Roman law, as it seems, made out a præsumptio juris of general incapacity to commit a crime under puberty, rebuttable by evidence of capacity, at any rate in the age called “next to puberty,” the limits of which are not clearly settled.110 In the Irish Book of Aicill it is said that “the man who incites a fool is he who pays for his crime”; and to this the Commentary adds that a man is a fool till the end of seven years, and a fool of half sense till the end of fourteen111—a provision similar to that of Canon Law.112 According to Muhammedan law, the rule of talion is applicable only to persons of age.113 In China criminal responsibility is affected not only by youth, but by old age as well. “Offenders whose age is not more than seven nor less than ninety years, shall not suffer punishment in any case, except in that of treason or rebellion.” “Any offender whose age is not more than ten nor less than eighty years, … shall, when the crime is capital, but not amounting to treason, be recommended to the particular consideration and decision of His Imperial Majesty.” And “any offender whose age is not more than fifteen, nor less than seventy years … shall be allowed to redeem himself from any punishment less than capital, by the payment of the established fine, except in the case of persons condemned to banishment as accessories to the crimes of treason, rebellion, murder of three or more persons in one family, or homicide by magic or poisoning, upon all of which offenders the laws shall be strictly executed.”114

According to early custom, children who have committed an injury are sometimes,115 but not always,116 subject to the rule of retaliation. Even in Homeric Greece, manslaughter committed in childhood seems to have been visited with banishment for life.117 In other cases parents are responsible for the deeds of their children.118 Among the West African Fjort, for instance, children are not themselves liable for their actions, but the injured party can claim compensation from the parents if he likes to do so.119 Among the Teutons, “like the master for the slave, the father answered for and made claims on behalf of the child. The ceremony of investing him with arms as a wehrhaft, or weapon-bearing member of the community, was the usual period for the assumption of rights and liabilities; and this customarily (not always) took place at the age of twelve.”120 According to ancient Swedish law, an injury was treated in the same way as if it had been accidental, in case the offender was under the age of fifteen;121 according to the Icelandic Grágás, in case he was under sixteen.122 However, as we have seen, accidental injuries had to be paid for. Where offences are dealt with according to the principle of compensation, it is impossible to decide how far parents’ liability for their children involves a recognition of the moral irresponsibility of the child, or is simply due to the fact that children, having no property, are themselves unable to compensate. That the latter point of view was largely adopted by early custom and law appears from the fact that, when compensation was succeeded by punishment, the period of irresponsibility was reduced. In England the age-limit of twelve years, which prevailed in Anglo-Norman days, was afterwards disregarded in criminal cases.123 We read in the Northumberland Assize Roll, A.D. 1279, “Reginald … aged four, by misadventure slew Robert … aged two; the justice granted that he might have his life and members because of his tender age.”124 A little later we hear that a child under the age of seven shall not suffer judgment in a case of homicide.125 In 1457, an infant of four was held liable in trespass, though the language of the court shows a disposition to exempt the infant.126 From the eighteenth century instances are recorded of a girl of thirteen who was burnt for killing her mistress, and of a boy of eight who was hanged for arson.127 In 1748, a boy of ten, being convicted for the murder of a girl of five, was sentenced to death, and all the judges to whom this case was reported agreed that, “in justice to the publick,” the law ought to take its course. The execution, however, was respited, and the boy at last had the benefit of His Majesty’s pardon.128 It appears from these facts, and from others of a similar character referring to continental countries,129 that there has been a tendency to raise the age at which full legal responsibility commences. And we have reason to hope that legislation has not yet said its last word on the subject.

The principle that intellectual incapacity lessens or excludes responsibility also applies to idiots and madmen. Though idiots are able to acquire some knowledge of general moral rules, the application of those rules is frequently beyond their powers;130 and their capacity of foreseeing the consequences of their acts is necessarily very restricted. The same to some extent holds good of madmen; but, as will be shown in the next chapter, there is another ground for their irresponsibility besides the derangement of the intellect.

