In this short response, I address the particular criticisms of the commentators and also briefly touch upon the broader methodological issues their comments implicitly raise.

Skepticism about Common Sense

Mikhail's main criticism of my framing of the problem of responsibility takes the form of a counterfactual argument: he maintains that the same basic attributive dilemma would have presented itself to nineteenth-century American jurists "if the Common Sense philosophy had never existed." This, Mikhail explains, is because most thinkers within "the Western legal and moral tradition" believed that the rational and moral faculties of the mind were innate and universal. He further contends that the sorts of ambiguities and difficulties that I associate with the Common Sense way of thinking about moral agency had already been fully articulated by Locke and effectively redressed by the beginning of the eighteenth century. Common Sense philosophers may have served to elaborate and reinforce earlier critiques of Locke, Mikhail admits, but they shared the stage with other British moralists, who collectively made it possible for antebellum academics like Francis Wayland to dismiss any remaining perplexities about the basis of human responsibility rather easily—"albeit," Mikhail concedes, "not always convincingly."3

     There is a certainly a sense in which Mikhail is right. Philosophers, jurists, and theologians had indeed been puzzling about human agency and accountability for centuries, and members of the Scottish Common Sense school were hardly the first to maintain that human beings were born with the capacity for moral and rational action. But it is surely too sweeping to claim, as Mikhail does, that most writers associated with the tradition of "Western jurisprudence" or "The Enlightenment" shared the same perspective as to the moral constitution of humankind, with their disputes and divergences reducing to matters of "nomenclature." This is especially true of "conscience" and "moral sense," which certainly did not carry the same connotations across space or time.4 The texts upon which Mikhail relies to show that these terms were interchangeable actually contain considerable support for the opposite proposition, thereby complicating any simple story of continuity in the history of these ideas. To take just one example, we can see that Benjamin Rush was in fact quite careful to distinguish the conscience from the moral faculty in his 1786 address, doing so in the very next paragraph after the passage Mikhail quotes. The doctor did so precisely because he recognized that the "different names" accorded to this faculty by "different authors" actually reflected fundamental disagreements in ethical theory, chiefly having to do with the question of whether the seat of morality was located in the rational or non-rational faculties of the mind.5 On this question, the Common Sense philosophers resolutely adopted the former position, averring that the moral sense was "an active, rational power" rather than an "involuntary emotion," which carried the implication that moral values were not simply reducible to a subjective matter of feeling, but were instead objective, self-evident truths that could be perceived as directly and certainly as features of the physical world.6

     To point to these distinctions is, of course, hardly to disprove Mikhail's counterfactual claim, but in conjuring up this alternative universe, I believe he has misapprehended my reasons for casting the Common Sense philosophers as I do in the article. Their prominence is largely owing to the currency rather than the originality of their psychological models and philosophical arguments. The fact that earlier thinkers articulated similar ideas about the mind of the moral agent has little or no bearing on my argument. For the role I assign to the Common Sense philosophers is largely a function of the importance that nineteenth-century American elites attached to the works of Reid, Stewart, and Beattie (or to simplified versions of the same), particularly in the first half-century after the Revolution. Mikhail appears willing to grant that Common Sense was influential within antebellum "academic life," but he insists these educators were mainly drawn to the Scottish philosophers' distinctive way of cutting through "certain knotty epistemological problems," rather than their proofs of "the existence of conscience and free will," which, he maintains, had already been provided by Butler and Hutcheson. Mikhail rightly highlights the metaphysical worries about the relations between idea and object that Reid and others sought to allay, and I might have been clearer about the manner in which their appeals to the "testimony of consciousness" were also viewed as effective in warding off the specter of determinism. Still I would maintain that the chief attraction of Common Sense realism, from the standpoint of its leading antebellum American exponents, lay in the manner in which it seemed able to establish scientifically the objective reality of moral principles and the mental capacity of human beings to understand and act in accordance with them.7

