Professional dynamics of the forensic evaluation of mental states in eighteenth-century Denmark-Norway

Introduction

The history of the insanity defence can be traced back to ancient Greek and Roman law (Watson, 2011: 72) and implies a long tradition of evaluating mental states in a forensic context. As legal insanity originally, and generally, encompassed manifest insanity, the judges’ decisions did not privilege medical opinions over lay observations when evaluating the mental state of the offender (Skålevåg, 2006: 49; Waaben, 1997: 22; Watson, 2011: 80). However, medicine began to merge with legal discourse on criminal responsibility via the specifically Renaissance-era medical concept of ‘melancholy’ (Watson, 2011: 80). Preconditioned by an increasing acceptance of the evidential weight of scientific reasoning (Fischer-Homberger, 1983: 134), the medical interpretation of the insanity defence arose from the involvement of physicians in sorcery trials (Fischer-Homberger, 1983: 135–6; Midelfort, 1999: 182–227; Watson, 2011: 75–7). In contrast to practice in secular courts, clerical courts customarily consulted physicians on the matter of mental states (Fischer-Homberger, 1983: 135). The physicians’ assignment was to distinguish the diseased from the demonically possessed, but medical involvement (notably Weyer, 1563) eventually led to the questioning of criminal responsibility of those accused of sorcery, in relation to their mental condition (Fischer-Homberger, 1983: 136; Midelfort, 1999: 214–15; Watson, 2011: 75–7).

In line with the tradition of an insanity defence shaped by Roman law, the legal framework of the absolute monarchy of Denmark-Norway (The Danish Code of 1683, hereafter DC; see Secher, 1929) entrusted the evaluation of insanity to the judges. However, by including the normative guidelines for pastoral care (the Church Ritual of 1685) with their prescription for the evaluation and treatment of demonic possession, we can identify a parallel tradition for employing medical opinions as a supplement to the pastoral evaluation of mental states. ¹

By suggesting the significance of pastoral-medical teamwork in the evaluation of mental states for the development of forensic psychiatry, this article elaborates on existing depictions of the history of forensic psychiatry and the insanity defence in Denmark (Waaben, 1997) and provides a basis for understanding the Danish development of this field in a broader context (Westerink, 2014). ² As a study of pre-medical forensic psychiatry, the article furthermore joins the pool of existing studies of the precedents to ‘the establishment and institutionalization of psychiatry as a special branch of medicine’ during the nineteenth century (Møllerhøj, 2008: 321; see also Skålevåg, 2006).

Based on a case study of the legal administration of blasphemy offences in Denmark-Norway, this article investigates the professional dynamics of the evaluation of mental states and criminal responsibility in five selected cases between 1713 and 1733. First, I explain how the legal framework and normative guidelines for pastoral care intended the interplay to work between judges, priests and physicians regarding the evaluation of mental states. Then I provide an in-depth reading of the dynamics and role assignment in the evaluation of mental states in practice, as reflected in the five cases. The selection of cases provides a rare opportunity to compare the evaluation of mental states across professions in a forensic setting. Characteristic of Danish legal practice in blasphemy cases until 1733, all five cases include deliberations from professors of theology. Two of the cases show the interplay between the theologians and physicians, and the last case adds a Supreme Court discussion of the insanity defence.

Professional dynamics envisioned by the normative framework

The Danish Code of 1683 included two sections regarding insanity relevant to the evaluation of the mental state of an offender (Holmboe, 1961: 174–5; Waaben, 1997: 21). ³ The first section (see DC 1-19-7 in Secher, 1929: 134) concerned the confinement of mad individuals, who had not necessarily committed any crime. The section permitted the commitment of a mad (rasende, eller galind) individual into custody (literally ‘bind him’) and taking the matter to court. ⁴ If the court considered the person mad, its decision allowed for/obliged the family to ensure the person’s secure detention provided that they had the means. Otherwise, the responsibility for secure detention rested on the authorities. The other section (see DC 6-6-17 in Secher, 1929: 895) stipulated that a homicide committed in ‘delirium and fury’ (Vildelse og Raserj) should not result in capital punishment but in an obligation to compensate the victim’s beneficiaries financially.

The judges could combine the two sections, so the preventive measure of custody accompanied the impunity of the insane criminal. Although the latter section mitigated the punishment specifically in homicide cases, the insanity defence also came to be applied to other criminal cases, forming the legal framework for determining whether a mental deviation could lead to mitigation of punishment following the law. The legal framework included no regulations on how to evaluate the offender’s mental state, but apparently left it to the judge to form a decision based on the available evidence in terms of the offender’s behaviour (Holmboe, 1961: 174–5; Waaben, 1997: 20–2).

As to the pastoral evaluation of mental states, the DC’s regulations regarding religious matters included a pastoral obligation (see DC 2-5-25 in Secher, 1929: 240–1) to prohibit insane (afsindige) individuals from attending Communion. While the prohibition reflected the requirement of mental capacity embedded in the theological doctrine of consciousness of sin before absolution, the pastoral evaluation of parishioners prior to Communion also came to serve as evidence of sanity in court (Holmboe, 1961: 175; Waaben, 1997: 24).

