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

  • Susanna L. Blumenthal


Addressing an audience of medical students in 1810, the Philadelphia physician Benjamin Rush recounted a recent call he had made, in consultation with a Dr. Physick, 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.”



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1. The source of the epigraph is Rush, Benjamin, “On Medical Jurisprudence,” in Sixteen Introductory Lectures (Philadelphia: Bradford and Innskeep, 1811), 381.

2. He was probably referring to Philip Syng Physick, a Philadelphia surgeon who served on the faculty of the medical school. See Brunton, Deborah C., “The Edinburgh and Philadelphia Medical Schools,” in Scotland and America in the Age of the Enlightenment, ed. Sher, Richard B. and Smitten, Jeremy (Edinburgh: Edinburgh University Press, 1990), 242, 252.

3. Rush, , “On Medical Jurisprudence,” 363, 380–81, 385–86, 392–93.

4. Rush, Benjamin, Medical Inquiries and Observations, upon the Diseases of the Mind (Philadelphia: Kimbler & Richardson, 1812), v, 264, 367.

5. Dain, Norman, Concepts of Insanity in America in the United States, 1789–1865 (New Brunswick: Rutgers University Press, 1964), 22.

6. For the most comprehensive treatment of the subject of medical jurisprudence within the American context, see Mohr, James, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America (New York: Oxford University Press, 1993). For other illuminating discussions of antebellum medico-legal literature, which emphasize inter-professional—as well as intra-professional—conflict, see Rosenberg, Charles, The Trial of the Assassin Guiteau: Psychiatry and Law in the Gilded Age (Chicago: University of Chicago Press, 1968);Davis, David Brion, Homicide in American Fiction, 1798–1860 (Ithaca: Cornell University Press, 1957);Haney, Craig, “Criminal Justice and the Nineteenth-Century Paradigm: The Triumph of Psychological Individualism in the ‘Formative Era,’” Law and Human Behavior 6 (1982): 191235;Tighe, Janet, “A Question of Responsibility: The Development of Forensic Psychiatry, 1838–1940” (PhD diss., University of Pennsylvania, 1983). For studies finding similar strains in English medico-legal discourse, see Smith, Roger, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981);Eigen, Joel, Witnessing Insanity, Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995);Wiener, Martin J., Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (New York: Cambridge University Press, 1990).

7. On the rise of the asylum and a professional class of alienists in early republican America, see Rothman, David, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little, Brown & Co., 1971). In line with the work of Michel Foucault and Michael Ignatieff, Rothman portrayed the architects of these institutions as chiefly concerned with imposing “social control” upon an unruly populace. For valuable correctives, see, e.g., Tomes, Nancy, A Generous Confidence: Thomas Story Kirkbride and the Art of Asylum-Keeping, 1840–1883 (New York: Cambridge University Press, 1984);Grob, Gerald, Mental Institutions in America: Social Policy to 1875 (New York: The Free Press, 1973);Scull, Andrew, Social Order/Mental Disorder: Anglo-American Psychiatry in Historical Perspective (Los Angeles: University of California Press, 1989);Fox, Richard Wighman, So Far Disordered in Mind: Insanity in California, 1870–1930 (Berkeley: University of California Press, 1978);Hirsch, Adam, The Rise of the Penitientiary: Prisons and Punishment in Early America (New Haven: Yale University Press, 1992);Colvin, Mark, Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the History of Punishment in Nineteenth- Century America (New York: St. Martin's Press, 1997);Meranze, Michael, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760–1835 (Chapel Hill and London: University of North Carolina Press, 1996). On the curious inattention to the interface between law and “the disciplines” in the work of Foucault and others influenced by him, see Goldstein, Jan, “Framing Discipline with Law: Problems and Promises of the Liberal State,” American Historical Review 98 (1993): 134–65.

8. Wharton, Francis and Moreton Stillé, Medical Jurisprudence (Philadelphia: Kay & Bro., 1873), 749.

9. In two separate articles, I explore the manner in which this body of medico-legal literature was deployed in the everyday adjudication of capacity and responsibility. See Blumenthal, Susanna L., “The Default Legal Person,” U.C.L.A. Law Review 54.5 (July 2007): 11351265;Blumenthal, Susanna L., “The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America,” Harvard Law Review 119.4 (February 2006): 9591034.

10. Finley's sermon, an extended commentary on a passage from Ecclesiastes, went through two editions during his lifetime. See Finley, Samuel, The Madness of Mankind (New York: Gaines, 1758).

11. Rush, Benjamin, “On the Mode of Education Proper in a Republic,” in Essays: Literary, Moral, and Philosophical (Philadelphia: Thomas and Samuel F. Bradford, 1798), 14.

12. Rush, , Medical Inquiries, vi, 365. For an especially thorough and incisive account of Rush's life and works, see D'Elia, Donald, Benjamin Rush: Philosopher of the American Revolution (Philadelphia: American Philosophical Society, 1974), 1113. Rush's own version of the story is supplied in Rush, Benjamin, The Autobiography of Benjamin Rush: His “Travels Through Life” Together with His Commonplace Book for 1789–1813, ed. Corner, George W. (Princeton: Princeton University Press, 1948). Other useful treatments of Rush can be found in Terrell, Colleen E., “‘Republican Machines’: Franklin, Rush, and the Manufacture of Civic Virtue in the Early Republic,” Early American Studies 1 (2003): 100132;Jimenez, Mary Ann, Changing Faces of Madness: Early American Attitudes and Treatment of the Insane (Hanover: Brandeis University Press, 1987), 7285, 108–9;King, Lester S., Transformations in American Medicine: From Benjamin Rush to William Osler (Baltimore: Johns Hopkins University Press, 1991); Michael Meranze, “Introduction” to Rush, Benjamin, Essays: Literary, Moral, and Philosophical, ed. Meranze, Michael (Schenectady: Union College Press, 1988), i–xxxiz; andMay, Henry, The Enlightenment in America (New York: Oxford University Press, 1976), 207–11.