     That being said, it is certainly conceivable that American jurists might have been led into the same quandaries about human responsibility even if the Common Sense philosophy had never existed. But the Scottish philosophy does not occupy the position it does in my narrative because I regard it as a necessary causal condition. Nor was I primarily concerned with establishing the place of the Common Sense philosophy in the history of ideas, or in any way seeking to gauge the accuracy of the Scottish philosophy relative to other theories elaborated by scientists at the end of the nineteenth century, or the beginning of the present one. And so Mikhail's closing remarks, suggesting how Adam Ferguson prefigured "one of the major intellectual developments of our time," seem to me misplaced. For the chief aim of the article is to reconstruct a conversation between nineteenth-century lawyers and doctors, illustrating how they wrestled with the ramifications of Enlightenment thought, rather than assessing the extent to which any given thinker contributed to the human sciences as they have evolved over time. In the story I tell, the Common Sense philosophy figures more as a bellwether than a breakthrough; it appears as a vocabulary of the self that was turned to various uses, as opposed to a "unit idea" that traveled across time and space of its own accord.8 When considered in relation to the orthodox Calvinist tradition it displaced, the Common Sense philosophy does indeed stand as a strikingly optimistic way of thinking about the human predicament. But, as I have emphasized, its appropriation by American moralists in the decades straddling 1800 was as much a reflection of their anxieties about the state of the union and the stability of moral values as it was an expression of their hopefulness about the mental ability of humankind. Insofar as they chose to accentuate the positive in this regard, implicitly or explicitly rejecting the orthodox doctrine of original sin, moralists effectively made the stubborn fact of human perversity more conspicuous. Though moralists surely did not intend to introduce new perplexities into the discourse, their teachings carried with them certain logical implications about the limits of moral responsibility, which were difficult to square with traditional religious and legal doctrines.

     This is well illustrated in Francis Wayland's The Elements of Mental Science, a work Mikhail summons up to show how untroubled academic moralists were about the attribution of responsibility. On this general point, we are in basic agreement. For as I noted in the article, these moralists tended to exhort individuals to behave responsibly without confronting the difficult question of who was to blame for environmental and hereditary defects compromising an individual's ability to conform to this norm. Wayland may be taken as typical in this regard, though in the passage Mikhail cites the moralist was defending the existence of a universal moral faculty. Earlier in the text, however, Wayland did expressly stipulate that an individual needed to be in possession of both intellectual and moral powers to be deemed a moral agent, and he further provided that individual accountability extended no further than mental ability.9 In setting out these requirements, Wayland implied that the limits of personal responsibility were considerably narrower than those elaborated by orthodox divines and under the laws of the land. Although neither he nor any other academic moralist advocated legal revisions along these lines, there was another band of antebellum reformers who did: the first generation of alienists. In their treatises on the jurisprudence of insanity, these medical men introduced the concept of "moral insanity," suggesting as they did that at least some forms of deviant behavior, heretofore attributed to sin, might be better understood as the product of a diseased will or moral sense. As the article shows, this new disease entity created great controversy at mid-century, generating multiple divisions within and between the medical and legal professions. It remains to consider whether all this "theorizing about the metaphysics of moral responsibility" was of any consequence in the world of legal practice.

The Science of Law: Practical not Metaphysical?

"Metaphysical" was a popular term of abuse in learned discourse in the eighteenth and nineteenth centuries. Orthodox theologians applied the label to their liberal opponents' notions of free will, while Scottish philosophers affixed it to any and all theories that conflicted with the "first principles" of common sense, suggesting as they did that it was "metaphysical lunacy" to adhere to the one in the face of the other. Early republican jurists boasted of their immunity to this disease, due in no small part to the legal profession's pressing need to respond to "the actual concerns of human life."10 But as far as antebellum alienists could see, the jurists were simply being unscientific as they continued to rely on such "metaphysical writers" as Locke, Reid, and Stewart, who had not observed the workings of the mind in sickness as in health. Yet it would be a mistake to conclude from all of this name-calling that the philosophy of the mind was, by this time, a moribund subject. One need only consult the syllabi and law lectures developed for aspiring lawyers in the first half of the nineteenth century to see that this was not the case. As the article notes, legal educators such as James Wilson and David Hoffman regarded mental and moral philosophy as foundational knowledge for those intending to go into practice, and they particularly commended the writings of the Scottish Common Sense philosophers to their students. The commentators nonetheless question whether the teachings of Wilson and Hoffman can be taken as representative of the profession as a whole, and they also express skepticism about the extent to which judges were actually thinking about the mind of the moral agent as they adjudicated civil and criminal cases.