The unification of pastoral guidelines in the Church Ritual of 1685 also gives us an idea of the evaluation and treatment of mental illness within pastoral care. In the section on how to deal with a spiritual trial, one of its subsections addressed those feeling tired of life, tormented by evil thoughts and persistent distress. First, the guidelines instructed priests to visit the afflicted frequently and examine whether his/her mental state was rooted in an uneasy conscience due to a depraved lifestyle. Next, priests should enjoin the person to regain his/her composure (Sindsens Rolighed), to curb his/her emotional strains (Affecter), and endeavour to master his/her mind (at være Herre over sit eget Sind). Moreover, the person should be wary of indignation (Ivrighed), avoid solitude (Eensomhed), and work hard to eliminate any occasion for the Devil to torment his/her conscience any more. Then, the guidelines emphasized how to involve the Bible, Communion and church services, as well as private prayers, readings and singing, in the pastoral treatment of ‘such melancholic’ people (saadanne Melankoliske). Finally, in line with practices surrounding recovery from other illnesses, a thanksgiving from the pulpit should mark the recovery of such melancholics (Danmarks og Norgis Kirke-Ritual, 1685/1985: 76–8).

It appears from the prescribed treatment mentioned above that the guidelines still credited the depressed and suicidal individual with some scope of action, willpower or free will. Thus, according to the DC, such a melancholic condition presumably would not excuse any criminal actions. ⁵ Likewise, the recommendation to attend Communion indicates that the melancholic condition was by no means comparable with the kind of insanity that led to exclusion from Communion.

In a subsequent section on how to deal with the possessed, the Church Ritual of 1685 prescribed the attendance of doctors to assist the pastoral evaluation of allegedly possessed individuals. While the guidelines cautioned against downgrading any claim of demonic possession to ‘fable, dreams, melancholic whims or other unease of the mind’ (Fabel, Drømme, Melankoliske Griller, eller anden Sindsens Urolighed), they put equal emphasis on the priest’s obligation to proceed with caution and to deliberate on other possible causes of the condition. Specifically, the attendance of doctors should help the priest to eliminate the possibility of natural disease (e.g. lunacy, fury and epilepsy) as the cause (Danmarks og Norgis Kirke-Ritual, 1685/1985: 79–81).

Suicidal motives and criminal responsibility

Between 1690 and 1733, the Faculty of Theology in Copenhagen considered nine cases regarding written pacts with the Devil (Krogh, 2000: 127). While the faculty recommended public confession in the two earliest cases (1690 and 1710, including imprisonment with hard labour for a moderate time), from 1718 on, the professors of theology framed the cases as ones of blasphemy, but disagreed on whether or not to punish the offence with capital punishment following the law or by means of an arbitrary punishment of lifelong imprisonment with hard labour (Krogh, 2000: 124–41). In two of the cases, the professors discussed the possibility of a suicidal motive (1720 and 1724–7) (Krogh, 2000: 131, 137). In the following, I examine how the professors interpreted death wishes and the implications for their recommendation of punishment.

In 1720, the Faculty of Theology considered a case against a 22-year-old musketeer named D Heyn who had been sentenced to death by the court martial for his two attempts at making a written pact with the Devil. Although three of the professors – C Worm, H Bartholin and H Steenbuch – recommended a mitigated sentence of lifelong imprisonment with hard labour, the king eventually followed the opinion of just one of the professors – J Trellund – who suggested capital punishment. ⁶ Worm, Bartholin and Steenbuch’s recommendation has been lost, but the minutes from the professors’ discussion provide evidence that Steenbuch (1720: fol. 118r) stressed the fact that Heyn ‘seemed entirely determined to die’ (gandske fandtis determineret til døden) along with other mitigating circumstances (youth, bad education and the content of his written pact).

Trellund’s recommendation of capital punishment included a meticulous list of aggravating circumstances and a dismissal of any claim of mitigating circumstances. ⁷ Yet the dismissal of the mitigating circumstances may indirectly represent the opposing view of the professors who recommended lifelong imprisonment with hard labour, as it suggests the presence of a discussion of those mitigating circumstances nonetheless.

Based on an investigation of the case documents, Trellund (1720: 420) reported how, on two consecutive days, Heyn was outside the church door shouting at the Devil to hand over to him an exchangeable coin. Furthermore, referring to Heyn’s claim of having written the two pacts at the request of the Devil, Trellund (pp. 420–1) added: ‘whether the professed [foregifne] visible revelation occurred in his imagination [phantasie] or has been as such in the deed [eller har været saa i gierningen] does not add much to the case’.

Temporarily, Heyn regretted his enterprise, provoked by an illness (Sygdom), and he tore up and burned the pact and then went to Communion to reconcile his relationship with God. Shortly after, he resumed his depraved lifestyle (liderlighed) and gambled away his salary, which drove him to make another pact with the Devil. This time, Heyn accidentally lost the note, which eventually led to his arrest (pp. 421–2).

According to Trellund (pp. 422–3), what occasioned and motivated Heyn’s ungodly behaviour was his desire to become rich and be well, after having gambled away his salary. Thus, his behaviour was not ascribed to his mental state or ‘some kind of disturbance of the mind [Sinds forrykkelse] or desperation, neither of which usually drives people to make a pact with the Devil [at forskrive sig til Dievelen]’.

After dismissing his age and upbringing as mitigating circumstances, Trellund (pp. 423–4) again refused to excuse Heyn’s offence due to his mental state:

To term his depravity [Liiderlighed] and avarice [Gierighed] a melancholy [melancholie] or a spiritual trial [aandelig fristelse] would clearly be a misuse of these words. The anxiety [Sindets Uroelighed] he experienced after the first written pact demonstrates that the second was a matter of obstinacy [halsstarrighed]. (p. 424)

Finally, Trellund (p. 425) discussed the suicidal component of the case. As opposed to the ‘strange conjecture’ (selsom Gisning) that Heyn being ‘unhappy about the world’ (kied af Verden) would have triggered the offence, Trellund brought up Heyn’s own confessed motive of being well and becoming rich. Also, to pardon the offender based on his apparent death wish would be the start of a slippery slope, inspiring other malefactors to invent similar excuses to escape capital punishment (p. 425).

