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

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

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

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

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

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

I. The Metaphysics of Moral Government

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

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

Calvinism and the Specter of "Necessity"

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

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

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

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

The Consciousness of Freedom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Common Sense and Common Law

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

     Within the American legal profession, the most notable exponent of this Enlightenment philosophy was the Scottish-born James Wilson. He transmitted this accumulation of wisdom to his colleagues and the wider public during the course of a series of Law Lectures, delivered at Philadelphia College and published in 1804.52 In them, he proposed to outline the distinctive features of American jurisprudence, associating the laws and government of the United States with the venerable common law tradition, which he deemed to be based in consent, while correcting the errors of the English commentators, particularly those of Blackstone. By Wilson's lights, the "learned author of the Commentaries" had wrongly supposed that human laws implied the existence of a superior and inferiors, failing to trace the source of sovereignty back to its "ultimate and genuine source" in the "free and independent man." This figure, regarded as both author and subject of the law, stood at the center of Wilson's educational enterprise. In pursuing this topic, he favored the "enlightened and candid Dr. Reid" over "Mr. Locke," warning that the "artful use of ´ideas' in metaphysicks" was no less "destructive of liberty" than the "artful use of ´superiority' in politicks."53

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

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

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

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

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

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

III. "To Give Rules to Folly"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. "Illusive Liberty"

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

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

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

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

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

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

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

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

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

     While a more enthusiastic consumer of medical science, Chitty would be even less willing to countenance reforms of existing common law rules and procedures. Though his volume was suffused with the language of anatomy, physiology, and pathology, the jurist's engagement with these disciplines had little apparent impact on the way he thought about the "law of insanity." Conceiving of character formation in these medical terms, Chitty appeared at first to support the physicians' bid to speak to matters that were often thought to lie in the exclusive province of "the moralist or the metaphysician." However, the volume's focus on the structural aspects of mental life emphatically did not imply support for materialism on the author's part. Although Chitty fully canvassed views for and against this perspective, he firmly identified himself as a dualist, declaring the brain to be the "seat" of the mind. But if he never entirely cast his lot with either the "Materialists" or "Anti-Materialists," Chitty took the side of the former in one important respect, maintaining that the mind itself could never be diseased—that mental disorder was essentially and only a disease of the body. This was an exceedingly important point, in this jurist's estimation, not least because of its practical consequences. For it meant that most (if not all) mental imperfections were subject to correction through legal and medical means, and perhaps even prevention with the "judicious exercise and cultivation of the mental faculties in youth."97

     With these preliminaries in view, Chitty turned to consider the current state of the field of mental pathology and the latest judicial decisions rendered on the question of mental unsoundness, which "unhappily are of frequent occurrence." His was a fairly well integrated medico-legal analysis, illustrating the convergences and divergences in the treatment of mental disease by the two professions.The common law, in his opinion, generally took "an accurate view of the progressive and ascending scale in the development of the mind," rightly setting the age of twenty-one as the threshold of legal maturity. By this time, it was safe to presume that the mind had achieved "such a degree of perfection as to produce what is usually termed common sense," enabling its possessor to exercise judgment "like other rational men."98

     With respect to mental defects and perversions, however, systems of law and medical science were not as fully aligned. On the side of medicine, Chitty noted, physiologists had irrefutably demonstrated the powerful influence of the emotions on mental and physical health, singling out the "evil passions" as common causes of mental disease and a host of other bodily disorders. Moreover, the work of alienists like Prichard suggested there might be a distinctly moral form of monomania, in which the "intellectual faculties continue perfect, and even struggle against . . . the effects of this disorder . . . of the natural feelings." Yet as far as the common law was concerned, this did not fit the description of insanity. English judges continued to require evidence of delusion or some other intellectual disturbance before they would make such a finding. And rather surprisingly, Chitty himself concurred in this result. Despite all he had come to know about the pathogenic potential of the emotions, the jurist ultimately held that the intellect was "so superior" to the rest of the mind and body that it "can, and in legal consideration ought" to control and regulate all of the other elements in the human frame.99

     Though this judgment was rendered in unqualified terms, without distinction between civil and criminal fields of law, there were other places in the text where Chitty appeared to temper this decree. More than once, he suggested that persons exhibiting deviant temperaments might not be fully responsible for the selfish and malevolent acts prompted by the worst parts of their nature. "It is true that we ought to struggle and endeavor to counteract and control such a predisposition," he admitted, "but sometimes the greatest anxiety to prevent its effects will not succeed, and as the predisposition may be inherent, allowance should be made in certain circumstances." He noted that a killer acting under strong provocation might find his offense mitigated from murder to manslaughter under common law. And he also submitted that the criminal acts of a drunkard were distinguishable from those of a person of "choleric disposition," in that the latter was not guilty of a "voluntary deviation" from the law. As he added these qualifications, Chitty only succeeded in introducing greater ambiguity into the jurisprudence of insanity, obscuring the basis for holding wrongdoers legally responsible for failing to keep their own perverse tendencies in check.100

     The problem of responsibility would figure at the center of a number of indigenous American treatises on medical jurisprudence, published by lawyers in the middle decades of the century, as pleas of insanity appeared to be entered with growing frequency in both civil and criminal cases. The ensuing trials were often embarrassing spectacles, exposing the extent to which medical and legal professionals were divided among themselves as well as with each other as to the basic rules and standards that ought to operate in these cases. The issue that generated the greatest heat (and the least light) concerned the medical and legal status of "moral insanity." Increasingly in this period, the term would come to stand for everything that was new and unsettling about the pathologists' perspectives on human deviance. The shaping effects of this controversy upon legal discourse about responsibility appears with particular clarity in three of the most prominent and widely cited mid-century treatises: Amos Dean's The Principles of Medical Jurisprudence (1850), Francis Wharton's Treatise on Medical Jurisprudence (1855) (co-authored with Dr. Moreton Stillÿ), and John Elwell's A Medico-Legal Treatise on Malpractice and Medical Evidence (1860). These authors shared a common preoccupation with the doctrine of moral insanity, though they were not of the same mind about the matter. While Dean was a sincere believer in the doctrine, Wharton proved to be more of a skeptic, and Elwell repudiated it altogether, insisting that moral insanity (quite literally) covered "a multitude of sins." The progression of thought from the one jurist to the next can be taken as representative of the general tendencies within the legal profession in an era of moral crisis that culminated in civil war. During this tumultuous period, lawyers, judges, and jurists came to perceive psychological medicine as a significant threat to the legitimacy of their own professional enterprise, prompting many to consider anew what it was that constituted the mind of a moral agent, at least as a matter of law.