All modern laws admit that, at least under certain circumstances, idiocy or madness exempts a person from criminal responsibility. According to Roman law, lunatics were even free from the obligation of paying indemnities for losses inflicted by them;131 and so mild was their lot at Rome, that it became a practice for citizens to shirk their public duties by feigning madness.132 Even savages recognise that lunatics and maniacs are not responsible for their deeds. The Abipones maintained that it was “wrong and irrational to use arms against those who are not in possession of their senses.”133 Among the North American Potawatomis many “are said to be ‘foolish,’ and not sensible of crime.”134 The Iroquois are “persuaded that a person who is not in his right senses is not to be reprehended, or at least not to be punished.”135 Hennepin states that “they had one day in the year which might be called the Festival of Fools; for in fact they pretended to be mad, rushing from hut to hut, so that if they ill-treated any one or carried off anything, they would say next day, ‘I was mad; I had not my senses about me.’ And the others would accept this explanation and exact no vengeance.”136 The Melanesians “are sorry for lunatics and are kind to them, though their remedies are rough”; at Florida, for instance, a man went out of his mind, chased people, stole things and hid them, but “no one blamed him, because they knew that he was possessed by a tindalo ghost.”137 Among the West African Fjort fools and idiots are not responsible personally for their actions.138 Among the Wadshagga crimes committed by lunatics are judged of more leniently than others.139 Among the Matabele madmen, being supposed to be possessed of a spirit, “were formerly under the protection of the King.”140 In Eastern Africa the natives say of an idiot or a lunatic, “He has fiends.”141 El Hajj ʿAbdssalam Shabeeny states that in Hausaland “a man guilty of a crime, who in the opinion of the judge is possessed by an evil spirit, is not punished.”142

The idea that derangement of the mind is due to spiritual possession, often makes the idiot or the insane an object of religious reverence.143 The Macusis regard lunatics as holy.144 The Brazilian Paravilhana believe that idiots are inspired.145 According to Schoolcraft, “regard for lunatics, or the demented members of the human race, is a universal trait among the American tribes.”146 So, also, the African Barolong give a kind of worship to deranged persons, who are said to be under the direct influence of a deity.147 A certain kind of madness was regarded by the ancient Greeks as a divine gift, and consequently as “superior to a sane mind.”148 Lane states that, among the modern Egyptians, an idiot or a fool is vulgarly regarded “as a being whose mind is in heaven, while his grosser part mingles among ordinary mortals; consequently he is considered an especial favourite of heaven. Whatever enormities a reputed saint may commit (and there are many who are constantly infringing precepts of their religion), such acts do not affect his fame for sanctity; for they are considered as the results of the abstraction of his mind from worldly things—his soul, or reasoning faculties, being wholly absorbed in devotion—so that his passions are left without control. Lunatics who are dangerous to society are kept in confinement, but those who are harmless are generally regarded as saints.”149 The same holds good of Morocco. Lunatics are not even obliged to observe the Ramadan fast, the most imperative of all religious duties; of a person who, instead of abstaining from all food till sunset, was taking his meal in broad daylight in the open street, I heard the people forgivingly say, “The poor fellow does not know what he is doing, his mind is with God.”150

On the other hand there are peoples who treat their lunatics in a very different manner. The tribes of Western Victoria put them to death, “as they have a very great dread of mad people.”151 In Kar Nicobar madness is said to be the only cause for a death “penalty” that seems to exist there, the afflicted individual being garrotted with two pieces of bamboo;152 but this practice seems to be a method of getting rid of a dangerous individual, rather than a penalty in the proper sense of the word. Among the Washambala a lunatic who commits homicide is killed—as our informant observes, “not really on account of his deed, but in order to prevent him from causing further mischief.”153 Among the Turks of Daghestan, we are told, mad people are subject to the rule of blood-revenge.154

In China lunatics are held responsible for their acts, although the ordinary penalty applicable is commuted, as for instance, in murder to imprisonment with fetters subject to His Majesty’s pleasure. But when a lunatic deliberately kills his parents or grandparents, a representation will not serve; he is to be executed at once on the spot where the murder was committed or on the city execution ground, and the sentence—slicing to pieces—is to be carried out in all its horror though the lunatic be already dead.155