     Turning first to the issue of representativeness, it is of course true that the optimism of the Common Sense philosophers was not shared by all, or perhaps even the majority of those who participated in the Constitutional Convention. But while it might well be said that Hamilton and Madison were, on the whole, less favorable in their estimates of human nature than was Wilson, the latter was far from holding that men were angels. More particularly, it seems to me an exaggeration to say that Wilson was "a juristic visionary"11 or "almost a fanatical idealist"12—at least when speaking of Wilson's ideas about human psychology. However idiosyncratic the doctrine of popular sovereignty he articulated on the basis of this psychology, or over-confident he was in his own intellectual abilities, he was far from the only framer who believed in a universal moral sense.13 It further strikes me that Mikhail is simply wrong in suggesting that Wilson's radical ideas were so "far ahead of his time" as to anticipate the epigram of Mill's On Liberty, let alone the credo of the National Lawyers' Guild.14 As Henry May has persuasively shown, Wilson was only "a little ahead of his time" in espousing the Common Sense philosophy, which would acquire "overwhelming importance" for many "moderately conservative" Americans after the French Revolution rendered other forms of Enlightenment thought "suspect." Works by Common Sense philosophers appeared in "great numbers" on booksellers' lists from the 1790s, and by the 1820s these volumes were firmly entrenched as "the basis of the standard curriculum in American colleges."15 Hoffman may therefore be seen as reflecting and reinforcing these developments in ranking these Scots as highly as he does in his influential 1819 Courses of Study, wherein he declares "[o]f all writers, ancient and modern, none have been so rational on the subject of metaphysics as Dr. Reid" and "urgently" recommends "every tyro in law" make this philosopher's writings part of his intellectual diet, promising that "they can scarcely fail to fashion his mind to patient inquiry, and to furnish it with principles of universal application in the science of law."16 Although every tyro surely did not do (or remember) what he was told during the course of his legal education, I think there is ample evidence—particularly in the medico-legal literature surveyed in the article, curiously receiving little attention in the comments—that the Common Sense philosophy did indeed supply a conceptual language and style of thinking that enjoyed a certain predominance within American legal culture, at least until the Civil War.

     Yet can it be shown that this "theorizing" about the mind of a moral agent was of any consequence in the practice of law? Can the Common Sense philosophy be linked to "any specific doctrines or judicial opinions"?17 These questions, as framed by the commentators, presume the existence of a clear division between theory and practice which little existed in nineteenth-century law. In this regard, it should be recalled that the Common Sense philosophers expressly dissociated their work from the "dogmatic metaphysics and arrant theorizing" of their day, with Reid pulling no punches as he pronounced, "I despise Philosophy and renounce its guidance, let my soul dwell with Common Sense."18 Educators in America proceeded in a similar spirit as they wrote and lectured on the subject of moral philosophy; though they divided the subject into "theoretical" and "practical" units, the two were intimately related and unabashedly keyed toward validating republican and Protestant institutions and ideals. The first generation of American alienists believed their science could be deployed to similar ends, though they were more inclined to call upon the assistance of the legislative and judicial branches of government as they worked to promote the mental health of the nation. Seo and Witt are quite right to observe that the building of insane asylums, along with prisons, changed the stakes of criminal trials, but I do not share their impression that the increasing variety of such institutions operated to diminish the moral significance of judicial decisions to commit or incarcerate individual defendants. The mid-century debate about the doctrine of moral insanity certainly suggests otherwise, and it was only very late in the century that individual states began to create separate institutional spaces for the "criminally insane." Even then, the question of how to identify and treat such persons remained a matter fraught with ambiguity and tension, and the same was true of the "dangerously insane," who had not (yet) committed any criminal offense.19 As American lawyers, judges, and jurists grappled with these issues, they might well have acquired a new appreciation for the traditional doctrines of Coke, Hale, and Blackstone, but, contrary to Mikhail's claim, the insanity defense cannot be said to have been unaffected by this array of intellectual, scientific, and institutional transformations.

     With respect to the field of tort law, the historical record is concededly not as clear. To the end of the nineteenth century, the law remained unsettled on the question of an insane person's liability for his torts, and I am inclined to view Holmes's The Common Law as a manifestation of this uncertainty rather than a means of clarifying the matter. Although Seo and Witt offer an intriguing reading of the jurist's terse remarks on the subject of mental disability, I am not persuaded that the quoted passages can be taken to endorse the sort of "notice principle" they proceed to find in the decisional law of the period. For it seems to me that the words "distinct," "pronounced," and "manifestly" might plausibly be read to contemplate the perspective of the trier of fact rather than the non-insane party in a negligence action. Moreover, I think the cited cases fall short of establishing that the broad claim that courts in this era were more concerned with apportioning liability on the basis of "information" than "moral control." As I read the law reports, these two considerations were usually interconnected in the judges' reasoning. It was, after all, the presumed want of moral agency on the part of the insane party that triggered the judicial inquiry into the matter of what the sane party knew or should have known, and such assessments of relative mental capacity were not simply intended to accomplish "practical goals" having nothing to do with the "metaphysics of the mind." Perhaps the best illustration of this point can be found in the much noticed fin-de-siecle case of Williams v. Hays (1899), in which the members of the bench never quite decided whether to hold an obviously delirious ship captain to the standard of the reasonable man or to treat the shipwreck as an "inevitable accident" that was, by definition, no one's fault.20 Although the judges involved in this case may well have been struggling to construct an efficient negligence regime, one strongly suspects that this problem was not all that was weighing on their minds as they considered the predicament of the unfortunate—or was he?—ship captain. It is true that the opinions they rendered in these and other cases did not indulge in "abstract metaphysics," if this is meant to refer to the sort of meaningless speculation that was the object of ridicule in nineteenth-century American jurisprudence. But in and through their decisions, judges manifested their keen and abiding interest in questions of human agency and responsibility—seeking as far as practically possible to ensure a certain correspondence between consciousness and culpability.

