1. Gray, , Guiteau, “The Guiteau Trial” 38 Am. J. Insanity 303, 304 (1882) [hereinafter Gray, The Guiteau Trial]Google Scholar.

The basic secondary work on the Guiteau trial is Rosenberg, C., The Trial of the Assassin Guiteau: Psychiatry and Law in the Gilded Age (1968)Google Scholar [hereinafter Rosenberg], which offers a full narrative of the trial and includes a useful bibliographic essay. The basic source is the text of the trial, which has been republished in two volumes. The United States vs. Charles J. Guiteau, Mental Illness and Social Policy: The American Experience (1973) [hereinafter Trial].

I have attempted here to argue from particular religious references to an underlying intellectual orientation. This attempt, to the extent that these references are not, of course, the only references made, results in a distortion of the whole. The trial was not, after all, dominated by debate over the story of Abraham and Isaac in Genesis 22.

This distortion can be corrected by reading Professor Rosenberg's fine account of the trial. Rosenberg, supra. There is no claim here that an understanding of the Guiteau trial which included the religious dimension was the dominant understanding of the culture. That is, there is no claim that this reading reaches the “essence” of the Guiteau trial. See Fischer, D., Historians' Fallacies: Toward a Logic of Historical Thought (1970)Google Scholar. There is a claim that this way of understanding the trial should be added to our sense of what the Guiteau trial was about.

This discussion is based on printed sources, and at some points I have used substantially all the material I had. That is, this is not work in which every quotation is chosen from a set of similar ones. At the same time, it seems entirely likely that other sources exist somewhere which reveal similar perspectives.

See also Gaylord, , Guiteau's Case, Case and Comment, 07/Aug. 1981, 33–41Google Scholar (briefly raising the issue of the possible truth of the revelation); Rosenberg, C., The Cholera Years: The United States in 1832, 1849 and 1866 (1962)Google Scholar (providing a very useful background of the changes in the intensity of religious concerns in the 19th century). For a fictional appearance of Guiteau, see Oates, J., A Bloodsmoor Romance 107, 247 (1982)Google Scholar.

The significance of a religious orientation in late 19th century America is beyond debate. See Friedman, , Exposed Nerves: Some Thoughts on Our Changing Legal Culture, 17 Suffolk U. L. Rev. 529 539 (1983)Google Scholar (referring to a quasi-official religion). See also Friedman, L., Total Justice 113–14 (1985)Google Scholar. The problem is to find specific indications of impact.

Tracing intellectual influences of any kind can present difficulties. This is true even with reference to social Darwinist influence, which seems to show up less often than one might have expected. See Paul, A., Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench 1887-1895 22, 23 n.10 (1969)Google Scholar (“Although Spencerian Social Darwinism was doubtless an important ingredient in the ideology of laissez-faire conservatism, only a very few of the hundreds of bar association speeches examined for this study contained specific references to Spencer.”) see also Hollinger, , Spencer, Scientism and American Constitutional Law, 33 Annals of Science 476 (1976)CrossRefGoogle Scholar (“Social Darwinism can now claim a dubious honor, that it can be shown not to have existed in more places than has any other movement in the history of social history.”) (I am grateful to Avi Soifer for providing me with this reference.)

2. See Genesis 22:

1. AND it came to pass after these things, that God did tempt Abraham, and said unto him, Abraham: and he said, Behold, here I am.

2. And he said, Take now thy son, thine only son, Isaac, whom thou lovest, and get thee into the land of Mo-ri-ah; and offer him there for a burnt offering upon one of the mountains which I will tell thee of.

3. And Abraham rose up early in the morning, and saddled his ass, and took two of his young men with him, and Isaac his son, and clave the wood for the burnt offering, and rose up, and went unto the place which God had told him.

4. Then on the third day Abraham lifted up his eyes, and saw the place afar off.

5. And Abraham said unto his young men, Abide ye here with the ass; and I and the lad will go yonder and worship, and come again to you.

6. And Abraham took the wood of the burnt offering, and laid it upon Isaac his son; and he took the fire in his hand, and a knife; and they went both of them together.

7. And Isaac spake unto Abraham his father, and said, My father; and he said, Here am I, my son. And he said, Behold the fire and the wood: but where is the lamb for a burnt offering?

8. And Abraham said, My son, God will provide himself a lamb for a burnt offering; so they went both of them together.

9. And they came to the place which God had told him of; and Abraham built an altar there, and laid the wood in order, and bound Isaac his son, and laid him on the altar upon the wood.

10. And Abraham stretched forth his hand, and took the knife to slay his son.

11. And the angel of the Lord called unto him out of heaven, and said, Abraham, Abraham: and he said, Here am I.

12. And he said, Lay not thine hand upon the lad, neither do thou any thing unto him: for now I know that thou fearest God, seeing thou has not withheld thy son, thine only son from me.

13. And Abraham lifted up his eyes, and looked, and behold behind him a ram caught in a thicket by his horns: and Abraham went and took the ram, and offered him up for a burnt offering in the stead of his son.

Genesis 22; 1:13 King James Version.

3. John H. Cassity, M.D., said in 1958, “Charles Guiteau was undoubtedly a common garden variety of paranoid schizophrenia.” Cassity, J., The Quality of Murder 30 (1958)Google Scholar. More recently Tom Wicker commented that, “ ‘[Guiteau] was mad as a hatter’—believing, among other things, that God had directly instructed him to dispose of Garfield.” Wicker, , “How Loose Must the Screw Be?”, New York Times Book Review, 09 17, 1982Google Scholar. (Review of Mayer, A. and Wheeler, M., The Crocodile Man: A Case of Brain Chemistry and Criminal Violence (1982)Google Scholar. Cf. Thoreau, H., Walden and Other Writings 704 (1950)Google Scholar (on John Brown) (“Newspaper editors argue also that it is proof of his insanity that he thought he was appointed to do this work which he did—that he did not suspect himself for a moment! They talk as if it were impossible that a man could be ‘divinely appointed’ in these days to do any work whatever …”). See also Keller, M., Affairs of State: Public Life in Late Nineteenth Century America 267–268 (1977)CrossRefGoogle Scholar (linking Guiteau's insanity to a description of him as a disappointed office-seeker without discussion of the religious insanity issue).

Soon after Garfield's inauguration, Guiteau expressed his interest in political positions in Europe. Thus we get the image of Guiteau as a disappointed office seeker. The assassination of Garfield is said to have expedited civil service reform. See Hofstadter, R., Anti-Intel-Lectualism in American Life 185 (1962)Google Scholar. However, Guiteau was in fact not an office seeker in any ordinary sense. Professor Rosenberg suggests that he was “rather a victim of mental illness whose delusional system prescribed this role for him.” (Rosenberg, supra n.1, at ix).