13. In according such prominence to Calvinism, I follow the recent treatment of the subject by Holifield, Brooks in his comprehensive volume Theology in America: Christian Thought from the Age of the Puritans to the Civil War (New Haven: Yale University Press, 2005). As he writes, “Historians of American religion have departed from earlier assumptions that the Calvinist clergy of New England deserve a place of special privilege in the national religious narrative, but New England Calvinism, and other forms of Calvinist theology elsewhere, attained to such a position of dominance in highly respected institutions, from denominations to colleges and seminaries, that most subsequent theological movements had to define themselves in relation to the Calvinist traditions. In a history of American theology, the Calvinists loom large.” Ibid., 10. For an illuminating discussion of the shifting orientation toward Calvinism in the historiography of American religion, as scholars have uncovered and examined “the varieties of colonial religious experience,” see Cohen, Charles, “The Post-Puritan Paradigm of Early American Religious History,” William and Mary Quarterly 54 (1997): 695722. Among the recent studies that both exhibit this historiographical movement away from a monolithic “Puritan mind,” and address the relationships among religious, political, and legal authorities, see, for example, Dale, Elizabeth, Debating—and Creating—Authority: The Failure of a Constitutional Ideal in Massachusetts Bay, 1629–49 (Aldershot, Eng.: Ashgate, 2001) ; Pahl, Jon, Paradox Lost: Free Will and Political Liberty in America Culture, 1630–1760 (Baltimore: Johns Hopkins University Press, 1992).

14. Rush, quoted in D'Elia, , Rush, 90.

15. Isaac Newton, Mathematical Principles of Natural Philosophy, quoted in Deason, Gary B., “Reformation Theology and the Mechanistic Conception of Nature,” in God and Nature: Historical Essays on the Encounter between Religion and Science, ed. Lindberg, David C. and Numbers, Ronald L. (Berkeley: University of California Press, 1986), 545;Turner, James, Without God, Without Creed: The Origins of Unbelief in America (Baltimore: Johns Hopkins Press, 1985), 1334.

16. Smith, Roger, “The Language of Human Nature,” in Inventing Human Science: Eighteenth- Century Domains, ed. Fox, Christopher, Porter, Roy, and Wokler, Robert, (Berkeley: University of California Press, 1995), 88, 95, 100; see generallyRousseau, G. S., “Psychology,” in The Ferment of Knowledge: Studies in the Historiography of Eighteenth-Century Science, ed. Rousseau, G. S. and Porter, Roy (New York: Cambridge University Press, 1980), 143210.

17. Fiering, Norman, Jonathan Edwards's Moral Thought and Its British Context (Chapel Hill: University of North Carolina Press, 1981), 67. As Roger Smith has observed, eighteenth-century philosophers saw themselves to be engaged in an enterprise that was “evaluative as well as descriptive”; they proceeded confident that the accumulating “knowledge of man” would provide them with a reliable basis for determining “what is right to do.” Smith, Roger, The Norton History of the Human Sciences (New York: W. W. Norton & Co., 1997), 218. This was to reverse the relation that obtained in the seventeenth century, when natural philosophers typically “borrowed notions of law in human affairs and applied them to the study of physical nature.” Ibid. at 243.

18. Smith, , “Language of Human Nature,” 97;Smith, , Human Sciences, 226, 260.

19. Locke, John, Some Thoughts Concerning Education (1690), quoted inPassmore, J. A., “The Malleability of Man in Eighteenth-Century Thought,” in Aspects of the Eighteenth Century, ed. Wasserman, Earl R. (Baltimore: Johns Hopkins Press, 1965), 21; see alsoFiering, Norman, “Irresistible Compassion: An Aspect of Eighteenth-Century Sympathy and Humanitarianism,” Journal of the History of Ideas 37 (1976): 195218;Noll, Mark A., America's God: From Jonathan Edwards to Abraham Lincoln (New York: Oxford University Press, 2002), 97, 107–10.

20. For a useful survey of this pamphlet literature, see Guelzo, Allen C., Edwards on the Will: A Century of American Theological Debate (Middletown: Wesleyan University Press, 1993); see alsoNoll, , America's God, 99102. On the reception of the “New Learning” more generally, see May, Enlightenment in America, passim; Turner, , Without God, Without Creed, 5063.

21. See generally, Holifield, , American Theology, 79–101; Noll, , America's God, 97102;Guelzo, , Edwards on the Will, 1753.

22. Edwards, Jonathan, Careful and Strict Enquiry into the Modern Prevailing Notions of that Freedom of the Will, ed. Ramsey, Paul (New Haven: Yale University Press, 1957), 11, 34, 40, 62, 281, 300, 304–5, 359–62, 420–22. See generally Fiering, , Edwards's Moral Thought, 260321; Guelzo, Edwards on the Will; Holifield, , American Theology, 102–26; Noll, , America's God, 2425, 75–76; Oberg, Barbara B. and Stout, Harry S., eds., Benjamin Franklin, Jonathan Edwards, and the Representation of American Culture (New York: Oxford University Press, 1993);Hatch, Nathan O. and Stout, Harry S., eds., Jonathan Edwards and the American Experience (New York: Oxford University Press, 1988).

23. Dana, James, An Examination of the Late Reverend President Edwards's “Enquiry on Freedom of Will” (Boston: Printed by Daniel Kneeland, 1770), v.

24. Among the many works that have documented the influence of Scottish Common Sense philosophy in post-revolutionary America, this account relies in particular upon the following: Bozeman, Theodore, Protestants in an Age of Science: The Baconian Ideal and Antebellum American Religious Thought (Chapel Hill: University of North Carolina Press, 1977);Carson, John, The Measure of Merit: Talents, Intelligence, and Inequality in the French and American Republics, 1750–1940 (Princeton: Princeton University Press, 2006), 4460;Curti, Merle, Human Nature in American Thought (Madison: University of Wisconsin Press, 1980), esp. 70–146; Evans, Rand, “The Origins of American Academic Psychology,” in Explorations in the History of Psychology in America, ed. Brozek, Josef (Lewisberg: Bucknell University Press, 1984), 1760;Holifield, , Theology in America, esp. 173–96;Hovenkamp, Herbert, Science and Religion in America, 1800–1860 (Philadelphia: University of Pennsylvania Press, 1978), esp. 336;Howe, Daniel Walker, The Unitarian Conscience: Harvard Moral Philosophy, 1805–1861 (Cambridge: Harvard University Press, 1970);Kuklick, Bruce, Churchmen and Philosophers: From Jonathan Edwards to John Dewey (New Haven: Yale University Press, 1987), esp. 128–45;Martin, Terence, The Instructed Vision: Scottish Common Sense Philosophy and the Origins of American Fiction (Bloomington: University of Indiana Press, 1961);May, , Enlightenment in America, 346–58; Meyer, Donald H., The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972);Noll, , America's God, esp. 93113.

25. Reid, Thomas, Essays on the Active Powers of the Human Mind (Edinburgh: printed for John Bell, Parliament-Square, and G. G. J. & J. Robinson, London, 1785), 537.

26. Noll, Mark A., “The Rise and Long Life of the Protestant Enlightenment in America,” in Knowledge and Belief in America: Enlightenment Traditions and Modern Religious Thought ed. Shea, William M. and Huff, Peter A. (New York: Cambridge University Press, 1993), 88108.