     In many respects, Dean's Principles of Medical Jurisprudence reflected the calm before the storm. For in 1850 moral insanity still remained a doctrine about which most American alienists agreed, and it appeared that "educated physicians" were, by and large, willing to follow suit. Moreover, while a few enterprising attorneys were beginning to deploy the term in litigation, few courts had yet addressed the issue in any depth, and it had hardly registered in the professional literature of the time. Dean was thus unusual among his peers, both with respect to the level of knowledge and conviction he possessed about the subject and his commitment to converting others to his point of view. Never much inclined to practice, he would spend the greater part of his career in the academy teaching and writing about matters of medico-legal concern. His treatise on Medical Jurisprudence was a compendium of the insights he had accumulated over eleven years of teaching, clearly manifesting the intensity of his interest in mental alienation, with nearly a quarter of the volume devoted to this topic alone. Though the professor was conversant with a range of medical authorities, he more or less adopted the perspective of Isaac Ray on matters of law no less than medicine; there was, in fact, almost no critical distance between his analysis and that of the physician. Dean's Medical Jurisprudence was filled with illustrations of both moral and intellectual forms of mental derangement mainly derived from medical observers and ultimately intended to convince readers that it was "manifestly absurd and irrational to punish either one of these classes for disobedience, as it would be to punish a mere machine, either because it would not go at all, or because when it did go, it went all wrong."101

     Dean went on to lodge many of the same complaints against Anglo-American judges as Ray had, finding that their decisions were often riddled with contradictions and "vacillating in reference to the tests of mental alienation." So he repeated the doctor's complaints about the civil-criminal distinction, lamenting the fact that an "irrational act, irrationally done" might supply the basis for stripping the actor of his civil rights while it would leave him responsible for his crimes. Though Dean credited judges on both sides of the Atlantic with moving beyond the "total deprivation of reason" standard of the traditional common law, he saw little to praise in the alternatives they elaborated in its place. Whether formulated in terms of the incapacity to distinguish good from evil, or the presence of a delusion, or the absence of design or contrivance, these tests attended only to cognitive impairments, failing to comprehend the possibility of an emotional or volitional disorder. It was with the hope of redressing this defect in the common law that Dean proffered a version of his own, suggesting that "we might find in irresistibility a principle upon which all might agree." For it seemed to him beyond dispute that an actor could not be held accountable for the results of an action over which he had no control. Of course, the obvious difficulty with this test—which Dean himself recognized—lay in identifying what constituted indicia of irresistibility in the first place. Certainly it would not do for courts to simply take a murderer's own word for it when she testified to feeling "destined to do it," or credit an inebriate's self-assessment that he "could no longer resist temptation." But were there any more reliable signs of a truly uncontrollable act? After struggling for several pages with this dilemma, Dean finally had recourse to Ray's concept of a change in character. However, he felt compelled to add that self-consistency might be a sign of insanity as well, pointing out that the habitual indulgence of a vicious propensity might slowly add to its original strength, until it was at last rendered "irresistible." Thus, all that could be concluded with confidence from this discussion was that the professor was as prone to vacillation as the judges he criticized.102

     The developing strains between legal and medical perspectives were presented in much sharper relief in Wharton's Treatise on Medical Jurisprudence—a work that actually promised to bring the two together "stereoscopically," so that the "information required by each profession might be collected and viewed at the same time and within the same compass." The first section, comprising nearly two-thirds of the treatise, was devoted to the subject of mental unsoundness, considered "in its legal relations" in one chapter and then "psychologically" in a second. These chapters, primarily written by Wharton, provided coverage of the latest decisions bearing on the subject in Anglo-American jurisdictions and the most recent "medico-legal research" in France and Germany. The resulting product was a rather unruly mixture of old and new authorities—a veritable mishmash of quoted material from the works of Coke, Hale, Blackstone, Swinburne, Shakespeare, Reid, Rush, and Ray, intermixed with those from cutting-edge continental texts, often without much commentary.103 Although Wharton's treatise constituted no dramatic departure from its predecessors, its organization was distinctive in two respects: the existing legal rules relating to mental unsoundness were detailed before surveying the scientific research bearing on these subjects, and the legal and medical viewpoints were considered in wholly distinct chapters. The first organizational move seemed to suggest that the law had much to learn from medical psychology, but the second called attention to the fact of the disjunction between the two—a disjunction that only became more pronounced with each successive edition of the Treatise, leaving the impression that the "Legal and Medical points of vision" simply did not admit of complete alignment.104

     When Wharton surveyed the legal landscape, it was with a certain defensiveness, suggesting as he did that the state of the doctrine had been misrepresented by the likes of Isaac Ray, who tended to rely on old English commentaries and law reports, without consulting the more recent volumes in circulation in the country. Had these medical men done so, he maintained, they would have seen that the American common law of insanity was keeping pace rather well with the advances of medical science. As a general rule, Wharton found that where "a sober and enlightened medical observation declares that there is no real moral responsibility in the patient, the same opinion will be adopted by the courts upon trial." To substantiate this claim, he cited an array of decisions rendered in both civil and criminal cases as proof of how far courts had come to accept the alienists' concept of monomania. Where it was shown that a will or contract was the "direct offspring" of an "insane delusion," American judges fairly uniformly ruled that it was invalid, and where the act in question was a criminal offense, they generally refrained from imposing punishment.105

     With respect to the medical doctrine of moral insanity, however, the judicial record was a quite a bit more conflicted, as was Wharton's own opinion of the matter. With apparent approval, he cited a number of recent decisions in which some of the nation's most "eminent" judges had accorded recognition to "a moral or homicidal insanity." Still, they took care to define these disorders in the strictest of terms and required proof that the act was "impelled by a morbid and uncontrollable impulse" that overwhelmed "reason and judgment," entirely robbing the actor of his moral liberty.106 Wharton nonetheless exhibited some sympathy for the opposing standpoint voiced more loudly by English judges, who contended that it was the height of presumption for merely human tribunals to excuse the so-called moral maniac—insisting that it was for the "Maker of that man, in his infinite mercy, having regard to the object of his creation" to make allowances for him at a different time and place.107

     Wharton's wavering support of this disease entity was further displayed in the second part of the Treatise, where he offered a fuller consideration of the "points in which Psychology comes in contact with the law of the land." He began with a comprehensive overview of the main hypotheses as to the causes of mental unsoundness on offer by mid-century, collecting them under three distinct heads: psychological, somatic, and "intermediate" theories, the last of which attributed to the soul and body alike "originative influence, in the growth of mental diseases." Of these, Wharton suggested that the intermediate theory was the one most consistent with the best science of the day and the teachings of Christianity. This theory seemed to win the jurist's own endorsement as well, as he was fairly certain that "every abnormity of the soul is not sin," but was far from holding that all mental phenomena were "the mere results of material changes" (and it was unclear who among his somatic theorists actually held such reductionist views).108

