The Mind of a Moral Agent: Scottish
Common Sense and the Problem of
Responsibility in Nineteenth-Century
American Law

Man we are told was created in the image of his Maker. Now this could not have been the case were there not some things mysterious and incomprehensible in the structure and functions of his mind, as well as his body.
Benjamin Rush

Addressing an audience of medical students in 1810, the Philadelphia physician Benjamin Rush[1] recounted a recent call he had made, in consultation with a Dr. Physick,[2]to the residence of “a lady in this city, equally admired for her amiable virtues and elegant accomplishments.” As they were seated in the parlor, she related her medical complaint: “I am blessed with one of the best of husbands, and a family of promising children, whom I love most affectionately,” she began, “and yet, in the paroxysms of my disease, and with the perfect exercise of my reason, I wish for an ax, that I might split open their heads, and lay them all dead at my feet.” Upon hearing this terrible confession, Rush was convinced that he was faced with a case of “moral derangement.” By this, he meant “that state of mind in which the passions act involuntarily through the instrumentality of the will,” a condition he linked to an underlying physical disorder. Since this form of derangement was most clearly manifest in the commission of crime, Rush explained, it was invariably mistaken for ordinary depravity in courts of law, with tragic results. In fact, he reckoned that if his patient were to succumb to her morbid impulses, her fate would be sealed: all her virtues and accomplishments would prove insufficient to save her “from expiating her disease by an ignominious death.” Rush further observed that there was cause for concern on the civil side of the docket as well, for it appeared that the morally deranged were left free to make wholly unnatural dispositions of their estates, to the great injury of their unoffending families. In light of this state of affairs, he charged his students with broader “objects and duties” than simply caring for their patients. It was, he insisted, a physician’s civic obligation to extend the benefits of his science “to the protection of property and life” through the cultivation of a distinctly “medical jurisprudence.”[3]

Following his own prescription, Rush published Medical Inquiries and Observations, upon the Diseases of the Mind, constituting the first such study produced by an American physician. Directed to the general public as well as medical students, the treatise provided a systematic analysis of the “cause, forms, and symptoms” of mental disorders, by means of which the author sought “to rescue persons affected with them from the arm of the law, and to render them subjects of the kind and lenient hand of medicine.” In thus defining the province of medical jurisprudence, Rush was quite clearly attempting to advance the interests of his profession, though there is no reason to doubt that he proceeded in earnest, with the ultimate aim of serving “the cause of humanity.”[4] His Medical Inquiries enjoyed wide circulation in the early republic, going through five editions between 1812 and 1835, and inspiring others—lawyers as well as doctors—to build upon the foundations of this pioneering work.[5] This article examines the accumulating mass of medico-legal literature, drawing particular attention to a profusion of treatises and tracts at mid-century, which addressed the central problem presented by Rush in his treatise—the attribution of responsibility. Historians who have approached this body of discourse have tended to portray medical and legal participants as engaged in an ill-fated venture, destined to fail on account of their fundamentally incompatible ways of conceptualizing the human subject. As the conventional story is told, nineteenth-century lawyers remained beholden to traditional notions of “free will” and “individual responsibility,” while their colleagues in medicine subscribed to a “deterministic discourse” which explained human behavior in physiological terms that seemingly left little space for moral agency.[6] In casting doctors and lawyers in these terms, historians have captured important strains and tensions in the inter-professional dialogue sustained over the course of the nineteenth century, but their approach has nonetheless worked to obscure the common philosophical and religious commitments that the two professions shared. In addition, it has left us with the false impression that American jurists were only superficially influenced by medical writers—that the jurists tended, on the whole, to discount or dismiss professional medical advice. However, a closer reading of the major works produced by doctors and lawyers in the heyday of medical jurisprudence—from 1800 to 1860—tells a different story, one of far greater mutual influence. More particularly, I will argue that the legal construction of responsible agency in the nineteenth century grew directly out of the dialogue between doctors and lawyers, and that it was largely in response to medical critics that lawyers were forced to clarify what they meant when they determined that any given individual was liable for his acts.

The story this article tells begins in the post-revolutionary era and situates lawyers and doctors within a common intellectual framework. Part I examines the Common Sense philosophy of the Scottish Enlightenment, in which most college-educated Americans of the era were schooled. Writers within this liberal Protestant tradition primarily relied upon introspection as they proceeded to elaborate universal “laws of the mind” that dictated how human beings ought to act. By this method, they were able to scientifically confirm that God benevolently had endowed all of his creatures with a set of cognitive, volitional, and moral faculties that enabled them to understand and conform to the dictates of divine and human laws. These indubitable “facts of consciousness,” in turn, constituted the grounds of human responsibility, according to the philosophers. It was with this basic model of the “moral and accountable agent” in mind that many antebellum lawyers and doctors went about their professional work. As the Scottish philosophy was transposed into nineteenth-century American jurisprudence, we see in Part II that it generated certain perplexities about legal responsibility. For the Common Sense way of thinking about human agency and accountability encouraged the identification of freedom with conventional rationality and morality, pointing jurists toward the paradoxical conclusion that irrational and immoral actors were less than entirely free and (therefore) accountable for their actions—that the only persons who could be held fully responsible were those who were constitutionally incapable of violating the laws of God and man.

Part III examines the various attempts of medical men to address this attributive dilemma. The analysis focuses on a group of American physicians who specialized in the diagnosis and treatment of “mental alienation.” These self-styled “alienists” served as superintendents of the growing number of insane asylums and hospitals that dotted the early republican American landscape.[7] Working from Enlightenment premises, they tended to conceive of mental disease in far broader terms than doctors in previous centuries. Deviant behavior that had traditionally been attributed to the innate and universal depravity of humankind would be recast by American alienists as the product of some sort of “derangement” of one or more of the mind’s mental faculties. They further observed that the conditions of life in the young republic were especially conducive to the incidence of mental disorder, suggesting there was a direct correlation between the freedoms enjoyed by their countrymen and the maladies they suffered as they over-indulged in them. Aiming to redress this public health problem (and enhance their own professional stature), the alienists began to publicize their findings in works of medical jurisprudence, which were unabashedly intended to advertise the curative effects of their scientific approach, and also designed to promote legal reform in two main directions. First, they called for the modernization of the traditional legal category of non compos mentis, urging judges to recognize the existence of a host of partial and non-intellectual disorders—classed under the heading of “moral insanity.” And second, they exposed what they regarded as lamentable inconsistencies between the civil and criminal rules of responsibility, regarding it to be especially problematic that an individual might be declared a lunatic and deprived of his property in one proceeding, only to be found criminally liable and punished in another.

Part IV considers the legal response to this burgeoning literature on medical jurisprudence. It concentrates on those American jurists who worked most strenuously to incorporate the alienists’ clinical findings into the common law of insanity. As might be expected, there is abundant evidence of frustration and ambivalence on the part of legal writers as they undertook this task. But it would be a mistake to conclude that they were primarily engaged in fending off the incursions of medical science. The concept of a moral derangement might well have seemed too deterministic to be assimilated into their legal science, but American jurists found other ways to make allowances for those who had lost command of their will. Indeed, by the last quarter of the nineteenth century, these jurists had secured a place for a quite robust notion of “insane delusion” among the bases for excuse from criminal and civil liability, and some also put forward schemes of graduated responsibility, which took greater account of the “myriad phases of mental unsoundness.” The architects of these schemes aimed to calibrate punishment to more accurately reflect a given defendant’s “distinct degree of moral culpability” for his unlawful acts, presuming all the while that his mental debility was in some measure attributable to a “prior vicious indulgence” on his own part.[8] In thus reformulating the grounds of legal responsibility, American jurists communicated a more chastened perspective on the moral capacities of humankind, but they still seemed to retain a measure of hope that these capacities might be nurtured and even recovered through the discipline of the law.

Thus we will find that a fully articulated legal model of the accountable agent was in place by 1870—one that premised liability on the fact of self-neglect, the failure to develop one’s own God-given mental faculties. To be sure, there were obvious problems with this particular way of thinking about consciousness and culpability, for its expositors never quite explained why they did not allocate at least some of the blame to parents, teachers, society, or the Divine Parent. But still the model would prove extraordinarily resilient as it was deployed in the rough and tumble world of nineteenth-century litigation.[9] And, for better or worse, it is arguably the way we continue to think about the basis of legal—if not human—responsibility.

