CHAPTER X. Agents Under Intellectual Disability

AGENTS UNDER INTELLECTUAL DISABILITY

WE hold an agent responsible not only for his intention, but for any known concomitant of his act, as also for any such unknown concomitant of it as we attribute to want of due attention. But for anything which he could not be aware of he is not responsible. Hence certain classes of agents--animals, children, idiots, madmen--are totally or partially exempted from moral blame and legal punishment.

Though animals are undoubtedly capable of acting, we do not regard them as proper objects of moral indignation. The reason for this is not merely the very limited scope of their volitions and their inability to foresee consequences of their acts, since these considerations could only restrict their responsibility within correspondingly narrow limits. Their total irresponsibility rests on the presumption that they are incapable of recognising any act of theirs as right or wrong. If the concomitant of an act is imputable to the agent only in so far as he could know it, it is obvious that no act is wrong which the agent could not know to be wrong.

It is a familiar fact that, by discipline, we may teach domesticated animals to live up to a certain standard of behaviour, but this by no means implies that we awake in them moral feelings. When some writers credit dogs and apes with a conscience, we must remember that an {250} observer's inference is not the same as an observed fact. It seems that the so-called conscience in animals is nothing more than an association in the animal's mind between the performance of a given act and the occurrence of certain consequences, together with a fear of those consequences.

The following is one of the most striking instances of what Professor Romanes regards as "conscience" in animals; it refers to a terrier which had never, even in its puppyhood, been known to steal, but on the contrary used to make an excellent guard to protect property from other animals, servants, and so forth, even though these were his best friends. "Nevertheless," says Professor Romanes, "on one occasion he was very hungry, and in the room where I was reading and he was sitting, there was, within easy reach, a savoury mutton chop. I was greatly surprised to see him stealthily remove this chop and take it under a sofa. However, I pretended not to observe what had occurred, and waited to see what would happen next. For fully a quarter of an hour this terrier remained under the sofa without making a sound, but doubtless enduring an agony of contending feelings. Eventually, however, conscience came off victorious, for emerging from his place of concealment and carrying in his mouth the stolen chop, he came across the room and laid the tempting morsel at my feet. The moment he dropped the stolen property he bolted again under the sofa, and from this retreat no coaxing could charm him for several hours afterwards. Moreover, when during that time he was spoken to or patted, he always turned away his head in a ludicrously conscience-stricken manner. Altogether I do not think it would be possible to imagine a more satisfactory exhibition of conscience by an animal than this; for . . . the particular animal in question was never beaten in its life." The author then adds in a note that "mere dread of punishment cannot even be suspected to have been the motive principle of action." It may be so, if by punishment be understood the infliction of physical pain. But it can hardly be doubted that the terrier suspected his master to be displeased with his behaviour, and the dread of displeasure or reproof may certainly have been the sole reason for his bringing back the stolen food. Among {251} "high-life" dogs, as Professor Romanes himself observes, "wounded sensibilities and loss of esteem are capable of producing much keener suffering than is mere physical pain." But fear of the anticipated consequences of an act, even when mixed with shame, is not the same as the moral feeling of remorse. There is no indication that the terrier felt that his act was wrong, in the strict sense of the word.

However, though most of us, on due reflection, would deny that animals are proper objects of moral censure, there is a general tendency to deal with them as if they were. The dog or the horse that obstinately refuses to submit to its master's will arouses a feeling of resentment which almost claims to be righteous; and the shock given to public feeling by some atrocious deed committed by a beast calls for retribution. As Adam Smith observes, "the dog that bites, the ox that gores, are both of them punished. If they have been the causes of the death of any person, neither the public, nor the relations of the slain, can be satisfied, unless they are put to death in their turn: nor is this merely for the security of the living, but, in some measure, to revenge the injury of the dead."