According to ancient Welsh law, no vengeance is to be exercised against an idiot,156 nor is the king to have any fine for the act of such a person.157 But, “if idiots kill other persons, let galanas [that is, blood-money] be paid on their behalf, as for other persons; because their kindred ought to prevent them doing wrong.”158 The Swedish provincial laws treated an injury committed by a lunatic in the same manner as an injury by misadventure, provided that the relatives of the injurer had publicly announced his madness, or, according to some laws, had kept him tied in bonds which he had broken; but if they had omitted to do so, the injury was treated as if it had been done wilfully.159 The Icelandic Grágás even lays down the rule that a madman who has committed homicide shall suffer the same punishment as a sane person guilty of the same crime.160 In England, in the times of Edward II. and Edward III., proof of madness appears not to have entitled a man to be acquitted, at least in case of murder, but to a special verdict that he committed the offence when mad, and this gave him a right to pardon.161 Such a right, indeed, implies the admission that lunacy has a claim to forbearance; but from what we know about the treatment of lunatics during the Middle Ages and much later, we cannot be sure that the insane offender escaped all punishment. In a case which occurred in 1315, it was presented that a certain lunatic wounded himself with a knife, and finally died of his wounds; his chattels were confiscated.162 Lord Bacon says in his ‘Maxims of the Law,’ “If an infant within years of discretion, or a madman, kill another, he shall not be impeached thereof: but if he put out a man’s eye, or do him like corporal hurt, he shall be punished in trespass”; in these latter cases, “the law doth rather consider the damage of the party wronged, than the malice of him that was the wrong-doer.”163 In none of the German town-laws before the beginning of the seventeenth century is there any special provision for the offences of lunatics;164 and, according to the Statutes of Hamburg of 1605, though a madman who kills a person shall not be punished as an ordinary manslayer, he is yet to be punished.165 In Germany recognised idiots and madmen were not seldom punished with great severity, and even with death, in the seventeenth and eighteenth centuries.166 One of the darkest pages in the history of European civilisation may be filled with a description of the sufferings which were inflicted upon those miserable beings up to quite modern times.167 Many of them were burnt as witches or heretics, or treated as ordinary criminals. For unruly and crazy people, who nowadays would be comfortably located in an asylum, whipping-posts and stocks were made use of. Shakespeare speaks of madmen as deserving “a dark house and a whip”;168 and Swift observes that original people like Diogenes and others, if they had lived in his day, would have been treated like madmen, that is, would have incurred “manifest danger of phlebotomy, and whips, and chains, and dark chambers, and straw.”169 The writings of Esquirol, the parliamentary debates on the asylums of Bedlam and York, and the reports presented under the auspices of La Rochefoucauld to the National Assembly of 1789, contain a picture unique in its sadness—“a picture of prisons in which lunatics, criminal lunatics, and criminals are huddled together indiscriminately without regard to sex or age, of asylums in which the maniac, to whom motion is an imperious necessity, is chained in the same cell with the victim of melancholia whom his ravings soon goad into furious madness, and of hospitals in which the epileptic, the scrofulous, the paralytic and the insane sleep side by side—a picture of cells, dark, foul, and damp, with starving, diseased, and naked inmates, flogged into submission, or teased into fury for the sport of idle spectators.”170

Whatever share indifference to human suffering may have had in all these atrocities and all this misery, it is likely that thoughtlessness, superstition, and ignorance have had a much larger share. We have noticed that, when a certain deed gives a shock to public feelings, the circumstances in which it has been committed are easily lost sight of. Considering that the Chinese punish persons who have killed their father or mother by pure accident, it is not surprising that they punish madmen who kill a parent wilfully. Even a man like Smollett, the well-known writer, thought it would be neither absurd nor unreasonable for the legislature to divest all lunatics of the privilege of insanity in cases of enormity, and to subject them “to the common penalties of the law.”171 Moreover, as we have seen, madness is often attributed to demoniacal possession,172 and in other cases it is regarded as a divine punishment.173 From a pagan point of view this would make the lunatic an object of pity or dread, rather than of indignation; as the Roman legislator said, the insane murderer ought not to be punished, because his insanity itself is a sufficient penalty.174 But in Christian Europe, where up to quite recent times men were ever ready to punish God’s enemies, a lunatic, who was supposed to have the devil in him, or whose affliction was regarded as the visitation of God upon heresy or sin,175 was a hateful individual and was treated accordingly. Finally, we have to take into account that the sensibility of a lunatic was thought to be inferior to that of a sane person;176 that the mental characteristics of insanity were little understood; and that, in consequence, many demented persons were treated as if they were sane because they were thought to be sane, and others, though recognised as lunatics, were treated as responsible because they were thought to be responsible. The history of the English law referring to insanity bears sad testimony to the ignorance of which lunatics have been victims in the hands of lawyers.