I. The Metaphysics of Moral Government
Reflecting upon the state of the union in an 1812 letter to John Adams, a rueful Benjamin Rush was reminded of a sermon he had heard as a child, entitled “The Madness of Mankind.” The sermon was delivered in 1754 by Rush’s uncle and preceptor, the revivalist minister Samuel Finley, who compared “this World to a great Bedlam, filled with Persons strangely and variously distracted.” The minister associated these afflictions with the fallen condition of human nature and implied that a cure could only come through “earnest Pursuit of a saving Wisdom.”[10] Although these words clearly left a lasting impression upon Rush, he ultimately elected not to follow his uncle into the ministry, as he felt called “to save bodies rather than souls.” Medical study took the aspiring physician to Edinburgh, London, and Paris, where he was broadly exposed to liberal Enlightenment currents of thought and introduced to many of the leading republican figures of the day. Rush returned to his native Philadelphia an ardent revolutionary, convinced that America was “destined by heaven to exhibit to the world the perfection which the mind of man is capable of receiving from the combined operation of liberty, learning, and gospel upon it.” To hasten this process along, he synthesized principles of physiology, metaphysics, and Christianity, which were intended to guide the administration of schools, prisons, and hospitals in the new polity, with the broader aim of converting his fellow citizens into “republican machines.”[11] The physician’s confidence in his scientific method would, however, be severely tested in the decades surrounding 1800, as he perceived the dangerous spread among his countrymen of a form of insanity he called “anarchia,” and his own son fell victim to a baffling mental illness from which he would never recover. It was perhaps no wonder that Rush circled back to his uncle’s sermon late in life, even as he put the finishing touches on his seminal treatise concerning the diseases of the mind. However bold the claims it made for medical science, still the volume closed with the pious proviso that no doctor could hope to succeed “without the aid of that supernatural and mysterious remedy which it hath pleased God to unite with them in his moral government of his creatures”: his forgiveness of their sins.[12]

The peculiar melding of evangelical Calvinism, republican politics, and Enlightenment medicine forged by Rush marks him as a transitional figure, one who vividly illustrates the sorts of challenges faced by revolutionary Americans as they struggled to reconcile the new scientific findings about man’s moral nature with the orthodox doctrines of innate depravity and divine determinism that still enjoyed a certain predominance in the colonies.[13] To the end of his life, the Philadelphia physician maintained his faith in these religious tenets and steadfastly insisted that the true principles of metaphysics and physiology could never conflict with Scripture. And yet even Rush was moved to modify his Calvinism in one critical respect: he ultimately adopted the doctrine of universal salvation, as he firmly concluded it could be no part of God’s purpose to call some men into existence only “to endure the pains of eternal misery.”[14] By the time he was laid to rest in 1813, the intellectual forces of liberal humanism appeared to be penetrating ever deeper into Calvinist strongholds, prompting more thoroughgoing reconsideration of the metaphysics of moral government—not only on the part of ministers and theologians, but politicians, lawyers, physicians, and other “men of affairs” as well. Given the range of participants in this early republican discourse, it is rather striking to find that religious and secular leaders across denominational and occupational lines tended to converge upon the conceptions of human nature and divide judgment elaborated by the Common Sense philosophers of the Scottish Enlightenment. With the Scots, they figured God as a benevolent father who had endowed his creatures with the “moral ability” to live in accordance with his will—one who would visit the pains of eternal misery only upon those who elected to squander this divine gift.

Calvinism and the Specter of “Necessity”

As the “New Learning” of the Enlightenment philosophers increasingly circulated over the course of the eighteenth century, Americans were presented with a vision of the universe as governed by fixed, impersonal laws of cause and effect—one in which “occult” or “accidental” powers had little, if any, role to play. To be sure, God’s absolute sovereignty was formally preserved in the philosophers’ schemes: “In him all things are contained and moved.”[15] But divine superintendence of the universe was now said to be accomplished largely by way of secondary causes, which were operative in human as well as physical nature, and comprehensible through unassisted reason. This was, indeed, the guiding assumption behind most of the published studies in the newly invigorated field of philosophical psychology, including Renÿ Descartes’s Les Passions de l’ÿme (1649), Thomas Hobbes’s Leviathan (1651), John Locke’s Essay Concerning Human Understanding (1690), George Berkeley’s Treatise Concerning the Principles of Human Knowledge (1710), Francis Hutcheson’s Essay on the Nature and Conduct of the Passions (1728), David Hume’s Treatise of Human Nature (1739–40), and Adam Smith’s Theory of Moral Sentiments (1759), all of which gained notoriety in the colonies, sometimes mainly by way of their detractors.[16] Although these writers viewed the subject from a variety of perspectives, they commonly assumed that knowledge about “human nature” could be obtained through use of the same experiential and critical method that was deployed to understand the natural world. Most went on to suggest that such an inquiry could also yield prescriptive rules of conduct—that the laws of morality by which God expected men to govern themselves were discoverable through self-analysis and without any need to consult traditional religious authorities.[17]

At the core of this scientific discourse about human nature was a certain ambiguity about the meaning of the term “nature.” In some instances, it was used to denote a “human essence, understood by and in relation to the divine,” but in others it was meant to imply that human beings were, in a sense, continuous with—or even dependent upon—the natural world. The latter meaning would become the more common one in the eighteenth century, marking the gradual secularization of theories about the human condition. That is to say, there was a tendency among Enlightenment writers to recast “an essential Christian nature, originally represented in Adam and Eve,” in terms that owed more to the natural sciences, conveying a sense that individual identity was most immediately shaped by history and experience, with divine influence figuring only in the more remote background. And yet the writers differed widely among themselves as to the “relative contribution of physical and moral causes in man’s constitution,” and in their estimates of the capacity for knowledge and virtue inhering in humankind.[18] At one end of the spectrum, there was the famously pessimistic Hobbes, who portrayed humankind as hopelessly corrupt and chiefly animated by an egoistic “desire of ease, and sensual delight,” while at the other end one finds the far more flattering renderings of the “sentimentalist” British philosophers, who found a set of innate “affections” within the human mind, including a “moral sense,” which naturally—and, on some accounts, “irresistibly”—directed men toward other-regarding, righteous conduct. There was also, situated between these two perspectives, a neutral position momentously staked out by Locke, who seemed to deny the existence of an innate moral character as well as innate ideas, observing: “Of all men we are to meet with, nine parts out of ten are what they are, good or evil, useful or not, by their education.”[19]

Taken together, this body of literature introduced colonial readers to unsettling new strains of materialism, idealism, and skepticism, many of which were construed as potential threats to the Calvinist orthodoxy, as well as the social order more broadly. Something of a pamphlet war ensued as divines sounded alarms about the “atheistical” implications of “Mr. Hobbes’s necessity” and the hazards of Hume’s metaphysics, which seemed to reduce the self to a “bundle of perceptions.” Still other tracts took issue with the naturalistic mental models of such writers as Locke and Hutcheson, protesting that they effectively denied original sin and vastly overestimated the moral capacities of unregenerate man.[20] The stridency of the divines’ critiques indicated the extent to which they were truly placed on the defensive by the secular moralists; it was, more and more, the divines who felt pressed to answer for their beliefs, to show that the “blessed necessity” of Calvinism left plenty of room for human responsibility and did not render God the author of sin.[21] The most comprehensive and sophisticated such defense was provided by the theologian Jonathan Edwards in his imposing treatise on the Freedom of the Will (1754). Appealing to “common sense” as well as scriptural authority, Edwards sought to convince his audience that a self-determined will was nothing more than a “confusion of mind,” and that a deterministic metaphysics was not incompatible with the assignment of praise or blame. “Let the person come by his volition how he will,” Edwards declared, “yet, if he is able, and there is nothing in the way to hinder his pursuing and executing his will, the man is fully and perfectly free, according to the primary and common notion of freedom.” Though he labored under a “moral necessity” to act in accordance with his inclination or disposition, this did not render him any less susceptible to moral judgment. To the contrary, Edwards submitted that it was the strength of an individual’s propensity toward good or evil that determined the degree to which he was to be “esteemed or abhorred,” emphasizing as he did that no human being could be truly virtuous without the saving grace of God.[22]

This rendering of divine government would appear increasingly implausible to succeeding generations of readers, for such a vision of “the parent of the universe” hardly comported with “every man’s natural sense.” In fact, introspection seemed to yield conclusions diametrically opposed to those announced in Freedom of the Will—even within the ranks of the orthodox. “Let a man look into his own breast,” averred Calvinist minister James Dana in1770, “and he cannot but perceive inward freedom,” adding that “liberty in the mind implies self-determination.”[23] This declaration of independence may be read as a sign of the times, marking the extent to which the sovereignty of God was subtly diminished as Americans expanded the bounds of man’s “moral liberty” on the eve of their Revolution. Indeed, as evangelicals and liberals made the passage from colony to nation, they would gradually forge a new consensus about the constitution of the human mind and moral government—one grounded in the Common Sense realism of the Scottish Enlightenment.