If thus our own resentment towards an animal which has caused some injury, when not duly tempered by reason, often comes near actual indignation, it is not surprising to find that, at the lower stages of human civilisation, animals are deliberately treated as responsible agents. The American Indian who eats the vermin which molest him defends his action by arguing that, as the animal has first bitten him, he is only retaliating the injury on the injurer. The custom of blood-revenge is often extended to the animal world. The Kukis, says Mr. Macrae, "are of a most vindictive disposition; blood must always be shed for blood; if a tiger kills {252} any of them, near a Parah [or village], the whole tribe is up in arms, and goes in pursuit of the animal; when if he is killed, the family of the deceased gives a feast of his flesh, in revenge of his having killed their relation. And should the tribe fail to destroy the tiger, in this first general pursuit of him, the family of the deceased must still continue the chase; for until they have killed either this, or some other tiger, and have given a feast of his flesh, they are in disgrace in the Parah, and not associated with by the rest of the inhabitants. In like manner, if a tiger destroys one of a hunting party, or of a party of warriors, on an hostile excursion, neither the one nor the other (whatever their success may have been) can return to the Parah, without being disgraced, unless they kill the tiger." Of the Sea Dyaks we are told that they will not willingly take part in capturing an alligator, unless the alligator has first destroyed one of themselves; "for why, say they, should they commit an act of aggression, when he and his kindred can so easily repay them? But should the alligator take a human life, revenge becomes a sacred duty of the living relatives, who will trap the man-eater in the spirit of an officer of justice pursuing a criminal. . . . The man-eating alligator is supposed to be pursued by a righteous Nemesis; and whenever one is caught, they have a profound conviction that it must be the guilty one, or his accomplice, for no innocent leviathan could be permitted by the fates to be caught by man." So, also, the Malagasy will never kill a crocodile, except in retaliation for one of their friends or neighbours who has been destroyed by a crocodile. "They believe that the wanton destruction of one of these reptiles will be followed by the loss of human life, in accordance with the principle of lex talionis. The inhabitants living in the neighbourhood of the lake Itàsy, to the west of the central province, are accustomed to make a yearly proclamation {253} to the crocodiles, warning them that they shall revenge the death of some of their friends by killing as many voày in return, and warning the well-disposed crocodiles to keep out of the way, as they have no quarrel with them, but only with their evil-minded relatives who have taken human life."

Animals are not only exposed to the blood-feud, but are often exposed to regular punishment. This is the case among the Mambettu in Central Africa. Casati mentions the following instance:--"A goat was chased and persecuted by a dog, and in the fight for self-defence the latter received a thrust from the goat's horn. The poor dog, which was the valuable property of a powerful man, died shortly after. This serious matter was much discussed and commented upon, and finally referred to the king for judgment. The poor goat was sentenced to be slaughtered before its victim's corpse, its flesh was served to the Mambettu [that is, people of the superior race], and that of the dog to the Mege [that is, people of the conquered race]." Among the Maori, according to Polack, the crime of impiety is not confined to man only, but even a pig straying over a sacred place incurs the punishment of death. In Muhammedan East Africa, some time ago, a dog was publicly scourged for having entered a mosque. The Bogos kill a bull or cow which causes the death of a man. According to the native code of Malacca, if a buffalo or a head of cattle "be tied in the forest, in a place where people are not in the habit of passing, and there gore anybody to death, it shall be put to death"; but the owner of the animal shall not be held liable. According to Hebrew law, "if an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten"; and, in the case of sexual intercourse {254} between a man, or woman, and a beast, not only the human offender, but the beast, is to be put to death. It is prescribed in the Vendîdâd that, if a mad dog which bites without barking, smite a sheep or wound a man, "the dog shall pay for the wound of the wounded as for wilful murder." Plato had undoubtedly borrowed from Attic custom or law the idea which underlies the following regulation in his 'Laws':--"If a beast of burden or other animal cause the death of any one, except in the case of anything of that kind happening to a competitor in the public contests, the kinsman of the deceased shall prosecute the slayer for murder, and the wardens of the country, such, and so many as the kinsman appoint, shall try the cause, and let the beast when condemned be slain by them, and let them cast it beyond the borders." In various European countries animals have been judicially sentenced to death, and publicly executed, in retribution for injuries inflicted by them. Advocates were assigned to defend the accused animals, and the whole proceedings, trial, sentence, and execution, were conducted with all the strictest formalities of justice. These proceedings seem to have been particularly common from the end of the thirteenth till the seventeenth century; the last case in France occurred as late as 1845. Not only domestic animals, but even wild ones, were thus put on trial. "In 1565 the Arlesians asked for the expulsion of the grasshoppers. The case came before the Tribunal de l'Officialité, and Maître Marin was assigned to the insects as counsel. He defended his clients with much zeal. Since the accused had been created, he argued that they were justified in eating what was necessary to them. The opposite counsel cited the serpent in the Garden of Eden, and sundry other animals {255} mentioned in Scripture, as having incurred severe penalties. The grasshoppers got the worst of it, and were ordered to quit the territory, with a threat of anathematisation from the altar, to be repeated till the last of them had obeyed the sentence of the honourable court." From an earlier period we have records of maledictions and excommunications of vermin and obnoxious insects. In 1120, a bishop of Laon is reported to have excommunicated the caterpillars which were ravaging his diocese, with the same formula as that employed the previous year by the Council of Rheims in cursing the priests who persisted in marrying in spite of the canons. Such maledictions and excommunications, however, were probably regarded rather as magical means of expulsion than as punishments. Not long ago, when swarms of locusts ravaged the gardens of Tangier, the Shereef of Wazzan expelled the injurious animals by spitting into the mouth of one of them.