4. Clarke, J., American Assassins: The Darker Side of American Politics 198 (1982)Google Scholar. Professor Clarke, a political scientist, offers a classification of assassins and indicates that certain assassins (including Guiteau) “are characterized by severe emotional and cognitive distortion that is expressed in hallucinations and delusions of persecution and/or grandeur. Their contact with reality is so tenuous that they are usually unable to grasp the significance of their actions or understand the response of others to them. As a rule, their acts are mystically or ‘divinely’ inspired—in a word, irrational or insane.” Id. at 16. Noting that “[t]hroughout his lengthy seventy-two-day trial, Guiteau's delusional state was apparent to anyone inclined to acknowledge it,” Professor Clarke offered the history of insanity in the Guiteau family. Id. at 209, 210. A major emphasis of the defense psychiatrists at the trial was on this hereditary insanity.

5. Rosenberg, supra note 1, at 99 (“Few Americans … doubted Guiteau's eccentricity and peculiarity of temperament. It was equally clear that he would hang.”) Rosenberg also notes that “Americans in 1881, especially those living in rural areas, seemed able to tolerate a far greater degree of deviant behavior than is ordinarily the case today.… The result was that one might be a fanatic in religion or politics, even a compulsive thief or murderer, and still appear to be within the range of responsible behavior.” Id. at 53-54. This approach was, however, a matter of “formal beliefs.”

Particular cases might yield different results, as where a parent slew his child at the command of Jehovah. Here, “conventional wisdom found no difficulty” in finding insanity, although, Rosenberg indicates, a “strict construction” of the legal rules might not permit this. Id. at 54. On the “Conventional Wisdom” see discussion below, of the responses to the Freeman case.

6. Rosenberg, supra note 1, at 184-85.

7. Rosenberg, supra note 1, at 190.

8. Id. at 90.

9. Id. at x.

10. Id. at xii.

11. White, M., Social Thought in America: The Revolt Against Formalism 3 (1957)Google Scholar.

12. Rosenberg, supra note 1, at 258.

13. Ireland, W., Through the Ivory Gate 216 (1889)Google Scholar.

14. Id. at 216.

15. Godding, W., Two Hard Cases: Sketches from a Physician's Portfolio 168 (1882)Google Scholar. See generally Rosen, , Enthusiasm, 42 Bulletin of the History of Medicine 410 (09 6, 1968)Google ScholarPubMed.

Godding concluded by saying “for thousands of years it has been the all but universal belief that direct inspiration is no longer to be expected, and that he who claims now that he hears the audible voice of God, or with mortal eyes sees the Lord, must be insane.” See discussion of sensory claims below.

16. Reynolds v. United States, 98 U.S. 145 (1879).

17. See infra p. 217.

18. Beard, G., The Case of Guiteau—a Psychological Study 9 (1882)Google Scholar.

19. The Pocasset case was one of a number of insane delusion cases discussed which involved divine command. Several of these related specifically to children. See 2 Trial, supra note 1, at 1538-39. In general, the killing of one's own children, particularly where the killer was the mother, was often treated as insanity in the 19th century.

20. The Law Central No. 3 (Smith, ed. 1881)Google Scholar. The Journal also included a comparison of the cases of Judith and Charlotte Corday (the assassin of Marat) noting that: “There was no insanity in Judith's case. It was Sagacity Inspired. That was an age when men and women were permitted to act on the admitted assumption of high incentives from the Almighty; for we are not allowed to suppose that Abraham was insane when he prepared, in the most solemn manner, to sacrifice and to slay his son.” (at 143).

21. Schlesinger, , A Critical Period in American Religion, 1875-1900, 64 Proceedings of Massachusetts Historical Society 522, 524 (1932)Google Scholar.

22. Curti, M., The Growth of American Thought 517 (3d ed. 1964)Google Scholar. If supernatu-ralism was “losing ground among intellectuals, it was by no means, in the post-Civil War period, on the road to extinction among the masses.” (Id. at 519) without forcing the issue of “the masses”, one may note again the composition of the Guiteau jury.

23. Guiteau, , Appeal to the American People, 01 26, 1882Google Scholar (quoted in Rosenberg, supra note 1, at 224).

24. The Independent, September 29 (1881).

25. Professor Rosenberg provides this description of Luther Guiteau's beliefs. “By any standards, his religious opinions were extreme—even in an age still harboring an abundance of evangelical enthusiasm. The world was a very dramatic place to Luther Guiteau, one which he viewed in essence as a stage for the confrontation of God and the Evil One; each soul, and indeed every happening in the world, was an objective to be gained in this continuing struggle. Selfish or sinful actions, he always explained, were a consequence of submission to the pervasive forces of Evil; benevolence came only through faith and submission to God. No action, however small, could be ignored.” Rosenberg, supra note 1, at 14.

26. The Works of Robert Ingersoll: Interviews 102 (1900)Google Scholar. For a discussion of Dwight L. Moody, see Marsden, G., Fundamentalism and American Culture 32–39 (1980)Google Scholar.

27. Borden, M., Jews, Turks and Infidels (1984)Google Scholar.

28. See Noll, M., The Search for Christian America (1983)Google Scholar.

29. Spear, S.D., Religion and the State of the Bible and the Public Schools, 213 (1876)Google Scholar (“Religious Amendment of the Constitution”). The amendment he was discussing read: “We, the people of the United States, acknowledging Almighty God as the source of all authority and lower in civil government, the Lord Jesus Christ as the ruler among the nations, and his revealed will as of supreme authority, in order to constitute a Christian government, to form a more perfect union. …”

30. Id. at 214.

31. Id.

32. Spear, p. 370. (“fragmentary Thoughts”).

33. Strong, J., Our Country (1886 1891), at ix (1963) (introduction by Jurgen Herbst ed.) (hereinafter Strong)Google Scholar.

34. Id. at 13 (emphasis in original).

35. Id. at 218.

36. Brewer, D., The United States: A Christian Nation 12 (1905)Google Scholar.

37. Id. at 11.

38. Id. at 12.

39. On the Christian Amendment, see Pfeffer, L., CHURCH, State and Freedom 241, 242 (1967)Google Scholar; M. Borden, supra.

40. The old order was under attack. But this is quite different from saying that the old order was dead. The tension is caught in an anecdote about President Grant:

While medical experts injected brandy into Grant's veins, Newman seized a bowl of water and baptized the unconscious man according to the rites of the Methodist Church. As the patient revived, the cleric exclaimed, “It is Providence!” “No,” replied the scientist, “it was the brandy!” Hesseltine, W., Ulyses S. Grant: Politician 452 (1953)Google Scholar [quoted in Carter, P., Spiritual Crisis of the Gilded Age 85 (1971)Google Scholar].