The Consciousness of Freedom

In a society that was energetically casting aside many of the traditional props upon which virtue and order rested, even the staunchest Calvinists would ultimately come to see the virtue of Common Sense realism, as articulated by Scottish Enlightenment philosophers.[24] Bracketing all sorts of ultimate questions, the Scots focused on the “theatre of life,” assuring their audiences all the while that there was a benevolent Director behind the scenes.[25] Their philosophy spread rapidly from the 1770s, winning American adherents across not only occupational, political, and regional lines, but denominational ones as well. In accounting for its widespread appeal, historians have shown that Common Sense was especially well suited to meet the practical challenges Americans confronted in the half century after independence, as they worked out the concrete implications of their revolutionary ideals. Faced with the task of stabilizing the new republic, post-revolutionary elites recognized the need for “moral and political guidelines that were available equally and reliably to all.”[26] The Scottish philosophy delivered on this score, for it proved to be “immensely useful as an intellectually respectable way for political leaders to reestablish virtue and for religious leaders to defend Christian truth on the basis of a science unencumbered by tradition.”[27] But what truly ensured the success of the philosophy was its flexibility: it could be (and was) selectively appropriated to a variety of ends not entirely compatible with one another.[28] So it might be said that Common Sense in the American context was not so much a theoretical system as an “attitude” or “mood,” providing “broader habits of mind or reassuring conventions of thought.”[29]

The Scottish philosophy was disseminated in America primarily through the works of Thomas Reid and his popularizers, Dugald Stewart and James Beattie.[30] They defined their system of thought against the “dogmatic metaphysics and arrant theorizing” of the day, promising to illuminate the passages of human thought that had been lamentably darkened by Locke, Berkeley, and Hume. To a significant degree, the Common Sense philosophy can be read as an effort to overcome the problems of skepticism and determinism that had proved so vexing to eighteenth-century theologians and secular moralists. The Common Sense philosophers proceeded on the basis of certain “first principles” derived from the “original constitution of the human mind itself” and distinguished by their self-evidence, universality, and unavoidability. These were the sorts of propositions that “we are under a necessity to take for granted in the common concerns of life, without being able to give a reason for them.” Among the most important, according to Reid, were the principles that our mental faculties are not “fallacious” and that “we have some degree of power over our actions, and the determinations of our will.” The truth of such propositions was more or less established by the fact that “no man ever pretended to prove [them] . . . yet no man in his wits calls [them] into question.” In fact, Reid implied that the denial of common sense principles could only result from “a disorder in the constitution . . . which we call lunacy”—a diagnosis he freely extended to his philosophical opponents, as he routinely used ridicule rather than argument to answer them. So he made light of their anxious speculations about the limits of human knowledge and liberty in remarking that he had “never heard that any skeptic [had] run his head against a post . . . because he didn’t believe his eyes,” and in further observing that free will’s detractors “find themselves under a necessity of being governed by it in their practice.”[31]

The Common Sense philosophers thus sought to replace what they saw as the patent absurdities of the “speculative” philosophers with an intuitive realism. Proceeding largely by way of introspection and empirical observation, they confirmed the broad outlines of the traditional faculty psychology that had long informed the writing of Protestant theologians. Through such methods, the Scots purported to be able to demonstrate that all human beings were endowed by God with a set of innate faculties, which the philosophers conventionally divided into “intellectual” and “active” powers of the mind, even as they acknowledged complex interconnections between the two. The intellectual powers included those of judgment, perception, reflection, attention, imagination, and memory, while the active powers typically denoted the will as well as the sensibilities, passions, affections, and appetites. The “moral sense” or “conscience” often straddled these two categories, for it was described as a faculty enabling its possessor to accurately perceive the moral law and make reasoned judgments with respect to it, but such judgments were invariably accompanied by feelings of approbation or disapprobation. As they delineated these various powers, the Common Sense philosophers tended to arrange them in hierarchical order, placing the “rational” faculties of intellect, will, and “moral sense” over and above the “animal” emotions, desires, and appetites, as well as the “mechanical” habits and instincts.[32] This model was meant to be descriptive and prescriptive, establishing that it was both possible and desirable for reason to rule “the commonwealth of the mind.”[33]

In these schemes, the will was typically figured as a relatively autonomous faculty, operating independently of the other powers of mind. Although the intellectual, moral, and emotional faculties might provide “motives” or “incitements” to action, they did not determine the direction of the will. Casting aside the “vain theories” of volition espoused by Hobbes, Edwards, and other “defenders of necessity,” Reid insisted that it was simply a fact of consciousness that “we may desire what we do not will, and will what we do not desire; nay what we have a great aversion to.” Indeed, introspection provided abundant proof that these other thinkers had grossly underestimated the moral ability of humankind. All it took was a look inward, Reid implied, to see that each individual had the capacity not only to know the difference between good and evil, but also to choose the former over the latter.[34]

This “power over the determinations of the will” was, for the Common Sense philosophers, the essence of moral agency and the basis of individual responsibility. They described “moral liberty” as a “gift from God” exclusively extended to human beings, who were, in turn, bound to make “right use” of this divine offering. The individual who did so was worthy of praise while he who acted “contrary to what he knows or suspects to be his duty and his wisdom” was deserving of blame. From the perspective of Common Sense, a person “necessarily determined” to do well or ill was not, in fact, a moral agent. The man who was necessarily good “would surely be innocent and inculpable,” Reid allowed, but “he would not be entitled to the esteem and moral approbation of those who knew and believed this necessity.” By the same token, one who was ill “because he could not be otherwise” might well inspire “pity, but not disapprobation.” In Reid’s estimation, “[t]he blame is not in him, but in his constitution. If he be charged by his Maker with doing wrong, may he not expostulate with him, and say—Why has thou made me thus? . . . [F]or thou knowest that what I am charged with is thy work, and not mine.”[35]

As he imagined this interchange between God and man, Reid marked the extent of the Scots’ departure from the orthodox Calvinist worldview. Their Common Sense philosophy was built upon the presumption that God observed human norms of justice in his creation and superintendence of the universe. Accordingly, they found it difficult to sustain the traditional doctrines of divine determinism and innate depravity, for these doctrines seemed to place God in the role of a perverse puppeteer, whose human creations “do not move, but are moved by an impulse secretly conveyed, which they cannot resist.” To promulgate laws to beings that “have not the power to obey, or to require a service beyond their power, would be tyranny and injustice in the highest degree.” In the light of Reason, the Scots reconsidered the relation between divine and human agency, coming to believe that man was “not merely a tool in the hand of the master, but a servant, in the proper sense, who has a certain trust, and is accountable for the discharge of it. . . . And he must finally render an account of the talent committed to him, to the Supreme Governor and righteous Judge.”[36]

Thus as the Common Sense philosophers viewed the universe, God remained sovereign, but he exercised his rule over human beings in a manner distinct from the rest of his creation. The character of God’s rule over the non-human world was “mechanical”; he was “the sole cause and the sole agent” within it, shaping everything according to his will. Because every aspect of this world was entirely his doing, it contained no “moral attributes”—there was “no vice to be punished or abhorred, no virtue . . . to be rewarded.” Human beings were, of course, the work of God as well, but they were specially endowed with free will, intelligence, moral sense, and therefore subject to categorically different, “moral” laws. These laws were inscribed in the mind of every individual, rendering them naturally capable of living in accordance with God’s will. Nonetheless, it was repeatedly emphasized that the faculties of the human mind required cultivation. Both intellectual and moral development were said to proceed “by insensible degrees,” and the mind remained susceptible to improvement or corruption “by education, instruction, example, exercise, and by the society and conversation of men.” As Reid explained, “the seed of virtue in the mind of man, like that of a tender plant in an unkindly soil, requires care and culture in the first period of life, as well as our own exertion when we come to maturity.” This being the human condition, moral virtue would only be assured through “struggle and effort” to resist the ardent solicitations of passion, which threatened always to “blind” the understanding and “pervert” the will.[37]

The Scots were not much troubled by the apparent differences in mental development and ability from one individual to the next, confidently asserting that they would ultimately be taken into account by the benevolent Father in the meting out of rewards and punishments. By implication, all earthly tribunals were to endeavor to do the same, as far as humanly possible. For justice required that allowances be made with respect to those temporarily or permanently deprived of moral agency, as in cases involving children, madmen, and even sane adults under the influence of “absolutely irresistible” forces. And the same held true in cases involving other sorts of natural differences in individual mental endowments. As a general rule “in criminal courts as well as private judgment” a man’s responsibility extended no further than his mental and physical capacity; ideally, there would be a “perfect correspondence” between “his power over himself” and his “accountableness” under the law.[38]

Still, the Scots always hastened to add that no release from liability was warranted where the individual misconduct was the result of self-neglect, for even the offender’s “own heart” condemned him for “having done what he ought not, and might not have done.” Such an individual was said to be “guilty to himself” because he knew his descent into wrongdoing was no more irresistible than that of “our first parents.” Why God had not made human beings more perfect in the first place, Common Sense philosophers thought an insoluble mystery, refusing to speculate beyond the bounds of understanding. Instead, they underscored the potential of “human wisdom and power” to improve individuals and nations, aiming to “rouse the ambition of parents, of instructors, of lawgivers, of magistrates, of every man in his station, to contribute his part towards the accomplishment of so glorious an end[.]” Reid even entertained the possibility that unassisted human exertions might bring about a “paradise” on earth.[39]