     Wharton's ensuing discussion of mental unsoundness was organized around Ray's nosological scheme, distinguishing intellectual from moral mania. Wharton would further subdivide the latter class into various sorts of morbid propensities, listing such familiar ones as homicidal/suicidal mania, pyromania, and kleptomania, as well as a number of others that were rather novel, including "aidoiomania (morbid sexual propensity)," "oikeiomania (morbid state of domestic affections)," and "fanatico-mania (morbid state of the religious feelings)."109 Wharton committed twice as many pages to the illustration of moral as intellectual disorders, yet when he turned to discuss the implications of the former class for law, he made inconsistent statements, most likely borne of ambivalence.110 For a deep strain of moralism ran through his analysis, one that was difficult to square with the very idea of moral insanity. Although he seemed to concede that there were forms of moral mania that could not be attributed to vice or faulty education—that must have stemmed from "deep organic disturbances"—he was wont to find a more remote "voluntary" cause of these disorders as well, even if it came in the form of a depraved "progenitor."111 At bottom, Wharton believed that most men had the power to prevent or control insanity, "that our state of health, mental as well as bodily, principally depends upon ourselves!"112 And it was this faith that would ultimately lead him to repudiate moral insanity as a matter of psychology and law in postbellum editions of his Treatise, advocating a system of graduated punishment, imposing penal discipline on insane as well as sane offenders of the law. Presuming that both sorts of offenders were guilty of some "prior vicious indulgence," and further maintaining that most insane criminals retained "a consciousness of guilt," Wharton concluded that seclusion of the latter in a specialized facility would "promote the joint ends of personal reformation and the preservation of the well-being of the community at large."113

     Wharton's way was actually paved by a rising generation of American alienists, who led a revolution against the founding fathers of the sub-discipline in the late 1850s, making opposition to the doctrine of moral insanity—alternately typed as "dangerous," "materialistic," and "metaphysical"—their clarion call. Members of this new vanguard of medical men advanced two main lines of argument, one that was primarily scientific and the other more pragmatic. As a purely empirical matter, they found no clinical evidence in support of the existence of moral insanity, either within their own patient populations or in the reports of other alienists. In all purported cases (even those of Pinel and Esquirol), they insisted that some intellectual disturbance was detectable, and if it was not, this simply meant there was no disease at all, but only moral depravity. The tenacity with which they maintained this position left the unmistakable impression that their attacks on moral insanity were primarily motivated by concerns as to the "practical effects" of this creed. As they never failed to observe, the "logic of moral insanity" dictated that "the more depraved an act, the greater the indications of the disease," seemingly undermining the basis for legal responsibility. Tried by this standard, they submitted, the greatest criminals of human history, from Cain forward, might be adjudged wholly irresponsible, only encouraging others to commit ever greater atrocities, under the impression that there was "no punishable guilt" in indulging their evil impulses. Shuddering at the thought, the alienist, John P. Gray, rendered a strongly worded verdict against the doctrine in an 1858 issue, bluntly declaring that moral insanity was nothing more or less than "the usual condition of those, who, in plain speaking times, were called bad men."114

     With this, Gray and his confreres linked the moral insanity debate back to the theologians' "much mooted questions of natural ability, and moral inability." To be sure, the medical men did not seek to engage these abstruse questions in any depth. But their references to them were far from insignificant, evincing a less optimistic perspective on human nature than the Common Sense philosophers of the Scottish Enlightenment, not to mention the first generation of American alienists. "Since the day Adam fell," Gray felt the need to remind his audience, "it has not been possible to say of any mere human being that he was without spot, blemish or defect." Of course, the doctor hardly meant to deny the existence of mental disease, but he did seek to revivify the consciousness of human sinfulness, which he insisted lay at the root of most crime, and many more cases of insanity than commonly supposed. An array of "Christian and heathen authorities" were summoned in support of this view, all of them conveying the same basic point—that "´moral insanity' is a synonyme of ´moral depravity,' and that responsibility and ´punishability' are not to be shunned or evaded by this plea." Frequent allusions were made to St. Paul, who was said to put the matter "on the right footing" as he described the overwhelming compulsion of sin: "The good that I would, I do not; but the evil which I would not, that I do." The man who was irresistibly impelled to act against his better judgment was no less guilty in the eyes of God, and it was the height of presumption for merely human judges—medical or legal—to take a more lenient view. Lest this be taken as a return to the theology of Jonathan Edwards, however, it bears emphasis that this rising generation of medical men believed that the "moral inability" of which they spoke was "self-originated."115

     Members of the bench and bar were inclined, by and large, to share Gray's perspective on moral insanity. He would win an especially zealous adherent in Elwell, who himself originally trained for the medical profession before taking up the study of law, teaching and practicing at the intersection of the two fields ever thereafter. His Medico-Legal Treatise was expressly designed to "promote the great ends of Science and Justice," promising to reduce the voluminous literatures of the two professions into a single "practical system," with the hope of promoting a better working relationship between the two, especially with respect to the issue of insanity. The elaborate systems of classification and nomenclature proffered by supposed experts, he declared, were absurd in their proportions and contradictory in their particulars, engendering confusion among the "unprofessional" and embarrassing the officers of the courts. However, what was by far the greatest failing of all these various schemes was that they were laughably over-inclusive—"liberal enough to encompass within its folds every son and daughter of Adam, sane or insane." Moral insanity was, in his view, simply the last straw, constituting the most "specious and dangerous" diagnostic class yet to be elaborated by medical men, threatening to cripple the legal system's ability to maintain basic civil order. "If this theory is to be followed in this department of Criminal law," Elwell warned, "the courts launch at once upon an unexplored and unknown sea, without chart or magnet." Though he mainly repeated the words of Gray and his cohorts (verbatim) as he attacked the supposed disease entity, in truth his critical commentary extended considerably further, exposing more basic shortcomings in the discipline of psychological medicine as a whole.116

