Did the pietist preoccupation with the ‘inner person’ influence the general awareness and perception of mental health among the population at large? Can we trace the impact of pietist anthropology and interest on the individual subject beyond the religious praxis, and did this pietist ‘gaze’ influence societal developments in Denmark–Norway during the century of the Enlightenment?

The present chapter examines these questions, using a source material which focuses on the perception of impaired mental states within the legal system, specifically on the assessment of melancholy. After a brief introduction to the ambivalence surrounding the concept in the eighteenth century, we consider the era’s legal framework regarding ‘insanity defence’. We then turn to examples of pietist literature on introspection and diagnosis of the inner person before finally exploring three illustrative court cases of so-called melancholic murder. This leads to a presentation of a subsequent formal change in legal practice and changes in institutional response. These changes promoted new statutory rights on the part of the individual, but they were not driven by enlightened or humanitarian ideas. By way of conclusion, we return to the dynamics between pietist anthropology and pre-medicalized forensic psychiatry.

Melancholia on trial

Before the eighteenth century, criteria for insanity defence mirrored the definitions of severe mental illness, hence focusing on outward symptoms limited to aggressive, disorganized or antisocial behaviour.¹ Thus, melancholia and introversion were not generally considered impaired mental states comparable to insanity.

The idea that an individual could or perhaps should under certain circumstances be granted diminished responsibility for their actions can be traced to Classical Antiquity. However, while the Greeks and Romans recognized mental disorders, they did not as a rule exempt the sufferer from penal consequences.² In general, insanity and impaired mental health were considered as punishment inflicted by the gods but not as acquittal from human justice. In The Laws, Plato recommended that if a person was insane, his kinsfolk should watch over him as best they could under a penalty or fine.³ This viewpoint was retrieved in Roman law, where a madman is considered to be punished by his madness itself, and the family is regarded as being responsible for the care and custody of the sufferer. The various classical descriptions of the troubled individual were used in courts in the eighteenth century as well, namely furiosus, mente captus, non compos mentis and insanus.⁴ According to the Romans, these states of mind on the one hand required that the family assume responsibility for the sufferer, and on the other rendered the individual unaccountable for his or her actions to some degree. At the same time, we encounter an awareness that such a condition may not be permanent, and that a sufferer may have periods of sanity or bright moments, described as lucida intervalla or intervalla sensu saniore.⁵

The Roman line of thought was to some degree transmitted within canon law. In Decretum Gratiani, we also find scattered developments of the principle of guilt. Not only should a deed be offensive by nature and perpetrated by the accused, it should also be considered something that the accused could have avoided doing under the circumstances. Factors such as age and accountability, as well as negligence and intent or mens rea, became matters of consideration.⁶ This connects to the role of the wrongdoer’s will, and in the case of insanity the absence of will or the loss of control over such will as was deemed to be present. Canon law had a strong influence on Danish provincial codes (e.g. Jyske Lov) regarding civil and criminal law;⁷ concepts and considerations regarding guilt as well as will are part of this legacy.

The Danish Code of 1683 continued many of these policies. Two of its sections concern insanity and insanity defence. The first, §1-19-7, states that if a person is furious (rasende) or insane (galind), anyone who wishes to do so can bind the person and take him before the governing assembly – the Thing. Here, in parallel with Classical Antiquity, the person is to be offered to his or her family, who are obliged to confine the person if they have the resources to do so. If not, the authorities should take the sufferer into custody. The second, §6-6-17, states that if a homicide is committed in delirium (Vildelse) or fury (Raseri), the killer should not be punished with the death penalty, but should instead pay blood money to the heirs of the deceased. This comes as an exception to the general rule found in §6-6-1, according to which a person who kills another person should lose their own life according to the biblical principle of jus talionis, referring to Exodus 21:23–5. The paragraph on murder is the only mention of an insanity defence in the Danish Code; and even though it was formally limited to homicide, it was interpreted throughout the eighteenth century as a general rule on the criteria for exemption from punishment. In other words, delirium and fury de facto defined the legal concept of insanity, and §1-19-17 served as a legal consequence or sanction in criminal cases where insanity was ascertained.⁸