The enthusiastic reception of this philosophy in post-revolutionary America may be considered the culmination of a rather dramatic shift in ideas about individual agency and accountability.[40] As Enlightenment conceptions of moral freedom supplanted orthodox Calvinist doctrines, human responsibility was placed upon a new basis: it was premised upon the power of self-determination. By the first quarter of the nineteenth century, Common Sense models of mental power had been adopted by Calvinists as well as more liberal theologians and ministers. Across denominational lines it had become an article of faith that human beings had the innate capacity and (therefore) the duty to strive for self-improvement and social betterment “on the whole.” Moral ability, for evangelicals and liberals alike, was now conceived as a divine endowment and essential precondition for the imposition of praise and blame within His (and any other) scheme of “moral government.” But it was nonetheless recognized that man’s moral faculties were highly susceptible to corruption, especially in the stressful environment of a newly liberated society, where the exercise of voluntary choice—in religion, politics, the marketplace, and countless other spheres of culture—was fraught with as much peril as promise. For the freedom that came with independence could be easily lost through negligence, and might never be fully realized in the first place without proper cultivation.[41]

In this exhilarating yet bewildering environment, a host of religious, medical, and lay educators and reformers took it as their self-appointed role to provide moral guidance. Believing that the very fate of America’s democratic experiment hinged on the “virtue and intelligence” of its citizenry, they drew upon Common Sense in their descriptions of the mind as well as their prescriptions for its proper development and discipline.[42] The most systematic self-help theorists were the academic moralists who occupied chairs in mental and moral philosophy at the Protestant denominational colleges, educating not only the next generation of clerics, but also those who would choose vocations in commerce, medicine, and law.[43] In their textbooks, these moralists articulated a “science of duty,” exhibiting broad consensus about the “facts of human consciousness” as well as the moral obligations that flowed from them. In doing so, they displayed a clear debt to Reid’s philosophical system, using introspection to discover the nature of man’s moral constitution. Their scientific inquiries invariably revealed that each individual was born with sufficient moral, intellectual, and volitional powers to discern right from wrong and conform to the moral law prescribed by God.[44]

Following the Scots in their hierarchical ordering of the mental powers, the moralists situated rational faculties (moral and intellectual) above the affections and passions, with the instincts and mechanical reflexes occupying the lowest rung. They observed that the strength of these various powers tended to vary “inversely with their position,” but emphasized that it was possible to cultivate and control the passions through conscious choice, thereby ensuring a properly balanced character.[45] Without denying that there were differences in native mental and physical endowments that might affect the ease with which this ideal could be attained, they maintained it was well within the grasp of all of God’s creatures, save perhaps the idiot and lunatic, who received scant attention in most of these works. More often than not, their philosophizing about the “laws of the mind” tended toward exhortation, sounding not unlike the tracts and manuals intended to instruct a more popular audience in the processes of mental and moral development.[46] Ultimately the message was the same, regardless of the medium: Individuals not only have the power to form and shape their own character, but also the duty to do so in conformity with the dictates of conscience. And with each repetition, academic and popular writers aimed to promote voluntary observance of God’s moral law, so that it would truly constitute “the common law of the country.”[47]

Still, it was one thing to exhort everyone to improve themselves, and yet quite another to hold all individuals to the same standard, as a matter of law. Was it just to punish those who were less morally capable than others? Were they wholly to blame for their moral failings? Common Sense philosophers (and their American expositors) had remarkably little to say about the genesis and significance of individual variations in physical and mental capacity, and they had even less to say about the phenomenon of insanity, with most tending to treat it as a disorder of the imagination, to the extent that it was mentioned at all.[48] In their depictions of the mind’s operations, they typically deployed an overabundance of organic, mechanical, and animalistic metaphors, which obscured more than they revealed about the nature and extent of individual agency in the process of character formation. Moreover, lunatics were treated as categorically different from the rest of humanity; in a self-evident sort of way, they were placed on the margins along with idiots, brutes, and children, where they served as foils against which human abilities and duties could be defined.[49]

For the rest of mankind, Common Sense philosophy left would-be “moral managers” with a puzzle. If rational and moral faculties were innate and universal, what explained the great conflicts among men concerning matters of belief, manners, and morals (slavery was to provide a prominent example of this), leading some to commit acts that were, to others (or even the vast majority of men), patently irrational or downright evil? And to the extent that there was a common sense about the dictates of reason, propriety, and moral sense, why did some individuals act in defiance of them?

In so closely identifying freedom with conventional rationality and morality, the Common Sense philosophy seemed to point to the paradoxical conclusion that the irrational or immoral actor could never be held fully responsible for his behavior—that the only truly free and responsible agents were those who had sufficient power to act in conformity with reason and morality. To contend, as moralists were wont to do, that irrationality and immorality stemmed from failures in mental cultivation really only begged the question of responsibility. For how could such failure be viewed as anything more than evidence of an individual’s lack of power over his or her will? Was there not—almost by definition—something wrong with the deviant individual’s mind? By the last decades of the eighteenth century, doctors like Rush were cautiously moving toward such a position as they introduced the concept of “moral,” as distinct from “intellectual” derangement. As they did, it might be said that they were only following the logical implications of Common Sense, which encouraged the relocation of the sources of human perversity outside the conscious self. And yet, to some these diagnoses would conjure up the frightening specter of materialism, threatening to eliminate the metaphysical basis for assigning praise or blame to individual actors. This prospect would prove especially troubling to the American jurists who were steeped in the Common Sense philosophy and yet daily forced to reckon with the fact that depravity was not easily distinguished from disease within this optimistic world view.[50]

II. Common Sense and Common Law

The image of the human subject projected by lawyers, judges, and jurists in early republican America bore the unmistakable imprints of the culture they inhabited. As has been suggested, it was a culture in which Calvinist doctrines of innate depravity and divine determinism had largely given way to liberal forms of Protestantism, which affirmed human potency and consequentiality—regarding man as something of an “un-caused cause.”[51] With this expansive view of human agency, we have seen, came a new conception of the basis of individual accountability. While a causally unbounded will was hardly required to establish personal responsibility within the Calvinist scheme, liberal Protestantism expressly premised responsibility upon “moral ability,” specifically the human power of self-determination. It is thus not surprising to find that questions of capacity and liability within American legal culture were increasingly thought to turn on states of mind rather than “feudal” status distinctions. This “enlightened” way of framing the subject of responsibility was set out clearly in the treatises and tracts published by American jurists in the first decades of the nineteenth century. In and through these works, jurists forged an indigenous legal tradition, built on the universalistic premises of Common Sense.

Within the American legal profession, the most notable exponent of this Enlightenment philosophy was the Scottish-born James Wilson. He transmitted this accumulation of wisdom to his colleagues and the wider public during the course of a series of Law Lectures, delivered at Philadelphia College and published in 1804.[52] In them, he proposed to outline the distinctive features of American jurisprudence, associating the laws and government of the United States with the venerable common law tradition, which he deemed to be based in consent, while correcting the errors of the English commentators, particularly those of Blackstone. By Wilson’s lights, the “learned author of the Commentaries” had wrongly supposed that human laws implied the existence of a superior and inferiors, failing to trace the source of sovereignty back to its “ultimate and genuine source” in the “free and independent man.” This figure, regarded as both author and subject of the law, stood at the center of Wilson’s educational enterprise. In pursuing this topic, he favored the “enlightened and candid Dr. Reid” over “Mr. Locke,” warning that the “artful use of ´ideas’ in metaphysicks” was no less “destructive of liberty” than the “artful use of ´superiority’ in politicks.”[53]

Wilson’s reliance on the Common Sense philosophy was most clearly displayed in a series of lectures on “man, as an individual, as a member of a society, as a member of a confederation, and as a part of the great commonwealth of nations.” These lectures essentially restated Reid’s mental and moral philosophy, often word for word. Wilson was a bit more inclined to speak of “Nature” than God in his rendering of the universe, but he was just as sure as Reid that man had a benevolent Creator, who governed the universe with “infallible correctness,” investing human beings with the capacity for “perfection and happiness.”[54] Proceeding in accordance with the philosopher’s intuitive realism, Wilson affirmed that man did not reside in an “enchanted castle, imposed upon by spectres and apparitions.” It was surely not Nature’s “pastime . . . to put such tricks upon a silly creature and then take off the mask, and show him how he has been befooled.” Wilson also took the same swipes at skeptical writers such as Hume, who had erroneously reduced human nature to “impressions and ideas.” Moreover, he underscored the absurdity of such theories when applied in a legal context: “If one set of ideas make a covenant; if another successive set . . . break the covenant; and if a third successive set are punished for breaking it; how can we discover justice to form any part of the system?”[55]

