The Certification of Insanity Local Origins and Imperial

Consequences

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 Acknowledgements

It was a joke of destiny that my doctorate at the University of Toronto

coincided with one of the most difficult periods in modern history. The
day I submitted my dissertation proposal marked the beginning of the first
wave of the pandemic in Europe. Lockdowns, variants, unrests, uncer-
tainties, and international conflicts proved challenging “distractions” to
overcome. It was a long journey and I want to thank my exceptional
Ph.D. Committee for providing incredible guidance since the very begin-
ning. Thanks to Mark Solovey, Marga Vicedo, Geoffrey Reaume, and Jim
Phillips for supporting and comforting me throughout the process.
Several awards and fellowships helped this book become a reality. I
want to acknowledge the generous contribution of the Government of
Ontario for funding my graduate studies at the University of Toronto
through an Ontario Trillium Scholarship. The Osgoode Society for Cana-
dian Legal History opened the doors of legal history by awarding me
a Roy McMurtry Fellowship for the period 2019–2020. The Amer-
ican Historical Association’s Littleton-Griswold Research Grant (2021)
furthered my interests in comparative approaches to law and policy.
Research at the Archives of Ontario was supported by a Hewton and
a Griffin Archival Research Award provided by the Friends of the Centre
for Addiction and Mental Health (CAMH) Archives from 2019 to 2022.
A Northrop Frye Center Doctoral Fellowship 2021–2022 gave me the
chance to share my work with Victoria University’s inspiring community
of scholars.

v
vi ACKNOWLEDGEMENTS

I want to thank the World Health Organization’s Mental Health Unit

for welcoming me into the MindBank team. I am especially grateful to the
University of Nottingham’s Centre for Mental Health and Human Rights
and its director, Peter Bartlett, for sharing his views about the history of
welfare legislation in Britain and for connecting my research with contem-
porary issues in disability and mental health. I am also thankful to the
H-Madness community which has proven an exciting hub for debating
social and medical sciences.
Parts of this books have been presented at various conferences. Particu-
larly important was the “Law and Madness in Dialogue” panel organized
at the Canadian Society for the History of Medicine and Nursing
(Vancouver 2019) and the Expert Colloquium on Mental Health History
(Montreal 2023). Thanks to David Wright, Akihito Suzuki, James Moran,
Bernhard Leitner, and Susan Lamb for the engaging conversations.
I also want to thank the staff of the Archives of Ontario for their guid-
ance over the institutional records of Toronto’s past. A special thanks to
John Court whose friendship and insights have shaped my understanding
of mental health services in Ontario.
Lastly, I want to thank my partner in life, Francesca, for her unwavering
support on both sides of the Atlantic. I wouldn’t—indeed I couldn’t—
have done it without you.
 Contents

1 Introduction 1
Madness, Power, and Empire 3
The Certification of Lunacy Around the World 14
Local Origins and Imperial Consequences 33
2 The Medical Certificate: A Technology of Inspection,
Identification, and Expertise 37
Introduction 37
Technologies of Fact-Finding 42
Under the Hands and Seals 50
Skilled Observers 58
Conclusions 70
3 Upon the Following Grounds: The Victorian System
of Certification 73
Introduction 73
Liberty, Trade, and Privacy 80
Regulating Medical Power 93
Proofs on Paper 104
Conclusions 113
4 Building Expert Certifiers: The Rise of Psychological
Physicians 115
Introduction 115
Expertise and Certification 121

vii
viii CONTENTS

The Risk of Certifying 127

Instructing Certifiers 136
Conclusions 146
5 Facts of Insanity Around the World: Towards
an Imperial History of Lunacy Certificates 149
Introduction 149
Charting an Imperial Phenomenon 157
An Imperial Technology 172
Bringing Facts to the Pacific 182
Conclusions 193
6 A Choreography of Consensus: The Use of Hybrid
Templates in Ontario 195
Introduction 195
The Rise of Form K 203
The Art of Certifying 214
Are Three Better Than Two? 224
Conclusions 231
7 Epilogue 233