There were no rules regarding the assessment of the suspect’s mental condition. However, in addition to the delinquent’s own behaviour and testimonials, statements by witnesses as well as by local clergy – and in critical cases the assessments of medical doctors and the Copenhagen Faculty of Theology – were taken into consideration. The form of legal procedure in the Danish Code of 1683 was predominantly the accusatorial, with the prosecutor investigating and presenting the crime at a public trial where the verdict would be passed by an impartial judge or jury, most often lay assessors or judges with little in the way of legal training.⁹ During the eighteenth century, however, the inquisitorial form of legal procedure was adopted, a development supported by, among other things, the introduction of a degree in law at the University of Copenhagen in 1736.¹⁰ The inquisitorial principle, deriving from canonical law, allowed and stimulated judges to play a more active role in the investigation of crimes, as well as to question the accused. Its adoption led to an altogether more thorough, uniform and professional practice.¹¹

However, preliminary studies from Denmark–Norway have also indicated that beginning at the height of Pietism in the region, the courts showed an increased interest not only in facts, intention and premeditation, but also in the subjective outlook or mental state of the criminal.¹² Studies have shown that the courts began to discuss a de facto extension of the narrow insanity-defence criteria in a number of cases from the 1740s – long before the official legal change.¹³ This could indicate a dynamic of developments alternative to the top-down narrative of absolutism, as well as to the pattern of explanations usually presented in subsequent legal and intellectual history. Instead, the pressure for developments in legal practice could be seen to emerge, at least partly, from opinions or pressure from below. The court records and other documents relate to the actual processing of citizens’ individual cases, and from these it becomes apparent that those on trial almost exclusively represented society’s lowest social classes. Furthermore, assessors and judges in the lower courts at this time were mainly practical people of the merchant and bourgeois class; the sources hence lend expression not only to the experiences of sufferers but also to lay assessments and general views.¹⁴

Consequently, the experiences and perspectives of those attending trials in cases where elements of melancholy were present may not only provide fresh insight into but also supplement the understandings of the contemporary professional and academic elites, thereby challenging certain mainstream narratives of the past. In the following, using a rarely tapped source, we thus explore what could be termed knowledge of ‘lay’ perception and experience, with regard to both theology and medicine.

Concepts of melancholy and pietist introspection

While melancholy is a central concept in pietist literature on introspection, its character is ambiguous.¹⁵ On the one hand, melancholy could signify a state on the way to conversion or rebirth, thus embodying a constructive potential. On the other, remaining or dwelling in a melancholic state could be considered a sign of destructive self-absorption or lack of faith, which made it not only sinful but extremely dangerous – even deadly. In addition, the Pietists’ preoccupation with the (constructive) use of melancholy elicited criticism from proponents of the Enlightenment, and previous research points to a connection between the diagnosis of melancholia and the criticism of religion in the second half of the eighteenth century.¹⁶

At the same time, melancholy is a key concept in the development of the discipline of psychiatry. Its polysemantic connotations in the seventeenth and eighteenth centuries are illustrated in Burton’s seminal Anatomy of Melancholy (1621), which mixes religious and medical approaches. A century later, the article Mélancholie in the Encyclopédie, attributed to Diderot, combines sections on ancient medicine with expositions of Mélancholie religieuse. Among the phenomena ascribed to melancholy in the article are delirium combined with sadness; a dark mood; sad, pensive misanthropy; megalomaniac ideation; lycanthropy; demonic possession; nihilistic bodily experiences; grief; anxiety; despair; revenge; homesickness; and transformations into animals.¹⁷ The article also encompasses a large number of hypotheses about pathological bodily correlates to melancholy.

Consequently, the eighteenth-century conception of melancholy cannot be reduced to the modern term ‘depression’. Rather, it should be regarded as a broader category of sufferings, incorporating key elements from pietistic theology as well as from psychiatric phenomenology in statu nascendi.