     "After a protracted, learned and almost profitless discussion between the two schools of psychologists"—"materialist or pathological" and "the spiritualist"—Elwell pronounced the mind-body relationship "as far from being settled as when the question was first propounded." Those in the former camp had far more confidence than proof in support of their somatic theory, admitting when pressed that they had yet to make out their central claim that "insane phenomena" were caused by "pathological changes" in the organs of the brain and other parts of the body. But there were "difficulties of equal, and perhaps greater magnitude" in the way of the spiritualists who rejected this theory—thereby admitting, if not squarely declaring, "that the immaterial, immortal essence of pure thought may be subject to disease" like the "grosser parts of the singularly intricate combination we call physical man." For himself, Elwell inclined toward the same intermediate position as Wharton had, suspecting that "both the mind and body are at fault" in most cases of mental unsoundness—that it was in fact "their relation" that was most likely diseased. Yet in the next breath he confessed a sneaking suspicion that the truth of the matter lay outside "the boundaries of human knowledge," reprising the old common law refrains about the unruliness of the subject, suggesting that the line separating sanity from insanity was no more perceptible than that between daylight and darkness, infancy and maturity, frugality and avarice, or even virtue and vice. In the end, the jurist could only conclude that "´we are in a great measure left to our own unaided mental sense—to the uncertain guidance of our deceptive experience, and alas! often fallible judgment.'"117

     Proceeding as best he could upon this unreliable basis, Elwell turned his attention to the "prime question of responsibility." This he cast as a distinctly legal inquiry—one that had little to do with the finer points of medical diagnosis. The starting point of a judge's analysis was to be with the presumption of sanity. However, this was not to say that the courts should be unwilling to entertain the alienist's hypothesis of insanity, provided it was more generally supported by evidence in the record. To be sure, medical witnesses were regularly subject to searching cross-examinations and occasionally sharp rebukes from the bench, but Elwell maintained this was all part of the truth-gathering process that was the trial. These supposed experts quite often brought the abuse upon themselves, for they routinely disagreed among themselves and proved to be of precious little assistance to courts "in determining who are really insane."118 Although the concept of a change in character, promoted by many alienists as a sign of mental disease, did prove of use in many proceedings, lay witnesses were usually better equipped to provide enlightenment on this score, Elwell believed. In any case, the legal issue to be decided was not the presence of insanity per se, but "what extent of deviation from the standard of a well-balanced mind there may be, before the responsibility of the party is lost." By Ewell's measure, responsibility remained with this party unless and until he was shown to be "absolutely without the power of self-restraint."119

     Although this test of legal responsibility bore a superficial resemblance to the version famously enunciated by Lord Hale, it was essentially concerned with volition rather than cognition, stemming more directly from Common Sense than the common law. Indeed, Elwell clearly spoke in a liberal humanist vein, conceiving of individual men as "uncaused causes" in an important respect—as beings with the capacity for self-formation and reformation. Without denying the creative power of God, or the controlling power of his will, still Elwell presumed that human beings were endowed with moral liberty. This universalism was, however, tempered by an acute awareness of individual differences in bodily organization and environmental circumstances, differences that might make it more or less difficult for any given individual to maintain the self-command necessary to regulate his own conduct. Yet none of this dampened Elwell's conviction that "we have all our duties to perform, and one of the most important of these is, that we should strive against whatever evil tendency there may be in us," whether arising from physical or moral causes. The gouty patient, ever prone to fly into a passion, was fully expected to acquire "the habit of self-control." And there could be no excusing the introverted man, who allowed a single idea to gain "an unhealthy ascension over his intellect," impelling him to murder. Even if these impulses and ideas were truly irresistible at the time such violent acts were perpetrated—which Elwell tended to doubt—it was almost always possible to find an earlier moment in time when they might have been checked and placed under the actor's control. In other words, Elwell maintained that "negligence" or "the want of resolution" lay at the root of most (if not all) forms of crime and insanity. Leaving aside metaphysical concerns about more ultimate causes, the jurist pragmatically submitted that the law ought to treat each individual as if "the evil ends with himself."120

     But of course it did not, though this hypothetical way of thinking about human freedom and responsibility would come to predominate in postbellum courtrooms and the higher reaches of the legal academy as well. In those years, medico-legal conflicts hardly abated; doctors and lawyers continued to trade insults in a variety of professional contexts, their intercourse more than occasionally degenerating into undignified name-calling. So Isaac Redfield, in his treatise on The Law of Wills, would depict testifying alienists as medical mercenaries teetering on the edge of monomania. And Isaac Ray would respond with a review in the American Journal of Insanity, caustically noting that profiteering was the lawyers' profession, while shamelessly singing his own praises as a healer and humanitarian. And so on. Such interdisciplinary exchanges were hardly what leading lights like Benjamin Rush had envisioned at the beginning of the century, and it is tempting (and certainly not implausible) to view them as turf battles largely fueled by status anxiety. But it should now be clear that there were also more fundamental issues at stake—not only about the province of science and the purpose of legal norms, but also about the very bounds of human freedom and the basis of individual responsibility. That is to say, the fault lines ran considerably deeper than any professional divide, for these medico-legal disputations actually reflected fundamental tensions and ambiguities within the Common Sense tradition the two professions shared. Working from these philosophical premises, doctors and lawyers struggled with the implications of their own optimism about human nature. For the more perfect man's original constitution was said to be, the farther he had to fall, and the more his deviant behavior could be attributed to forces beyond the conscious self. Though members of both professions would begin the century affirming individual moral ability as confidently as the Common Sense philosophers, many—like Gray and Elwell—would begin to have their doubts by 1860, and these doubts would only intensify in the decades that followed the Civil War.121

     Manifesting a new level of "epistemic uncertainty" about the universe and their place within it, postbellum Americans embarked upon careers in the increasingly separate spheres of religion, science, and law. Yet even as their professional pathways diverged, doctors and lawyers alike tended to eschew all things "metaphysical," seeking to acquire knowledge of a more "positive" form. Lost to not a few of this generation were the certitudes of Common Sense; these professional men did not all possess their fathers' faith in "the orderliness of the human mind and the world it comes to investigate." All the same, there were still those within both the medical and legal professions who would carry forward the project of elaborating a standard of responsibility that could be uniformly applied across cases.122 Through it all, the insights of the antebellum alienists who had "lived under the same roof with hundreds of afflicted fellow-men" were hardly forgotten. Indeed, postbellum jurists, judges, and lawyers would proceed on the basis that there were "but few well-balanced minds," though this would ironically impel many courts to strengthen the presumption of sanity, imposing on the proponents of materialism an ever greater—indeed, nearly insurmountable—burden of proof.123

Conclusion

When is it that man is most persuaded that he speaks or acts with full freedom of the will? When he is drunk, or mad, or is dreaming.
                    Henry Maudlsey,
                    The Physiology and Pathology of the Mind (1867)