Appendices 249
References 285
Index 325
 List of Figures

Fig. 1.1 Map showing actors involved in committal decisions

in the United States in the 1910s 10
Fig. 1.2 Map showing actors involved in committal decisions
across the European continent 12
Fig. 2.1 1743 Justices Commitment Act, England and Wales,
certificate for calling a person before a JP 54
Fig. 2.2 1786 Shipping Act, England and Wales, certificate
for registering a vessel 55
Fig. 2.3 1802 Aliens Act, England and Wales, certificate
for incoming immigrants 56
Fig. 2.4 1844 Factories Act, England and Wales, school certificate
for employed children 65
Fig. 2.5 1833 Labour of Children in Factories Act, England
and Wales, surgical certificate 65
Fig. 2.6 1844 Factories Act, England and Wales, refused surgical
certificate for children in factories 66
Fig. 2.7 1853 Vaccination Act, England and Wales, medical
certificates of completed or refused vaccination 67
Fig. 2.8 1846 Nuisances Removal Act, England and Wales,
medical certificate of unhealthy places 68
Fig. 3.1 1807 Certificate for private madhouses in England
and Wales, Anthony Highmore, A Treatise on the Law
of Idiocy and Lunacy (London: Fleet Street, 1807), 236 85

ix
x LIST OF FIGURES

Fig. 3.2 1811 Certificate for private madhouses in England

and Wales, Joseph Mason Cox, Practical Observations
on Insanity (Philadelphia, PA: Thomas Dobson, 1811),
198 86
Fig. 3.3 1780 Form of admission used at St. Luke’s
Hospital in London since 1751, Anonymous, Reasons
for the Establishing and Further Encouragement of St.
Luke’s Hospital for Lunaticks. Together with the Rules
and Orders for the Government Thereof (London,
1780), 38 92
Fig. 3.4 1815 Defective certificate used by Dr William Finch at his
madhouse in Laverstock, Select Committee on Madhouses
in England, Report (London: House of Commons,
1815), 50 95
Fig. 3.5 1815 Form of certificate suggested by the Royal College
of Physicians for private madhouses, Select Committee
on Madhouses in England, Report (London: House
of Commons, 1815), 69 96
Fig. 3.6 1853 Lunatic Asylums Act, England and Wales, medical
certificate of insanity 112
Fig. 5.1 1858 Certificate of medical officer for asylum committals
used in British India, Indian Lunatic Asylums Act, 1858,
c. 36, s. 4 & 7 151
Fig. 5.2 Map tracing the diffusion of the Victorian system
of certification from 1853 to the 1960s 158
Fig. 5.3 1875 Certificate of insanity used in Prince Edward Island,
S.P.E.I., 1875, c. 6 159
Fig. 5.4 1885 Modèle I used for asylum committals in Belgium,
Théophile Wouters, Du Régime des Aliénés en Belgique:
Commentaire Pratique de la Loi du 28 Décembre
1873–25 Janvier 1874 (Gand: Hoste, 1892), 201 160
Fig. 5.5 1857 Form of medical certificate used in Scotland, 20 &
21 Vict., c. 71, s. 34 and 35, Schedule D 164
Fig. 5.6 1902 Certificate of Lunacy used in Sierra Leone, Lunacy
Ordinance, 1902, Sierra Leone, No. 157, Form A 166
Fig. 5.7 1891 Medical Certificate for asylum committals used
in Cape Colony, The Lunacy Act, 1891, Cape Colony,
No. 35, Form No. 3 167
Fig. 5.8 1862 Form of medical certificate used in Jamaica, Act
for the Government of the New Lunatic Asylum, 1862,
Jamaica, c. 9; or 25 Vict., c. 9, s. 16, Schedule B 171
 LIST OF FIGURES xi

Fig. 5.9 1864 Form of medical certificate used in Nova Scotia

and popularized by the Colonial Office’s report,
Colonial Office, Colonial Hospitals and Lunatic Asylums
(London: Harrison and Sons, 1864), 20 177
Fig. 5.10 1859 Form of medical certificate used for committing
patients in Nova Scotia, Provincial Hospital for the Insane,
Halifax, Nova Scotia, Third Report of the Medical
Superintendent (Halifax, NS: E.M. McDonald, 1860),
24. Also S.N.S., 1872, c. 3, s. 20, Schedule B 180
Fig. 5.11 Photograph of Dr Ernest Heinrich Geyer in 1860 circa,
the State Library of South Australia, B5678 185
Fig. 5.12 1864 Form of medical certificate used in in South
Australia, Lunatics Act, 1864, South Australia; or 27 &
28 Vict., c. 21, Schedule C 192
Fig. 6.1 1873 Form K certificate of insanity used in Ontario
from 1873 to 1883, S.O., 1873, c. 31 207
 CHAPTER 1