The ambiguous perception of melancholy combined with an increasing interest in the phenomenon is also reflected in eighteenth-century Pietism’s preoccupation with the religious status of the individual, or the ‘inner man’. Palpable examples may be seen in pamphlets and prints distributed in the first half of the eighteenth century.¹⁸ Introspection, or self-examination, soon became a significant element in Hallensian Pietism and spread in the kingdom of Denmark–Norway in the first half of the eighteenth century.¹⁹ The claim was that introspection was helpful, or even necessary, for the regeneration of the pious individual and the way to salvation. Here, we find melancholy described in terms of being troubled, heavy-hearted and depressed, as well as experiencing self-hatred, pessimism, animosity towards the world and hostility towards one’s own life.

An example of the many self-help publications and relatively detailed promotions of introspection current at the time is the pamphlet Et Aandeligt Speyl (‘A spiritual mirror’).²⁰ The eight-page publication describes three overall conditions of the human being, namely whether he or she is living outside divine law, within divine law or in a state of grace. After a general introduction and definition of the three categories of human life, the pamphlet is divided into three columns, each with ten numbered characteristics of the ‘condition of a human being’ living in each of the three categories. The following pages continue with this structure of three columns corresponding to the overriding three human conditions, each with sixty clauses or items to identify the ‘condition’ of a human being within that particular stage. The items include both external symptoms, such as ‘to desire food and drink in abundance’,²¹ and internal symptoms of a more subjective nature, such as feeling alienated from the world or focused on its deceitfulness and illusions.²² In the present context, the forty-first clause is of potential interest as it focuses on the person’s religious state, signified by his or her perception of death. It states that persons in the stage of the first column – that is, a human life outside or in absence of the law – ‘do not wish to die’ as long as life is treating them well, but that they are ‘often very afraid of death’.²³ The corresponding forty-first clause in the second column, regarding those in the state of living within the law, suggests that they still wish to live for a while in order to experience a rebirth.²⁴ The third column’s forty-first clause identifies those who live a life in a state of grace as being characterized by a ‘wish to depart from this world and be with Christ’.²⁵

In total, the pamphlet supplies 210 symptoms or signifiers by which to diagnose the situation of the inner person. This particular publication, however, proved too radical for the authorities and was therefore banned and confiscated. Nevertheless, attention to different states and constitutions on the part of the individual or subject spread in numerous other publications, simultaneously increasing within theological and pietistic milieus. In addition, we would argue that this growth in attention had an impact outside the narrow applications within theology and religion, namely its influence on what went on in contemporary court rooms.

Three cases of melancholy

On the night between 18 and 19 May 1733, Anna Marie Truelsdatter cut the throat of her infant girl, Anne Kirstine.²⁶ Truelsdatter was examined in the City Court in Copenhagen on 1 July, where she gave an elaborate statement, telling how two weeks before, around 10 a.m., she had given birth alone in the kitchen, gripping a barrel. Her husband, Thomas Jensen, a dismissed sailor and now a skilled rope-maker, had left for work early in the morning. After she had delivered the baby, one of her elder children, seven-year-old Hans Christiansen, entered the kitchen. Truelsdatter told him to go fetch a German soldier’s wife, who then came and left right away to bring the midwife, Kirstine Sørensdatter. The latter had assisted Truelsdatter with earlier deliveries and knew that she had suffered from a ‘troubled mind’ (‘uroelig i Hovedet’) in connection with previous childbirths. When the midwife arrived, she separated the child from Truelsdatter, who had continued to stand paralysed by the barrel. Gently taking the child, the midwife wrapped it and led Truelsdatter to bed, where she stayed until the fatal night, one week later, when her mind was disturbed (‘hun faldt i griller’) and she lay pondering her own destitution. She felt that she was despised, as no one would come to see her. With her husband asleep, and after nursing her infant, she took a knife with a black handle which was lying on the table, and stood at length in two minds, beset by evil thoughts (‘i beraad med onde tancker’). Overcome by one such evil thought, she cut the throat of the child so swiftly that the baby did not even make a noise but died instantly. She then woke her husband and told him to look at what she had done. He sent for the security guard from the nearby gate, Nørre Port, and he stayed with her until the night watchman arrived to escort her to the city jail. Now, one week after the incident, she expressed to the court that she was deeply repentant of her folly. She regretted having felt a wish to leave this world owing to her poverty and the feeling of being looked down on, as well as to her desperate plight with four surviving young children. Truelsdatter had given birth nine times, and her eldest was nine years old. She had married her first husband thirteen years previously, but he had died, and she had subsequently lost everything she owned in the great Copenhagen Fire of 1728. Three years before the incident, she had remarried.