"Materialism," Francis Wharton declared in the 1873 edition of his Treatise on Medical Jurisprudence, "is the plaintiff in the great suit on which great results, religious and judicial, depend. If it be true, all our ordinary notions of penal responsibility will be upset."124 Though the jurist purported to treat the issue objectively, it was fairly obvious that he had already decided the case and was unlikely to be swayed by any further evidence, however reputable from a medical point of view. Indeed, this edition of his treatise reads, at turns, like a brief against the "somatic" school of medical thought and a searing attack upon the "supposed phase of diseased irresponsibility" some doctors persevered in calling "moral insanity." Wharton was most unsparing of all in his criticism of British alienist Henry Maudsley, whose 1867 work, The Physiology and Pathology of the Mind, was famously unflinching in its materialism. "As surely as the raindrop is formed and falls in obedience to physical law," Maudsley wrote, "so surely do causality and law reign in the production and distribution of morality and immorality on earth," grimly adding that "the acquired ill of the parent" would—predictably and inescapably—become "the inborn infirmity of the offspring." Though this pronouncement was obviously hard to square with Christianity, as Wharton understood it, he duly proceeded to consider Maudsley's "materialistic hypothesis" on its merits. Upon surveying the doctor's evidence, Wharton flatly declared it to be insufficient to prove "that all acts are the result of material necessity," and went on to bluntly restate the law's fundamental premise that "all acts, so far as concerns the sane, are free."125

     This was hardly any great forensic feat on Wharton's part, nor did it take him very far in his attempts to grapple with the problem of responsibility. For even if he was allowed this victory over materialism's advocate, still he was faced with the formidable task of determining who was sane enough to be considered free and accountable as a matter of law. As he turned to this task anew in 1873, Wharton reluctantly allowed that questions of sanity and freedom were not "absolutely demonstrative in character"—that there was no way to definitively prove or disprove the existence of such mental conditions in any given case. Moreover, as he surveyed the latest outpouring of philosophical and medical writings on the powers and limitations of the human mind, Wharton actually seemed to gravitate toward a position that was not far from Maudsley's. Like the doctor, Wharton figured the mind as a vulnerable entity, susceptible to the shaping influences of heredity as well as an array of physical, organic, and social forces, any combination of which might operate to constrain an individual's will and impede the proper development of his moral sense. And like the jurist, Maudsley continued to assert—to the very end of his career—"that a man has, or might have, some power over himself to prevent insanity." Indeed, so far as this was true of any individual man, the doctor was perfectly willing to join the jurist in holding that individual personally responsible for "going mad." All of which is to say that both Wharton and Maudsley seemed to regard sanity, freedom, and responsibility in relative terms, as matters of degree that could vary considerably over the course of an individual lifetime and from one person to the next.126

     And yet the implications of thinking in this way about human agency and accountability would be far different in the courtroom than the clinic. For it was quite obviously one thing for a doctor to base his treatment model upon a sliding scale of human "moral ability" and quite another for a judge to announce such a rule from the bench. This point of professional difference assumed ever greater prominence in the writings of American judges and jurists in the last quarter of the nineteenth century, when they seemed increasingly committed to the view that law was "neither a medical nor a metaphysical science." Though they deemed the study of the mind to be a "deeply interesting" and "important" endeavor, these legal professionals insisted it was not one they proposed to undertake within the confines of their own treatises. Their primary mission, as they now understood it, was to search after "practical rules that could be administered without inhumanity, for the security of civil society, by protecting it from crime."127 One need only glance at the literature on the mind produced by the psychiatrists, neurologists, social scientists, and psychologists of the day to see what it was that motivated jurists of the Gilded Age to scale back their ambitions, redefining legal science in less expansive terms than their antebellum counterparts. For the introspective Common Sense philosophy no longer framed the sciences of the mind as they were pursued in the last decades of the nineteenth century. A dizzying array of new approaches were undertaken by a new generation of medical specialists, and few among them went so far as to affirm "the full freedom of the will." Indeed, the Common Sense philosophers' robust vision of the human capacity for self-determination seemed to most of these scientific men to vastly overrate the power possessed by any individual, however well disciplined.128

     Having cast their lot with the Common Sense philosophers in the "formative era" of American law, early republican jurists thus bequeathed to future generations of lawyers a problem of responsibility of no small proportions. As we have seen, they formulated rules of civil and criminal law upon the "enlightened" premise that every man was endowed with moral freedom, pronouncing this to be a self-evident truth that could be proved through introspection alone. For better or worse, the jurists' appeal to "the testimony of consciousness" did not have its intended effect. Indeed, as individual Americans tested the Common Sense model of moral agency against their own lived experience, they were prone to doubt whether human beings were as free or morally capable as the Scottish philosophy made them out to be. Although antebellum medical men would play no small role in nursing uncertainty about the bounds of individual freedom and responsibility, this vexing problem can hardly be said to be one of their own making.

     By mid-century, American jurists quite clearly faced a moment of reckoning: would they hold firm to their ideal of a legal science based upon the human sciences, even if this entailed discarding the Common Sense model of the moral agent and admitting that the philosophers' vision of human ability was, at best, illusory? As Wharton wrote in 1873, the answer to this question remained unclear. Indeed, he rather deftly evaded it, defending the law's twin presumptions of sanity and freedom as practically necessary and worth retaining unless and until they were empirically falsified by medical (or some other) science. Whether Wharton thought this to be an intrinsically just approach or nothing more than a pragmatic compromise, he never quite said. And as the century drew to a close, judges and other jurists continued to straddle this line, claiming to be at once practically and morally justified in proceeding as if all individuals were sane and free—at least in the absence of sufficient evidence to the contrary. However, the writings of these legal professionals leave the impression that they were less than fully convinced by their own arguments, making it tempting to conclude that they were merely repeating the philosophers' words out of habit.

Susanna L. Blumenthal is an associate professor of law and history at the University of Minnesota <blume047@umn.edu>. The author thanks John Carson, Phoebe Ellsworth, Bob Gordon, Tom Green, Thomas Haskell, Richard Ross, Rebecca Scott, and the anonymous reviewers at the Law and History Review for helpful comments.

Notes

1. The source of the epigraph is Benjamin Rush, "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 Deborah C. Brunton, "The Edinburgh and Philadelphia Medical Schools," in Scotland and America in the Age of the Enlightenment, ed. Richard B. Sher and Jeremy Smitten (Edinburgh: Edinburgh University Press, 1990), 242, 252.