As Wilson went on to offer a corrective view of “our nature,” he essentially reproduced the Common Sense philosophers’ hierarchy of intellectual and active powers, placing the moral sense in a commanding position. Where the moral sense was supported by other rational faculties of understanding and will, the individual subject was capable not only of distinguishing right from wrong, but also of conforming his conduct to the former over the latter.[56] Persons fitting this description were properly considered “moral and accountable beings” according to Wilson, and he implied this was universally true of the “human species.” All the same, he recognized that mental powers—both natural and acquired—might vary considerably from person to person, even making passing mention of the extreme deprivations of the idiot. Yet the existence of such variations did not appear to unsettle the most basic presumption underlying Wilson’s lectures: that most men and women were endowed with sufficient intellectual and moral capabilities to be deemed accountable agents susceptible to judgment under all forms of law.[57]

Although elite lawyers of other political and religious persuasions were certainly far more selective in their appropriations of Common Sense than Wilson, they nonetheless tended to adopt the same basic mental model and associated ideas about the cultivation of character, and they specially commended this school of thought to those who aspired to join their ranks.[58] Like other educated Americans, they would find room for substantial disagreement within this capacious philosophy, particularly with respect to the role of the government in the process of character formation.[59] As a general matter, those in the (dominant) Federalist-Whig camp envisioned a more activist state than did the Jeffersonian-Jacksonians. But as Daniel Walker Howe has argued, this was ultimately more a matter of emphasis within a broader consensus about the importance of mental culture and self-discipline. Each party, he explains “put primary emphasis on one half of the idea of self-improvement”: the Jeffersonian emphasizing self, the Federalist emphasizing improvement. In the end, those in both parties agreed that the essence of freedom lay in the capacity for self-government, which was now understood as a state of mind which might be proved or disproved in court.[60]

Further evidence of the influence of this liberal Enlightenment view of the self may be found in antebellum legal literature, through which it is possible to trace the gradual replacement of the traditional common law of persons with a generic model of the legal subject, whose civil capacity and criminal responsibility rested upon his possession of a certain set of mental attributes.[61] The most elaborate discussions of this model were presented in treatises and tracts that generally addressed the subject of jurisprudence.[62] Such works typically began with consideration of man “as a single individual,” offering a detailed examination of his “physical, moral and intellectual constitution.” Most were resolutely dualistic, as a matter of metaphysics, portraying man as “a being composed of a growing, vital, and sentient substance, denominated body, and of a subtile or immaterial something, called soul,” or “mind.” Following the introspective method of the Common Sense philosophers, they elaborated a theory of the mind largely in line with the Scots, identifying four key attributes presumptively possessed by the prototypical legal person. First, he was said to have the capacity for self-knowledge, implying the transparency of the self to the self. He could observe the workings of his own mind and obtain reliable information about his true thoughts and feelings. His second attribute was the power of self-determination, enabling him to control and direct his thoughts, feelings, and actions, effectively forming his own character. He had, in other words, the power to choose the motives that would, in turn, determine his behavior. Third, he was possessed of and (ideally) actuated by an innate moral sense, which allowed him to distinguish right from wrong and, at the very least, regret those actions of his which partook of the latter rather than the former. And finally, the faculties of his mind were thought to be organized in a hierarchical order, with the rational principles of action reigning over the animal and mechanical ones. Thus in the healthy human mind, as they defined it, the intellect provided motives to the will, encouraging action in conformity with the moral sense.[63]

In setting out this model, antebellum jurists did not deny the existence of individual differences in physical and mental capacities, nor the possibility of disease, but they tended to minimize the significance of these differences, straining to show that the apparent diversity of humankind did not compromise the “unity of the moral law.” David Hoffman was especially thorough in his treatment of the subject, going on at considerable length about “the origins and nature of man” in his Legal Outlines (1829). Though he acknowledged arguments in favor of polygenesis, Hoffman remained convinced that man was a single “unit in the creation,” forming “a class by himself, in which, though there are varieties, there are neither different orders nor genera, nor species.” As far as he (or anyone else) could see, the variations across the “human family” appeared to be physical in nature, owing to hereditary and environmental factors, and there was no reason to believe that they implied any fundamental differences in “moral constitution.” With these various considerations in view, Hoffman concluded that “we cannot but regard all minds as essentially the same,” from which it followed that all men were rightly regarded as “moral and responsible beings” equally subject to divine and human laws. “God may have given to one man a greater talent than to another,” he allowed, “but he has created the difference by giving him the ability to display advantageously his mind, through organs more perfectly adapted for that purpose.” And he insisted it was every man’s pre-eminent duty to “cultivate with assiduity all the functions of his mind, and to preserve in health and vigour all the powers of the body, since it is by their united action that man becomes useful in every condition of life.”[64]

As the imposition of liability was now more squarely premised upon the moral ability of humankind, an increasing degree of scrutiny was trained upon individuals whose powers of reason and self-government seemed deficient. The philosophers’ arsenal of explanations for departures from the law’s norms—citing failures in mental cultivation and self-discipline, or pointing to corrupting influences in the surrounding environment—seemed insufficient, especially in the most extreme cases. What were judges and lawyers to make of the individual of proper religious and moral upbringing who murdered without apparent motive, or could not be reasoned out of believing “I am the Christ”? Were their thoughts and actions to be regarded as instances of self-determination, however eccentric, perverse, or deluded, or as signs of disease, rendering them unaccountable under the law? Answers to these questions would be eagerly supplied by a new band of medical men, who effected dramatic changes in the conceptualization and treatment of madness in the early decades of the nineteenth century. These new medical models emphasized the natural as opposed to the supernatural agencies involved in the production of mental disease, inspiring belief in “man’s power over himself to prevent and control insanity.” In doing so, the doctors also raised new questions about the bounds of human freedom and the basis of individual responsibility, implying that the existing rules of law often expected too much of human nature. Their critiques gradually came to form a new genre of literature as well as a broader field of study—the “medical jurisprudence of insanity”—which was intended to promote more scientific and humane treatment of the “deranged specimens of our race” under the laws of the land.[65]

III. “To Give Rules to Folly”

The emergence of the new psychological medicine marked the growing interest in comparing and relating “normal” and “disordered” mental operations. To be sure, American alienists fully recognized the importance of becoming “acquainted with the human mind in its sane state,” drawing liberally on “our British Psychologists,” especially Locke, Reid, and Stewart. And with them, most of these doctors would likewise affirm that every individual was “endowed by the Deity with an equal gift of mind,” and that the “exactness” of its operations essentially depended upon “physical organization,” mental cultivation, and self-discipline. Yet it was the very fact of this original equality that spurred mental pathologists to explore the “diversity of different natures,” confident that their inquiries would yield new insights into disease processes and methods of cure. As they traversed the expansive and largely unexplored territory between “perfect mental health” and “total insanity,” alienists took pains to distinguish their scientific approach from that of the “metaphysician,” who was “directed in his course solely by his own self-consciousness.” If the powers and limitations of the human mind were to be fully comprehended, they insisted, it was necessary to quit the “narrow circle” of one’s own reflections and become “conversant” with the subject of mental disorder, ideally through clinical observation and treatment of afflicted individuals.[66]

Proceeding in this fashion, American alienists would accordingly claim a peculiar ability to pronounce upon the “laws of mind and body,” and they would seek with an almost missionary zeal to dispel superstitions about the nature of insanity. In the burgeoning medical literature on the subject—directed to general practitioners as well as the broader public—madness was cast as a disease of the brain rather than the “soul” or “mind,” and it was said to be caused by a host of physical, hereditary, environmental, and “moral” causes, including mental overexertion and unregulated passion. As this last category more than implies, American alienists firmly believed that men and women were entirely capable of going mad on their own, with little help from God and none from the devil.[67]

American alienists were especially keen to extend the benefits of their new science to the legislatures and courtrooms of the new nation, seeking to enlighten legislators, lawyers, and judges, as well as potential medical witnesses, so that all “might thereby become enabled to adapt the facts in nature” to the “scale of justice.” The fruits of their professional labors were exhibited in a profusion of tracts, manuals, and sprawling multi-volume treatises, which began to circulate at the turn of the nineteenth century under the broad banner of medical jurisprudence. Many were penned by practicing alienists, and most displayed at least some familiarity with recent advances in European medical psychology.[68] In the earliest published works, medical writers tended to assume a deferential posture toward members of the legal profession, assuring readers that they did not presume to “dictate to that constituted authority denominated law.” They aimed only to provide judges, lawyers, jurors, and potential witnesses with the pathological, physiological, and behavioral information needed to determine the questions of legal capacity and responsibility which seemed to be arising with ever greater frequency, along with mental disorder itself. Along the way, medical writers offered some cautionary words about the ease with which insanity could be both feigned and concealed, and they also catalogued a variety of “inferior” forms of mental disease, including hypochondriasis, epilepsy, old age, drunkenness, delirium, and even “nostalgia.”[69]