Introduction

Philip Marlow Turner was a twenty-five-year-old gentleman living in

Hobart, Tasmania.1 A single child from an affluent family, Episcopalian,
he had no particular employment or occupation. In the spring of 1877,
Philip experienced an unspecified “attack of insanity”, which took his rela-
tives and friends by surprise. Worried, Philip’s father reached out for a
medical opinion and opened up about the possibility of sending his son to
the New Norfolk Hospital for the Insane, a public institution northwest
of the Tasmanian capital.2 Two local doctors came to assess the condition
of the young Australian.
On 2 March 1877 thus began the medical certification of Philip M.
Turner. As he and his family were about to learn, the certification of

1 Tasmanian Archives, Royal Derwent Hospital, Patient Records and Admission Papers,
File HSD285-2-483.
2 For a history of this institution, see Karen Knight and Liz McQuilkin, Renovating
Madness: Poems of Willow Court and the Royal Derwent Hospital, New Norfolk, Tasmania
(North Hobart: Walleah Press, 2018); Anthea Vreugdenhil, “‘Incoherent and violent if
crossed’: The admission of older people to the New Norfolk Lunatic Asylum in the
nineteenth century”, Health and History (2012), 14: 2, 91–111.

© The Author(s), under exclusive license to Springer Nature 1

Switzerland AG 2023
F. M. Sposini, The Certification of Insanity, Mental Health in Historical
Perspective, https://doi.org/10.1007/978-3-031-42742-8_1
2 F. M. SPOSINI

insanity in Tasmania, and across the British Empire, was a strictly regu-
lated procedure involving a precise number of actors, actions, and words.3
To make lunacy official, a peculiar choreography was to be put in place.
Dr Denis Butler arrived first at Philip’s residence in Hobart. There
he examined the gentleman alone, “separately from any other medical
practitioner”, free from the interference of colleagues or relatives. The
interview convinced the doctor that Philip was suffering from mental
anguish and that he could benefit from a period of treatment at the New
Norfolk asylum. Dr Butler based his opinion upon a variety of “facts”
that he collected from different sources. His certificate specified a list
of “facts indicating insanity personally observed”. In particular, he noted
the patient’s “general aspect” and his “delusion that there was someone
desirous of producing him a personal injury”. From conversation with
Philip’s mother, Dr Butler also reported “other facts indicating insanity”,
such as that the young Tasmanian had “caused greatest anxiety to his
friends” due to his recent habit of “carrying a knife with himself”.
Done with the examination, Dr Butler signed the paper, collected his
fee, and left the room. Then came a second practitioner, Dr Ronald Bright
who, like his colleague, interviewed Philip alone and offered a written
account of the patient’s mental status. This time Dr Bright personally
observed facts of insanity related to Philip’s “excitable, restless look” and
his “suspicion of everyone around him”. Relatives and friends supplied
the physician with additional proofs of derangement, including the young
man’s custom of “wandering about at night” and “possessing large quan-
tities of goods”. This evidence persuaded Dr Bright to fill out another
certificate declaring that the patient was a “person of unsound mind to
be taken in charge of and detained under care and treatment”. Philip was
then admitted to the New Norfolk asylum in Tasmania on 2 March 1877.
Thousands of miles away, in the same month, and even in the
same week, the same choreography for certifying lunacy was enacted in
Toronto, Canada.4 On 5 March 1877, a thirty-year-old woman named
Jessie E. came to the shores of Lake Ontario accompanied by her husband