Instead, Trellund (p. 425) argued that Heyn’s ‘strong desire to die’ (store attraae efter Døden) more likely reflected that his conscience (Samvittigheds overbevisning) told him that he deserved the death sentence. Alternatively, to allege that Heyn had purposefully dropped the written pact to instigate his own execution would be ‘a presumption against all presumption’ (en præsumtion mod all præsumtion). Even if the offence resulted from an incredible and unprovable suicidal motive, the recommendation reckoned that God would not blame a judge for neglecting such a motive and instead base his judgment on ‘what his eyes saw and ears heard’. Moreover, to falsely confess such a severe offence demanded a gross ungodliness in the first place (p. 426).

According to Trellund, a mitigation of the death sentence would inspire others to commit similar offences. Furthermore, he anticipated that the arbitrary punishment of lifelong penal servitude would provide the Devil with plenty of opportunities to incite Heyn to some kind of presumptuous misdeed or to drive him to despondency (Mistrøst) and despair (Fortviflelse). Thus, following Trellund’s line of reasoning, capital punishment with pastoral care prior to the execution presented a much more secure way to save his soul (pp. 427–8).

The professors’ discussion of the case shows a common acknowledgement of a death wish held by the offender. Nevertheless, the Faculty of Theology disputed whether the death wish motivated the offence and whether it reflected the offender’s melancholic or despairing state of mind, or whether the death wish resulted from the offender’s eventual consciousness of his sin and willingness to serve his death sentence. While mental disturbance in terms of melancholy and despair did not translate into an insanity defence in relation to other crimes (e.g. murder), all professors seemingly accepted these kinds of mental disturbances as possible mitigating circumstances in the case of blasphemy. However, even the professors who presented the offender’s death wish as a mitigating circumstance did not advocate for impunity but rather recommended a harsh arbitrary punishment. Moreover, their already divergent understanding of the appropriate punishment for the offence might also have influenced their evaluations of the offender’s mental state of mind.

In 1724, the king requested the Faculty of Theology to consider another case that included a suicidal component against the musketeer C von Utlandt, sentenced to death for blasphemy (Dreesen, 1724). ⁸ Similar to the case against Heyn, Professors Worm, H Bartholin and Steenbuch voted for an arbitrary punishment that involved imprisonment with hard labour.

The professors immediately noted that the offender was obviously ‘tired of his life’ (kied af sit lifv). Although they categorized the written pact with the Devil as blasphemous, they stressed that the writing was almost illegible and irrational (Den bespottelige, men fast ulæselige og urimelige seddel). ⁹ Possibly due to having confessed other capital offences (double murder and abuse of the Host), Utlandt was apparently already under arrest when he handed in the pact to the authorities. As this case, like the others, relied solely on his own confession, the professors warned against passing a death sentence due to its ‘dangerous consequence’ (farlig consequence) (Worm, Bartholin and Steenbuch, 1724b: 1259–60).

Referring to his misdeeds, Utlandt petitioned for no mercy before the court; he simply wished to die. Thus, as Utlandt would seemingly confess to anything in order to die, the professors considered it inadvisable to execute him. However, as Utlandt had intended to use the written pact, ‘the ungodly magic’ (det ugudelige Koglerie), to benefit himself as well as another soldier and because of his sinful behaviour in general, they recommended imprisonment with hard labour and pastoral guidance (pp. 1260–1).

In 1725, the theological professor and now royal confessor S Lintrup considered the case against Utlandt. As Lintrup had previously recommended capital punishment in three cases regarding written pacts with the Devil, he initiated his deliberation by outlining his opinion in these former cases. Namely, he asserted that anyone ‘of sound mind’ (med fuld forstand) who deliberately (beraad hue) and intentionally (fri forsæt) made a written pact with the Devil deserved capital punishment, following both God’s law and the Danish Code (efter Guds og E.K.M. der paa grundede lov). However, due to Utlandt’s ‘condition’ (tilstanden) and the circumstances of the case, Lintrup departed from his previous recommendation of capital punishment in favour of imprisonment with hard labour and pastoral guidance (Lintrup, 1725).

Specifically, Lintrup reported that Utlandt did not show the slightest sign of repentance but, on the contrary, had demonstrated his ‘obstinate’ (halstarrig), ‘desperate’ (fortvilet) and ‘inveterate’ (forhærdet) ‘disposition’ (sind), as he had made a subsequent written pact with the Devil some months ago. Given his ‘sinful and obdurate condition’ (syndige og forstokkede tilstand), Lintrup feared that executing Utlandt would result in the damnation of his soul (p. 1335).

In 1727, as Utlandt had made a written pact with the Devil for a third time, the Faculty of Theology (Worm and Lintrup) finally recommended capital punishment. The recommendation did not explicitly mention any suicidal component or death wish but presented him as an incorrigible blasphemer and listed his track record of repeat offences, including his attempts to seduce others. The theological professors recommended that the king should execute ‘such a desperate and persistent blasphemer’ (saadan een fortviflet og i sin ugudelighed fremturende Gudz bespottere) by sword after he had been properly prepared for a ‘Christian death’ (een Christelig død) (Worm and Lintrup, 1727).

