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“Ungovernable Feelings and Passions”: Common Sense Philosophy and Mental State Defences in Nineteenth Century Scotland

Document Cited in Related
Vincent
Published date01 September 2016
Author
Pages285-311
Date01 September 2016
DOI10.3366/elr.2016.0360
INTRODUCTION

During the nineteenth century, the extent to which mentally abnormal offenders ought to be held accountable for their crimes was a pressing concern in both medical and legal circles. As medical writers and practitioners advanced new understandings of mental disorder, the narrow view of insanity employed within the criminal law began to appear unduly restrictive.

In this article I explore how the contested boundary between sanity and insanity, and criminal responsibility and non-responsibility, was delineated in the Scottish context, where it has received relatively little attention.1 I assess how the Scottish judiciary handled emerging notions of insanity,2 which posed a risk to the way criminal responsibility was understood, and situate these responses in the wider medico-legal debates that occurred within Britain and America throughout much of the century.

Whilst these medico-legal debates are crucial to understanding the law's development, they provide only part of the explanation. As Wiener and others have recognised,3 disagreements over the proper parameters of criminal responsibility touched upon fundamental philosophical and theological issues, including beliefs about free will, necessity, and the capacities of “ordinary” individuals. These deliberations were particularly salient in the nineteenth century because, apart from being central to questions about criminal responsibility, they featured in broadly contemporaneous philosophical discourse over the relationship between reason and the passions and the limits of self-governance.4 As I discuss further below, these topics were pertinent to disputes over the existence, and legal significance, of volitional insanity5 that arose at the start of the nineteenth century. Prevailing philosophical views therefore constitute an important angle from which to consider how the contours of criminal responsibility were drawn during this period. In light of this, I offer a reading of the insanity defence, and the mental state defences of provocation and diminished responsibility,6 which links their development to key tenets of Common Sense philosophy – a school of thought which enjoyed considerable prominence in nineteenth century Scotland.7

From its inception during the eighteenth century until its decline in the closing decades of the nineteenth century, Common Sense philosophy was an orthodox component of a Scottish university education,8 the idiosyncratic mainstay of which was a solid grounding in metaphysical and moral philosophy.9 Outside the universities, philosophical knowledge was prevalent too, as many of the readers and consumers of philosophical texts were middle class men in pursuit of a civilized mind and cultivated taste.10 A proportion of this demographic would have been lawyers and judges, for although a university education was not a formal requirement for admission to the Faculty of Advocates, candidates with a broad, liberal education were increasingly desirable from the middle of the eighteenth century.11 Indeed, candidates without a university degree were examined on, inter alia, metaphysical philosophy, including The Collected Works Of Thomas Reid, as edited by Sir William Hamilton.12

Within the topography of British philosophy, the Scottish Common Sense school was one of the two metaphysical systems that dominated the first half of the nineteenth century, the other being the English Empirical school.13 In contrast to the Empirical school, a fundamental principle of the Scottish school was the existence of experience-independent speculative and practical laws.14 This principle had important repercussions for the school's theories of perception and knowledge, both of which attached considerable significance to common sense.15 The school is primarily remembered for these theories,16 but its members also made important contributions to debates about morality and determinism. Thomas Reid, in particular, was noteworthy amongst the libertarians of his age, arguing that human beings, as moral agents, had the “active power” to govern themselves and overcome their desires and passions.17 Connected to this, and along with other Common Sense philosophers, Reid subscribed to (and developed) ethical intuitionism – the idea that humans can immediately apprehend moral truths – which was the main rival to the moral utilitarianism that gained traction in nineteenth century England.18

Each of these elements of Common Sense philosophy is reflected in my reading of the development of mental state defences in nineteenth century Scotland, to which there is two strands. The first strand examines the rejection of new understandings of mental disorder which, from the first third of the century, threatened to narrow the scope of criminal responsibility. This effort was led by Lord Hope from the middle of the century and, I suggest, reflects a view of human agency consistent with that of the Scottish Common Sense philosophers John Abercrombie, Thomas Reid, and Dugald Stewart. According to this view, individuals were vested with an innate power to perceive moral truths and to act in accordance with them – a power that was intimately bound up with the ability to resist undesirable passions and desires. As I seek to show, a similar perspective on human agency also appears to have informed the way the provocation defence was defined in Scotland at the end of the eighteenth century.