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

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

5. Norman Dain, 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 James Mohr, 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 Charles Rosenberg, The Trial of the Assassin Guiteau: Psychiatry and Law in the Gilded Age (Chicago: University of Chicago Press, 1968); David Brion Davis, Homicide in American Fiction, 1798–1860 (Ithaca: Cornell University Press, 1957); Craig Haney, "Criminal Justice and the Nineteenth-Century Paradigm: The Triumph of Psychological Individualism in the ´Formative Era,'" Law and Human Behavior 6 (1982): 191–235; Janet Tighe, "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 Roger Smith, Trial by Medicine: Insanity and Responsibility in Victorian Trials (Edinburgh: Edinburgh University Press, 1981); Joel Eigen, Witnessing Insanity, Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995); Martin J. Wiener, 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 David Rothman, 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., Nancy Tomes, A Generous Confidence: Thomas Story Kirkbride and the Art of Asylum-Keeping, 1840–1883 (New York: Cambridge University Press, 1984); Gerald Grob, Mental Institutions in America: Social Policy to 1875 (New York: The Free Press, 1973); Andrew Scull, Social Order/Mental Disorder: Anglo-American Psychiatry in Historical Perspective (Los Angeles: University of California Press, 1989); Richard Wighman Fox, So Far Disordered in Mind: Insanity in California, 1870–1930 (Berkeley: University of California Press, 1978); Adam Hirsch, The Rise of the Penitientiary: Prisons and Punishment in Early America (New Haven: Yale University Press, 1992); Mark Colvin, Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the History of Punishment in Nineteenth-Century America (New York: St. Martin's Press, 1997); Michael Meranze, 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 Jan Goldstein, "Framing Discipline with Law: Problems and Promises of the Liberal State," American Historical Review 98 (1993): 134–65.

8. Francis Wharton and Moreton Stillÿ, 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 Susanna L. Blumenthal, "The Default Legal Person," U.C.L.A. Law Review 54.5 (July 2007): 1135–1265; Susanna L. Blumenthal, "The Deviance of the Will: Policing the Bounds of Testamentary Freedom in Nineteenth-Century America," Harvard Law Review 119.4 (February 2006): 959–1034.

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

11. Benjamin Rush, "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 Donald D'Elia, Benjamin Rush: Philosopher of the American Revolution (Philadelphia: American Philosophical Society, 1974), 1–113. Rush's own version of the story is supplied in Benjamin Rush, The Autobiography of Benjamin Rush: His "Travels Through Life" Together with His Commonplace Book for 1789–1813, ed. George W. Corner (Princeton: Princeton University Press, 1948). Other useful treatments of Rush can be found in Colleen E. Terrell, "´Republican Machines': Franklin, Rush, and the Manufacture of Civic Virtue in the Early Republic," Early American Studies 1 (2003): 100–132; Mary Ann Jimenez, Changing Faces of Madness: Early American Attitudes and Treatment of the Insane (Hanover: Brandeis University Press, 1987), 72–85, 108–9; Lester S. King, Transformations in American Medicine: From Benjamin Rush to William Osler (Baltimore: Johns Hopkins University Press, 1991); Michael Meranze, "Introduction" to Benjamin Rush, Essays: Literary, Moral, and Philosophical, ed. Michael Meranze (Schenectady: Union College Press, 1988), i–xxxi; and Henry May, 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 Brooks Holifield 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 Charles Cohen, "The Post-Puritan Paradigm of Early American Religious History," William and Mary Quarterly 54 (1997): 695–722. 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, Elizabeth Dale, Debating—and Creating—Authority: The Failure of a Constitutional Ideal in Massachusetts Bay, 1629–49 (Aldershot, Eng.: Ashgate, 2001); Jon Pahl, 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 Gary B. Deason, "Reformation Theology and the Mechanistic Conception of Nature," in God and Nature: Historical Essays on the Encounter between Religion and Science, ed. David C. Lindberg and Ronald L. Numbers (Berkeley: University of California Press, 1986), 545; James Turner, Without God, Without Creed: The Origins of Unbelief in America (Baltimore: Johns Hopkins Press, 1985), 13–34.

16. Roger Smith, "The Language of Human Nature," in Inventing Human Science: Eighteenth-Century Domains, ed. Christopher Fox, Roy Porter, and Robert Wokler, (Berkeley: University of California Press, 1995), 88, 95, 100; see generally G. S. Rousseau, "Psychology," in The Ferment of Knowledge: Studies in the Historiography of Eighteenth-Century Science, ed. G. S. Rousseau and Roy Porter (New York: Cambridge University Press, 1980), 143–210.

17. Norman Fiering, Jonathan Edwards's Moral Thought and Its British Context (Chapel Hill: University of North Carolina Press, 1981), 6–7. 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." Roger Smith, 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. John Locke, Some Thoughts Concerning Education (1690), quoted in J. A. Passmore, "The Malleability of Man in Eighteenth-Century Thought," in Aspects of the Eighteenth Century, ed. Earl R. Wasserman (Baltimore: Johns Hopkins Press, 1965), 21; see also Norman Fiering, "Irresistible Compassion: An Aspect of Eighteenth-Century Sympathy and Humanitarianism," Journal of the History of Ideas 37 (1976): 195–218; Mark A. Noll, 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 Allen C. Guelzo, Edwards on the Will: A Century of American Theological Debate (Middletown: Wesleyan University Press, 1993); see also Noll, America's God, 99–102. On the reception of the "New Learning" more generally, see May, Enlightenment in America, passim; Turner, Without God, Without Creed, 50–63.

21. See generally, Holifield, American Theology, 79–101; Noll, America's God, 97–102; Guelzo, Edwards on the Will, 17–53.

22. Jonathan Edwards, Careful and Strict Enquiry into the Modern Prevailing Notions of that Freedom of the Will, ed. Paul Ramsey (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, 260–321; Guelzo, Edwards on the Will; Holifield, American Theology, 102–26; Noll, America's God, 24–25, 75–76; Barbara B. Oberg and Harry S. Stout, eds., Benjamin Franklin, Jonathan Edwards, and the Representation of American Culture (New York: Oxford University Press, 1993); Nathan O. Hatch and Harry S. Stout, eds., Jonathan Edwards and the American Experience (New York: Oxford University Press, 1988).

