place, would set out at all hours and perhaps not return till next day. Once in

particular he called out of a sudden that there was a riot at Edinburgh, and that he may set

off to quell it; and the method he proposed for this purpose, was by laying a King George,

as he called it (a halfpenny) which he showed to the people to whom he was talking, on

the Cross. And accordingly he set off; and on his return at night, he informed the people

he had succeeded in quelling the riot. At another time, having gone to Edinburgh on some

of these imaginary errands, he returned with a piece of red Cloth, sewed by way of cape,

to an old Blue Cloth, and being asked, what was the meaning of this dress, he answered

that ‘he had coft [purchased] the freedom of Edinburgh and he could not appear at the

Cross among the other gentlemen without his livery.’ He had a particular passion for the

colour of Scarlet, and for trinkets of all kinds; and used to lay out all the money he could

scrape together in buying little pictures and toys, such as are given to Children. He was

NAS JC4/1, 165–168. On the place of the mentally disabled in 18th-century society, see R. A. Houston,

t simple boarding’’: care of the mentally incapacitated in Scotland during the long eighteenth century,’ in P.

ett and D. Wright (Eds.), Outside the walls of the asylum: the history of care in the community, 1750–2000

don, 1999), pp. 19–44.


always remarkably restless, and could never remain long in one posture, or in one place.

He never spoke sense, or told a story that was connected. He spoke much to himself, and

generally, if not always, incoherently. He used to play a variety of antics, and he never

could be got to understand that he ought to desist from so doing. He is reputed, in the

neighbourhood of the place where he has chiefly resided from his infancy, to be deranged

in his mind. The children used to hoot, and follow him through the Street, and he has

been currently known from his childhood by the name of Daft Davie.

courts, doctors, and insanity defences in 18th and early 19th century scotland

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