The legal implications of these conditions were typically left ambiguous, though the liability of these maladies to eventually “terminate” in full-blown insanity was invariably noted. Most often, writers simply concluded that mental capacity had to be assessed on a case-by-case basis, conveying the impression that medical specialists were instrumental, if not indispensable, to the proper administration of the legal system. To proceed without such medical assistance was to run the risk that a lunatic would “receive his cure at the gallows,” or that the insanity plea might be used as a “cloak for crime,” or that a mere eccentric might be condemned to live indefinitely “among the idiotic and the mad.” This last image was a recurring one in the early decades of the century, as medical writers strategically appealed to the self-interest of sane persons, warning that “no man can confidently reckon on the continuance of his perfect reason.”[70]

In taking up the task of reform, however, physicians were immediately beset with a vexing problem of definition—one that had long been cast as insurmountable by lawyers, judges, and jurists. “Who can mark precisely the frontier, which separate insanity from sanity,” went the common courtroom refrain, “who can number the degrees by which reason declines and falls into annihilation?” To make such an attempt was, in effect, “to prescribe limits to that which is illimitable, to give rules to folly, to be bewildered with order, to be lost with wisdom.” For this reason, it was often said, the common law had always defined insanity in the narrowest possible terms, recognizing only those cases where the individual had wholly and indisputably lost “the use of his reason.”[71] Medical writers did not deny the difficulties inhering in their project, with some even admitting that “the varied and mutable phenomena of insanity will ever mock the grasp of the nosologist.” But if no “infallible definition” could be formulated, alienists might nonetheless offer more accurate illustrations of the various “species” of insanity, drawn from asylums and hospital wards, ones that surely improved upon the “crude” portraits of the afflicted found in common law commentaries and those “caricatures of disease which the stage represents or romances propagate.” Through such illustrations, medical writers attempted to correct popular misconceptions about madness, quite literally seeking to promote new ways of seeing mental disease. Yet it bears emphasis that they proceeded with their campaign well aware of the perils of requiring a “perfect sanity,” apprehending that “too nice an investigation of eccentricities and imperfections may lead to oppression and injustice.”[72]

Medical critiques of the common law generally focused on the need for modernization of the traditional rules of capacity and responsibility. They all tended to take issue with the same array of sources: Lord Coke’s categories of persons non compos mentis were said to be under-inclusive in focusing exclusively on cognitive disorders, and it was further observed that Sir Matthew Hale’s “total deprivation of reason” test of insanity set a standard that even the most debilitated asylum inmate could not meet. General complaints were also made about the “looseness” and “inconsistency” with which the law was administered in contemporary courtrooms. In particular, it was difficult for medical writers to fathom why a “glimmering of reason” was routinely deemed sufficient to establish the guilt of the accused, while a single note “sounding to folly” might work to wholly invalidate a testator’s will. At the most fundamental level, however, their works collectively presented a challenge to the “philosophy of the intellect” that animated the Anglo-American legal system as a whole. In the doctors’ estimation, this philosophy was built upon the “groundless and gratuitous” premise that “reason is the directress of human actions”—”that where the rudder is attached, the ship must be steered—and that he who reasons must be rational: and so he is, as long as he does reason.” More experienced observers knew better. Through the “toil of induction,” they had come to see that the “occasional gleams” of the “reasoning faculty” were seldom, if ever, reliable signs of the mind’s integrity.[73]

In presenting these criticisms, however, medical writers were hardly proposing a wholesale revision of the model of mind they found undergirding the common law. Indeed, most remained within the faculty psychology tradition as they wrote about the operations of the mind, simply modifying the accounts of Enlightenment mental philosophers where they conflicted with clinical experience. What most distinguished medical models was the powerful role they tended to accord to the emotional faculties, in both normal and abnormal mental processes, which served to underscore reason’s precarious hold over human thought and action.[74] With these psychological facts in view, medical writers proceeded to suggest alternative disease classification schemes to replace the older common law varieties. In the main, they followed the French alienist Jean-Etienne-Dominique Esquirol as they divided mental disease into four basic categories: mania, monomania, dementia, and idiotism.

The most innovative aspect of this scheme lay in its introduction of the second term, monomania. This referred to a circumscribed derangement, where the “delusion” related to a single idea or topic, such as religion or politics. The behavioral signs of this disorder could vary dramatically, depending upon the subject of the underlying delusion, but it was nonetheless possible to identify two distinctive characteristics exhibited by afflicted individuals. First, their delusions were discrete enough to leave them capable of reasoning properly on all other subjects, and second, they exhibited “a high level of excitation and even audacity” when laboring under the influence of the delusive ideas. As it was vividly put by one writer, “Sufferers are pursued day and night by the same ideas and affections, and they give themselves up to these with profound ardour and devotion. They often appear reasonable, when conversing on subjects beyond the sphere of their delirium, until some external impression suddenly arouses the diseased train.” In those moments, alienists explained, the delusion quite literally took hold of the mind, impelling the individual to perform unintended acts, for which he could not justly be held accountable, either as a matter of civil or criminal law.[75]

The concept of monomania was soon expanded to include forms of derangement principally affecting the nonintellectual faculties of the mind, all of which came to be rather indiscriminately comprehended under the head of “moral insanity.” Though anticipations of this disease entity can be found in the tracts and treatises produced by Benjamin Rush, it was only in the 1830s that other medical writers began to address the subject in any depth, acknowledging as they did its controversial character. As an initial matter, readers were presented with Phillipe Pinel’s notion of manie sans dÿlire, denoting a condition in which patients displayed no discernible intellectual defects, but “appeared to be governed by a sort of instinctive madness, as if the affections alone suffered injury.” Other leading French alienists, most notably Georget and Esquirol, were credited with further distinguishing intellectual monomania from instinctive and affective forms of the disorder, such as monomanie homicide, kleptomania, and pyromania, which impelled patients to commit specific and often seemingly motiveless crimes. In addition, mention was often made of the phrenological models of Gall, Spurzheim, and Combe, which were thought to lend further support to the hypothesis of a circumscribed, moral disease. For the phrenologists held that the mind was composed of dozens of determinate faculties, each of which was connected with a specific organ of the brain, which could be separately deranged. This, in turn, meant that any form of human perversity was at least potentially traceable back to some sort of physical disorder, such as an overdeveloped organ of “destructiveness” or “combativeness,” or perhaps an underdeveloped organ of “compassion” or “moral sense.” In rounding out their discussions of moral insanity, medical writers typically gave the last word to English alienist James Cowles Prichard, who was responsible for coining the term in the first place. His rendering of the disorder, which was generally recognized as the most comprehensive and serviceable of all, depicted it as “a morbid perversion of the natural feelings, affections, inclinations, temper, habits and moral dispositions, without any notable lesion of the intellect, or knowing and reasoning faculties, and particularly without any maniacal hallucination.”[76]

As medical writers delineated the contours of moral insanity, they conceded that its supposed symptoms could easily be confused with signs of moral depravity or mere eccentricity, and they also admitted that moral irregularities were among the causes of the disease. Still they attempted—rather unconvincingly—to offer readers a basis for distinguishing vice from disease. In one breath, moral insanity was said to be marked by an abrupt and inexplicable change in affections, conduct, and physical appearance, and yet in the next it was allowed that gradual alterations of character and ingrained behavioral oddities might also signal the onset of this disease. Moreover, there was no denying that many of its supposed symptoms were simply indistinguishable from crime: the first and only indicator that a patient was afflicted with monomanie homicide was often the act of murder itself.