The co-existence of older and newer ideas is evident in some comments of Guiteau himself. Guiteau invoked a decision of a New York court, saying that it “revolutionizes the old rule,” is a “grand step forward in the law of insanity,” and is “worthy of this age of railroads, electricity, and telephones.” And then he said, “I have no hesitation in saying that is a special Providence in my favor. …” 2 Trial, supra note 1, at 2203.

41. See Rosenberg, supra note 1, at 166-69. Guiteau's argument on his own insanity was, of course not the same as that of the defense psychiatrists. Rosenberg quotes a note from Guiteau to his brother, saying that there should not be an attempt to prove actual insanity. “It would disgust the court and the jury. Legal insanity is all I claim.” Rosenberg, supra note 1, at 87.

42. In a system in which there is a clear religious authority (which can then decide what is and is not possible and therefore what is and is not delusion), religious insanity, while it may exist, poses no intellectual difficulty. A consequence of systematic separation of church and state is that while religious authorities still exist, they no longer operate directly in the public sphere to define reality. On what basis then does the state—officially removed now from questions of religious doctrine—determine who is insane when a disease of the mind is evidenced by religious delusions? It seems that the issue is sometimes dealt with by treating the problem as one rather like the problem of judicial notice. The things of which judicial notice is taken may be weights and measures or the existence of witches, or the possibility of communication with the dead or of supernatural duress. All are based on conventional perceptions of reality.

See Mayock, v. Martin, , 157 Conn. 56, 245 A.2d 574 (1968) (discussing false beliefs in relation to self-mutiliation)Google Scholar. Cf. Origen, The Russian Skoptsi.

43. See, e.g., The Sermon of James S. Hoyt, 09 25, 1881 (hereinafter Sermon, James Hoyt)Google Scholar.

44. Conwell, R., Life, Speeches, and Public Service of James Garfield 352 (1881)Google Scholar.

45. The New York Times, Aug. 29, 1881, at 8 col. 2.

46. James Hoyt Sermon, supra note 43.

47. See Sunderland, B., The Problem of Prayer and the Death of President Garfield, a Discourse 3 (1881)Google Scholar. Sunderland was, as far as he knew “the only minister who saw and spoke with [the President] after he was shot.” Id. Many sermons addressed the religious meaning of the tragedy. For a summary of the responses of the clergy, see Rosenberg, supra note 1, at 7-8.

48. Collyer, quoted in The New York Times, Sept. 18, 1881, at 7 col. 4.

49. The New York Times, Sept. 20, 1881, at 1 col. 2.

50. Id.

51. As already noted, the jurors chosen said they did not hold infidel views. Guiteau had been, of course, interested in the selection of the jury. Professor Rosenberg notes that among Guiteau's proposed questions of prospective jurors (part of a list which he gave to his brother-in-law, Scoville, who was then defending him), were the following: “Do you believe in the Bible? Do you believe in the letter of the Bible or simply its spirit? Are you now or have you ever been a Christian? Do you believe in the inspiration of Paul and the Evangelists?” Guiteau urged Scoville to pursue the religious convictions of the prospective jurors, to ask whether they believed in the story of creation, Noah and the flood, Abraham and Isaac, the children and the fiery furnace. Rosenberg supra note 1, at 114-15. Scoville asked generally about infidelity, future rewards and punishments and church memberships. 1 Trial, supra note 1, at 23, 31, 75.

52. 1 Trial, supra note 1, at 29.

53. Id. at 31.

54. Id. at 35.

55. Id.

56. Id. at 37.

57. Id. at 53.

58. Id.

59. Id. at 66.

60. Id. at 75.

61. Id. at 83.

62. Id. at 95.

63. Id.

64. Id. at 691.

65. The text in itself is largely bare though occasionally we see an explicit stage direction. For example, at times the trial record notes that the prisoner spoke “[e]xcitedly,” Id. at 136; or that the judge spoke “solemnly,” Id. at 2420.

66. Cf. Laing, R.D., The Divided Self 29–31 (1969) (discussing E. Kraepelin's interview with a patient)Google Scholar.

67. Beard, , The Case of Guiteau—A Psychological Study, 9 J. of Nervous and Mental Disease 1, 24 (1882)Google Scholar.

68. Judge Walter Cox, born in 1826, practiced law until 1879 when he was appointed to the Supreme Court of Washington, D.C. In the course of his career he taught law at Columbia University (Washington) and published Lessons in Law for Women (1900). as well as a discussion on efforts to obtain a code of law for the District of Columbia, D.C. He died in 1902 in Washington. [See I Who Was Who in America 1897–1942 (1966)Google Scholar].

69. Jackson, , The Trial of Guiteau, 9 Va. Law Rev. 1023, 1023 (1904)Google Scholar.

70. Id.

71. Folsom, , The Responsibility of Guiteau, 16 Am. L. Rev. 85, 77 (1882)Google Scholar.

72. Id. at 97.

73. Id.

74. Ireland, supra note 13, at 188.

75. Rosenberg, supra note 1, at 85.

76. 2 Trial, supra note 1, at 2202-05.

77. Id. at 2226. Guiteau's remarks to the jury were delivered at some length. He thought of the speech as an oration comparable to those of Cicero.

There had been some discussion at the trial about whether the defendant should be permitted to address the jury, but finally permission was granted, in part on the theory that it was only proper that a man on trial should be allowed to address the jury which would decide the question.

78. Id. at 2224.

79. Christian Advocate, Jan. 26, 1882.

80. 2 Trial, supra note 1 at 2331 (commenting particularly on Guiteau's repeated claim that public opinion was in his favor).

81. Buckley, , A Study of Guiteau, Christian Advocate, 01 12, 1882, at 18Google Scholar. Guiteau made the same point at the trial. I Trial, supra note 1, at 1094.

82. Not only was Guiteau informed of the details of the insanity defense, but there was evidence that Guiteau's information extended to the possibility of ultimate release following an official inquiry on his sanity (“Sensation”). 2 Trial, supra note 1, at 1427. Thus it was thought by some, including psychiatrist John Gray, that Guiteau was acting a role. One must note however that this acting, if it was that, did not extend to any claim of an immediate or direct sensory experience.

John Gray, head of the Insane Asylum at Utica, New York, was the major voice of the American Journal of Insanity, a journal formally edited by the “medical officers of the New York State Lunatic Asylum” at Utica. [On Gray, see Waldinger, , Sleep of Reason: John P. Gray and the Challenge of Moral Insanity, 34 Journal of the History of Medicine and Allied Sciences 163 (1979)CrossRefGoogle Scholar]; for Gray on Guiteau, see below infra note. See also Dwyer, E., Homes for the Mad (1987)Google Scholar.