In contrast to the case against Heyn, the professors agreed on the punishment in the case against Utlandt. However, their initial justifications for a royal pardon during the period of 1724 to 1725 differed. In relation to the first written pact, the professors (Worm, H Bartholin and Steenbuch) approached his death wish as a general criminal problem, which suspended both the retributive and deterrent purpose of capital punishment in the case of suicidal individuals. In 1725, when Lintrup recommended a royal pardon, he did not mention Utlandt’s suicidal motive but focused on how Utlandt’s condition precluded his receptiveness to pastoral guidance, his possibility of conversion and, ultimately, his chances for salvation. As Lintrup allegedly would have accepted insanity as a mitigating circumstance, his identification of Utlandt’s condition in terms of obstinacy and desperation by no means implied excusing his offence but rather conveyed a theological concern regarding the salvation of his soul. The eventual recommendation for capital punishment supported by both Worm and Lintrup seems to have been a final option, as both professors disregarded their previous arguments.

Medical substructures for the insanity defence

The Faculty of Theology considered two cases regarding religious delusion. ¹⁰ Judging by the reported offences, both cases seemingly provided the basis for charges of violating doctrine or blasphemy. Although the professors of theology did consider the question of the violation of doctrine, the evaluation of the offenders’ mental states quickly came into focus.

In 1713, Frederik IV requested the Faculty of Theology to consider a case against a dismissed soldier, Adolph Dyrkop, regarding ‘ungodly and scandalous speech together with obstinate fancies and mad whim regarding the saving faith’. The royal order informs us that Dyrkop was a button-maker’s assistant and had recently arrived in Copenhagen from Lübeck (Frederik IV, 1713a).

In addition to considering the appended case documents, Worm, H Bartholin and Trellund, furthermore, interrogated Dyrkop themselves. First, as Dyrkop rejected the doctrine of Christ’s satisfaction, the theological professors categorized him as ‘a gross Socinianist’. Second, the professors considered him ‘tainted by gross delusions’, the severest of which was that Dyrkop did not regard the authors of the New Testament – ‘the Holy evangelists and apostles’ – as being without ‘error’ (vildfarelser). According to the theological professors, such an opinion meant upsetting the entire foundation of the Christian religion (Worm, Bartholin and Trellund, 1713: 716). Besides the charges for doctrinal delusions, the professors also mentioned his ‘ungodly and scandalous words against the majesty of God and the king’, and thus suggested charges of blasphemy and lese-majesty. However, Dyrkop seemed to have hedged his statements during the interrogation, and eventually the professors gave up on attaining a clear and lucid explanation from him (p. 716).

As the professors proceeded to consider the appropriate punishment, they addressed his present condition and referred to him as a ‘delirious human being’ (dette forvildede menniske) suitable for neither banishment nor imprisonment with other prisoners. More specifically, they feared he would ‘contaminate others with his horrible whims’ (besmitte flere med sine forfærdelige griller) (p. 716). Instead, they suggested solitary confinement with hard labour, aiming to wean him from his ‘mad whims’ (galne griller) during the day and to give him better rest at night (p. 717). With reference to Dyrkop’s dissemination of blasphemous writings both prior to and during his custody, they forbade him access to pen and paper (pp. 716–17). Instead, they permitted him to read the Bible by daylight and prescribed frequent pastoral guidance. Thus, by these measures, the professors still hoped that Dyrkop would let the Word and Spirit of God ‘rescue him from Satan’s pitfalls’ (vilde lade sig redde af Satans snarrer) (p. 717). The king followed these recommendations (Frederik IV, 1713b).

In 1716, apparently due to Dyrkop’s improved condition, the king released him from prison (Frederik IV, 1716a). Reportedly, Dyrkop had abandoned his previous whims, repented the ‘blasphemies’ (Guds bespottelser) he had committed and reverted to an irreproachable lifestyle (Frederik IV, 1716a: fol. 716v). At the same time, the king resolved that Dyrkop would be placed under secure detention (Daare Kisten) if he relapsed.

However, when consulting the supplements to the royal decision, we see that Dyrkop’s improved condition was not the only reason for his release. In the letter recommending Dyrkop’s release, Worm, acting in his capacity as a bishop, and the prison authorities reported that Dyrkop refused to perform any work, whatever coercive measures were used, such as beating or starvation (Von Lente et al., 1716). ¹¹ Although they declared that solitary confinement was fruitful in terms of improvement – as shown by Dyrkop’s written statements in two letters – they nevertheless concluded their recommendation by stressing how troublesome he was for the prison. ¹²

Less than two months later, Frederik IV had to deal with Dyrkop again, as he had disseminated his ‘ungodly and blasphemous writings’ (uGudelige og blasphemiske Skrifter) in Copenhagen. Besides requesting the bishop to ensure the seizure of these writings (Frederik IV, 1716c), the king requested a medical statement on Dyrkop’s condition (Frederik IV, 1716b). The royal order to Copenhagen’s chief medical officer (Stads Physicus), J Eichel, and a doctor, D Wagner, reported on the previous attempt to wean Dyrkop off his ‘strange whims regarding the Christian faith’ (selsomme griller om den Christelige Tro) by putting him into custody. Moreover, the king noted how Dyrkop had persisted in his ‘mad fancies’, despite his promises prior to his release from custody to renounce his delusions and to avoid giving offence intentionally (Frederik IV, 1716b). The king requested that the physicians carefully enquire into ‘the constitution of Dyrkop’s body’ and then consider whether any ‘illness’ (svaghed) could have confused his ‘mind and senses’ (Sind og Sandse) (fol. 768v).