27. Noll, Mark A., “Common Sense Traditions and American Evangelical Thought,” American Quarterly 37 (1985): 216, 218–27; see alsoGuelzo, Allen C., “‘The Science of Duty’: Moral Philosophy and the Epistemology of Science in Nineteenth-Century America,” in Evangelicals and Science in Historical Perspective, ed. Livingstone, David N., Hart, D. G., and Noll, Mark A. (New York: Oxford University Press, 1999), 267–83.

28. As Daniel Walker Howe has observed, the Scottish philosophy was capacious enough to admit a wide range of views on such questions as “social organicism v. contractualism, government intervention v. laissez faire, free will v. determinism, Christianity v. skepticism, ethical sentimentalism v. ethical rationalism.” Howe, Daniel Walker, Making the American Self: Jonathan Edwards to Abraham Lincoln (Cambridge: Harvard University Press, 1997), 57.

29. Martin, , The Instructed Vision, 34;May, , Enlightenment in America, 344–45.

30. May, , Enlightenment in America, 344–46. Other expositors of the Common Sense that were well known in the United States include James Oswald, Thomas Brown, and Sir William Hamilton. Ibid., 346. Reid's work provides the basis for discussion here because his works were the primary source from which other Common Sense philosophers developed their own systems of thought; although other philosophers within this tradition took issue with various aspects of Reid's work, the portions quoted and described in this section reflect ideas about which there was broad agreement. For an incisive overview of the American writers in the Common Sense tradition, confirming the extent to which they shared the views of Reid and his Scottish expositors, see Carson, , Measure of Merit, 4447.

31. Reid, Thomas, Essays on the Intellectual Powers of Man (Edinburgh: printed for John Bell, and G. G. J. & J. Robinson, London, 1785), 45, 111, 575–604; Reid, Thomas, An Inquiry into the Human Mind, on the Principles of Common Sense (Edinburgh: printed for A. Millar, London, and A. Kincaid & J. Bell, Edinburgh, 1764), 58, 534. See generally,Grave, S. A., Scottish Philosophy of Common Sense (Oxford: Clarendon Press, 1960), 8283, 114–15; Adams, Todd L., “The Commonsense Tradition in America: E. H. Madden's Interpretations,” Transactions of the Charles S. Peirce Society 24 (1988): 1, 4–5.

32. Reid, Intellectual Powers and Active Powers, passim.

33. Howe, , Making the American Self, 22, 65–66. Though faculty psychology had long been a dominant approach within the Protestant tradition, the model of the Common Sense philosophers was distinctive in two key respects. First, they departed from medieval models in placing prudence among the rational faculties; self-regarding motives had heretofore been classed as passions. Second, in casting moral sense as a rational power, they distinguished themselves from such sentimentalists as Hutcheson, Hume, and Smith, who considered it to be an affection. Ibid., 66. For a general discussion of the uses of faculty psychology within the Protestant tradition, see Fiering, Norman S., “Will and Intellect in the New England Mind,” William & Mary Quarterly 29 (1972): 515–58. On the role of the passions in particular, see Hirschman, Albert O., The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton: Princeton University Press, 1977).

34. Reid, , Active Powers, 5996, 270–74, 288, 312, 362. See generally, Kosits, Russell D., “Of Faculties, Fallacies, and Freedom: Dilemma and Irony in the Secularization of American Psychology,” History of Psychology 7 (2004): 340.

35. Reid, , Active Powers, 268–70.

36. Ibid., 303–10.

37. Ibid., 186, 253, 302–12.

38. Ibid., 307–8, 318–22, 327–28. Intriguingly, Reid suggested that a treasonous act would be excused if “extorted by the rack,” but not if gotten by the “greatest bribe.” Ibid., 320–21. This was because “the love of money, and of what is called man's interest, is a cool motive, which leaves to a man the entire power of himself; but the torment of the rack, or the dread of present death, are so violent motives that men who have not uncommon strength of mind, are not masters of themselves in such a situation, and therefore, what they do is not imputed, or is thought less criminal.” Ibid., 321.

39. Ibid., 56–57, 186–87.

40. See generally, Haskell, Thomas L., “Persons as Uncaused Causes,” in The Culture of the Market: Historical Essays, ed. Haskell, Thomas L. and Teichgraeber, Richard F. III (Cambridge: Cambridge University Press, 1993), 441, 457;Wood, Gordon S., “Conspiracy and the Paranoid Style: Causality and Deceit in the Eighteenth Century,” William & Mary Quarterly 39 (1981): 401, 417. It should be noted that Wood blurs the distinctions between various theological and philosophical renderings of the basis of human responsibility, painting in broad brush strokes as he delineates the process by which human agency generally displaced divine agency; on his account Edwards and Reid both exemplify this new way of regarding human responsibility, with no attention paid to their profoundly different understandings of the relation between (to take the most significant example) “motive” and “will.”

41. Noll, , “Protestant Enlightenment in America,” 222.

42. For example, Horace Mann insisted that the “great experiment of Republicanism—of the capacity of man for self-government”—would rise or fall (as it always had, throughout the ages) on the capacity “in the people to enjoy liberty without abusing it.” Howe, , Making the American Self, 161 (quoting Mann). See also Meyer, , Instructed Conscience, 11.

43. Smith, Wilson, Professors and Public Ethics: Studies of Northern Moral Philosophers before the Civil War (Ithaca: Cornell University Press, 1956), 42 (observing that 'moral philosophy was a fundamental part of training for the law in antebellum America); see also Guelzo, , “Science of Duty,” 272–73 (describing how Scottish Common Sense philosophy was early institutionalized at Princeton, Harvard, and Yale, becoming “the epistemological crossbeam on which moral philosophy rested its case,” and demonstrating how it spread to the University of Pennsylvania, City College of New York, Brown, Williams, Bowdoin, and the University of Michigan). For a survey of a representative sample of moralists, highlighting their varied religious backgrounds and orientations toward moral philosophy (organized according to whether their ethical theory was deontological or teleological), see Meyer, , Instructed Conscience, 1322; see generally,Fuchs, Alfred H., “Contributions of American Mental Philosophers to Psychology in the United States,” History of Psychology 3 (2000): 319.

44. See, e.g., Witherspoon, John, Lectures on Moral Philosophy (1800; Princeton: Princeton University Press, 1912), 835;Alexander, Archibald, Outlines of Moral Science (New York: Charles Scribner, 1858); see generally,Guelzo, , “Science of Duty,” 277; Meyer, , Instructed Conscience, 35.

45. Howe, , Making the American Self, 130.

46. Compare Channing, William Ellery, Self-Culture (1853), 24 withWayland, Francis, The Elements of Intellectual Philosophy (1854), 89.