Gray's view of the “Abrahamic insanity” argument is suggested by his comment on the testimony of another psychiatrist: “The parallels attempted to be set up by counsel for the defense as to the case of Abraham are altogether aside from any modern transaction; for the whole ancient record must be taken into account and its authenticity granted. The history is one of supernatural interference and visibly so; and therefore furnishes no warrant for any modern parallel.” Gray, The Guiteau Trial, supra note 1, at 361 (commenting on testimony 2 Trial, supra note 1, at 1337).

See also Rosenberg, supra note 1; Grob, , Mental Illness and American Society, 1875–1940 (1983)Google Scholar; Dain, N., Concepts of Insanity in the United States 1789–1825 (1964)Google Scholar.

Guiteau argued both his belief in his inspiration and the truth of his inspiration Gray quoted Guiteau as follows: “… if I could establish the fact before a jury that I believed the killing was an inspired act, I could not be held responsible before the law.” (He paused a moment, and then added): “You may add this, that the responsibility lies on the Deity, and not on me, and that in law, is insanity.” 1 Trial, supra note 1, at 12. When Guiteau was cross-examined by Prosecutor Judge John Porter he insisted that the job of the jury was “to decide whether the Deity fired that shot or whether I did it of my own personal act.” Id. at 623. The insanity defense is not prominent in this exchange, which states the issue as one of human versus divine action and responsibility. That, Guiteau is saying, is the issue to be decided. Sometimes, however, “belief” as insanity does stand alone as an issue, as when Judge Porter said that the case came down to the question whether the assassin “believed that he was commanded by God to murder the President” and Guiteau agreed that was “all there is to it.” See also 2 Trial, supra note 1, at 1321. A doctor testified that he had some cases involving people who had “attempted murder under the insane delusion that they had instructions from the Lord.” Guiteau responded (“sneeringly”): “You know whether I had, don't you?” Was Guiteau referring to the delusions? The instructions?

One can, of course, read these comments as nothing more than Guiteau's deliberate attempt at his trial to convince the jury that he believed in the fact of his own inspiration, perhaps as evidence of his own continuing insanity (despite his usual claim that he was sane at his trial). But this seems to read out the “as ifs” in the argument on his insanity at the time of the assassination. And why, if he was sanely manipulative of the insanity defense, did he fail to claim to hear voices? This, as much of any problem relating to the timing of the inspiration (see Gaylord, 36), would seem to have been a strategic miscalculation. In his preliminary report on Guiteau's sanity (to determine whether Guiteau should stand trial or be sent to a hospital) psychiatrist John Gray quoted Guiteau as saying that “if the jury accepts this [inspiration] as my belief, and if the jury believes as I believe, that the removal of the President was an inspired act and therefore not my own act, they are bound to acquit me on the ground of insanity. I have looked over the field carefully.” 1 Trial, supra note 1, at 12 (opinion of John Gray).

83. See discussion of Freeman, infra, text accompanying notes 115-150.

84. 2 Trial, supra note 1, at 1415. Guiteau often asked the experts to deal with Abraham. See id. at 1415, 1416, 1418, 1429, 1439, 1452, 1467, 1483, 1537, 1617, 1633, 1641, 1643, 1922, 2137. One expert testified that Abraham was not insane because there was no disease of the mind. Id. at 1340. Scoville said at one point that he “did not care to try Abraham,” id. at 1343. The possibility of the insanity of the Apostles was also discussed. Id. at 1345.

85. Bryce, J., The American Commonwealth 573 (1889)Google Scholar. Professor George Marsden notes that “[t]he Bible, it was constantly asserted, was the highest and all-sufficient source of authority.” Marsden, G.M., Fundamentalism and American Culture: The Shaping of the 20th Century Evangelicalism 1870–1925 16 (1980)Google Scholar.

86. Elson, R., Guardians of Tradition: American Schoolbooks of the Nineteenth Century 17 (1964)Google Scholar. On late 19th century education, see Keller, M., Affairs of State: Public Life in Late Nineteenth Century America (1977)CrossRefGoogle Scholar.

87. Elson, supra note 86, at 60.

88. Id. at 61.

89. See The Bible in America: Essays in Cultural History (Hatch, N. & Noll, M. eds. 1982)Google Scholar.

90. Huntington, F., Christ in the Christian Year in the Life of Man: Sermons for Layman's Reading, Trinity to Advent 70–71 (1881)Google Scholar (Episcopal Bishop of Central New York). For Huntington on the labor question, see the extract published in 1 A Documentary History of Religion in America Since 1865 115 (Gausted, ed. 1983)Google Scholar. See also Hopkins, , The Rise of the Social Gospel in American Protestantism 83, 89, 151 (1982)Google Scholar.

91. Huntington, supra note 90, at 71. For an introduction to typology, see Sheingorn, P. “Typology and the Teaching of Medieval Drama” in Approaches to Teaching of Medieval English Drama (Emmerson, R., ed.) (M.L.A. forthcoming)Google Scholar.

92. Parker, , The Transient and Permanent in Christianity, [1841] in Three Prophets of Liberalism: Channing-Emerson-Parker 113, 126 (1964)Google Scholar.

93. R. v. Tyler & Price, 8 Car & P. 616 (1838)Google Scholar.

94. But perhaps the higher law is that the human law controls. The point that the relationship between higher law and human law is not simple is suggested with notable economy in Melville's comparison between Captain Vere and Abraham in Billy Budd (Chapter 22). See also Stephen, J., A History of the Criminal Law of England at 160 n.1 (1883)Google Scholar: “If a special Divine order were given to a man to commit murder, I should certainly hang him for it unless I got a special Divine order not to hang him.” (And would he then still be functioning as a judge?).

For discussions of problems relating to divine command, see Idziak, J., Divine Command Morality: Historical and Contemporary Readings (1979)Google Scholar; Quinn, P., Divine Commands and Moral Requirements (1978)CrossRefGoogle Scholar; Divine Commands and Morality (Helm, P., ed. 1981)Google Scholar.

95. Persons claiming direct revelation were, and much earlier than the nineteenth century, viewed with distinct suspicion. As to the historical evolution of the revelation issue, Keith Thomas writes: “In the later seventeenth century it became orthodox to declare that the gift of prophecy had ceased …. The change may be best expressed by saying that in the sixteenth century the claims of a would-be prophet would always be seriously investigated, even if ultimately exposed as groundless, but by the eighteenth century the majority of educated men concurred in dismissing them a priori as inherently ridiculous.” Thomas, K., Religion and the Decline of Magic 145–46 (1971)Google Scholar. James Moorhead has observed that “by the late nineteenth century [evangelical] piety was waning” and that this change was symbolized by a deemphasis on the sudden dramatic conversion experience. “Distrustful of sharp discontinuities in the spiritual life, many Protestants preferred to speak of continuous maturation and of the natural unfolding of religious experience.” Moorhead, , The Erosion of Post Millenialism in American Religious Thought 1865-1925, 53(1) Church History 61, 68–69 (1984)CrossRefGoogle Scholar.