The medical doctors did not find any apparent bodily illness that could have coincided with the impairment or disturbance of his ‘imagination’ (phantasie) or ‘reason’ (fornuft) (Eichel and Wagner, 1716). Nevertheless, they considered it plausible to regard Dyrkop as suffering from mania or melancholy:

[A]s one observes daily, the power of reason [fornuftens] and imagination [indbildnings kraft] may be corrupted in a maniac [maniacos] or melancholic [melancholicus] even though they seem sound and healthy in terms of their vital behaviour [actionibus vitalibus] and can endure work, cold and other nuisances.

The doctors substantiated their opinion in three ways. First, they referred to Dyrkop’s mother who had lived and died as a ‘maniac or melancholic’ (maniaca eller melancholica). Second, they noted that Dyrkop, with his choleric-melancholic temperament, was naturally predisposed to conflicting passions (gemüts affecter) and commotion (bevægelser) and also fury (raserie). Third, they noted his sole devotion to exhaustive reading of the Bible for seven to eight years by which he had fatigued his mind and intellect with the matters of faith incomprehensible to reason. Doctors Eichel and Wagner presumed that such a consumption of speculations and profound impressions (abusum speculationum et profundarum impressionum) had especially exhausted and perturbed his brain (liqvida Cerebri nervosa), since such a mental overload was often the cause of madness (maniam).

Dyrkop’s physical appearance further contributed to the doctors’ opinion: namely, his leanness (legemets constitution er mager) along with his intense and wild gaze (hans syyn meget skarp og vild). Moreover, they reported how Dyrkop occasionally sighed deeply during their conversations with him. They considered these sighs as indicative of some anxiety in the chest region (angst circa præcordia ob stasin sangvinis in vasis), although Dyrkop himself did not complain about this. Furthermore, the doctors noted his rather cheeky (frek) attitude and reported how a single word could make him fervent (bevege hannem til iver). As to clerical matters specifically, the doctors referred to Dyrkop’s immensely haughty and absurd ideas and imaginings (tankker og indbildninger), regarding himself in terms of his presumed, future performances. Guardedly, they cited his statement in German that he was awakened by the Word of God, called to the work of forfeiture and reprobation (das werck der verdamniss und verstossung). Likewise, he claimed to have received extraordinary gifts and enlightenment (Erleuchtung).

The doctors did not consider him of sound mind (Sands og samling), a conclusion based on his hereditary disposition (dispositio hæreditaria), his strong temperamental inclination and disposition for more vehement affections of the soul (temperamentum valde aptum et dispositum ad affectus animi vehementiores), antecedent indulgence of speculations (antecedens abusus speculationum) and, finally, his narrow obsession with a single thing (that is, reading the Bible) (imo error phantasi(æ) in uno objecto). Moreover, the doctors stressed that Dyrkop’s perpetual meditation on the matters and mysteries of faith, which had caused his present condition of ‘partial delirium’ (delirium partiale), might eventually cause full-blown fury and mania (fuld raserie og mania).

The king then requested the Faculty of Theology and the Copenhagen clergymen to question Dyrkop regarding his religious delusion and deliberate on how to proceed with his case (Frederik IV, 1716d). The professors and clergy also reported to have confronted Dyrkop, both leniently and severely, regarding the blasphemy and lese-majesty he committed by means of his disseminated writings. However, their attempt to guide Dyrkop to acknowledge his errors even slightly had been futile. Thus, if Dyrkop had been ‘of sound mind’ (ved sin fulde fornuft), the professors and clergymen would have recommended the king to sentence him to death following the regulations against blasphemy and lese-majesty. But given that the medical doctors’ examination of Dyrkop revealed several causes for, and characteristics of, ‘some degree of mental delirium and disturbance’ (nogen forstands vildelse, og forrykkelse), they recommended placing Dyrkop under secure detention (Daarekisten) (Worm, Bartholin, Trellund et al., 1716: 972–3).

The theological professors and clergy supplemented the medical assessment by noting that the content of Dyrkop’s writings led them to a somewhat similar conclusion. Specifically, they noted the ‘utterly absurd ways he addressed himself’ (gandske u-rimelige tituler) in his writings and added that his ‘confused brain’ (forvirrede hierne) held to such extreme doctrinal ‘errors’ (vildfarelser) that no heretic had ever believed them before. Similarly, Dyrkop’s writings not only contradicted God’s truth but were also self-contradictory.

As to the secure detention, the recommendation emphasized the importance of Dyrkop’s total isolation in order to prevent him from seducing and offending others. Furthermore, the professors and clergy added a reminder to ensure prevention of any opportunity for escape, and of any risk of self-harm by denying him knives and forbidding him writing instruments and harmful books. Moreover, apart from giving him daily meals and providing pastoral guidance, the recommendation allowed him no visits and explicitly forbade him from receiving charitable gifts, as had happened before (p. 973). Worm et al. hoped to see Dyrkop recover over time and realize his ‘folly’ (daarlighed) by means of this ‘treatment’ (Medfart) (pp. 973–4).