The second strand focuses on how, during the final third of the century, the insanity defence became based on the loose test of “soundness of mind”. This change meant the jury was effectively entrusted with determining the substance of the test for assessing the sanity of an accused person, rather than simply the task of applying it. Paying heed to the significance of prevailing philosophical beliefs, I suggest this shift also reflects core features of the Common Sense school of thought. Coupled to the development of diminished responsibility, which allowed the jury to mitigate culpability on the basis of mental unsoundness falling short of insanity, this evolution in the law reflects the confidence in common sense knowledge that was central to Common Sense philosophy.

 EARLY NINETEENTH CENTURY DEVELOPMENTS

The starting point for understanding the two interpretive strands of this article is to set out some of the early nineteenth century developments within medical and legal understandings of mental disorder and in medico-legal relations. Changes during this time, including the increased involvement of medical men (and others charged with managing the mentally disordered) in the identification and treatment of insanity,19 set the tone for the consternation that arose between legal and medical professionals later in the century. In addition to appearing more frequently as witnesses in trials,20 medical writers began to advance nuanced conceptions of insanity, which incorporated what some lawyers referred to as “partial insanity”.21 This concept of partial insanity could refer to insanity that was intermittent, mild, or circumscribed in one of two senses, i.e. relating only to one subject or affecting only one part of the mind.22

The latter two forms of partial insanity were especially significant in the early nineteenth century, when medical consensus grew around the existence of delusions – madness that seemed confined to one principal idea23 – and members of the French school of médicin mentale, led by the psychiatrists Philippe Pinel, Jean-Étienne Dominique Esquirol, and Étienne-Jean Georget, put forward the notion of manie sans délire – insanity without any reasoning defect, hallucination, or delusion.24 This form of insanity was innovative, for it raised the possibility of purely emotional or volitional insanity.25

The idea of purely emotional or volitional insanity was propounded by British writers too, including James Prichard, a Scottish-born physician, who argued that there could be “a morbid perversion of the feelings, affections and active powers, without any illusion or erroneous conviction impressed upon the understanding”.26 To describe this affliction, Prichard coined the phrase “moral insanity”, by which he meant “a disorder which affects the feelings and affections, or what are termed the moral powers of the mind, in contradistinction to the powers of understanding and the intellect”.27 While some specialists confirmed the existence of this type of insanity,28 others were more dubious, questioning many cases in which the morals were said to be depraved but the intellect untouched.29

These new understandings of insanity differed from the complete lack of reason and understanding that traditionally characterised non-responsibility under English law30 and, despite favourable reception by jurors, never amounted to established “tests” of insanity.31 Similarly, they did not sit entirely comfortably with the test of non-responsibility prescribed by Scots law at the time they emerged. According to Hume, the defence required that the accused had suffered an “absolute alienation of reason”, depriving him of the “knowledge of the true position of things about him”.32 Though based on an intellectual understanding of mental disorder, thereby precluding purely volitional or emotional insanity, the defence was potentially available to those incapable of judging “upon any particular situation or conjecture, of what is right or wrong with regard to it” but who nevertheless retained a “vestige of reason”.33 The restrictions on this type of plea were demonstrated in Eugene Whelps, in which Lord Justice Clerk Hope stated that although it was possible that monomania34 or mental delusions on a particular subject might proceed to such a degree as to amount to general insanity, unless it were proved that the delusion caused the criminal act and that the accused was unable to distinguish right from wrong there should be no acquittal.35

The earlier case of Malcolm McLeod36 further...

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