96. 2 Trial, supra note 1, at 1979.

97. Id.

98. Id. at 1337.

99. Other parts of the law might also reveal doctrinal civil religion. Simon Greenleaf's nineteenth century treatise on Evidence contains a telling discussion of the incompetency as witnesses of those who are “insensible to the obligations of an oath, from a defect of religious sentiment and belief.” American law, he writes, “presumes that every man brought up in a Christian land, where God is generally acknowledged, does believe in Him and fear Him. Greenleaf, S., The Law of Evidence, Part III Sec 368, 370Google Scholar.

See R. Bellah, The Broken Covenant: “It is one of the oldest of sociological generalizations that any coherent and viable society rests on a common set of moral understandings about good and bad, right and wrong, in the realm of individual and social action. It is almost as widely held that these common moral understandings must also in turn rest upon a common set of religious understandings that provide a picture of the universe in terms of which the moral understandings make sense.”

The issue of direct inspiration is evident in the case of Anne Hutchinson, see “The examination of Mrs. Anne Hutchinson” in The Antinomian Controversy n.29 (Hall, ed. 1968)Google Scholar, as well as that of the 19th century Mormons. See the Mormon letter quoted by William James in Varieties of Religious Experience 365 (1958)Google Scholar. It may be noted that modern revelation is one of the doctrines of Mormonism. See also Cover, , The Supreme Court 1982 Term: Foreword: Nomos and Narrative, 97 Harvard L. Rev. 4 (1983) (problem of new revelation in systems based on revelation)CrossRefGoogle Scholar.

The positive law as it relates to divine command or any other explicitly religious issue may simply be whatever the law wants it to be. See Thayer, J., Legal Essays 325 (1927)Google Scholar.

100. On the history of the insanity defense, see 1 Walker, N., Crime and Insanity in England: The Historical Perspective (1968)Google Scholar. On the insanity defense in general, see Goldstein, A., The Insanity Defense (1967)Google Scholar; Fingarette, H., The Meaning of Criminal Insanity (1972)Google Scholar. There is, of course, no attempt here to discuss the modern debate over issues relating to excuse for criminal responsibility.

101. Reynolds v. United States, 98 U.S. 145 (1879).

102. Id. at 162. John Locke in A Letter Concerning Toleration had made the fundamental argument:

You will say by this rule, if some congregations should have a mind to sacrifice infants, or (as the primitive Christians were falsely accused), lustfully pollute themselves in promiscuous uncleanliness, or practice any other such heinous enormities, is the magistrate obliged to tolerate them because they are committed in a religious assembly? I answer, no. These things are not lawful in the ordinary course of life, nor in any private house; and therefore, neither are they so in the worship of God, or in any religious meeting.

103. Id. at 166-167.

104. See arguments of the prosecution 2 Trial, supra note 1 at 1755, 1919, 1832.

105. “If sanity and insanity exist, how shall we know them? The question is neither capricious nor itself insane. However, much we may be personally convinced that we can tell the normal from the abnormal, the evidence is simply not compelling … [n]otions of normality and abnormality may not be quite as accurate as people believe they are.” Rosenhan, , On Being Sane in Insane Places, 179 Science 250, 250 (1973)CrossRefGoogle ScholarPubMed.

It may be that there is a presumption of sanity which stands, whatever one's opinion or mind-sets, until somehow brought into question. One might then ask: What triggers the legal inquiry? And answer it: “a crime,” “an eccentric or anti-social act,” “a will subject to challenge by a relative.” It is only then and only reluctantly, that we are asked to consider whether, for example, a belief in spiritualism makes one unfit to make a will. (See Field, , Is Belief in Spiritualism Ever Evidence of Insanity per se?, VI 6 Medico-Legal J. 194 (1888)Google Scholar.

106. Commonwealth v. Lynch, 25 Pitt. L.J. 193, 194 (1878)Google Scholar.

107. That is, though somewhat critical, Judge Cox used a general statement of the M'Naghten rules. It was said that under the M'Naghten rules one deals with the delusion “as if the fact with regard to which the delusion exists were true.” (2 Trial, supra note 1, at 2336). “This has been in part recognized as law in this country,” said Judge Cox. He then quoted Lemuel Shaw on the subject of monomania.

See also Commonwealth v. Rogers, 7 Metcalf 500 502 (1844) (Shaw, L.J.)Google Scholar. See the discussion of the Shaw opinion in Davis, , Homicide in American Fiction, 1798-1860 93 (1957)Google Scholar.

This seems to treat the religious delusion (divine command) as one of fact. Cf. Robillard, St. J., Religion and the Law 127 (1983)Google Scholar (suggesting that such a delusion is one of “law” and is not a defense). See also Williams, G., Criminal Law: Part I 53 46, 98 (1953)Google Scholar.

108. 2 Trial, supra note 1, at 2336. The Mormons, while not, of course, arguing the insanity defense, did urge that they lacked the requisite mental state for conviction of a crime. See Brief for Plaintiffs In Error at 55-57, Reynolds v. United States, 98 U.S. 145 (1879)Google Scholar (discussion of mens rea). See supra notes 73-75 and accompanying text.

Judge Cox indicated that the jury could take into account the evidence of hereditary insanity, Guiteau's past life, his behavior at Oneida, and all other facts introduced into evidence which bore on Guiteau's mental state at the time of the crime. 2 Trial, supra note 1 at 2334.

109. 98 U.S. 145.

110. 2 Trial, supra note 1, at 2340.

111. Id. at 2341.

112. Id.

113. Id.

114. Id. at 2337.

115. At least on the issue of auditory and visual hallucinations, it plainly did not. The point here is that unlike Joan of Arc, Guiteau did not hear voices. Nor did he see visions. He did not “get [his] inspirations in that way.” 1 Trial, supra note 1, at 617.

Charles Freeman, by contrast, had visions (see supra notes 87-95 and accompanying text).

116. Beard, G., The Case of Guiteau: A Psychological Study 9 (1882)Google Scholar.

117. The Pocasset Tragedy was reported in newspapers as far away as London. See, e.g., London Times, May 5, 1879, at 7 col. 6. After Freeman's acquittal in December, 1883, Dr. Folsom published an article on the case, including a long excerpt from Freeman's testimony at his trial. Folsom, , The Case of Charles F. Freeman of Pocasset, Mass. 40 Am. J. Insanity 353 363 (1884)Google Scholar. Materials relating to Freeman's release in 1887 can be found in the Massachusetts State Archive. [Application for release of Charles F. Freeman from the Danvers Insane Hospital, 16 March 1887. Files of the Governor's Council, Box 98 (Archives of the Commonwealth, Boston, Massachusetts).]