With these ambiguities in view, most legal tribunals in the Anglo-American world stopped short of recognizing nonintellectual forms of mental disease, and many medical writers betrayed doubts of their own as they considered the issue. Certainly it would not do to deny a fact of nature (disease) simply because it was liable to be mistaken for another fact (sin). Yet some medical writers found the clinical evidence inconclusive, suspecting that those diagnosed with moral insanity more than likely suffered from some related intellectual disturbance, however slight. And even those who did not share this skepticism might nonetheless be persuaded that “safety of civil society” required that the offenses of the morally insane be considered as crimes—at least until the outlines of the disorder could be more definitively drawn. But there was also a rather vocal minority of medical writers who displayed no such ambivalence, claiming to represent “the cause of truth and justice” as they ardently pled the case for moral insanity before other medical and legal professionals and the public at large.[77]

Perhaps the most outspoken and unrelenting such advocate was the American physician Isaac Ray, best known for penning the influential treatise The Medical Jurisprudence of Insanity, first published in 1838 and going through four editions before his death in 1881. This work enjoyed a wide, transatlantic audience, cementing the author’s reputation as one of the leading experts in the field of legal medicine and the most formidable critic of the prevailing common law rules of capacity and responsibility. This reputation was well deserved, for Ray’s treatise provided an unusually systematic and pointed analysis of the “legal consequences” of mental disease, as contemplated from a medical viewpoint. Within the confines of a single work it not only offered a comprehensive overview of the “various forms and degrees of mental derangement,” but also went on to consider them “in reference to their effect on the rights and duties of man.” The doctor pulled no punches in undertaking this task, indulging in a bit of exaggeration as he cast contemporary judges, lawyers, and jurists in the role of benighted traditionalists who obstinately adhering to the “metaphysical dogmas” encrusted in the common law, even where they so obviously clashed with the “dictates of true science.” The targets of his critiques quickly responded in kind, suggesting in no uncertain terms that the doctor’s doctrines—especially that of moral insanity—verged upon an atheistic materialism. This was, however, even farther from the truth than Ray’s critical barbs. For not only was the doctor a confirmed dualist, but his medical psychology flowed from Common Sense assumptions about the constitution of the healthy mind.[78]

Like many of his peers, Ray had a Calvinist upbringing, but he went on to receive a liberal education at Bowdoin College before taking up his medical studies at the Medical School of Maine, and he would gradually drift toward Unitarianism over the course of his adult life. These educational experiences left him supremely confident that the universe stood entirely open to human understanding. Indeed, he echoed the Common Sense philosophers as he affirmed that “nature played no tricks” on mankind. This, in turn, inspired him to believe that it was possible to penetrate the heretofore mysterious relations between mind and body. Even as he moved into private practice, Ray continued to read intensively on the subject of mental pathology, becoming convinced that insanity was invariably rooted in some sort of physiological disorder, likely situated in the brain.

The Medical Jurisprudence of Insanity was, in many respects, an extended lament about the extent to which contemporary judicial opinions and practices lagged behind “the present state of our knowledge” concerning mental disease. As Ray saw it, this “sad and melancholy” state of affairs resulted from the fact that so many members of the medical and legal professions remained largely ignorant of the stunning advances in psychological medicine, continuing to derive their knowledge of the mind primarily through introspective means, following the example of the “metaphysical writers.” However, the doctor hardly meant to deny the relevance of mental philosophy, for his jurisprudence of insanity was plainly built upon a model of “our moral and intellectual constitution” that was essentially in conformity with Common Sense. “Man,” he observed, “being destined for the social condition, has received from the author of his being the faculties necessary for discovering and understanding his relations to his fellow-men, and possesses the liberty, to a certain extent, of regulating his conduct agreeably or directly opposed to their suggestions.” Being endowed with these intellectual and moral powers, he further reasoned, “we become accountable for the manner in which they are used,—to our Maker, under all circumstances, and to our fellow-men, when the institutions of society are injured.” And so it stood to reason that an impairment of either kind of power might diminish or eliminate an individual’s liability for his acts. Thus where an individual was shown to be incapable of “feeling the influence of those hopes and fears and of all those sentiments and affections that man naturally possesses,” the doctor held that “an essential element of legal responsibility is wanting, and he is not fully accountable for his actions.”[79]

Accordingly, it was with considerable dismay that Ray surveyed the “legal relations of the insane,” and he would only grow more disheartened about the prospects for reform in successive editions of his treatise. The crux of his criticisms was no different from that of previous medical writers,[80] but there was certainly a new element of sarcasm in Ray’s analysis, even as he mostly repeated what were by now familiar complaints about the retrograde nature of common law adjudication. What most distinguished this treatise from its predecessors, however, was the exhaustiveness with which its author catalogued the infirmities of the legal system and the specificity of the remedies he offered to ameliorate the situation. Scores of judicial decisions were dissected for the benefit of the reader, so that he could “see for himself how little of true philosophy has presided over the department of criminal jurisprudence” and how many insane defendants were unfairly placed “on the same footing with men of the soundest and strongest minds” and sent to the gallows, though they displayed only the “the slightest vestige of rationality.”

This state of affairs was rendered even more galling as the alienist’s analysis turned to the civil side of the docket, where the slightest signs of mental disorder might be grounds for stripping an individual of control over his property and person. Ray could find no “physiological or psychological ground” for this civil-criminal distinction. Indeed, it appeared to him that the common law had gotten the matter exactly backwards. For the disposal of property was a rather routine affair, usually having “nothing in it, to deprive the mind of all the calmness and rationality of which it is capable.” The same could hardly be said of criminal acts. While “abstractly wrong,” they might be “right and meritorious” under certain circumstances, and “if strongest and acutest minds have sometimes been perplexed on this point, what shall we say of the crazy and distorted perceptions of him, whose reason shares a divided empire with the propensities and passions?” The ease with which criminal liability was found in such cases compelled the conclusion that the common law took “more account of property than life.”[81]

Ray’s program for legal reform was quite transparently and unapologetically self-serving: he proposed that both substantive and procedural rules be revamped so as to maximize the influence of medical specialists such as himself. In place of all the “fallacious” tests and “fancied” standards of mental soundness promulgated by common law judges through the ages, he proffered a single alternative—the one most often recommended by practicing alienists. Their clinical researches demonstrated that the surest sign of insanity was “a well-marked change of character, or departure from the ordinary habits of thinking, feeling, and acting, without any adequate external cause.” In other words, there were no objective criteria for determining states of mind—each individual subject had to be “compared with himself, not with others.” What was lunacy in one might “speak relatively to health” in another, though the doctor hastened to add that “striking peculiarities of character, such as amount to eccentricity, furnish strong ground of suspicion of predisposition to madness.” In order to implement this reform properly, Ray went on to insist, courts would necessarily have to liberalize their rules of evidence, admitting “proof drawn from the nature of the act in question”—even in criminal cases—as well as more general testimony regarding the actor’s “natural character” as exhibited over the course of his lifetime. Only then would it be possible to ascertain whether the act was, in fact, attributable to him. It was, of course, conceivable that this inquiry could be managed by judges and jurors, without the need for medical intervention, but this was hardly ideal, from the doctor’s perspective. To the contrary, he rather audaciously claimed that questions of civil and criminal responsibility could only be properly resolved by consulting men who possessed “a well-earned reputation in the knowledge and management of mental derangement.”[82]

Ray was soon joined by a chorus of asylum superintendents, who would form the core of the emergent profession of psychiatry in nineteenth-century America. They compared notes with one another through the vehicle of the American Journal of Insanity (which began publication in 1844), collectively elaborating a scientific framework within which to understand and treat mental disease. In doing so, antebellum alienists confirmed many of the conceptual changes that had been wrought in the preceding decades. While the essence of insanity in the eighteenth century was described in terms of “intellectual incoherence,” these professional men tended to speak in terms of “will out of control.” In their view, it was also a more “democratic” ailment, in that it was no longer conceived as a state of being outside the bounds of humanity, but instead as a state of mind into which anyone might fall, and from which they might recover.[83] The implications of this new conceptualization were obviously profound, especially for the legal system, and antebellum alienists did not fail to draw them out—both in print and from the witness stand, where they were increasingly called to testify as experts in the 1840s and 1850s. Appearing in all sorts of civil and criminal proceedings, they worked to unsettle the presumption of sanity that had long structured these legal contests, emphasizing the recondite quality of mental disease, which might escape the perception of all but the most experienced of medical men.

Alienists’ testimony pointed to the inadequacies of traditional common law definitions of insanity, which required a “total depravity of reason.” Moreover, their psychological models were more fundamentally at odds with the “philosophy of intellect” upon which Anglo-American jurisprudence was based. While it was at least conceivable that the law’s existing cognitive tests of insanity could be widened to accommodate delusional states of mind, the same could hardly be said of the moral forms of monomania, whether affecting the will, emotions, or moral sense. In attesting to the existence of these disease entities, the alienists were effectively contending that an intact intellect was no sure indicator of moral agency—that thought and volition were not invariably connected as was supposed at common law. Such diagnoses threatened to throw many a legal proceeding into utter disarray, all the while raising the far more disturbing possibility that moral freedom was itself a delusion. As they contemplated the prospect of such chaotic courtroom scenes, American lawyers were prompted to reconsider the Common Sense premises of their practice and to compose treatises of their own on the jurisprudence of insanity.[84]