Except for Steenbuch, all other professors and clergymen recommended some measure of corporal punishment to address Dyrkop’s repeated blasphemy, and advised that he should not be treated as merely any other ‘insane individual’ (afsindigt Menneske), which could offend the congregation. While they also noted the potential of ‘taming his unruly mind’ (hans u-regierlige Sind . . . tæmmis) by means of corporal punishment (Worm, Bartholin, Trellund et al., 1716: 974), Steenbuch (1716) conversely feared that it would increase Dyrkop’s madness (at hand skulde vorde meere afsindig). The king eventually followed the recommendation made by the majority of the professors and the clergy (Frederik IV, 1716e). ¹³

Even though Dyrkop’s offences could be interpreted simultaneously as heresy, blasphemy and lese-majesty, the authorities were reluctant to prosecute him. When the Faculty of Theology considered the case in 1713, the professors addressed his doctrinal errors but essentially ascribed them to a state of delusion. Nothing suggests that they understood the religious delusion as somehow equivalent to mental disturbance or insanity. Rather, Dyrkop’s delusions presented a case for pastoral care and guidance. Although the recommendation of solitary confinement with hard labour resembled the punitive measure of imprisonment with hard labour, the professors discussed their reasoning for their recommendations in terms of prevention and treatment. Thus, the isolation of the offender and preclusion of his written statements should prevent him from influencing others, while the hard labour, his reading of the Bible and the pastoral guidance aimed to improve his condition.

The dual concern for prevention and treatment characterized the dealings with Dyrkop’s case in 1716. First, the king wanted to ensure the suppression of Dyrkop’s writings; second, he requested medical opinions on Dyrkop’s condition. Consistent with the guidelines of the Church Ritual of 1685, the involvement of doctors served to determine whether his condition resulted from any natural disease. However, the doctors also looked for other aspects related to his condition, including hereditary disposition, temperamental inclination and obsession with religious matters. By concluding that Dyrkop suffered from partial delirium and risked developing a state of downright madness, the doctors’ opinions supported an insanity defence. However, the recommendation of punishment or treatment still belonged to the domain of the Faculty of Theology. Based on their acknowledgement of the insanity defence embedded in the medical opinion, the professors considered Dyrkop unfit for capital punishment, which he otherwise would have deserved. Moreover, their own characterization of Dyrkop’s statements as absurd and contradictory supported the medical conclusion.

The arrangements recommended by the professors served a mixture of purposes, including prevention of a relapse, Dyrkop’s recovery and his punishment. The punitive measure was aimed at distinguishing the treatment of an insane offender from the treatment of the merely insane individual and, thus, avoided scandalizing the community.

In 1723, Frederik IV requested a deliberation from the Faculty of Theology regarding a case against Carsten Junge, referred to as a blasphemer of God and a despiser of the Holy Communion. ¹⁴ Junge was ‘imagining himself’ (indbillede sig) to be the fourth person in an expansion of the Trinity and as having suffered more in the world than Christ himself, so he had long abstained from attending Communion. Furthermore, Junge claimed that Satan had possessed him and tormented him severely (Worm, Bartholin, Steenbuch et al., 1723a: 1199). Despite the mention of blasphemy, the case against Junge did not involve any legal allegation of blasphemy. Instead, a clerical court had passed a sentence of banishment based on his refusal to undergo public confession (Helm, 1723: 1198). ¹⁵

Without defining Junge’s offence any further, the theological professors immediately proceeded to a recommendation for his treatment. Similar to their deliberation regarding Dyrkop’s treatment in 1713, they recommended confinement but modified the recommendation of hard labour to ‘diligent yet bearable labour’ (flittig dog taalelig). Moreover, they recommended frequent pastoral guidance, treating Junge with both severity and leniency. The professors hoped that these measures, assisted by God’s mercy, would help Junge ‘recover’ (bringe hand til sig selv igien) (Worm, Bartholin, Steenbuch et al., 1723a).

To further rationalize the recommended confinement, the professors noted that Junge at large could disseminate ‘similar blasphemous words’ (slige Guds bespottelige ord) and that it would be unlikely for him to turn to pastoral guidance on his own. As Junge reportedly did not express any ‘foolish ideas’ (ufornuftigt ord) when he discussed secular matters, the professors dreaded that his blasphemous speech (vederstyggelige ord) stemmed from an ungodly heart rather than a ‘mad brain’ (forrykt hierne) (p. 1200).

Nearly four months later, the king requested the Faculty of Theology to deliberate on Junge’s mental state based on attestations from the local clergymen. The professors of theology noted that the testimonials were not entirely concordant (Worm, Bartholin, Steenbuch et al., 1723b). While two of the attestations only occasionally ascribed his ‘intentional wickedness and inveteracy’ (forsættelige Ondskab og forhærdelse) to a minor ‘mental disturbance’ (forvirrelse i hovedet), the third considered him more ‘mad’ (afsindig) than obstinate (halvstarrig). Due to this uncertainty, the theological professors advised the king to let experienced local doctors (Medici) visit him and evaluate his ‘condition’ (tilstand).

In case the medical doctors declared Junge ‘out of his mind’ (fra sin fornuft), the professors’ recommendation was ‘to cure him by means of fit measures’ (ved tienlige Midler blev cureret) if possible and, subsequently, to provide him with pastoral guidance. Conversely, the king could follow the court’s sentence and banish him from his kingdom if the doctors considered him ‘of sound mind’ (at have sin fornuft). Specifically, if the king banished Junge in a ‘mad state of mind’ (forrykt i hovedet), the professors feared that Junge at large might ‘harm himself’ (giøre sig selv skade) and offend and seduce ‘simple-minded people’ (de Eenfoldige) (p. 1233).

In the spring of 1724, the king requested both the Faculty of Theology and the Faculty of Medicine at the University of Copenhagen to deliberate on the case against Junge (Von Hagen, 1724). Although the discussion from the Faculty of Medicine is lost, the theological consideration referred to its conclusion (Worm, Bartholin, Steenbuch et al., 1724). Namely, the theological professors noted that both the Faculty of Medicine and two local doctors agreed to consider Junge ‘of unsound mind’ (ikke er ved sin fulde fornuft) despite their somewhat divergent opinions (Sentiment). As anticipated by their preceding deliberation, the theological professors advised the king against following the sentence of banishment, to avoid Junge seducing and offending others and also harming himself or others when ‘in [a state of] fury’ (i Raserie). Instead, they recommended confinement and that he should receive pastoral guidance and ‘useful medical advice’ (af Medicis ved tienlige Raad) to relieve him, as much as possible, from his trouble (sit onde).

