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

Abstract

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

Wondrous Depths: Judging the Mind in Nineteenth-Century America

“…Man was virtuous, rational, and self-disciplined. This faith in the fundamental morality and autonomy of the individual resonated with Americans who had recently embraced democratic republicanism (Blumenthal 2008). Common Sense philosophy acquired a prominent place in university curricula and also in the law lectures studied by aspiring lawyers (53).…”

“…One of the most important contributions of Law and the Modern Mind to legal scholarship is Blumenthal's concept of the "default legal person," which she described at length in a 2006 law review article (Blumenthal 2006). The default legal person is a legal ideal representing the minimum degree of understanding and self-control that a person needs to possess in order to be considered legally responsible for his or her actions.…”

“…Nineteenth-century capacity cases often dramatized the clash between determinist and liberal humanist understandings of the self. However, Blumenthal rejects the idea, prevalent in histories of the insanity defense, that determinist doctors and free willloving lawyers could be divided neatly into camps (Blumenthal 2008). She also resists the Foucauldian narrative of the "Great Confinement" and the attendant notion that power-hungry mad doctors cynically wormed their way into courtrooms (64; Foucault 1965Foucault , 1978.…”

‘Every expression is watched’: Mind, medical expertise and display in the nineteenth-century English courtroom

“…Mohr (1997: 274) suggests that the new psychiatric theories emanating particularly from France ‘had the effect of introducing a large number of gradations and variations of sanity (or of insanity) to replace older, sharper distinctions between persons clearly deranged, on the one hand, and persons who were merely quirky or less competent or temporarily “visited by God” or simply troubled, on the other hand.’ Mensel (2005), however, has argued that in the United States the rise of a new notion of sentimental domesticity was critical to the broadening of the grounds for finding unsoundness, at least in testamentary law. Blumenthal (2006: 985, 2008, 2016) emphasizes less romantic domesticity than that the ‘sheer logic of Enlightenment philosophy inclined judges to look for sources of immoral and irrational behavior outside of the conscious self. … For this reason the hypothesis of delusion and improper influence held a certain appeal.’ The cultural explanations put forward by Mensel and Blumenthal, while compelling in many ways, do not account for a similar change in Britain.…”