47. Grund, Francis, The Americans in the Moral, Social, and Political Relations (Boston: Marsh, Capen, and Lyon, 1837), 167.

48. For an important exception that proves the rule, see Upham, Thomas C., Outlines of Disordered Mental Action (1840). Upham noted at the outset that “this portion of the Philosophy of Mind” had been “almost totally neglected, except by a few learned and philosophical writers of the medical profession.” Ibid., iii. See generally Madden, M. C. and Madden, E. H., “Thomas Upham on Relations and Alienation,” Transactions of the C. S. Peirce Society 19 (1983): 240–48.

49. Reid, , Active Powers, 39, 306–7, 318–20.

50. Rush surely contributed to these apprehensions not only by attaching himself so completely to the physiology of Hartley, but also insofar as he aspired to convert Americans into “republican machines.” Meranze, , “Introduction,” 9;D'Elia, Donald, Benjamin Rush, David Hartley, and the Revolutionary Uses of Psychology (Philadelphia: American Philosophical Society, 1970), 109–18. It is worth noting that Rush pointed to the limitations of “common sense” in a 1791 essay on the subject, suggesting that it did not necessarily point toward truth or right reason; he regarded common sense as a faculty everyone shared, while reason was acquired through experience and habit. “To think and act with the majority of mankind when they are right, and differently from them, when they are wrong constitutes, in my opinion, the perfection of human wisdom and conduct.” Rush, , “Common Sense,” in Essays, 254.

51. Haskell, “Persons as Uncaused Causes.” Although the problem of causality in relation to accountability is indisputably an ancient one, it assumed an especially acute form in the eighteenth century. Fiering, , Edwards's Moral Thought, 262n2. It appears that the word “responsibility” did not enjoy wide currency until the turn of the nineteenth century. See McKeon, Richard, “The Development and Significance of the Concept of Responsibility,” Revue Internationale de Philosophie 11 (1957): 710. One of the earliest such usages of the word is found in Federalist 63, attributed to James Madison. For a discussion of this point, seeHaskell, Thomas, “Responsibility, Convention, and the Role of Ideas in History,” in Objectivity Is Not Neutrality: Explanatory Schemes in History (Baltimore: Johns Hopkins University Press, 1988), 407n5 (correcting McKeon, who credited Alexander Hamilton with the first usage in Federalist 64).

52. These lectures were published, along with other professional writings, by his son after his death. See The Works of the Honourable James Wilson, L.L.D., ed. Wilson, Bird (Philadelphia: Lorenzo Press, 1804). For biographical studies exploring Wilson's engagement with Common Sense philosophy, see McCloskey, Robert Green, “Introduction,” in The Works of James Wilson, ed. McCloskey, Robert Green (Cambridge: Harvard University Press, 1967), 1:148;Conrad, Stephen A., “Polite Foundation: Citizenship and Common Sense in James Wilson's Republican Theory,” Supreme Court Review 1984: 359–88;Stimson, Shannon C., “‘A Jury of the Country’: Common Sense Philosophy and the Jurisprudence of James Wilson,” in Scotland and America in the Age of the Enlightenment, ed. Sher, Richard B. and Smitten, Jeffrey R. (Princeton: Princeton University Press, 1990), 193208;Witt, John Fabian, Cosmopolitans and Patriots: Hidden Histories of American Law (Cambridge: Harvard University Press, 2007), 1582.

53. Wilson, , “Study of Law,” in Works, 8182;Wilson, , “Man, as an Individual,” Works, 1:199, 216, 221–22. Wilson was careful to add that Blackstone himself was no “votary of despotick powers” nor was Locke “a friend to infidelity,” but their ideas had lives of their own. Wilson, , “Law and Obligation,” Works, 1:103–4. On Wilson's association of philosophical skepticism with undemocratic rule, see Stimson, , “‘Jury of the Country,’” 199.

54. Wilson, , “Man, as an Individual,” Works, 1:199; see alsoWilson, , “Man, as a Member of Society,” Works, 1:232.

55. Wilson, , “Man, as a Member of Society,” Works, 1:261. This last sentence was not an insight original with the jurist. It was, in fact, an exact restatement—albeit without attribution—of a passage in Reid's “Essay on the Active Powers of the Mind.”

56. Wilson reversed Rush's ordering of “reason” and “common sense,” maintaining that the latter was more reliable than the former, which he described as “easily perverted, sometimes to vile, sometimes to insignificant purposes.” Wilson, , “Man, as a Member of Society,” Works, 1:231.

57. Wilson, , “The Law of Nature,” Works, 1:136.Wilson, , “Man, as an Individual,” Works, 1:211. The only other mention of mental deficiencies was in Wilson's discussion of criminal capacity (he listed idiots among those disabled, along with women, children, and those under duress). See Wilson, , Works, 2:124.

58. An especially telling indicator of what every aspiring lawyer was expected to read may be gleaned from Hoffman's, David widely followed Course of Study (1817), an annotated syllabus organizing recommended texts in hierarchical order. Ranking at the very top of this list was the subject of “moral and political philosophy,” and the works of Reid and Beattie were singled out along with others by Adam Smith, John Locke, and William Paley, with only the Bible, Seneca, and Aristotle earning higher billing. See Hoffman, David, A Course of Legal Study: Respectfully Addressed to Students of Law in the United States (Baltimore: Coale and Maxwell, 1819), 3238. In notations thereafter, Hoffman put essays by Reid and Stewart in the same category as Locke's, describing them to be of “inestimable value to the student” and pronouncing the three writers to be “master workmen” in the field of metaphysics. Ibid., 58. Significantly, the philosophical works of David Hume did not appear on the syllabus, though his historical writings were recommended to the law student. Ibid., 77. On the influence of Hoffman's study guide in legal culture of the period, see generally Ferguson, Robert A., Law and Letters in American Culture (Cambridge: Harvard University Press, 1984), 29 (describing the volume as a “standard manual of its kind well into the 1830s”); see also Schweber, Howard, “The ‘Science’ of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education,” Law and History Review 17 (1999): 421, 438 (same).

59. This rendering of the political divisions within the professions is drawn from Gordon, Robert W., “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Professions and Professional Ideologies in America, ed. Geison, Gerald L. (Chapel Hill: University of North Carolina Press, 1983), 8287. For evidence of the general influence of Common Sense realism in the profession, see Conrad, , “Polite Foundation,” 359–88;Ferguson, , Law and Letters, 186–90;Schweber, , “The ‘Science’ of Legal Science,” 442–55;Stimson, , “‘Jury of the Country,’” 193208;Newmyer, R. Kent, “Harvard Law School, New England Legal Culture, and the Antebellum Origins of American Jurisprudence,” Journal of American History 74 (1987): 826–27;Bailey, Mark Warren, “Early Legal Education in the United States: Natural Law Theory and Law as a Moral Science,” Journal of Legal Education 48 (1998): 311–28;Hoffer, Peter Charles, “Principled Discretion: Concealment, Conscience, and Chancellors,” Yale Journal of Law and the Humanities 3 (1991): 5382. For a study pointing to the continuing influence of this intellectual tradition in the second half of the nineteenth century, see Bailey, Mark Warren, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860–1910 (Dekalb: Northern Illinois University Press, 2004).