The professors’ immediate focus on treatment and prevention indicates that they considered his blasphemy secondary and his unrepentant state of mind primary. Similar to the case against Dyrkop, the professors did not immediately identify him as mentally disturbed but rather in a condition of religious delusion requiring pastoral guidance and work. Eventually, the conflicting pastoral evaluations of Junge’s mental state prompted the professors to recommend the involvement of doctors to clarify his mental condition. When the local doctors and the Faculty of Medicine agreed, in the main, to declare Junge of unsound mind, the professors took note of the medical opinion and recommended confinement and pastoral guidance with regard to both prevention and treatment.

Overall, the professors’ approach to Junge appeared somewhat more lenient than to Dyrkop, with no punitive measures involved. Maybe this reflected the fact that the case was never framed as a criminal case or that the evaluations of Dyrkop’s and Junge’s mental states differed. The inclusion of medical advice in Junge’s treatment marks a clear difference from the case against Dyrkop.

Fractures in the legal interpretation of the insanity defence

The case against the student Jens Jørgensen was the last consultation provided by the Faculty of Theology in blasphemy cases. ¹⁶ Unlike most of the previous cases regarding written pacts with the Devil, it was tried in the Supreme Court ¹⁷ and, as the defence included a plea of insanity, the case exemplifies the evaluation of mental states before this court. ¹⁸

The Faculty of Theology deliberated on the case against Jørgensen twice: first, immediately after the local authorities had referred the case to the king (Worm, Steenbuch, Wöldike et al., 1733a); and second, after the Supreme Court had confirmed the death sentence passed by the lower court (Fredericia Raadstueret) following the regulations against blasphemy (Worm, Steenbuch, Wöldike et al., 1733b).

In their first deliberation, the theological professors recommended that the king should pardon Jørgensen’s death sentence, but require a public confession and imprisonment with hard labour for a limited period of time (Worm, Steenbuch, Wöldike et al., 1733a). ¹⁹ First, they noted that the Bible did not explicitly provide the grounds for capital punishment in this case. Second, they stressed that the offence resulted from Jørgensen’s great ‘folly’ (Daarlighed) and his simple-mindedness (eenfoldighed). Finally, they noted Jørgensen’s immediate repentance of his offence (Worm, Steenbuch, Wöldike et al., 1733a). Despite the professors’ recommendation, the king commanded the local authorities to prosecute the case (Christian VI, 1733a).

When the professors of theology reconsidered the case almost a year later (Worm, Steenbuch, Wöldike et al., 1733b), they included a petition letter from Jørgensen’s father (Jensen, 1733). He listed a number of mitigating circumstances in defence of his son, including his mental state, and in particular ascribed his son’s ‘mad whims’ (daarlige griller) to ‘desperation and melancholic thoughts’ (Desperathed og Melancholiske tanker). Moreover, he suggested that his son might have lost his proper reason and mind (at hans rette fornuft og forstand . . . er betagen) due to chastisement, and he reported that his son had previously been occasionally ‘mad’ (urigtig i hovedet) (Jensen, 1733).

As to whether or not Jørgensen’s mental state excused his offence, the theological deliberation gave no clear answer. Instead, the professors simply noted the six testimonies documenting how Jørgensen, four years ago, had been so ‘furious’ (rasende) that he showed no signs of ‘proper reason’ (ret forstand). Similar to their first deliberation, the professors recommended a mitigated sentence by referring to Jørgensen’s repentance and their interpretation of God’s law as stipulating no capital punishment in this case (Worm, Steenbuch, Wöldike et al., 1733b: 98–99). The king finally pardoned Jørgensen and sentenced him to lifelong imprisonment with hard labour after corporal punishment and public confession (Christian VI, 1733b). In 1735, the king commanded his release from prison (see Bremerholm, n.d.).

As mentioned above, the Supreme Court confirmed the death sentence for blasphemy passed by the lower court (see Christian VI, 1733b: fol. 450v). However, it should be noted that the assessors were obliged to judge according to the strict letter of the law and to leave any mitigation of punishment to the king (Holmboe, 1961: 104). Some of the assessors noted this obligation before they approved the death sentence and also voted for a referral of the case to the king. Nevertheless, the Supreme Court decision reflected that the majority of the assessors did not consider Jørgensen insane but he needed punishing.

The first assessor, PH Helt, noted that a number of witnesses confirmed that Jørgensen ‘had gone melancholic’ (mensket har Gaad melancolisk). Furthermore, a clergyman and a parish clerk along with three witnesses confirmed that he had previously been ‘furious’ (rasende) for some time. Given his mental condition (sindsbeskaffenhed), Helt did not consider him to have been in his right mind (ved fuld fornuft) but rather in a state of ‘fury’ (i Raserie) when he wrote the pact with the Devil (Contract). Therefore, Helt disapproved of the death sentence passed by the lower court and voted for an arbitrary punishment that involved public confession succeeded by a one-year imprisonment with hard labour and pastoral guidance. However, as public confession included going to Communion, Helt let his recommendation of this measure depend on whether the offender’s condition would allow him to go to Communion (presumably with reference to the prohibition of the insane from attending Communion) (Helt et al., 1733: fol. 407v).