IV. “Illusive Liberty”

It was not long before these medical writings began to be noticed in law journal articles and deployed in courtroom disputations. As early as 1800, Thomas Erskine would make his speech on behalf of attempted regicide James Hadfield, famously arguing for an acquittal on grounds that the accused acted under the dominion of a circumscribed mental delusion—believing in a supposedly divine decree—which irresistibly impelled him to point and discharge his pistol in the direction of the king. Erskine’s success in this case was seen by many at the time as a momentous development, signaling the common law’s movement away from the stringent traditional criterion of a “total deprivation of reason.”[85] His speech quickly gained notoriety on both sides of the Atlantic, and soon was republished for the benefit of the American legal profession in an appendix to Thomas Cooper’s Tracts on Medical Jurisprudence (1819), the first work of its kind published in the United States. A scientist as well as a lawyer by training, Cooper offered readers reprints of the “most approved” treatises by British physicians on the subject, along with some medical notes of his own and a digest of the common law relating to insanity.[86] From his marginal comments, it appeared that Cooper had adopted the operating premises of the medical specialists of his day. “I consider it as a point now settled,” he declared, “that there is no such thing as a disease of the MIND.” Though insanity might be precipitated by “moral” as well as “physical” causes, it was “essentially a disease of the bodily organs,” and so “the cure, if at all, must consist in the cure of a bodily disease.” Yet given his familiarity with the accumulating body of medical learning, Cooper would have remarkably little to say about its legal significance. Indeed, in the digest that closed out the volume, he simply rounded up the usual common law authorities, letting Coke, Hale, and Blackstone have the last word on the matter of mental unsoundness.[87]

While it would be several decades before another American jurist would attempt to offer a comprehensive view of the subject, several English treatises were produced by practicing barristers in the interim and quickly exported to the United States. Of these, three deserve particular mention, as they enjoyed the widest circulation and also clearly display the gradual process by which the new medical psychology was assimilated into legal analysis: George Dale Collinson’s Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compos Mentis (1812), Leonard Shelford’s Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (1832), and Joseph Chitty’s A Practical Treatise on Medical Jurisprudence (1834). In Collinson’s treatise, citations to medical authorities were substantially outnumbered by allusions to Enlightenment mental philosophers, chiefly Locke and Stewart, as well as an array of literary figures, including William Shakespeare, John Dryden, and Samuel Johnson. By contrast, Shelford struck a fairly even balance between medical and non-medical writers in his discussion of insanity, and Chitty would look almost exclusively to the former class for insights into the workings of the diseased mind. However, all three jurists commonly acknowledged that the scientific norms of their own profession dictated greater incorporation of the concepts and classification schemes newly promulgated by medical men.[88]

The tentativeness of the law writers’ initial approach to the subject of mental disease was typified by Collinson’s Treatise. This work remained organized around the traditional common law categories of persons non compos mentis, with chapters on each sort, essentially restating the positions of Roman and early modern English jurists. However, interspersed between them were two more “philosophical” ones, relating to “the nature of lunacy” and “the justice and expediency” of the laws governing those of unsound mind. In his disquisition on lunacy, Collinson followed Stewart in locating the seat of the disorder in the faculty of the imagination and summoned up Johnson’s fictional tale in Rasselas as an illustrative case. In the part excerpted, the astronomer narrated his own descent into madness, coming to believe that he was solely responsible for the regulation of the weather. He was finally relieved of this duty by the poet-philosopher Imlac, who dispelled the astronomer’s delusion by drawing him into “sublunary” activities and advising him always to keep prevalent the thought “that you are only one atom of the mass of humanity, and have neither such virtue nor vice, as that you should be singled out for supernatural favours or afflictions.” From this story, Collinson drew the moral that “insanity may be occasioned by too great an indulgence in visionary scenes,” though he hastened to add that this was not meant to imply that “so severe an affliction is usually the consequence of misconduct on the part of the unhappy sufferer.” To the contrary, he observed that it was most often a “hereditary complaint, or the offspring of some violent passion, such as love, grief, or fear.”[89]

In allowing that insanity might be brought about by the misconduct of the sufferer—that it might result from “an abuse of the faculties of the mind on our part, as well as the hand of our Maker,” Collinson was simply restating conventional wisdom among practicing alienists. Yet in doing so, he underscored the extent to which this scientific way of thinking about mental disease created new problems for the legal system. If insanity was not always (or perhaps even usually) caused by a supernatural agent, was it rightly regarded as an excusing condition under the law? Could courts still sensibly repeat the ancient common law maxim that the madman was “sufficiently punished by his madness alone”?[90] If the onset of the disease could be tied back to voluntary acts of the patient—however remotely—was he then to be held accountable for the actions he performed under its influence?

Sensing that he had only begged the question of responsibility in his discussion of the nature of lunacy, Collinson endeavored to provide an answer, only to collapse into incoherence from the effort. He was at first inclined simply to bracket off the question of causation, pronouncing that the law was unconcerned with the etiology of insanity, attending only to its perceptible effects upon conduct. But as he went on to consider the legal status of insane persons from one field of law to the next, the jurist arguably contradicted himself, particularly as he took up the discrete question of criminal responsibility. Although perfectly willing to accept evidence of irrational conduct as sufficient grounds for the imposition of civil restraints on a person, Collinson insisted upon more substantial proof of involuntariness before that person could be excused from liability for his crimes and trespasses. He considered it both just and expedient for courts to appoint guardians over persons who appeared “unequal to the pursuit of a regular and continued line of conduct, or the management of private affairs,” and yet those same persons were to be held accountable for any harm caused by their unreasonable conduct, unless there was credible evidence of “an absolute dispossession of the free and natural agency of the human mind.” In fact, Collinson bluntly acknowledged that insanity was more narrowly conceived in the criminal context so as to exclude “sudden gusts of passion, and the insensibility of intoxication, which are obviously and immediately referrable to ourselves.” He further intimated that this exclusion could be defended on grounds of expediency, if not justice, for it was practically necessary to draw such lines in order to deter harmful conduct. However, all this assumed that “self-created causes” were readily discernible, which the jurist himself seemed to be far from believing, given his concerted efforts to define away questions of causation. One suspects that Collinson was, in the end, not clear in his own mind about the constitution of the moral agent or the basis of legal responsibility.[91]

The perplexity about human agency and accountability would only deepen as medical authorities were more fully integrated into discussions about legal responsibility, a process that can be traced through the works published by Shelford and Chitty. Though these jurists also looked to the Common Sense philosophers in constructing their view of “what constitutes mind in its healthy state,” this mental model would be destabilized to a significant degree as they drew out the legal implications of the recent advances in psychological medicine. For the chief lesson that Shelford and Chitty learned from the medical writers was that rationality was—at best—an equivocal sign of sanity and therefore an uncertain basis for determining legal responsibility. The jurists’ task was rendered all the more challenging in view of the “want of entire coincidence respecting the precise standard of mental health,” even among medical men. Without a common measure, it was obviously impossible to determine what constituted a deviation in the first instance, let alone one severe enough to be deemed a legally disabling disease. After more than a little hand-wringing, both Shelford and Chitty found their way past this fundamental difficulty of definition, submitting that the provisional and somewhat conflicting classification schemes lately formulated by medical practitioners were at least superior to those supplied by Coke and Hale.[92]

In conformity with the alienists’ schemes, Shelford characterized insanity as a bodily disease, which could affect any or all of the mind’s faculties—including the emotions, will, and moral sense as well as the understanding.[93] He further recognized that the disease had “moral” as well as “physical” causes, proceeding to list a number of contributing factors, without distinguishing between those that were or were not a product of human will. Among the enumerated factors were fever, repeated intoxication, injuries to the head, hereditary predisposition, excess in pleasure, factitious passions, mistaken views of religion, parturition, errors in education, intense study, and misfortune. All the while, Shelford took pains to emphasize that it was not every mental aberration that constituted disease, but only those that were “serious and complicated.”[94]

Yet as he went on to survey the alienists’ attempts to clarify what it was that distinguished insanity from depravity and eccentricity, Shelford would find them all wanting in one way or another. And so he finally settled upon a decidedly practical test, defining mental disease as a “continued impetuosity of thought, which totally unfits a man for judging and acting with the composure requisite for the maintenance of the social relations of life.” No sooner had the jurist adopted this formulation, however, than he bemoaned its insufficiency, apparently finding greater wisdom in a quoted passage from Byron’s Dream, wherein the bard intimated that “what the world calls phrensy” was a deeper wisdom, that melancholy was “but the telescope of truth.”[95]

In the end, Shelford’s ambivalence about the scientific enterprise of defining insanity led him to reaffirm the traditional common law rules of responsibility. Indeed, he strenuously urged that civil incompetence not be found on proof of “extravagant” conduct alone, and he was certainly no more inclined to authorize a legal inference of insanity from the fact of a criminal offense. Though “philosophers” (used here as a term of abuse, meant to encompass medical men) might prove that crime invariably flowed from some sort of mental disturbance, Shelford remained convinced that it was “dangerous in judicature” to excuse proven offenders from punishment, so long as they retained the capacity to distinguish right from wrong.[96]

While a more enthusiastic consumer of medical science, Chitty would be even less willing to countenance reforms of existing common law rules and procedures. Though his volume was suffused with the language of anatomy, physiology, and pathology, the jurist’s engagement with these disciplines had little apparent impact on the way he thought about the “law