After an interrogation of her husband, Thomas Jensen, who confirmed his wife’s detailed testimony, the court adjourned to summon further witnesses. They resumed two weeks later, on 15 June 1733. At this point, the midwife, Kirstine Sørensdatter, testified to having assisted Truelsdatter during three previous births. This time she had not noticed her having a disturbed mind (‘Uroelighed i Sindet’); but she had noticed that Truelsdatter lay in bed, silent and still, neither speaking nor responding when asked a question. When the midwife tried to give her beer, she took it with apathy and somewhat enigmatically said she did not want any more. Two more witnesses testified that they had visited Truelsdatter, who had replied to their questions with sensible answers; these witnesses thus did not consider her to be suffering from insanity. During these testimonials, it became evident that Truelsdatter had had to borrow swaddling bands as well as nappies, caps and clothes, as she did not own any nor had the means to buy the baby clothes she needed. In other words, she appeared to be desperately poor. Finally, the husband of Truelsdatter’s sister testified that he had visited her six births ago, recalling that after giving birth she had experienced fainting fits and delirium (‘Besvimelser og nogen phantasie’), but he could not confirm an impaired mind. During the court’s investigations, a post-mortem was performed by the surgeon Hendrichson and his assistant Vederkampt, and they confirmed Truelsdatter’s explanation. Finally, the defence argued that the Danish Code §6-6-17 applied, since Truelsdatter had committed the murder with a troubled mind – delirium along with delusions due to her extreme poverty.

The court, however, did not go along with the arguments of the defence. On 13 July 1733, Truelsdatter was sentenced to death by the city recorder (byfoged) and eight lay assessors – in accordance with §6-6-1. She appealed to the magistrate’s court, which confirmed the verdict on 29 July, and a new appeal was sent to the Supreme Court.

On 31 October, before the final verdict of the Supreme Court, the King sent a request to the Faculty of Theology at the University of Copenhagen. They were to help in bringing out the truth of the matter, in view of Truelsdatter’s claims to have suffered from melancholy and fury. In their response to the hearing request, the faculty underlined that Truelsdatter voluntarily confessed to the murder, as well as to a temporary wish to die owing to her desperate poverty and to her feeling that she was the object of contempt. They found that the exculpation of §6-6-17 could not apply, as neither Truelsdatter’s husband nor the midwife assessed her to be insensible, attesting that she had lain silent and still in bed. Thus, though she may very well have suffered from strong melancholy, she could not have suffered from fury, the formal criterion of exculpatory insanity.

In the vota and statements of the Supreme Court, we find an emphasis on the fact that even though Truelsdatter may have suffered from ‘a troubled mind and melancholic whims’ (‘Sindets U Roelighed [sic] og Melancholiske Griller’) – possibly exacerbated by her poverty and desperate situation – there is no positive evidence that she was ‘delirious or deprived of her senses’ (‘har Phantaseret, eller saa aldeles berøvet hendes forstand’) to such a degree that she did not know what she was doing. Consequently, she could not be excused for her actions and was required to pay for a life with her life. The Supreme Court confirmed the previous verdicts on 21 November 1733.