It has been suggested that the mediæval practice of punishing animals after human fashion was derived from the Mosaic law. But this hypothesis does not account for the comparatively late appearance of the practice, nor for the fact that, in some cases, other punishments short of death were inflicted upon offending beasts. It seems much more probable that the procedure in question developed out of an ancient European custom, to which it stood in the relationship of punishment to revenge. According to the customs or laws of various so-called Aryan peoples--Greeks, Romans, Teutons, Celts, Slavs,--an {256} animal which did some serious damage, especially if it caused the death of a man, was to be given up to the injured party, or his family, obviously in order that it might be retaliated upon. According to the Welsh Laws, "that is the only case in which the murderer is to be given up for his deed." The fact that afterwards, in the later Middle Ages, this form of reprisal was in certain instances transformed into regular punishment, only implies that the principle according to which punishment succeeded vengeance in the case of human crimes was, by way of analogy, extended to injuries committed by animals.

There has been considerable diversity of opinion concerning the purpose of inflicting punishments upon animals. Some writers suggest that it was possibly done with a view to deterring other animals from committing similar injuries. According to others, the animal was executed in order that the hateful act should be forgotten; Gratian, referring to St. Augustine, says, "Non propter culpam, sed propter memoriam facti pecus occiditur, ad quod mulier accesserit." A theory which has gained much adherence explains the punishment as a symbolic act, performed for the purpose of inspiring horror of the crime into the minds of men. M. Thonissen maintains that, at Athens, "on frappait l'animal auteur d'un homicide, afin que le peuple, en voyant périr un être privé de raison, conçut une grande horreur pour l'effusion du sang humain." It has also been supposed that the animal was punished with intention to intimidate those {257} who were responsible for its acts, or that it was killed because it was dangerous. But the true solution of the problem seems simple enough. The animal had to suffer on account of the indignation it aroused. It was regarded as responsible for its deed. In early records the punishment is frequently spoken of as an act of "justice"; and the protests of Beaumanoir and others against this opinion only show that it was held in good earnest, if not by all, at least by many. From certain details we can also see how closely the responsibility ascribed to animals resembled the responsibility of men. In some of the texts of the Salic law the animal is spoken of as "auctor criminis." In an ancient Irish law-tract it is said that, when a bee has blinded a person's eye, the whole hive "shall pay the fine," and "the many become accountable for the crime of one, although they all have not attacked." Youth was a ground for acquittal, as appears from a case which occurred at Lavegny in 1457, when a sow and her six young ones were tried on a charge of their having murdered and partly eaten a child: whilst the sow, being found guilty, was condemned to death, the young pigs were acquitted on account of their youth and the bad example of their mother. In Burgundy, a distinction was made between a mischievous dog that entered a room through an open door and one that committed a burglary; the latter was a larron, and was to be punished as such. The repetition of a crime aggravated the punishment; {258} and the animal "principal" was punished more severely than the "accessories.