     In the space of these few pages, I certainly do not expect to have dissolved all the doubts of my readers. And so I can only express my gratitude to them for their insightful comments and take them as further stimulus to dig still deeper into the court records, treatises, and popular literature that contain evidence of the ways in which nineteenth-century Americans thought about the mind of the moral agent. In the fuller story I intend to tell in the form of a book, philosophers, jurists, and alienists will share the stage with judges, lawyers, litigants, and a parade of witnesses—a cast well equipped to show that responsibility talk was at least as common as rights talk in this era, and certainly no less consequential to the well-being of those who deployed this language in everyday courtroom proceedings.

Notes

1. Sarah A. Seo and John Fabian Witt, "The Metaphysics of Mind and the Practical Science of the Law," Law and History Review 26 (2008): 161–66.

2. John Mikhail, "Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal," Law and History Review 26 (2008): 167–75.

3. Mikhail, "Scottish Common Sense," 174.

4. See generally, Norman Fiering, Jonathan Edwards's Moral Thought and Its British Context (Chapel Hill: University of North Carolina Press, 1981), 62–68, 136–38; Donald Meyer, The Instructed Conscience: The Shaping of the American National Ethic (Philadelphia: University of Pennsylvania Press, 1972), 43–50.

5. Benjamin Rush, "An Inquiry into the Influence of Physical Causes upon the Moral Faculty," in Medical Inquiries and Observations (Philadelphia: T. Dobson, 1793), 2:2–5; for other examples see John Witherspoon, Lectures on Moral Philosophy (Princeton: Princeton University Press, 1912), 10–11; David Hoffman, Legal Outlines: Being the Substance of a Course of Lectures Now Delivering in the University of Maryland (Baltimore: Edward J. Coale, 1829), 28–29, 36.

6. See Daniel Walker Howe, Making the American Self: Jonathan Edwards to Abraham Lincoln (Cambridge: Harvard University Press, 1997), 46–49; Meyer, The Instructed Conscience, 41.

7. See Susanna Blumenthal, "The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law," Law and History Review 26 (2008): 99–159.

8. See James Kloppenberg, "The Theory and Practice of American Legal History," Harvard Law Review 106 (1993): 1332.

9. Francis Wayland, The Elements of Moral Science (Boston: Gould, 1850), 48–53.

10. Joseph Story, A Discourse (Boston: Hilliard, 1829), 10.

11. Mikhail, "Scottish Common Sense," 171.

12. John Witt, Patriots and Cosmopolitans: Hidden Histories of American Law (Cambridge: Harvard University Press, 2007), 20; Seo and Witt, "Metaphysics of Mind," 161.

13. Howe, Making the American Self, 78–103; Merle Curti, Human Nature in American Thought: A History (Madison: University of Wisconsin Press, 1980), 106–12, 118–26, 129–30.

14. Mikhail, "Scottish Common Sense," 171–72.

15. Henry May, The Enlightenment in America (Oxford: Oxford University Press, 1978), 207, 346; Robert Green McCloskey, "Introduction," in The Works of James Wilson, ed. Robert Green McCloskey (Cambridge: Harvard University Press, 1967), 3.

16. Hoffman, A Course of Legal Study (Baltimore: Coale and Maxwell, 1819), vii, xv–xvi, xxviii–xxix, 58.

17. The relationship between Common Sense philosophy and common law adjudication is more fully taken up in Susanna L. Blumenthal, "The Default Legal Person," UCLA Law Review 54 (2007): 1135.

18. Howe, Making the American Self, 31.

19. Blumenthal, "The Default Legal Person," 1194–1203. See generally, Alan Dershowitz, "The Origins of Preventive Confinement in Anglo-American Law, Part II: The American Experience," University of Cincinnati Law Review 43 (1974): 781–846.

20. Blumenthal, "The Default Legal Person," 1253–60.