On the very same day, Anna Marie Truelsdatter wrote a petition to the Queen, probably assisted by her counsel and pastor. While largely resembling her initial testimony in the City Court, the retelling of her story uses the legal terms ‘fury’ (Vildelse), ‘melancholic’ (Melancholisk) and ‘confused’ (forvildet) to describe her state of mind at the moment of committing the crime. On this basis, she begged for her life. On 24 November, Truelsdatter added a petition to the King, merely pleading to be buried at the cemetery for the poor at Trinity Church. In this, there is no mention of any religious consideration or preoccupation with the destiny of her soul; rather, it appears to have been a matter of saving her surviving husband and children from the shame that would accompany the dishonourable treatment of her body. There is also a mention of the possibility for alms for her husband, who suffered from consumption (Svindsot) and was now to become the household’s sole breadwinner. In addition, she asked if her eldest – who would be orphaned by her own demise – might be admitted to the newly established orphanage, Vajsenhuset.²⁷ Finally, she pleaded that her husband and children might be able to obtain the bed linen that she had used during her stay in the city jail after her execution, so that they would not freeze to death in the approaching cold of winter. Truelsdatter’s petition was supported by a brief enclosed statement by her pastor, C. Holst, bearing witness to her penitent and faithful character. Subsequently, on 4 December, the King assented to Truelsdatter’s pleas regarding her burial and support for her husband and children, and she was executed on 10 December 1733.

In this case, it appears obvious and agreed among those concerned – the accused, the witnesses and those handling her court case –that Truelsdatter had been suffering from some sort of impaired mental state, one they tended to connect to the birth of her child and her state of desperate poverty. There is evidently a lack of psychiatric nomenclature; her comprehensive and detailed description of events and her experience thereof only mentions a troubled and disturbed mind as well as evil thoughts. One could also note that there were various assessments as to the pathological nature of this suffering. Despite the attempts made by the defence to push the interpretation of Truelsdatter’s plight in the direction of exemption on the grounds of insanity, her obvious apathy and lack of outward reactions prevented the application of this section of the law, as she was clearly neither furious nor delirious. Also, the royal inquiry at the Faculty of Theology indicates that the new king, Christian VI (r. 1730–1746), was uncomfortable with the sentence and the assessment made by the court system. While the formal framework clearly still prevailed, a degree of uneasiness over the old principles would appear to emerge at this time.

To illustrate these developments, we shall move to a case from the 1760s. Anna Lisbeth Greisdatter, widow of the sailor Jacob Jacobsen, killed her own child, a seven-year-old boy who bore his father’s name, Jacob Jacobsen.²⁸ The murder took place on 30 August 1763. When Greisdatter’s son returned from school around 11 a.m., she sent her daughter, Anna Maria, to run an errand. As soon as the daughter left home, the mother grabbed the boy by the head, threw him flat on his face and cut his throat with a bread knife. She then went out into the street in search of someone to denounce her to the authorities; right outside the door she encountered her daughter, whom she told of her deed. The daughter helped her inside again and went to her mother’s chamber, where she found her brother lying on the floor, gushing blood. Greisdatter then told her landlord, Morten Nielsen, that she had cut her son’s throat, requesting arrest. Nielsen immediately summoned the guard, who brought her to the city jail. A post-mortem performed by the surgeon Hintze established three cuts that would have caused immediate death.

On the basis of the corpus delicti and the confession of Greisdatter herself, the Admiralty’s Combined Court consequently found the sailor’s widow guilty of murder on 30 August 1762, and the verdict was confirmed by a royal resolution of 24 February 1763. She was sentenced to death according to an extended death penalty prescribed by the decree from 7 February 1749. This meant that she was first to be pinched with red-hot tongs outside the place of the murder, then three times in the square and finally again at the site of execution, where her right hand was to be cut off prior to decapitation by axe and the subsequent display of the dismembered body on wheels and a stake.

In connection to this case, we find an interesting enclosure from Peder Kofod Ancher (1710–1788), a Danish theologian and jurist.²⁹ Kofod Ancher became Professor of Law at the University of Copenhagen in 1748; but because of his fragile health, he was relieved of teaching duties. In 1753 he was appointed Judge Advocate General (Generalauditør) of the Navy, judge of the Supreme Admiralty’s Court and Supreme Court judge. His renowned works include his preparations for the case against Johann Friedrich Struensee in 1772. Owing to Kofod Ancher’s capacity as Naval Judge Advocate General, the sailor’s widow Anna Lisbeth Greisdatter came within his jurisdiction, and this occasioned Kofod Ancher to send a comprehensive statement to the King on 23 February 1763.