60. Howe, , Making the American Self, 141–43, 262–63. It is instructive to compare Jefferson with the Federalists on this score. He departed from the latter in two key respects: his orientation toward the emotions and his definition of “moral sense.” While agreeing with Federalists that emotions provided stronger motivations than reason, Jefferson was inclined to see the benevolent and social “sentiments” as, on the whole, stronger than the malevolent “passions.” Moreover, by “moral sense” Jefferson meant to refer to benevolent or social affections that were natural to man, rather than reason in exercise of moral function (which was Reid's meaning). And yet he did not adopt an emotivist theory of ethics. As Howe explains, Jefferson “did not accord these moral feelings the highest authority, but subordinated them to that of the understanding (that is, reason) for guidance and improvement.” Ibid., 70–77.

61. I have elsewhere referred to this generic model as “the default legal person.” For a fuller treatment of this point, see Blumenthal, “The Default Legal Person.”

62. See, e.g., Chipman, Nathaniel, Principles of Government: A Treatise on Free Institutions, Including the Constitution of the United States (Burlington: E. Smith, 1833);Hoffman, David, Legal Outlines: Being the Substance of a Course of Lectures Now Delivering in the University of Maryland (Baltimore: Edward J. Coale, 1829). In his prefatory remarks, Hoffman explained that he was induced to publish this free-standing volume of lectures on jurisprudence because the topics were “a little too metaphysical to make their due impression through mere oral delivery.” Ibid., viii.

63. See, e.g., Hoffman, , Legal Outlines, 9101;Chipman, , Principles of Government, 955;Tucker, Henry St. George, A Few Lectures on Natural Law (Charlottesville: J. Alexander, 1844), 68, 15;Kent, James, A Lecture, Introductory to a Course of Law Lectures in Columbia College (New York: Clayton and Van Norden, 1824), 9;Mayes, Daniel, “An Address to the Students of Law in Transylvania University,” in The Gladsome Light of Jurisprudence: Learning the Law in England and the United States in the 18th and 19th Centuries, ed. Hoeflich, Michael H. (New York: Greenwood Press, 1988), 148, 149.

64. Hoffman, , Legal Outlines, 9, 27, 30–37, 54, 62–63. Hoffman more generally held that free will was a necessary but not sufficient condition of responsibility; the imputability of a given act further depended upon knowledge of right and wrong. Ibid., 53–54.

65. Ray, Isaac, “Criminal Law of Insanity,” American Jurist and Law Magazine 28 (1835): 253–54;Ray, Isaac, A Treatise on the Medical Jurisprudence of Insanity (Boston: Charles C. Little and James Brown, 1838), 100.

66. Crichton, Alexander, An Inquiry into the Nature and Origin of Mental Derangement (London: T. Cadell and W. Davies, 1798), 1:xxvii;Pinel, Phillippe, A Treatise on Insanity (Sheffield: W. Todd, 1806), 51; Rush, , Introductory Lectures, 363–95; John Haslam, Medical Jurisprudence as it Relates to Insanity, According to the Law of England, reprinted inCooper, Thomas, Tracts of Medical Jurisprudence (Philadelphia: J. Webster, 1819), 291;Conolly, John, An Inquiry Concerning the Indications of Insanity (London: J. Taylor, 1830), 3940, 68–69, 92; Ray, , “Criminal Law,” 59.

67. See generally Jimenez, , Changing Faces of Madness, 2829, 65–79;Dain, , Concepts of Insanity, 327;Fink, Arthur, Causes of Crime: Biological Theories in the United States, 1800–1915 (Philadelphia: Pennsylvania University Press, 1938).

68. In particular, alienists made references to the phrenological models constructed by Franz Joseph Gall, J. G. Spurzheim, and George Combe, as well as to the conceptual innovations wrought by French alienists Phillippe Pinel, Jean-Etienne-Dominique Esquirol, and Etienne-Jean Georget. See generally, Eigen, , Witnessing Insanity, 6876.

69. Crichton, Inquiry; Pinel, Treatise; Haslam, , Medical Jurisprudence, cclxxxiv, 352;Rush, , Introductory Lectures, 363–95; Conolly, Inquiry, 2 vols.;Ray, , “Criminal Law,” 59;Beck, , Elements, 1:372–77.

70. Beck, Theodric Romeyn, Elements of Medical Jurisprudence (Albany: Webster and Skinner, 1823), 1:372–77;Conolly, , Inquiry, 1:8, 59, 171;Haslam, , Medical Jurisprudence, 288–93, 352.

71. These words were originally spoken by French advocate Henri François D'Agguesseau before Parliament in connection with a contested will. For legal treatises excerpting and glossing his speech, see, e.g., Highmore, Anthony, A Treatise on the Law of Idiocy and Lunacy (London: J. Butterworth, 1807), 14;Collinson, George Dale, Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compos Mentis (London: W. Reed, 1812), 35.

72. Haslam, , Medical Jurisprudence, 291–93;Beck, , Elements, 377; see alsoParis, J. A. and Fonblanque, J. S. M., Medical Jurisprudence (London: W. Phillips, 1823), 1:315–17. Of course, medical experts could just as easily assert authority by finding the person in question was, in fact, sane. For an illustration of this point, see, e.g., Eigen, Joel, “Lesion of the Will: Medical Resolve and Criminal Responsibility in Victorian Insanity Trials,” Law & Society Review 33 (1999): 425, 432.

73. Haslam, , Medical Jurisprudence, 294–95, 299–300.

74. Medical writers across the nineteenth century consistently failed to offer any clear basis for distinguishing normal from pathological manifestations of passion. See Dain, , Concepts of Insanity, 9;Goldstein, Jan, Console and Classify: The French Psychiatric Profession in the Nineteenth Century (Cambridge: Cambridge University Press, 1987), 177.

