The Law of Insanity.
On November 14, 1541, Jane Boleyn entered the Tower of London. She quickly realized that her position was hopeless. Archbishop Cranmer, who was in charge of her interrogation presented her with a letter written to Thomas Culpepper in Queen Catherine’s hand. “Come when my Lady Rochford is here, for then I shall be at leisure to be at your commandment, ” read one line of the letter. It was irrefutable proof that Jane was involved in the affair. All was lost, and Jane knew it. After just three days in the Tower, she suffered a breakdown and was “seized by a fit of madness (frenesi) by which her brain was affected, ” as the imperial ambassador Chapuys put it.
Her mind broken, Jane was released into the custody and care of the Lord Admiral’s wife, Anne Russell. Since the fourteenth century, English law specifically prohibited anyone certified insane from standing trial, let alone executed. This included anyone who had gone mad after the event. Instead, most lunatics not deemed a threat to society were allowed to return home or else imprisoned until the monarch pardoned them.
There were several reasons for this. Firstly, a felon was supposed to feel their punishment. However, if a person was insane, they were unlikely to appreciate their castigation. Secondly, a criminal had to have a mensa rea- a guilty mind. In other words, they had to have knowingly have committed a crime. An insane person could not have a mensa rea because they were not in control of their actions. However, crucially, English law regarded any person who was mad to have already been punished by nature of furiosus solo fitrere punitur. In other words “a madman is punished by his madness alone.”
Henry sent his own physicians to assess the state of Lady Rochford’s mind and determine if there was any chance of her regaining her sanity so that “he [the king] may afterward have her executed as an example.” The news was not good. The physicians declared there was little chance Jane Boleyn would make a full recovery.
However, Henry was determined that Jane should die. So, on February 9, 1542, Jane was removed from the care of Anne Russell and taken back to the Tower. In the meantime, the King was busy pushing a bill of attainder through parliament that declared Jane and the Queen guilty of treason without a trial. At the same time, Henry also pushed through a new act of parliament that which allowed “a person becoming insane after the supposed commission of treason, might be tried, or losing his rational faculties after attainder, might be executed.”