Kofod Ancher states that the post-mortem and the confession of the accused herself prove that Greisdatter committed the murder. Furthermore, there is no doubt that she committed the murder with intent, in a calculated manner and mens rea (‘frie Forsæt og beraad Hue’). In addition, there is reason to conclude that the motive was to end her own life, or taedium vitae. This is indicated by her immediate wish to turn herself in, as well as her own testimony in which she stated that she committed the act while brooding on her wretched condition and despair regarding the sustenance of both herself and her child. To Kofod Ancher, this proved that her desperate concern over the necessities of life led her to wish to end her misery by bringing an end to the child’s life as well as her own. Her premeditation and intent further demonstrate that her melancholy did not rob her of reason (‘Fornuftens Brug’).

This led Kofod Ancher to pose what might appear to be a rhetorical question: would His Majesty, out of royal clemency, be able to mitigate a sentence of this type without weakening the general safety of society and the purpose of punishment? Kofod Ancher acknowledges that in cases where a homicide is committed out of the murderer’s own wish to die, it is problematic to define the right and adequate punishment with a view to ensuring that the chosen punishment will frighten other people and thereby deter them from committing similar crimes. To achieve this preventive purpose of punishment, Kofod Ancher finds two options. One is not to punish the murderer with death but rather by imposing an agonizing life on him or her. The other is to augment the simple death penalty by means of measures geared to making death painful. As the first option is the lightest or most lenient, it is to be recommended as the safest and most righteous in dubio. In this way, the perpetrator will not achieve his or her objective, but will rather be placed in a state that they themselves – and like-minded persons after their way of thinking (‘efter deres egen Tænkemåde’) – consider horrible.

However, in the case of murder – a deed as gross and unnatural as that committed by Anna Lisbeth Greisdatter – Kofod Ancher does not dare to recommend suspending the death penalty. This would weaken the sense of justice among the general public, who often fail to realize why a murder has been committed and are not cognizant of the relevant causal factors. He therefore recommends the use of the extended death sentence in the decree from 1749, especially as this type of ‘desperate’ murder, as he describes it, continues to occur on a regular basis. That the latter circumstance could be seen as an argument in favour of a life sentence does not seem to bother Kofod Ancher. He moves on to an explanation of how the uneducated public may interpret an execution as a so-called good death,³⁰ adding that such ignorance can lead to an abuse of the penal system.³¹ This only proves, Kofod Ancher concludes, that for those in a ‘desperate’ state, capital punishment is dysfunctional unless it is increased by way of a painful and disgraceful death.

The last case is Marie Jensdatter, who killed her two-year-old daughter with a knife on 28 April 1766.³² In the City Court, Jensdatter confessed the crime but also explained that she did so owing to a troubled mind (‘uroelige Tanker’), stating that she had previously been out of her mind (‘fra Forstanden’) as she suffered from melancholy (‘Tungsindighed’) and mental illness (‘Sygdom i Forstanden’), and was in a state of delirium at the moment of the crime. It is indicated and presumed that her husband had triggered her to lose her mind (‘gaa fra Forstanden’). This had caused her to be tormented in her heart (‘Hjerteklemmelse’), and her husband had previously put her under surveillance. An earlier and possibly ongoing impaired mental state is thus more than indicated in this case. Pastoral certificates with evaluations of her condition had already been obtained from the lower court, declaring that Jensdatter was afflicted with heavy melancholy (‘beladt med Tungsindighed’). In the very first sentence, the verdict states that it is well-evidenced and proven (‘vel oplyst og beviist’) that before the crime was committed, she had occasionally suffered from depression and melancholy. This is further established by the pastoral assessments, certifying that she was suffering from melancholy both shortly before and after the time of the crime. However, before the murder her melancholy had been caused by miserable conditions that had made her weary of life, whereas after the murder she was extremely anxious to preserve her life (‘hendes Livs Conservation’). It is also established that she had had intervalla in which she was able to use her intellect, and she must therefore be deemed to possess an inconstant mental constitution. The vocabulary used in this connection parallels the terminology used in the literature on religious introspection, including its focus on changes or developments within the individual. In addition, there was a debate in court regarding the origins of such an impaired state – bad blood, hard circumstances, bad marriage or guilty conscience – but no conclusion is reached on the matter. In the end, the main issue in terms of the court’s decision appears to be the danger that such a person constitutes to public safety, as reflected in the law. On 30 June 1766 the city recorder and eight lay assessors consequently sentenced Marie Jensdatter to death. A parallel evaluation, expressed with regret, was the result of the second ruling, announced by the magistrates’ court on 28 July 1766. This second court verdict also recognizes and stresses the proven melancholy; but at the same time, it establishes that such suffering cannot exempt the accused from the punishment laid down by law, thus confirming the previous sentence.