The next assessor, P Boson, did not consider the regulations against blasphemy applicable in this case and, as no blood had been shed, he did not find that Jørgensen deserved capital punishment. Boson also noted a previous state of ‘mania’ (manie) and that Jørgensen had already been ‘mad’ (daarlig) four years ago. Finally, he voted for public confession and three years of imprisonment with hard labour (fol. 407v–408r).

The third assessor, E Falsen, also rejected the application of the blasphemy regulations. Likewise, he noted the presence of a ‘furious’ (rasende) condition four years ago and his recent state of melancholy (ja, de har d[end] tiid fund[et] ham i melancholie) but did not consider Jørgensen entirely mad (fra forstand[en] er h[an]d ej aldeeles). Due to the ensuing scandal, Falsen voted for public confession and lifelong imprisonment with hard labour (fol. 408r–v). The fourth assessor, M Fjeldsted, did not address Jørgensen’s mental state but voted for lifelong imprisonment with hard labour following a regulation against the use of invented tricks to bewitch others (fol. 408v). ²⁰

Two assessors, OB de Schouboe and C von Støcken, voted for the death sentence. While the latter did not address Jørgensen’s mental state, the former seemingly rejected the claim for temporary insanity by stressing that Jørgensen’s ‘furious’ (rasende) episode had happened in the past and also by referring to the witness statements that Jørgensen was ‘sensible’ (skellig) in school (fol. 408v–409r).

Before approving the death sentence, the two next assessors, C and T Bartholin, both stressed their obligation to judge according to the law. Based on the given evidence, neither of them accepted the claim of insanity (fol. 409r–v and 410v). The last two assessors, C Braem and HW Kaalund, also voted for the death sentence. While Braem did not address Jørgensen’s mental state, Kaalund devoted some time to rejecting the claim of insanity. Although he considered Jørgensen’s ‘fury’ (Raserie) four years earlier as well proven, he was unsure whether or not it had been ‘caused by a natural mental disturbance’ (af naturlig sinds forvirrelse). Moreover, he did not find Jørgensen’s present ‘melancholic’ (melancolsk) state of mind suffciently demonstrated but instead noted that he seemed to have been ‘of sound mind’ (intet har skadet paa sin fornuft). Finally, despite the fact that some witnesses did observe his ‘sadness’ (tungsindighed) at the time of his offences, Kaalund ascribed this state of mind to Jørgensen’s bad intentions and guilty conscience (fol. 409v–410v).

While the professors of theology did not directly reject the plea of insanity, it was of no decisive importance for their recommendation of an arbitrary punishment. In contrast, the evaluation of Jørgensen’s mental state was crucial for most of the Supreme Court assessors’ opinions on the case. Thus, except for Fjeldsted, Von Støcken and Braem, the other assessors evaluated the evidence of Jørgensen’s mental condition before they either approved of the death sentence or voted for arbitrary punishments.

Conclusion

The in-depth reading of the five cases presents a cross-sectional view of how theologians, doctors and judges contributed to the forensic evaluation of mental states in cases related to blasphemy offences in eighteenth-century Denmark-Norway.

Comparable with the traditional insanity defence rooted in Roman law, the Danish-Norwegian legal framework warranted impunity in cases of manifest insanity. According to this tradition, the acknowledgement of legal insanity relied on the judges’ evaluation of an offender’s mental state. The case from 1733 illustrates how the Supreme Court judges interpreted the legal insanity defence and how they evaluated the offender’s mental state based on the available evidence. The account of the Supreme Court vote indicates different interpretations of both the insanity defence and the available evidence. The majority of judges found the claim of insanity unproven, citing the lack of evidence for it at the time of the crime or emphasizing evidence that demonstrated the offender’s reason to have been unimpaired. A minority of three judges seemingly subscribed to a broader interpretation of the insanity defence when they rationalized their recommendation of an arbitrary punishment with reference to the offender’s mental state. However, while the traditional insanity defence agreed with the idea of impunity, the extended insanity defence acted merely as a mitigating circumstance and an argument for an arbitrary punishment.

Although the judges’ entitlement to interpret the law allowed them certain latitude, the exercise of discretion or clemency essentially belonged to the realm of the king. The Faculty of Theology’s deliberations informed the king’s use of a pardon in a wide range of criminal cases until the middle of the eighteenth century (Krogh, 2000: 31, 515–66). While the professors, as expected, gave their opinion regarding the legal force of the Bible in relation to particular offences/cases (e.g. the case against Jørgensen in 1733) and doctrinal matters (e.g. the case against Dyrkop in 1713–16), the more pragmatic aspects of their counselling were equally important. Specifically, the professors weighed the mitigating against the aggravating circumstances, evaluated the offender’s risk of a relapse and meted out punishment.

Concerning the evaluation of the offender’s mental state, the material demonstrates a clear difference between the evaluation of a suicidal condition and religious delusion. While the suicidal condition remained in the pastoral domain, the professors entrusted the evaluation of the religious delusion to physicians when the initial pastoral approach proved to be futile. This might reflect an underlying distinction between degrees of responsibility recognizable in the pastoral guidelines of the Church Ritual of 1685. While the guidelines ascribe to suicidal individuals a certain degree of willpower and, thus, responsibility for improving their condition, the case of demonic possession represents undeserved mental distress hardly distinguishable from naturally caused diseases.

As the period covered in this study represents a time of fermentation in regard to the gradual differentiation between theology, law and medicine, the closer study of the interplay between professional groups helps to clarify the preconditions for this development.