75. Beck, , Elements, 342; see generallyEigen, , Witnessing Insanity, 7376;Goldstein, , Console and Classify, 155–58.

76. See, e.g., Beck, Theodric Romeyn and Beck, John B., Elements of Medical Jurisprudence, 6th ed. (Philadelphia: Thomas, Coperthwaite, 1838), 1:563–65;Ray, , Medical Jurisprudence, 168234. For Prichard's own rendering of moral insanity, seePrichard, James Cowles, On the Different Forms of Insanity in Relation to Jurisprudence (London: Hippolyte Baillière, 1842), 30–63. See generally Augstein, H. F., James Cowles Prichard's Anthropology: Remaking the Science of Man in Early Nineteenth-Century Britain (Amsterdam: Rodopi, 1999).

77. Compare Taylor, Alfred Swaine, Medical Jurisprudence, ed. Griffith, R. Egglesfield (Philadelphia: Lea & Blanchard, 1845), 500, 514–18 (insisting that legal insanity must be defined in terms of an intellectual disturbance); Beck, and Beck, , Elements, 1:563–65, 614–26 (same; valuing public safety over philosophical accuracy) with Ray, , Medical Jurisprudence, 192 (insisting that legal insanity must comprehend both moral and intellectual forms of mental disease); Prichard, , Forms of Insanity, 63–67 (same).

78. Ray, , Medical Jurisprudence, vii, 256, 234;C, G. T.., “Criminal Law of Insanity,” American Jurist & Law Magazine 15 (1836): 82, 83. Historians have tended to read the words of Ray's detractors at face value, carrying forward the mistaken impression that the doctor “accepted a view of human psychology that was deterministic.” Hughes, John Starrett, In the Law's Darkness: Isaac Ray and the Medical Jurisprudence of Insanity in Nineteenth- Century America (Dobb's Ferry: Oceana Publications, 1986), 82; see alsoRosenberg, , Trial of the Assassin Guiteau, 63.

79. Ray, , Medical Jurisprudence, 66, 97, 235, 97–98. It was left ambiguous whether an impairment remotely caused by self-neglect might nonetheless provide a basis for diminished responsibility.

80. This should not be surprising, since Ray looked to the same primary sources: the clinical observations of Rush, Pinel, Esquirol, Georget, and Prichard. His first edition was written before he had done any superintending of asylums, and he did not draw on these experiences as much as might have been expected in subsequent editions. See Hughes, , Law's Darkness, 88.

81. Ray, , Medical Jurisprudence, 1920, 24, 35, 101, 184.

82. Ibid., 47, 142–45, 23, 143, 64.

83. Eigen, , Witnessing Insanity, 7980;Winter, Alison, Mesmerized: The Powers of Mind in Victorian Britain (Chicago: University of Chicago Press, 1998), 46;Smith, , Trial by Medicine, 12–66; and Hughes, , Law's Darkness, 5051.

84. For fuller treatment of such proceedings, focusing particularly on the neglected civil side of the docket, see Blumenthal, “The Deviance of the Will”; Blumenthal, “The Default Legal Person.”

85. The success of the insanity plea in Hadfield's case was no doubt in some part due to the fact that his mental derangement could quite clearly be traced back to a head wound he had suffered while serving in the king's army; Erskine twice pointed to a visible and quite gruesome scar on his client's head during his courtroom speech. See, e.g., Quen, Jacques, “James Hadfield and Medical Jurisprudence of Insanity,” N.Y. State Journal of Medicine 69 (1969): 1221;Moran, Richard, “The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800),” Law & Society Review 19 (1985): 487;Eigen, , Witnessing Insanity, 4855.

86. The reprinted works were: Farr's, SamuelElements of Medical Jurisprudence (1787); William Dease's Remarks on Medical Jurisprudence (n.d.); George Edward Male's Epitome of Juridical or Forensic Medicine for the Use of Medical Men, Coroners, and Barristers (n.d.), and Haslam's, JohnMedical Jurisprudence as It Relates to Insanity, According to the Law of England (1817).

87. Cooper was educated in England in both the classics and the sciences before he became a barrister. As a radical and rationalist, he decided to emigrate to America in 1793, where he subsequently became a Jeffersonian judge, after which he took a number of academic posts, including a chair in chemistry and mineralogy at the University of Pennsylvania, and one at the College of South Carolina (where he would thereafter be appointed president). Cooper is also credited with founding South Carolina's first insane asylum and serving as chief editor of the state's statutes. In addition to the Tracts, Cooper translated a psychiatric exposition by Francois Joseph Victor Broussais and displayed leanings toward the physiological psychology of Julien Offray de la Mettrie in an appendix to the work. See generally, Mohr, , Doctors and the Law, 9, 30;Curti, , Human Nature, 92. Cooper practically applied his study of the mind to the cause of pro-slavery; while stopping short of claiming “the blacks are a distinct species,” he maintained they were “an inferior variety of the human species; and not capable of the same improvement as the whites.” See Dr. Thomas Cooper to Sen. Mahlon Dickerson (1826), quoted in Curti, , Human Nature, 173.

88. The first edition of Shelford's work was published in London in 1833, but an American edition appeared in the same year. Chitty's went through two American editions in 1835 and 1836. There was no American edition of Collinson's Treatise, but it was frequently cited by American judges, lawyers, and jurists in the first half of the century. Chitty stood out among the three in one important respect: he had received medical training before taking up the study and practice of law.

89. Collinson, , Treatise, 636, 75–85.

90. For typical invocations of this maxim—“furiosus furore solum punitur”—see, e.g., Highmore, , Treatise, 196 (citing Blackstone, William, Commentaries on the Laws of England [1769], 4: chap. 2).

91. Ibid., 75–85.

92. Shelford, Leonard, A Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (Philadelphia: J. S. Littell, 1833), xxi–lix, 15;Chitty, Joseph, A Practical Treatise on Medical Jurisprudence, 2d Am. ed. (Philadelphia: Carey, Lea, and Blanchard, 1836), 323–67.

93. Shelford drew particularly on works by Pinel, Combe, Prichard, and Ray. It should be noted that Shelford registered some hesitancy about the idea of moral insanity and suggested that some sort of intellectual impairment—either of judgment or perception—was likely involved in every purported case. Shelford, , Treatise, xxxii.

94. Ibid. at 46–47.

95. Ibid., xxviii–xxxvi.

96. Ibid., xxxi–xxxvi. Shelford was ambiguous as to whether “moral” causes had underlying physical ones, or were original, in and of themselves. Ibid., xliv.

97. Ibid., 48, 335–44, 363.

98. Ibid., 344–45. For further discussion of “common sense,” which largely conformed to the Common Sense philosophy, see ibid., 334–35.

99. Ibid., 311–20, 323–24, 344–57. Chitty also seemed persuaded by a slippery slope argument, most notably presented by Erskine in the course of his speech on behalf of Hadfield, suggesting that the medical standards of mental health might warrant putting “half the world” in straight waistcoats. Ibid., 339. And though Chitty never directly addressed the physicians' complaints about the different rules of responsibility applied in civil and criminal cases, he appeared to be generally satisfied with the application of a lower threshold of capacity in the latter context. Ibid., 351–62.