118. Freemen was finally tried in 1883. Following his acquittal, Freeman, though then sane, was hospitalized pursuant to the Massachusetts statute of 1873 which provided that a prisoner should be kept in confinement “until it appears to the Governor and Council that he may be discharged and set at large without danger to others.” Under this statute there was no issue of treatment and there could be no discharge simply on a finding of sanity. The acquitted individual “is confined in the hospital as a place of detention, because his being at large would be dangerous to the peace and safety of the community.” Gleason v. Inhabitants of West Bolyston, 136 Mass. 489, 490 (1884) (citing St. 1862, c. 223, § 17).

Freeman was perhaps thinking of Guiteau (in 1883) when he said “I never aspired to go into politics or hold office and for that reason I do not think it can be said about me that I wished to be a great man and gain notoriety.” (quoted in Folsom supra n. 117 at 356). After his release in 1887, it is reported that “Freeman went west to begin life anew.” Barnstable, Three Centuries of a Cape Cod Town 367 (D. Trayser, ed. 1939).

119. “A Religious Maniac,” Boston Daily Advertiser, 01 30, 1880, at 1, col. 9Google Scholar.

120. Id.

121. Id.

122. “The Pocasset Child-Murder,” Boston Daily Advertiser, 01 29, 1880, at 1, col. 5Google Scholar.

123. 2 Trial, supra note 1, at 2121-22. See also 1 Trial supra note 1, at 1341.

124. Id. at 2337-38.

125. The Canadian insurgent Louis Riel (tried for treason and handed in 1885) was, in turn, compared with Guiteau. See The Queen v. Louis Riel (with an introduction by Morton, Desmond) pp. xxix, xxx (1974)Google Scholar. See also Ireland, Through the Ivory Gate 229 (1889)Google Scholar. I would like to thank Richard Kay for calling the Riel trial to my attention.

126. Folsom, , The Responsibility of Guiteau, 16 Am. L. Rev. 85, 95 (1882)Google Scholar. Dr. Folsom was convinced of Guiteau's insanity on other grounds, and was a witness for the defense, 1 Trial, supra note 1, at 770.

127. Godding, W., Two Hard Cases: Sketches from a Physician's Portfolio 177 (1882)Google Scholar. Godding's views are summarized in Rosenberg, supra note 1, at 134-35. Godding viewed Freeman as having merely “an impression” (as opposed to visions). Godding, supra at 177.

128. Reports of Societies, 107 Boston Medical & Surgical J. (12 28, 1882)Google Scholar.

129. Conway, M., The Life and Death of Garfield: A Discourse Before the South Place Religious Society 18 (1881)Google Scholar.

130. Hamilton, , The Things Which Remain, 135 North American Rev. 76, 78 (07, 1882)Google Scholar. Gail Hamilton, denying that the assassination was the fruit of the spoils system, raised the possible responsibility of the family (“for Guiteau sprang, full-armed for vice, from the bosom of a once responsible family”) and religion (“for Guiteau was a Christian before he was a politician and after he was an assassin”). Id. Essentially Hamilton argued that Guiteau was not the fruit of any “political or religious or political system whatever.” Hamilton, at 80. The Freeman case raised familiar questions as to whether religion was a cause of insanity, and familiar denials of the charge. When, as in Freeman's case, the insanity was associated with murder, the relation of religion and insanity would be discussed with peculiar intensity. “The Massachusetts tragedy of the Freemans has sent a thrill of horror through the land,” one journal commented, and, “as usual, some indignant writers have ascribed the murder of the little child to the effects of religious fanaticism.” There were others, “more precise, but equally wrong-headed,” who attributed the murder “to the peculiar tenets of the Second Adventists.” But both of these are unjust, the journal insisted. “There is no connection between religious enthusiasm and infanticide. There is nothing in the belief that the day of the Lord's coming is at hand, or even in the delusion that the time has been revealed in prophecy, to move parents to kill their child.” (The Churchman, May 24, 1879, at 562, col. 2-3.)

131. The Works of Robert G. Ingersoll 104 (Dresden, ed. 1900)Google Scholar.

132. The Pocasset Murder, The Independent, May 15, 1879.

133. Id.

134. Id. The Independent suggested that after the sentence, Freeman might be imprisoned for life instead of being hanged.

135. Id. On Oneida see Weisbrod, C., The Boundaries of Utopia (1980)Google Scholar; Weisbrod, , On the Break Up of Oneida, 14 Conn. L. Rev. 717 (1982)Google Scholar; and works cited therein. There were many references to Oneida at the trial, see, e.g., 2 Trial, supra note 1, at 2145 (Scoville), and testimony concerning Guiteau at Oneida was submitted by the aged J.H. Noyes. See also The Lesson of President Garfield's Assassination, 6 Am. Cath. Q. Rev. 683, 689 (1888)Google Scholar (discussing Oneida and Mormons, stating that “Conscience cannot be altogether deadened and to silence it, men invent religions to justify criminal deeds”).

George Beard believed that, “While the mere going to the Oneida Community was not in itself a proof of insanity, yet for an energetic, able, and ambitious man to leave his studies and break up all his planned of life, exile himself from home and friends and rush to this society, was as immoral and frantic an act as could well be committed.…” Beard, G., The Case of Guiteau-a-Psychological Study 25 (1882)Google Scholar.

The English psychiatrist John Bucknill, recalling the fact that Guiteau's father was a follower of Noyes, suggested that “probably it would not be too much to say that the assassination of President Garfield was the outcome of Oneida” (1882-1883). Bucknill, , The Plea of Insanity in the Case of Charles Guiteau, 39 American Journal of Insanity 181, 197 (1882-1883)Google Scholar.

Gray thought that the time at Oneida was “doubtless the turning point” of Guiteau's life. Gray wrote “It showed itself in an awful perversion of intellectual activity and misdirected religious thought, which shattered to fragments all the moral sanctions of human law, and all the sacred institutions of civil society, with all the guarantees of personal accountability, and made him the sport of an unbridled egotism by self-delusions, though a pretense of individual union with the Divine will and Divine authority. …” Gray, The Guiteau Trial, supra note 1, at 312.

136. The Pocasset Murder. The Independent May 15, 1879.

137. The insanity defense in the Freeman case was analyzed just after the events in the Albany Law Journal: In sacrificing his daughter, “Freeman apparently considered that he was acting under the direct command of God as revealed to him in dreams and visions.” If the sanity defense was used the “jury must be instructed to find according to the ‘right and wrong’ test in The McNaughten's (sic) case.” The journal also cited Commonwealth v. Rogers on monomania. Stone, , Legal Aspects of the Pocasset Affair, X Albany Law J. 71 (1879)Google Scholar. In terms of the legal test of insanity often referred to as the right/wrong test, there is an ambiguity in the word “wrong” as used in the formal statement of the rule. The problem was summarized by James Fitzjames Stephen as follows:

(3) A kills B knowing that he is killing B, and knowing that it is illegal to kill B, but under an insane delusion that the salvation of the human race will be obtained by his execution for the murder of B, and that God has commanded him [A] to produce that result by those means. A's act is a crime if the word “wrong” means illegal. It is not a crime if the word means morally wrong.

