Nineteenth-century American Law Research Articles

Religion and Rights in Nineteenth-Century American Law: Reflections on the Work of Elizabeth B. Clark

Religion and Rights in Nineteenth-Century American Law: Reflections on the Work of Elizabeth B. Clark

Scottish Common Sense and Nineteenth-Century American Law: A Critical Appraisal

One overriding concern I have with Susanna Blumenthal's insightful and stimulating article, “The Mind of a Moral Agent: Scottish Common Sense and the Problem of Responsibility in Nineteenth-Century American Law,” is whether there is anything sufficiently distinctive about Scottish Common Sense philosophy that justifies the role Blumenthal ascribes to it. In a representative passage, she writes: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 … leading some to commit acts that were … patently irrational or downright evil? And to the extent that therewasa common sense about the dictates of reason, propriety, and moral sense, why did some individuals act in defiance of them?

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

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.”

Using One's Head: Were Jurists “Unconscious” Socio-Economic Ciphers or Conscious Agents? A Response to Friedman

Professor Friedman's lively review of my recent book Heart versus Head raises a number of questions, not all of which need be addressed in the pages of this journal. I welcome the opportunity to comment on it, because I think it possible to define more clearly our differences as well as those matters on which we agree, and because I think such an exchange can be of use to those planning further forays into the world of nineteenth-century American law. But first:

"Till You Understand Them in Their Principal Features": Observations on Form and Function in Nineteenth-Century American Law Books

"Till You Understand Them in Their Principal Features": Observations on Form and Function in Nineteenth-Century American Law Books

Law in art: Melville's major fiction and nineteenth-century American law

Law in art: Melville's major fiction and nineteenth-century American law

Polite Foundation: Citizenship and Common Sense in James Wilson's Republican Theory

Previous articleNext article No AccessPolite Foundation: Citizenship and Common Sense in James Wilson's Republican TheoryStephen A. ConradStephen A. Conrad Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 19841984 Article DOIhttps://doi.org/10.1086/scr.1984.3536944 Views: 6Total views on this site Citations: 3Citations are reported from Crossref Copyright 1985 The University of ChicagoPDF download Crossref reports the following articles citing this article:Justin Buckley Dyer Reason, Revelation, and the Law of Nature in James Wilson’s Lectures on Law, American Political Thought 9, no.22 (Apr 2020): 264–284.https://doi.org/10.1086/707370 The Past as Authority and as Social Critic: Stabilizing and Destabilizing Functions of History in Legal Argument*, (Jun 2017): 282–316.https://doi.org/10.1017/9781108147668.015Susanna L. 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, no.11 (Aug 2010): 99–159.https://doi.org/10.1017/S0738248000003576