Jensdatter then submitted an appeal to the Supreme Court. The ensuing debate among the Supreme Court judges displays an important transformation that took place during these years. The assessor, Koren, opens his statement with the fact that Jensdatter had previously been so tormented by pressures on her heart that her husband had arranged for her to be placed under surveillance, and that there were numerous signs of disturbance and an impaired mind (‘Uroelighed og Sinds Forvirrelse’).

Immediately, the first Supreme Court judge replied that melancholy did not qualify as an insanity defence according to §6-6-17 of the Danish Code (‘Melancholie er ej af den slags udi 6-6-17 fastsettes’). However, five of the judges agreed with Koren and voted in favour of confinement for life. Still, seven held on to the extended death penalty of 1749. The Supreme Court thus confirmed the death sentence by seven votes to five on 11 October 1766. In his subsequent consideration of the case and of the Supreme Court’s verdict, the King emphasized the pastoral assessments and witness statements on the perpetrator’s melancholy, stressing that this suffering appears proven beyond doubt; but he did not suspend the punishment for murder according to the law. However, on 7 November 1766 the King commuted Jensdatter’s sentence to life at a correctional institution, Børnehuset, on the basis of the fact that she had previously been troubled, melancholic, out of her mind and placed under surveillance. It is noted on this occasion that she ‘owned nothing’ except the clothes she wore, and she was registered as entering the institution on 11 November 1766.

The case of Marie Jensdatter is characterized by a much more elaborate nomenclature than the ones antedating the general advance of Pietism from the mid-1730s onwards. The proliferation of vocabulary used not only by professionals but also by Jensdatter herself is germane to the descriptions of the inner person found in pietist literature: for example, ‘tormented in her heart’, ‘subjected to pressures on the heart’, ‘depressed’ and ‘melancholic’. There is also a clear development in the interpretation of melancholy as a notable pathological quality, in that it is described as an illness of the mind or an impairment in a way corresponding to delirium. Also, the proceedings from the first trial onwards display an extensive interest in the subjective experience and state of the accused, exemplified in the questions put to her as well as in a wish for a more accurate diagnosis and assessment of her mental state – not her morality or Christian conduct – from her pastors. Melancholy obviously acquires a different and greater weight when the scale of the impaired state and the disturbance of the will – and thus the degree of responsibility – is considered. Even so, an element of ambivalence is still present in the discussion of the causal factors, while the criteria pertaining to insanity defence in the law remain unchanged.

A formal change in the legal practice was on the way, though. It came in 1767 with the so-called decree on melancholic murders, which abolished the death penalty for suicidal murderers. This change was, however, not driven by medical nor enlightened or humanitarian influences.³³ Rather, it must be considered as justified on moral or utilitarian grounds. The first official proposal regarding this law came in 1757 from Henrik Stampe (1713–1789), the chief legal adviser to the Danish king. Thus, Peder Kofod Ancher’s ample exposition to the King is not only a matter of rhetoric but very much a contribution to what must be considered an ongoing debate at the time.