3 For the certification process found in Tasmania during this period, see Insane Persons
Hospital Act, 1858, Tasmania; or 22 Vict., c. 23.
4 For the certification process found in Ontario during this period, see S.O., 1873, c.
31.
 1 INTRODUCTION 3

all the way from the province of Manitoba.5 Jessie was described as a
woman of “sober and industrious habits” who was going through some
troubles after the death of her only child and sister. Saddened by her
persistent distress, Jessie’s husband, John, sought professional help and
was willing to pay $ 4 a week for sending his wife to the Provincial
Lunatic Asylum in Toronto, one of the largest public institutions in North
America located on the western outskirts of the growing metropolis.6
Before she could be admitted, Jessie was certified as a lunatic by three
doctors at Queen Street West.
Dr Albert Bouverman, a local physician practising near the city
harbour, first examined the woman separately from other colleagues. In a
matter of minutes, he made up his mind about the patient’s condition as
he personally observed some important facts. “In a short conversation”,
noted Dr Bouverman in his certificate, “I found that she is extremely
depressed for the death of her child and that she is unable to recognize her
husband”. The other two practitioners offered an analogous depiction,
supported by the account of her husband who, in turn, provided them
with “other facts indicating insanity” related to the woman’s “inability
to perform her house duties”. Next came Dr William Metcalf. He inter-
viewed Jessie by himself and reported that she appeared “reticent and
suspicious, not inclined into conversation”. A third physician, Dr Joseph
Workman, the former superintendent of the Toronto lunatic asylum,
completed the process by stating in his certificate that Jessie manifested
“delusions on the subject of poisoning”. Such facts of insanity proved
sufficient for pronouncing her a “person of unsound mind” and for
sanctioning her admission to the Toronto asylum on 5 March 1877.

Madness, Power, and Empire

These cases from Australia and Canada shed light on the phenomenon
of lunacy certification. The committal of Philip Turner in Tasmania and
Jessie E. in Ontario exemplifies the circulation of practices for deciding
about a person’s sanity and liberty during the second half of the nine-
teenth century. The events leading to the confinement of Philip and Jessie

5 Archives of Ontario, Queen Street Mental Hospital Case and Records, Box RG 10-
268, B296103, File 4796.
6 See Geoffrey Reaume, Remembrance of Patients Past: Patient Life at the Toronto
Hospital for the Insane, 1870–1940 (Toronto: Oxford University Press, 1997).
4 F. M. SPOSINI

took place within just a few days of each other, with some notable differ-
ences between the two. Philip was a gentleman who enjoyed a bountiful
lifestyle in the city of Hobart whereas Jessie worked with her family on a
rural farm located in the Canadian prairies. Two practitioners visited the
Tasmanian man in the comfort of his house while the woman answered
the questions of three doctors who performed their examination near the
Toronto asylum. Moreover, if Philip’s distress was connected to an unjus-
tified fear that someone was about to hurt him, Jessie’s troubles seemed
related to the loss of her loved ones.
In spite of such differences, however, the medico-legal procedure that
established both Philip’s and Jessie’s unsoundness was essentially iden-
tical. From the sunny shores of Hobart to the windy streets of Toronto,
the certification of a person’s insanity operated in accordance with a
series of principles that first came into being in Victorian England and
then spread around the globe.7 Over the second half of the nineteenth
century, most jurisdictions under British rule followed a statutory proce-
dure for the certification of lunacy which gave medical practitioners the
responsibility to formulate an independent judgement based on written
evidence. Regardless of their training, whether they resided in Tasmania
or in Ontario, doctors were explicitly required by the law to examine the
patient face to face, away from the potential intrusion of hearsay accounts.
An independent assessment was necessary for reaching a verdict about
the person’s mental status before granting admission into a public or
private asylum.8 After completing the interview, practitioners were to fill
out a standardized template with two separate sections where they wrote,
in plain language, “facts of insanity personally observed” and “facts of
insanity communicated by others”.
These “medical certificates of insanity”, commonly called “lunacy
certificates”, were legal documents that officially declared an individual to
be of “unsound mind” and a “proper person to be detained”.9 Doctors
received a fee for their service and were required to show “due care and
diligence” in performing the examination; if they failed to do so, they

7 See 8 & 9 Vict., c. 126, s. 46 and 16 & 17 Vict., c. 96, s. 75.

8 See, for instance, George Fielding Blandford, Insanity and Its Treatment: Lectures on
the Treatment, Medical and Legal of Insane Patients (Edinburgh: Oliver & Boyd, 1877),
389.
9 See Report from the Select Committee on Lunacy Law; So Far as Regards the Security
Afforded by It Against Violations of Personal Liberty (London, 1877), 36.
 1 INTRODUCTION 5