Stephen, J., A History of the Criminal Law of England 149 (1883)Google Scholar.

138. 2 Trial, supra note 1, at 2268.

139. Id. Rosenberg refers to The Independent as “one of the country's more influential weeklies.” Rosenberg, supra note 1, at 23.

140. Abraham, Isaac and Pocasset, The Independent, May 22, 1879, at 14, col. 1. It has been noted that for the modern reader, the story of Genesis 22 is extraordinarily difficult. “Modern readers find the picture of God's temptation of Abraham to sacrifice his own son repulsive. The horror which human sacrifice excites makes it hard for them to see how God could utter such a command even when it is not seriously intended, or how Abraham could have accepted such a command as a true divine revelation. …” McKenzie, , The Sacrifice of Isaac (Gen. 22), 9 Scripture 79 (1957)Google Scholar.

On “the legends and lore of the command to Abraham to offer Isaac as a sacrifice,” see Spiegel, S., The Last Trial (Goldin, J. trans. 1969)Google Scholar.

The treatment of Abraham by Kierkegaard (Fear and Trembling), while published in 1843, was not available in English until the twentieth century. Krauschoor, , Kierkegaard in English, 39 J. of Philos. 561 (1942)CrossRefGoogle Scholar. German translations were available somewhat earlier than English translations.

141. Potter, , The Commands of the Lord in A History of the Pocasset Tragedy with the Three Sermons Preached in New Bedford by Rev. William J. Potter, Rev. C.S. Nutter & Rev. W.C. Stiles 13 [hereinafter History of the Pocasset Tragedy]Google Scholar.

142. Stiles, , The Bible and Human Reason in History of the Pocasset Tragedy, at 31Google Scholar.

143. Denton, W., The Pocasset Tragedy: The Legitimate Fruit of Christianity 28 (1882)Google Scholar. This pamphlet (not listed in McDades bibliography, The Annals of Murder) can be found in the Denton collection at the University of Pennsylvania and at the Newberry Library.

I appreciate the courtesy of both of these institutions. See also Littlejohn, W.H., The Pocasset Tragedy: Freeman not a Seventh-Day Adventist (1879)Google Scholar. I have been unable to locate a copy of Poor Little Edith Freeman. The Pocasset Fanatics — Chas. Freeman, the “Second Adventist” imagining himself another Abraham slays his little daughter, offering up his darling child as a human sacrifice. (Phila. 1879)Google Scholar (listed in McDade's bibliography as item 322). It is neither, I am advised, in the collection of the American Antiquarian Society (McDade's reference) nor the collection of the Pennsylvania State Library (N.U.C. reference).

144. The Pocasset Tragedy, American Socialist, May 29, 1879. The Perfectionist spokesman then argued the group's central theological proposition, that the Second Coming had already occurred. Freeman and wife and neighbors “carried their fanaticism to extreme wickedness”; and might be condemned and living, or imprisoned for life.” There is, significantly, no emphasis on the insanity issue here.

Perfectionism, too, could be considered in the context of barbaric Christianity. Thus, Reverend Powell wrote, “I wish it were possible …” he said, “to say that ‘all the blame lay on such fanatical institutions’ as Oneida. But we are quite entitled to say to Noyes & Co., ‘your inspiration is a lie, but ours is the truth?’ You go back to patriarchal times, to Abraham and concubinage, for your ideal; we go back only to Apostolic times ….” Powell, , Guiteau from a Theological Standpoint 7 (1881)Google Scholar.

The Millerite excitement earlier in the century also came up at the Guiteau trial as illustrating fanaticism but not insanity. See 2 Trial, supra note 1, at 1368.

145. Id.

146. Id.

147. See Reddy, , Abraham's Inspiration in the Offering of Isaac, His Son, Christian Advocate, 03 30, 1882Google Scholar. “The blasphemous use of the case of Abraham by Guiteau and its frequent citation by fanatics, justifies a careful examination of the Scripture narrative at this time.”

148. See Easton, T., Israel's Beauty Slain 14 (1881)Google Scholar, for a sermon associating Guiteau with the Nihilistic contempt of all “authority, human, or divine, which feeds upon and springs out of the rotten compost of Atheism.”

149. The New York Times said: “It is a very strange recreation of the meddling pagan Gods of the Greek mythology that Guiteau has attempted. There is a very curious and complete parallelism between the view of the crime and the most striking feature of the theology of the Greeks. Their theory of the nature of the Gods and of their relations with men was precisely that which Guiteau pretends to hold of the Divine nature and its manifestations in our day.” New York Times, January 1, 1882, at 6, col. 6.

150. Conway, M., The Life and Death of Garfield: A Discussion Before the South Place Religious Society 17–18 (1881)Google Scholar.

151. Powell, E., Guiteau from a Theological Standpoint 2–3 (1881)Google Scholar.

152. Id. at 4.

153. Id.

154. The Works of Robert Ingersoll 102–03 (Dresen 1900)Google Scholar. See also Marty, M., The Infidel: Free Thought and American Religion (1961)Google Scholar.

155. Buckley, , A Study of Guiteau, Christian Advocate, 01 12, 1882, at 18, col. 2Google Scholar.

156. 2 Trial, supra note 1, at 1918.

157. Bucknill, , The Pleas of Insanity in the Case of Charles Julius Guiteau, 39 Am. J. Insanity 181, 198 (1882–1883) (reprinted from Brain 1882)Google Scholar.

158. Godding, W., Two Hard Cases: Sketches from a Physician's Portfolio 37–38 (1882)Google Scholar.

159. Beard, , The Case of Guiteau: A Psychological Study, 9 Journal of Nervous Diseases 9 (1882)Google Scholar. (Emphasis in original) For Beard's brief appearance at the trial, see 2 Trial, supra note 1 at 1718.

160. Phillips, , The Death Penalty, 133 North American Review 550, 559 (1881)Google Scholar.

161. Thus, Paul Carter on the highly publicized civil suit of Henry Ward Beecher (brought in 1875 by Theodore Tilton, for alienation of affections): “Conceivably Tilton v. Beecher was one of the great symbolic trials, like those of Bukharin or Dreyfus or Alger Hiss—the kind in which in the minds of partisans the accused must be guilty or must be innocent because of larger issues that turn upon that guilt or innocence.” Carter, P., The Spiritual Crisis of the Gilded Age 118 (1971)Google Scholar. Professor Carter is careful to state that we cannot tell how many people rejected this reading of the trial's significance. Id. at 248 and n.41. See generally McLaughlin, W., The Meaning of Henry Ward Beecher: An Essay in the Shifting Values of Mid-Victorian America 1840–1870 (1970)Google Scholar.