23. James Dana, 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: Theodore Bozeman, Protestants in an Age of Science: The Baconian Ideal and Antebellum American Religious Thought (Chapel Hill: University of North Carolina Press, 1977); John Carson, The Measure of Merit: Talents, Intelligence, and Inequality in the French and American Republics, 1750–1940 (Princeton: Princeton University Press, 2006), 44–60; Merle Curti, Human Nature in American Thought (Madison: University of Wisconsin Press, 1980), esp. 70–146; Rand Evans, "The Origins of American Academic Psychology," in Explorations in the History of Psychology in America, ed. Josef Brozek (Lewisberg: Bucknell University Press, 1984), 17–60; Holifield, Theology in America, esp. 173–96; Herbert Hovenkamp, Science and Religion in America, 1800–1860 (Philadelphia: University of Pennsylvania Press, 1978), esp. 3–36; Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805–1861 (Cambridge: Harvard University Press, 1970); Bruce Kuklick, Churchmen and Philosophers: From Jonathan Edwards to John Dewey (New Haven: Yale University Press, 1987), esp. 128–45; Terence Martin, 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; Donald H. Meyer, The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972); Noll, America's God, esp. 93–113.

25. Thomas Reid, 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. Mark A. Noll, "The Rise and Long Life of the Protestant Enlightenment in America," in Knowledge and Belief in America: Enlightenment Traditions and Modern Religious Thought ed. William M. Shea and Peter A. Huff (New York: Cambridge University Press, 1993), 88–108.

27. Mark A. Noll, "Common Sense Traditions and American Evangelical Thought," American Quarterly 37 (1985): 216, 218–27; see also Allen C. Guelzo, "´The Science of Duty': Moral Philosophy and the Epistemology of Science in Nineteenth-Century America," in Evangelicals and Science in Historical Perspective, ed. David N. Livingstone, D. G. Hart, and Mark A. Noll (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." Daniel Walker Howe, 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, 44–47.

31. Thomas Reid, Essays on the Intellectual Powers of Man (Edinburgh: printed for John Bell, and G. G. J. & J. Robinson, London, 1785), 45, 111, 575–604; Thomas Reid, 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, S. A. Grave, Scottish Philosophy of Common Sense (Oxford: Clarendon Press, 1960), 82–83, 114–15; Todd L. Adams, "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 Norman S. Fiering, "Will and Intellect in the New England Mind," William & Mary Quarterly 29 (1972): 515–58. On the role of the passions in particular, see Albert O. Hirschman, The Passions and the Interests: Political Arguments for Capitalism before Its Triumph (Princeton: Princeton University Press, 1977).

34. Reid, Active Powers, 59–96, 270–74, 288, 312, 362. See generally, Russell D. Kosits, "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, Thomas L. Haskell, "Persons as Uncaused Causes," in The Culture of the Market: Historical Essays, ed. Thomas L. Haskell and Richard F. Teichgraeber III (Cambridge: Cambridge University Press, 1993), 441, 457; Gordon S. Wood, "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. Wilson Smith, 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, 13–22; see generally, Alfred H. Fuchs, "Contributions of American Mental Philosophers to Psychology in the United States," History of Psychology 3 (2000): 3–19.

44. See, e.g., John Witherspoon, Lectures on Moral Philosophy (1800; Princeton: Princeton University Press, 1912), 8–35; Archibald Alexander, 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 William Ellery Channing, Self-Culture (1853), 24 with Francis Wayland, The Elements of Intellectual Philosophy (1854), 89.

47. Francis Grund, 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 Thomas C. Upham, 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 M. C. Madden and E. H. Madden, "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; Donald D'Elia, 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 Richard McKeon, "The Development and Significance of the Concept of Responsibility," Revue Internationale de Philosophie 11 (1957): 7–10. One of the earliest such usages of the word is found in Federalist 63, attributed to James Madison. For a discussion of this point, see Thomas Haskell, "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. Bird Wilson (Philadelphia: Lorenzo Press, 1804). For biographical studies exploring Wilson's engagement with Common Sense philosophy, see Robert Green McCloskey, "Introduction," in The Works of James Wilson, ed. Robert Green McCloskey (Cambridge: Harvard University Press, 1967), 1:1–48; Stephen A. Conrad, "Polite Foundation: Citizenship and Common Sense in James Wilson's Republican Theory," Supreme Court Review 1984: 359–88; Shannon C. Stimson, "´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. Richard B. Sher and Jeffrey R. Smitten (Princeton: Princeton University Press, 1990), 193–208; John Fabian Witt, Cosmopolitans and Patriots: Hidden Histories of American Law (Cambridge: Harvard University Press, 2007), 15–82.

53. Wilson, "Study of Law," in Works, 81–82; 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 also Wilson, "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 David Hoffman's 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 David Hoffman, A Course of Legal Study: Respectfully Addressed to Students of Law in the United States (Baltimore: Coale and Maxwell, 1819), 32–38. 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 Robert A. Ferguson, 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 Howard Schweber, "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 Robert W. Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920," in Professions and Professional Ideologies in America, ed. Gerald L. Geison (Chapel Hill: University of North Carolina Press, 1983), 82–87. 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,'" 193–208; R. Kent Newmyer, "Harvard Law School, New England Legal Culture, and the Antebellum Origins of American Jurisprudence," Journal of American History 74 (1987): 826–27; Mark Warren Bailey, "Early Legal Education in the United States: Natural Law Theory and Law as a Moral Science," Journal of Legal Education 48 (1998): 311–28; Peter Charles Hoffer, "Principled Discretion: Concealment, Conscience, and Chancellors," Yale Journal of Law and the Humanities 3 (1991): 53–82. For a study pointing to the continuing influence of this intellectual tradition in the second half of the nineteenth century, see Mark Warren Bailey, 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., Nathaniel Chipman, Principles of Government: A Treatise on Free Institutions, Including the Constitution of the United States (Burlington: E. Smith, 1833); David Hoffman, 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, 9–101; Chipman, Principles of Government, 9–55; Henry St. George Tucker, A Few Lectures on Natural Law (Charlottesville: J. Alexander, 1844), 6–8, 15; James Kent, A Lecture, Introductory to a Course of Law Lectures in Columbia College (New York: Clayton and Van Norden, 1824), 9; Daniel Mayes, "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. Michael H. Hoeflich (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. Isaac Ray, "Criminal Law of Insanity," American Jurist and Law Magazine 28 (1835): 253–54; Isaac Ray, A Treatise on the Medical Jurisprudence of Insanity (Boston: Charles C. Little and James Brown, 1838), 100.

66. Alexander Crichton, An Inquiry into the Nature and Origin of Mental Derangement (London: T. Cadell and W. Davies, 1798), 1:xxvii; Phillippe Pinel, 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 in Thomas Cooper, Tracts of Medical Jurisprudence (Philadelphia: J. Webster, 1819), 291; John Conolly, An Inquiry Concerning the Indications of Insanity (London: J. Taylor, 1830), 39–40, 68–69, 92; Ray, "Criminal Law," 59.