In Henrik Stampe’s arguments for a fundamental legal change, he states that there are two ways for authorities to provide safety and peace for citizens. One is to improve the guilty criminal, poenae emendatrices. These punishments are indeed valuable but, unfortunately, they are often not enough. Therefore, there is a need for the second type, exemplary punishments of certain criminals, in order to discourage or prevent others from committing the same crime; these are the so-called poenae exemplares. When determining this punishment, one should take into account that a penalty does not always make the same impression on different persons. When fixing exemplary penalties or punishments, one must therefore consider the different types of personalities or diverse subjectivities, their different reactions and, in particular, which types are most likely to commit the crime in question. One should consider ‘what could tempt them the most’ and what creates feelings of ‘fright, horror and disgust’ at their particular stage. Here, one could draw a clear parallel to pietistic considerations regarding the inner person and the religious subject.

This insight is important, Stampe claims, when it comes to a crime such as a murder committed by a melancholiac. To sentence this type of murderer to death is actually to be considered as granting them their wish, or rewarding their misdeed.³⁴ When a depressed or melancholic person is then publicly executed, says Stampe, it does not have the intended preventive or exemplary effect on other potential melancholic murderers – quite the contrary. Instead, the right punishment should take into account the criminal subject’s state or type – melancholy or taedium vitae – and accordingly make life even more terrible and painful for the perpetrator than it had been before the crime. Their lives should be made so horrible that ordinary people of a more common constitution could not possibly view the new punishment as a pardon.³⁵

The debate on Stampe’s proposal was heated and extensive. The proposal did not pass the first time. But ten years later, in 1767, it passed almost verbatim and without debate.

Conclusion: the birth of a pietist clinic?

The so-called melancholic murders form one of the obvious sites to investigate when looking for evidence regarding the dynamics between pietist diagnostics of the inner person and pre-medical forensic psychiatry. The frequency of this type of murder in the eighteenth century is not debated in this chapter, and nor is the contested role of Lutheran religion as a causative factor.³⁶ Rather, we wish to draw attention to this material as a basis for investigating assessments of mental issues and developments within legal practice. Our thorough investigation of forty-eight female and sixteen male child murderers in Copenhagen from 1697 to 1779 demonstrates a substantial element of mental suffering in many cases, as displayed in the examples above.³⁷ Owing to the contemporary legal criteria in the Danish Code of 1683, insanity needed to be explicit, aggressive or extrovert to be diagnosed; consequently, even evident suffering with a recognizable subjective mental condition – of the kind that characterizes such states as severe depression and psychosis – was difficult for the legal and penal system to acknowledge. Hence, the murders officially had to be labelled as ‘groundless’, that is to say unwarranted or without obvious motive.

The legal change brought about by the decree in 1767 constituted a break with previous legislation, and the debate on the abolition of the death penalty for such crimes took place remarkably early; the archives reveal that the Danish debate even predated the seminal work of Cesare Beccaria, On Crimes and Punishments,³⁸ as well as Voltaire’s famous commentary on this argument for reform. Also, it was clearly not driven by humanist, Enlightenment thinking but rather by utilitarian and moral arguments. There are no signs of any critique of the death penalty as cruel or inhumane. Rather, the motivation and precondition for change appear to be an awareness of differing mental states and individual subjective perceptions, including the subjective position of the perpetrator, the options open to him or her and the perspectives on punishment that might be applied in the individual case.

In conclusion, one might ask whether the Pietists’ passionate interest in the inner person objectified the mental state of the individual subject, and if this contributed to a development towards modernity in the Nordic countries. While in Pietism the object of the inner person was identified with the person per se, criminal court cases indicate that the intense focus on the subject stimulated a fresh awareness of mental health, as demonstrated in the questions, vocabulary, ‘nomenclature’ and perceptions of impaired or pathological mental states. In the wake of the Pietists’ focus on the inner person, we begin to detect a more detailed examination of the individual’s subjective experience. Moreover, the inner person or mental constitution is no longer the quality that defines the criminal on trial. In other words, the perpetrator’s mental state is objectified as something separate from the person affected by it. In their focus on mitigating circumstances in criminal offences, mental assessments in court cases hence constitute a valuable framework for investigating developments in pietist perceptions and practices, as well as their possible influences on the general – and modern – awareness of mental health.