If things other than the speeches of doctors and lawyers were important in the Guiteau trial, what other things were they? Mitchell, , The Man Who Murdered Garfield, 67 Mass. Hist. Society Proceedings 452 (1941)Google Scholar, stresses the testimony of Guiteau's former wife, Mrs. Theodore Dunmire, to the effect that she had never seen anything indicating that Guiteau was a man of unsound mind. Id. at 475 (quoting 1 Trial, supra note 1, at 1165-66). Mitchell writes that this testimony “probably did more to send [Guiteau] to the gallows than all the lawyers and doctors put together.” Id. at 475.

162. Gray, , The Guiteau Trial, 38 Am. J. Insanity 303, 309 (1882)Google Scholar.

163. Porter, who had briefly been a judge in New York, was one of those representing Beecher (and Christianity?) in the Beecher-Tilton trial. See also Biographical Sketch of John K. Porter (1819-1892), N.Y. State Bar Ass'n Reports 125–30 (1893)Google Scholar.

164. For Rosenberg's summary, see supra note 1, at 200-01.

165. Guiteau's Trial, Appleton's Annual Cyclopedia and Register of Important Events 381, 394 (1881)Google Scholar.

166. The present emphasis on Porter, and this highly literal reading of his speech, does not deny the importance of tendencies represented to Spitzka or others of a secularist mentality.

The point is that Porter (and Gray) were in part engaged in a discussion of reality with others whose world view no longer, as David Hall says, located truth in the Christian revelation. Hall, , The Victorian Connection, in Victorian America 81 (Howe, D. ed. 1976)Google Scholar.

167. See 2 Trial supra note 1, at 2301. Porter argued that “the claim in the present case is, that this man was so enormously wicked as to be, in the language of Dr. Spitzka, an absolute ‘moral monstrosity’. But, said Porter, “He represents the distinctive class of whom the Savior spoke, not as lunatics, but as possessed with devils.” Id. at 2266 (emphasis added).

168. Id. at 1493.

169. Id. at 2230.

170. Id. at 2272-73.

171. Id. at 2305. A tone similar to that of the closing speech was evident also in Porter's questioning of Guiteau. See 1 Trial, supra note 1 at 605. Professor Rosenberg's description of Porter includes these aspects. Porter, he writes, was: “a most persistent questioner, Guiteau a picture of frustration, unable to explain the simple truth of his inspiration to the older man.… Porter delighted as well in ridiculing Guiteau's theological pretensions-quoting Noyes' Berean to prove that the defendant had simply plagiarized his religious ideas from the Oneida Community's founder.” Rosenberg, supra note 1, at 141.

Porter's view of the case may be contrasted with the neutral statement offered by Judge Cox:

The theory of the Government is that the defendant committed the homicide in the full possession of his faculties and from perfectly sane motives; that he did the act from revenge, or perhaps from a morbid desire for notoriety; that he calculated deliberately upon being protected by those who were politically benefitted by the death of the President and upon some ulterior benefit to himself; that he made no pretense to inspiration at the time of the assassination, nor until he discovered that his expectations of help from the so-called stalwart wing of the Republican party were delusive, and that these men were denouncing his deed, and that then for the first time, when he saw the necessity of making out some defense, he broached this theory of inspiration and irresistible pressure, forcing him to the commission of the act.

2 Trial, supra note 1, at 2341-42.

The religious/secular theme emerged also in the examination of witnesses by the prosecution lawyers. Dr. Godding writes:

At the second question he drew out the fact that the witness [Kiernan] did not believe in a future state of rewards and punishments; and though this was not, strictly speaking, a scientific refutation of the prisoner's insanity, it was in effect to make a philistine of this witness to the jury, who had stated under oath that they believed in the doctrines of the Christian religion.

Godding, W., Two Hard Cases: Sketches from a Physician's Portfolio 187 (1881)Google Scholar. Rosenberg comments that “for many of the jurors, Kiernan's testimony could, from that moment, be disregarded.” Rosenberg, supra note 1, at 146.

See also the examination of Spitzka:

District Attorney Corkhill. Do you believe in God?

The Witness [Spitzka]. If the court does not declare your question irrelevant—The Court [Cox]. (Interposing) You are not obliged to answer that question, doctor

[Spitzka]: I do on principle, decline to answer question ….

Corkhill: Then I understand you decline to answer whether you believe in God or not?

Spitzka: I decline to answer it on principle, as from my point of view, an impertinent question in a country that guarantees civil and religious liberty.

Mr. Davidge: Irreligious liberty. 1 Trial, supra note 1, at 1007. The defense also cited the Bible, attempting to persuade the jury to feel compassion for a lunatic.

2 Trial, supra note 1, at 1948-49.

On devilish delusions as against insane delusions, see id. at 2310; 1 Trial, supra note 1, at 690. Also “this malignant, diabolical, crafty, calculating cold-blooded murderer” 2 Trial, supra note 1, at 2305; see also “whether the devil that possess this man, is or is not to be checked by the mandate of law. …” Id. at 2667.

Was there, then, a different defense available? See Wharton: then as to the alleged supernatural powers of Satan. Now the existence of Satan as a tempter is not denied; all that we deny is his absolute power as a coercer. The law of the land united with Scripture in affirming the existence of such a tempter. ‘Moved and seduced by the instigation of the devil’ is the allegation which the prosecution makes in every indictment for a heinous crime. ‘I was coerced to do so by supernatural agency’ is a defense, which, unless there be proof of insanity aliunde, is never tolerated. This is one of the points in which the common law had adopted the divine word as part of itself.

Wharton, , A Treatise on Mental Unsoundness Embracing a General View of Psychological Law § 645, at 628 (1873)Google Scholar.

Porter attempted to persuade the jury to judge Guiteau on moral and not only legal standards. Thus, “Gentlemen, it is well for us all that the law does not call on jurors to leave the only immortal part of their nature, their moral nature, at the courthouse door when they enter it to administer justice.” 2 Trial, supra note 1, at 2662.

172. Beard, G., American Nervousness: Its Causes and Consequences 128 (1881)CrossRefGoogle Scholar.

173. Marty, M., The Modern Schism: Three Paths to the Secular 9 (1969)Google Scholar.

174. Hexter, J., Reappraisals in History: New Views on History and Society in Early Modern Europe 258 (2d ed. 1979)Google Scholar.

175. Smith, R., Trial by Medicine 3 (1982)Google Scholar.