risked being sued for culpable negligence.10 By the time Philip and Jessie
received their certificates, more than 44,000 people had gone through the
same process in England and Wales.11 When the first census of the British
Empire was published in 1901, the number of “certified insane” across
colonies, dominions, and protectorates was estimated around 300,000.12
The certification of lunacy was therefore an extensive phenomenon of
imperial, if not global, significance.
This book examines the certification of insanity in the British Empire
during the second half of the nineteenth century. Considering a variety
of legal, archival, and published sources, it traces the origins and dissem-
ination of a peculiar method for determining lunacy, which I shall define
as the “Victorian system”. Shaped by the dynamics surrounding the clan-
destine committal of wealthy Londoners in private madhouses, this system
featured three distinctive tenets: standardized forms, independent medical
examinations, and written facts of insanity. Despite their complexity,
Victorian certificates achieved a remarkable success. Not only did they
survive in the United Kingdom for more than a century, but they also
served as a model for the development of mental health laws around the
world. By the start of the Second World War, more than seventy colo-
nial and non-colonial jurisdictions had adopted the Victorian formula for
making lunacy official, and some countries still rely on it to this very day.
Certificates of insanity remained a key component of healthcare
services in the British Empire throughout the so-called institutional
period of psychiatry.13 In England and Wales, they were initially conceived
for private madhouses beginning in 1774. In time, they became manda-
tory for all people confined in public asylums (1811), criminal lunatic
asylums (1860), workhouses (1867), for “idiot and imbecile children”
admitted to training schools (1886), and for all “mental defectives”

10 A notorious case was 1862 Hall v Semple, Court of Queen’s Bench, 176 E.R. 151.
11 Commissioners in Lunacy, Thirty-Second Annual Report to the Lord Chancellor
(London: House of Commons, 1878), 212.
12 General Register Office, Census of the British Empire (London: Darling and Son,
1901), LVII.
13 For the “institutional period of psychiatry”, see David Wright, “Asylums and alienists:
The institutional foundations of psychiatry, 1760–1914”, in The Palgrave Handbook of the
History of Human Sciences, ed. David McCallum (Singapore: Palgrave Macmillan, 2022),
1–20.
6 F. M. SPOSINI

placed in institutions or rural farms (1913).14 Even persons treated in

a domestic setting were not excluded from the machinery of Victo-
rian lunacy laws. Up until 1959, “single lunatics”, as they were called,
were also “placed under certificates as fitting objects of medical care and
control”.15 Considering the vital role of such documents all over the
empire, it is not surprising that the expression “certifiably insane” has
survived for so long in the English language.16
Quantification was one of the key reasons for having all patients certi-
fied. Across the colonial world, certificates transformed persons into cases
as they provided the material basis for tracking the number of “notified
lunatics” living in a given territory.17 At the central level in London,
the office of the Lunacy Commissioners and its successor, the Board of
Control for the Feeble-Minded, kept records and compiled annual statis-
tics based on the number of certified individuals from 1845 until 1939.18
The resulting bureaucracy was massive and ever increasing. If in 1857
Lunacy Commissioners recorded 21,344 persons under care in England
and Wales, by 1937 this number had skyrocketed to 157,353.19 Such
trends provoked great anxiety about curability, public spending, and racial

14 14 Geo. III, c. 49; 51 Geo III, c. 79; 23 & 24 Vict., c. 75; 30 & 31 Vict., c. 6;
49 & 50 Vict., c. 25; 3 & 4, Geo V, c. 28.
15 Commissioners in Lunacy, Eighth Annual Report to the Lord Chancellor (London:
House of Commons, 1854), 35.
16 References to certificates of insanity can also be found in popular culture across
the English-speaking world. Just to mention an example, the “H. P. Lovecraft Historical
Society” allows internet users to fill out their own certificate of insanity for just $ 6.50,
see store.hplhs.org/products/certificates-of-insanity (accessed 20 May 2022). As we will
see, nineteenth-century certificates were much more expensive than this.
17 See for instance the “Papers Relating to Her Majesty’s Colonial Possessions”
published annually by the Colonial Office and including the number of sick and infirm
individuals residing in the colonies. For secondary sources, see Sally Swartz, “The black
insane in the Cape, 1891–1920”, Journal of Southern African Studies (1995), 21: 3,
399–415. More generally on the role of documents in imperial administration, see Alan
Lester, Imperial Networks: Creating Identities in Nineteenth-Century South Africa and
Britain (London: Routledge, 2001).
18 D. J. Mellett, “Bureaucracy and mental illness: The Commissioners in Lunacy 1845–
1890”, Medical History (1981), 25: 2, 245–255.
19 Commissioners in Lunacy, Eleventh Annual Report to the Lord Chancellor (London:
House of Commons, 1857), 53; The Board of Control for Lunacy and Feeble-Minded,
Twenty-Fourth Annual Report (London: His Majesty’s Stationary Office, 1938), 11.
 1 INTRODUCTION 7