67. See generally Jimenez, Changing Faces of Madness, 28–29, 65–79; Dain, Concepts of Insanity, 3–27; Arthur Fink, 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, 68–76.

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. Theodric Romeyn Beck, 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 Fran®ois D'Agguesseau before Parliament in connection with a contested will. For legal treatises excerpting and glossing his speech, see, e.g., Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy (London: J. Butterworth, 1807), 14; George Dale Collinson, 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 also J. A. Paris and J. S. M. Fonblanque, 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., Joel Eigen, "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; Jan Goldstein, Console and Classify: The French Psychiatric Profession in the Nineteenth Century (Cambridge: Cambridge University Press, 1987), 177.

75. Beck, Elements, 342; see generally Eigen, Witnessing Insanity, 73–76; Goldstein, Console and Classify, 155–58.

76. See, e.g., Theodric Romeyn Beck and John B. Beck, Elements of Medical Jurisprudence, 6th ed. (Philadelphia: Thomas, Coperthwaite, 1838), 1:563–65; Ray, Medical Jurisprudence, 168–234. For Prichard's own rendering of moral insanity, see James Cowles Prichard, On the Different Forms of Insanity in Relation to Jurisprudence (London: Hippolyte BailliÏre, 1842), 30–63. See generally H. F. Augstein, James Cowles Prichard's Anthropology: Remaking the Science of Man in Early Nineteenth-Century Britain (Amsterdam: Rodopi, 1999).

77. Compare Alfred Swaine Taylor, Medical Jurisprudence, ed. R. Egglesfield Griffith (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; G. T. C., "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." John Starrett Hughes, 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 also Rosenberg, 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, 19–20, 24, 35, 101, 184.

82. Ibid., 47, 142–45, 23, 143, 64.

83. Eigen, Witnessing Insanity, 79–80; Alison Winter, 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, 50–51.

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., Jacques Quen, "James Hadfield and Medical Jurisprudence of Insanity," N.Y. State Journal of Medicine 69 (1969): 1221; Richard Moran, "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, 48–55.

86. The reprinted works were: Samuel Farr's Elements 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 John Haslam's Medical 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, 6–36, 75–85.

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

91. Ibid., 75–85.

92. Leonard Shelford, A Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind (Philadelphia: J. S. Littell, 1833), xxi–lix, 1–5; Joseph Chitty, 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. Amos Dean, 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 Isaac Ray, "Review of Wharton's Monograph on Mental Unsoundness," American Journal of Insanity 12 (1856): 285–92.

104. Francis Wharton and Moreton Stillÿ, 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. Stillÿ 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 Stillÿ 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 Janet Tighe, "Francis Wharton and the Insanity Defense," American Journal of Legal History 27 (1983): 223, 227; Stephen Siegel, "Francis Wharton's Orthodoxy: God, Historical Jurisprudence, and Classical Legal Thought," American Journal of Legal History 46 (2004): 422–46.

105. Wharton and Stillÿ, Medical Jurisprudence (1855), 17–29, 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 criminal 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 Stillÿ, 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 Stillÿ, Medical Jurisprudence (1873), 749–50, 764–71; See generally, Tighe, "A Question of Responsibility," 169–72.

114. [John P. Gray,] "Moral Insanity," American Journal of Insanity 14 (1858): 311–22; see also D. Meredith Reese, "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, 77–96; Gary S. Belkin, "Moral Insanity, Science, and Religion in Nineteenth-Century America: The Gray-Ray Debate," History of Psychiatry 7 (1996): 591; Robert J. Waldinger, "Sleep of Reason: John P. Gray and the Challenge of Moral Insanity," Journal of the History of Medicine and Allied Sciences 34 (1979): 163; S. P. Fullinwider, "Insanity as Loss of Self: The Moral Insanity Controversy Revisited," Bulletin of the History of Medicine 49 (1975): 87; Norman Dain and Eric T. Carlson, "Moral Insanity in the United States, 1835–1866," American Journal of Psychiatry 118 (1962): 795; Nicole Rafter, "The Unrepentant Horse-Slasher: Moral Insanity and the Origins of Criminological Thought," Criminology 42 (2004): 979; Heidi Rimke and Alan Hunt, "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, see Rosenberg, Trial of the Assassin Guiteau, 68–74.

116. John Elwell, 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 J. J. Elwell et al., "The Moral Responsibility of the Insane," North American Review 302 (1882): 1–11 (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. Isaac Redfield, The Law of Wills (Boston: Little, Brown, 1864), 104, 154–55; Isaac Ray, "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 Louis Reik, "The Doe-Ray Correspondence: A Pioneer Collaboration in the Jurisprudence of Mental Disease," Yale Law Journal 63 (1953): 183.

122. See, e.g., Henry Buswell, The Law of Insanity in its application to the Civil Rights and Capacities and Criminal Responsibility of the Citizen (1885) (legal writer); Shobal V. Clevenger, 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 Stillÿ, 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"; Thomas A. Green, "Freedom and Responsibility in the Age of Pound," Michigan Law Review 93 (1995): 1915–2053; Mohr, Doctors and the Law, 213–24.

123. Paul Jerome Croce, 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 generally Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus, & Giroux, 2001); James Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford University Press, 1986).

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

125. Ibid., 268–69; Henry Maudsley, 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, 10–11, 13, 51–57, 59, 64–65; Andrew Scull, Charlotte MacKenzie, and Nicholas Hervey, Masters of Bedlam: The Transformation of the Mad-Doctoring Trade (Princeton: Princeton University Press, 1996), 226–67.

126. Wharton and Stillÿ, Medical Jurisprudence (1873), 160 (quoting Dr. Chipley, a medical superintendent who went on record against moral insanity); Henry Maudsley, Responsibility in Mental Disease, 3d. ed. (London: H. S. King, 1876), 268–308.

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., Frank S. Rice, The General Principles of the Law of Evidence (Rochester: Lawyers' Cooperative, 1895), 741; see also Clevenger, 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 Stillÿ, Medical Jurisprudence, vol. 1, esp. 584–907; see generally Nathan G. Hale, Freud in America: The Beginnings of Psychoanalysis in the United States, 1876–1917 (New York: Oxford University Press, 1971), 47–68; Rosenberg, The Trial of the Assassin Guiteau, 68–74; Smith, Trial by Medicine, 54–56; Wiener, Reconstructing the Criminal; B. E. Blustein, "´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. Andrew T. Scull (Philadelphia: University of Pennsylvania Press, 1981), 241–70.