100. Ibid., 51.

101. Dean, Amos, Principles of Medical Jurisprudence Designed for the Professions of Law and Medicine (Albany: Gould, Banks & Gould, 1850), 464.

102. Ibid., at 530–54, 575–79, 585–90.

103. For this, Wharton would be criticized by Ray. See Ray, Isaac, “Review of Wharton's Monograph on Mental Unsoundness,” American Journal of Insanity 12 (1856): 285–92.

104. Wharton, Francis and Stillé, Moreton, A Treatise on Medical Jurisprudence (Philadelphia: Kay & Bro., 1855), iii, ix, xi. This treatise went through three more editions during Wharton's lifetime, published respectively in 1855, 1860, 1873, and 1882. Stillé died before the publication of the first edition, although it appears from the preface that he was not slated to write about the psychological side of mental unsoundness, in any event. Janet Tighe suggests that Wharton's interest in mental unsoundness was sparked at least in part by his own psychological difficulties in the 1850s, after a series of personal losses (the death of Stillé and his father). His views of the mind were also crucially shaped by his religious commitments; in the late 1850s he gravitated toward the evangelical wing of the Episcopal church, eventually giving up his law practice and becoming ordained as a priest in 1862. See generally Tighe, Janet, “Francis Wharton and the Insanity Defense,” American Journal of Legal History 27 (1983): 223, 227;Siegel, Stephen, “Francis Wharton's Orthodoxy: God, Historical Jurisprudence, and Classical Legal Thought,” American Journal of Legal History 46 (2004): 422–46.

105. Wharton, and Stillé, , Medical Jurisprudence (1855), 1729, 35–47.

106. Ibid., 34–46. Wharton drew special reference to Judges Gibson and Lewis, of Pennsylvania and New York respectively; they were distinguished not only for their eminent service on the bench, but also for being among the “most addicted to the study of diseases of the mind.” Ibid., 147–48. Wharton generally recommended judicial deference to medical experts, at least where their testimony accorded with the weight of scientific opinion, which he implied was the case with moral insanity. Ibid., 45.

107. Ibid., 44–45 (quoting Lord Brougham). As Brougham saw it, “that man was accountable to human tribunals in a totally different sense. Man punished crime for the purpose of practically deterring others from offending, by committing a repetition of the like act.” Ibid.

108. Ibid., 62, 66–69. He identified Jonathan Edwards with this intermediate position, excerpting a passage from his work on religious affections. Ibid., 69–70.

109. Ibid., 173–86. Wharton took considerable pains to combat the view that religion was a cause of insanity; he insisted that only false ideas of religion could lead to mental disease—that it was irreligious ideas that most often drove individuals to madness. By way of illustration, he cited the case of a respectable young lady driven first to distraction and then suicide after reading Paine's Age of Reason. Ibid., 176–77, footnote (c).

110. Ibid., 142–49. Wharton first articulated unqualified approval of the idea of general moral mania, which he defined as a disorder of the will and sentiments. However, he then proceeded to offer illustrations intended to show the “intimate connection” between moral and intellectual mania. Indeed, he went so far as to suggest that there was no such thing as a defect of a mind that did not in some manner involve the intellect: “[I]t is not to be supposed that a single impulse is diseased, while all the other functions of the mind retain their healthy action. While the entire intellect enjoys sound health, there is nothing in which a morbid desire of theft, murder &c., could originate, and such a phenomenon is a psychological impossibility, and the assumption of such requires a psychological contradiction.” Like any good empiricist, Wharton admitted that some persons described themselves as overcome by an impulse, but asked “Is this really the case? May there not be a delusion in the statements themselves?” Ibid. Although reading between the lines here one can see anticipations of his later opposition to this disease entity, he had clearly not yet arrived at such a conclusion in the 1855 edition. Yet even in this first edition, he would note dissension within the ranks of the medical profession, giving voice to London physician Thomas Mayo's protest against the doctrine, complaining that it was “too liable” to be abused by defendants. Ibid., 153–54. For more on Mayo and early confusion surrounding the doctrine of moral insanity, see Smith, , Trial by Medicine, 114–23. Importantly, Smith notes that the term had been deployed by Scottish moralists to denote “extreme moral perversity” before it was appropriated by Prichard for use in his medical works. Ibid., 114.

111. Wharton, and Stillé, , Medical Jurisprudence (1855), 86. Wharton's discussion of hereditary factors is notably more extensive than previous legal writers. All the same, he admitted that some forms of moral mania were not so easily traced to such causes, nor were they susceptible to correction by “appropriate hygienic treatment and education.” Ibid., 86–94, 148–49(z).

112. Ibid., 137 (quoting Dr. Haindorft, in his German translation of Dr. John Reid's “Essay on Hypochondriasis”); see also ibid. at 86 (suggesting that even congenital idiocy was the result of voluntary (albeit remote) causes; citing an alienist's finding that in 355 out of 359 cases of congenital idiocy “one or the other or both of the progenitors of the unfortunate sufferers had, in some way, widely departed from the normal condition of health, and violated the natural laws”); ibid., 215–21 (excerpting large portions of Reverend Barlow's sermon “On Man's Power over Himself to Prevent or Control Insanity”; given that most men possessed this power, Wharton contended that confinement and discipline were warranted in the case of most insane offenders).

113. Wharton, and Stillé, , Medical Jurisprudence (1873), 749–50, 764–71; See generally, Tighe, , “A Question of Responsibility,” 169–72.

114. [Gray, John P.,] “Moral Insanity,” American Journal of Insanity 14 (1858): 311–22; see alsoReese, D. Meredith, “Report on Moral Insanity in Its Relation to Medical Jurisprudence,” Transactions of the American Medical Association 11 (1858): 723–46 (opposing the doctrine; dissenting from AMA majority); cf. C. B. Coventry, “Report on Medical Jurisprudence of Insanity,” ibid., 473–524 (AMA majority view). On the moral insanity controversy in antebellum America, see Hughes, , Law's Darkness, 7796;Belkin, Gary S., “Moral Insanity, Science, and Religion in Nineteenth-Century America: The Gray-Ray Debate,” History of Psychiatry 7 (1996): 591;Waldinger, Robert J., “Sleep of Reason: John P. Gray and the Challenge of Moral Insanity,” Journal of the History of Medicine and Allied Sciences 34 (1979): 163;Fullinwider, S. P., “Insanity as Loss of Self: The Moral Insanity Controversy Revisited,” Bulletin of the History of Medicine 49 (1975): 87;Dain, Norman and Carlson, Eric T., “Moral Insanity in the United States, 1835–1866,” American Journal of Psychiatry 118 (1962): 795;Rafter, Nicole, “The Unrepentant Horse-Slasher: Moral Insanity and the Origins of Criminological Thought,” Criminology 42 (2004): 979;Rimke, Heidi and Hunt, Alan, “From Sinners to Degenerates: The Medicalization of Morality in the 19th Century,” History of the Human Sciences 15 (2002): 59.