degeneration.20 Equivalent boards of inspection existed in colonies and

more so in dominions, thus creating a vast archive for the documenta-
tion of deviance.21 As historian Theodore Porter recently noted, asylum
documents like registers and, I shall add, lunacy certificates set the stage
for eugenic concerns about the “menace of the feebleminded” in the first
half of the twentieth century.22 Certification was thus a vast phenomenon
that informed social statistics and touched deeply into the most valuable
asset of Crown’s subjects: “British liberty”.23
Certificates had great power as they could deprive people of their
constitutional rights, potentially forever.24 One of the starkest features of
such papers was their indefinite validity. Lunacy acts passed in Britain and
in the colonies during the nineteenth century set a precise framework for
the administration of mental health services, including the required docu-
mentation for admission and discharge.25 While policy-makers took great
care in defining templates, roles, and duties, they willingly framed certi-
fication as a procedure with no temporal limits. As the secretary of the
Lunacy Commissioners in London Charles Perceval explained in 1877,
certificates were “perpetual” since they lasted “through all time”.26 There
were limitations related to the geographical extension and a two-week
period for amendments, but beside these cautions, a personal examination

20 Commissioners in Lunacy, Special Report to the Lord Chancellor on the Alleged

Increase of Insanity (London: Eyre and Spottiswoode, 1897), 1. See also Inter-
Departmental Committee on Physical Deterioration, Volume 1. Report and Appendix
(London: Wyman & Sons, 1904).
21 In Ontario, for instance, the Inspectorate of Public Charities for the Province dates
back to 1868, see S.O., 1868, c. 31.
22 Theodore Porter, Genetics in the Madhouse: The Unknown History of Human Heredity
(Princeton, NJ: Princeton University Press, 2018); also Theodore Porter, “Observations,
narrative, and data in nineteenth-century asylum medicine”, Historical Studies in the
Natural Sciences (2018), 48: 5, 594–603.
23 See, for instance, William Blackstone, Commentaries on the Laws of England
(London: Clarendon Press, 1768); John Stuart Mill, On Liberty (Boston, MA: Ticknor
and Fields, 1863).
24 Henry Montague Randall Pope, A Treatise on the Law and Practice of Lunacy
(London: Law Publisher Chancery Lane, Fleet Street, 1877), 5.
25 Peter Bartlett, “Legal madness in the nineteenth century”, Social History of Medicine
(2001), 14: 1, 107–131.
26 Report from the Select Committee on Lunacy Law; So Far as It Regards the Security
Afforded by It Against Violations of Personal Liberty (London: House of Commons,
1877), 36.
8 F. M. SPOSINI

by one or two doctors could authorize the confinement of an individual

for life.27 Unless advised by inspectors or Justices of the Peace, medical
officers had the right to keep all certified persons under care and custody
until they saw fit. Only an order of discharge approved by superinten-
dents and the consent of family members could cancel the admission
papers.28 No wonder that patients across the empire feared the immediate
and long-term stigmatizing effects of certification.29 As Lord Shaftesbury
noted as early as 1859, one of the most significant obstacles for accessing
mental health services in Britain and in the colonies was that certificates
“at once fixed the taint of insanity upon the family”.30
For decades, doctors and policy-makers tried to persuade the public
about the benefits of certification, but with little success. Restraining a
person for the purpose of treatment was a delicate business of no easy
solution which required a careful balance over the authority of legal and
expert witnesses.31 Then as now, discussions about forceful committals
split into two camps.32 On the one hand, many observers took a “legal-
istic approach”, by highlighting the coercive nature of mental institutions
and lobbying for the protection of personal liberty through a metic-
ulous admission procedure. On the other, another group sided for a
“medicalistic approach”, which emphasized the curative aspect of psychi-
atric treatment and thus advocated for a swift committal maximizing

27 Though this was rarely the case, see David Wright, James Moran, and Sean Gouglas,
“The confinement of the insane in Victorian Canada: The Hamilton and Toronto asylums,
c. 1861–1891”, in The Confinement of the Insane, 1800–1965: International Perspectives,
eds. Roy Porter and David Wright (Cambridge: Cambridge University Press, 2003), 100–
128.
28 Report of the Royal Commission on the Law Relating to Mental Illness and Mental
Deficiency, 1954–1957 (London: Her Majesty’s Stationary Office, 1957), 98.
29 See for instance John T. Arlidge, On the State of Lunacy and the Legal Provision for
the Insane (London: John Churchill, 1859), 34.
30 Report from the Select Committee on Lunatics; Together with the Proceedings of
the Committee, Minutes of Evidence, Appendix and Index (London, August 1859), 23.
31 For a history of human rights, see Lynn Hunt, Inventing Human Rights: A History
(New York, NY: W. W. Norton & Company, 2007).
32 See particularly, Clive Unsworth, The Politics of Mental Health Legislation (London:
Clarendon Press, 1987) and Phil Fennell, Treatment Without Consent: Law, Psychiatry
and the Treatment of Mentally Disordered People Since 1845 (New York, NY: Routledge,
1996).
 1 INTRODUCTION 9

the chances of recovery.33 Given the intricate nature of compulsory

care, different traditions around the world relied on various methods
for adjudicating a person’s mental status, including trials by peers, a
judge’s verdict, or the summary order of a police authority.34 Unsur-
prisingly, there was never a universal formula for regulating confinement
throughout the institutional period of psychiatry; nor is there one today.35
Yet by the mid-nineteenth century, lawmakers increasingly agreed on
the necessity of at least one medical practitioner for declaring a person
insane.36 As lunacy appeared more and more a phenomenon pertaining
to the secular world, many Western jurisdictions accepted the participa-
tion of doctors in committal decisions as an addition or substitute to the
traditional authority reserved for juries or Justices of the Peace. In the
United States, for instance, this transition took place over the course of
a generation. While nine states of the union did not require a medical
opinion in the 1880s, this number fell precipitously in the following years,
with virtually all states acknowledging the priority of medical judgement
by 1910 (Fig. 1.1).37

33 Such a distinction between “legalism” and “medicalism” also underlies current

debates in mental health policy, see Tom Butler, Mental Health, Social Policy and the Law
(London: The Macmillan Press Ltd, 1985); Hans Joachim Salize, Harald Dreßing, and
Monika Peitz, Compulsory Admission and Involuntary Treatment of Mentally Ill Patients-
Legislation and Practice in EU-Member States Final Report Compulsory Admission and
Involuntary Treatment of Mentally Ill Patients-Legislation and Practice in EU-Member
States (Mannheim, 2002).
34 Michael Lobban, Imperial Incarceration: Detention Without Trial in the Making of
British Colonial Africa (Cambridge: Cambridge University Press, 2021); Douglas Hay
and Paul Craven, eds., Masters, Servants, and Magistrates in Britain and the Empire,
1562–1955 (Chapel Hill, NC: University of North Carolina Press, 2014).
35 See, for instance, Dainius Pūras, Report of the UN Special Rapporteur on Mental
Health and Human Rights: Setting a Rights-Based Global Agenda (2020).
36 Henri Tulié, La Folie et la Loi (Paris: Librairie Centrale, 1866); George A. Tucker,
Lunacy in Many Lands (Sydney: Charles Potter, 1887); John Ordronaux, Commentaries
on the Lunacy Laws of New York, and on the Judicial Aspects of Insanity at Common
Law and in Equity, Including Procedure, as Expounded in England and the United States
(Albany, NY: J. D. Parsons, 1878); Emil Kraepelin, “The duty of the state in the care of
the insane”, American Journal of Insanity (1900), 57: 2, 235–280.
37 For a legislative comparison during the pre-First World War period in the United
States, see Thomas S. Clouston and Charles F. Folsom, Clinical Lectures on Mental
Diseases to which is added an Abstract of the Statutes of the United States and of the Several
States and Territories, Relating to the Custody of the Insane (Philadelphia, PA: H.C. Lea’s
Son & Co, 1884); George Leib Harrison, Legislation on Insanity. A Collection of all the