115. Reese, , “Report on Moral Insanity,” 730;Gray, , “Moral Insanity,” 311–22. For more on Gray's influence and the fate of the doctrine of moral insanity in postbellum America, seeRosenberg, , Trial of the Assassin Guiteau, 6874.

116. Elwell, John, A Medico-Legal Treatise on Malpractice and Medical Evidence: Comprising the Elements of Medical Jurisprudence (New York: J. S. Voorhies, 1860), i, 11, 355, 402; cf.ibid. at 355. Before enlisting in the Civil War, Elwell was professor of medical jurisprudence in the Ohio State and Union Law College and in the medical department of Western Reserve University. He grew more outspoken against the doctrine of moral insanity over time, especially in the wake of the trial of President Garfield's assassin, Charles Guiteau; by this time, Elwell appeared to have adopted a rationale for criminal punishment based entirely on the society's right to defend itself. See Elwell, J. J. et al., “The Moral Responsibility of the Insane,” North American Review 302 (1882): 111 (part of symposium edition, including remarks of four other physicians).

117. Elwell, , Treatise, 338–53 (quoting Forbes Winslow).

118. Elwell did assign some of the blame for this state of affairs to members of the bench and bar, as they often presented legal matters abstrusely and were sometimes guilty of putting medical men “to the rack, for not revealing a secret, so tightly locked up amid the wonderful arcana of mind.” However, the fault usually lay with the medical witness, who was wont to pretend “to know what is not known, either by himself or others.” Ibid., 370–75.

119. Ibid., 360, 404. Despite this apparent absolutism, it should be noted that Elwell was at least willing to entertain the concept of graduated punishment, as it had been proposed by Wharton and others, deeming it to be “well worthy of close and careful consideration.” Ibid., 409.

120. Ibid., 404–5

121. Redfield, Isaac, The Law of Wills (Boston: Little, Brown, 1864), 104, 154–55;Ray, Isaac, “Review of Redfield's Law of Wills,” American Journal of Insanity 12 (1865): 285–92. However, this is hardly to deny the existence of fruitful collaborations between doctors and lawyers in this period. For an example of an especially close working relationship, see Louis Reik's discussion of that between Isaac Ray and Charles Doe in Reik, Louis, “The Doe-Ray Correspondence: A Pioneer Collaboration in the Jurisprudence of Mental Disease,” Yale Law Journal 63 (1953): 183.

122. See, e.g., Buswell, Henry, The Law of Insanity in its application to the Civil Rights and Capacities and Criminal Responsibility of the Citizen (1885) (legal writer); Clevenger, Shobal V., Medical Jurisprudence of Insanity, or Forensic Psychiatry (Rochester: Lawyers' Cooperative, 1898) (medical writer, in collaboration with lawyer). The 1905 edition of Wharton's Medical Jurisprudence, published after his death, truly did present the subject “stereoscopically,” as the first half was substantially rewritten by a lawyer and the second by a practicing neurologist. See Wharton, and Stillé, , Medical Jurisprudence (Rochester: Lawyers' Cooperative, 1905) (containing “Legal Questions” by Frank W. Bowlby and “Insanity: Forms and Medico-Legal Relations” by James Hendrie Lloyd, M.D.). The proceedings of many local and national medico-legal societies were published or otherwise in circulation in the second half of the century; they provide an even richer resource for tracing the continuing conversations and collective projects doctors and lawyers pursued to the end of the century (and beyond). See generally Tighe, “A Question of Responsibility”; Green, Thomas A., “Freedom and Responsibility in the Age of Pound,” Michigan Law Review 93 (1995): 19152053;Mohr, , Doctors and the Law, 213–24.

123. Croce, Paul Jerome, Science and Religion in the Era of William James: The Eclipse of Certainty, 1820–1880 (Chapel Hill: University of North Carolina Press, 1995), 219; see generallyMenand, Louis, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus, & Giroux, 2001);Kloppenberg, James, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986).

124. Wharton, and Stillé, , Medical Jurisprudence (1873), 325.

125. Ibid., 268–69; Maudsley, Henry, The Physiology and Pathology of the Mind (New York: D. Appleton & Co., 1867), 148–49. On Maudsley's life and career, see Smith, , Trial by Medicine, 1011, 13, 51–57, 59, 64–65; Scull, Andrew, MacKenzie, Charlotte, and Hervey, Nicholas, Masters of Bedlam: The Transformation of the Mad-Doctoring Trade (Princeton: Princeton University Press, 1996), 226–67.

126. Wharton, and Stillé, , Medical Jurisprudence (1873), 160 (quoting Dr. Chipley, a medical superintendent who went on record against moral insanity); Maudsley, Henry, Responsibility in Mental Disease, 3d. ed. (London: H. S. King, 1876), 268308.

127. For examples of judicial statements to this effect, see U.S. v. McGlue, 1 Curt. C. C. 1 (1851);Cunningham v. State, 56 Miss. 269 (1879) ; Spencer v. State, 69 Md. 28 (1888); for jurists expressing similar views, see, e.g., Rice, Frank S., The General Principles of the Law of Evidence (Rochester: Lawyers' Cooperative, 1895), 741; see alsoClevenger, , Medical Jurisprudence, 10 (medical writer approving of this jurisprudential approach).

128. See, e.g., Clevenger, , Medical Jurisprudence, esp. 2:841–87; James Hendrie Lloyd, “Insanity: Forms and Medico-Legal Relations,” in Wharton, and Stillé, , Medical Jurisprudence, vol. 1, esp. 584907; see generally Hale, Nathan G., Freud in America: The Beginnings of Psychoanalysis in the United States, 1876–1917 (New York: Oxford University Press, 1971), 4768;Rosenberg, , The Trial of the Assassin Guiteau, 6874;Smith, , Trial by Medicine, 5456; Wiener, Reconstructing the Criminal; Blustein, B. E., “‘A Hollow Square of Psychological Science’: American Neurologists and Psychiatrists in Conflict,” in Madhouses, Mad-Doctors, and Madmen: The Social History of Psychiatry in the Victorian Era, ed. Scull, Andrew T. (Philadelphia: University of Pennsylvania Press, 1981), 241–70.

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

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