Considering the feelings to which even the cultured mind is susceptible with reference to a mischievous beast, it is not difficult to understand the attitude of the ignorant. The savage, not only momentarily, while in a rage, but permanently and in cold blood, obliterates the boundaries between man and beast. He regards all animals as practically on a footing of equality with man. He believes that they are endowed with feelings and intelligence like men, that they are united into families and tribes like men, that they have various languages like human tribes, that they possess souls which survive the death of the bodies just as is the case with human souls. He tells of animals that have been the ancestors of men, of men that have become animals, of marriages that take place between men and beasts. He also believes that he who slays an animal will be exposed to the vengeance either of its disembodied spirit, or of all the other animals of the same species which, quite after human fashion, are bound to resent the injury done to one of their number. Is it not natural, then, that the savage should give like for like? If it is the duty of animals to take vengeance upon men, is it not equally the duty of men to take vengeance upon animals?

Nor are these beliefs restricted to savages. Muhammedans maintain, not only that animals will share with men the general resurrection, but that they will be judged according to their works. Their tradition says that God "will raise up animals at the last day to receive {259} reward and to show His perfection and His justice. Then the hornless goat will be revenged on the horned one." We can hardly wonder that the Zoroastrian law inflicted punishments on dogs which hurt men or animals, when we read in the Vendîdâd that a dog has the characters of eight sorts of people. The fable and the Märchen for a long time related in good earnest their stories of animals that behaved exactly like men. Even to this day, in certain districts of Europe, as soon as a peasant is dead, it is customary for his heir to announce the change of ownership to every beast in the stall, and to the bees also; and in some parts of Poland, when the corpse of the rustic proprietor is being carried out, all his cattle are let loose, that they may take leave of their old master. In the Middle Ages animals were sometimes accepted as witnesses; a man who was accused of having committed a murder in his house appeared before the tribunal with his cat, his dog, and his cock, swore in their presence that he was innocent, and was acquitted. It was not only the common people that ascribed intelligence to beasts. According to Porphyry, all the philosophers who have endeavoured to discover the truth concerning animals have acknowledged that they to a certain extent participate of reason; and the same idea is expressed by Christian writers of a much later date. In the sixteenth century, Benoît wrote that animals often speak. In the middle of the following century, Hieronymus Rorarius published a book entitled 'Quod animalia bruta ratione utantur melius homine.' And about the same time Johann Crell, in his 'Ethica Christiana,' expressed the opinion that animals at all events possess faculties analogous to reason and free-will, that they have something similar to virtues and vices, that they {260} deserve something like rewards and punishments, and are consequently punished by God and man. This, as it seems to me, is the correct explanation of the mediæval practice of punishing animals, even though, in some cases, as M. Ménabréa observes, the obnoxious animal was regarded as an embodiment of some evil spirit and was punished as such. The beast or insect was retaliated upon for the simple reason that it was regarded as a rational being.

At the earlier stages of civilisation even inanimate things are treated as if they were responsible agents. The Kukis take revenge not only on a murderous tiger, but on a murderous tree. "If a man should happen to be killed, by an accidental fall from a tree, all his relations assemble, and cut it down; and however large it may be, they reduce it to chips, which they scatter in the winds, for having, as they say, been the cause of the death of their brother." Among the aborigines of Western Victoria, "when the spear or weapon of an enemy has killed a friend, it is always burnt by the relatives of the deceased; but those captured in battle are kept, and used by the conquerors." The North American Redskins, when struck with an arrow in battle, "will tear it from the wound, break and bite it with their teeth, and dash it on the ground." The British Guiana Indian, when hurt either by falling on a rock, or by the rock falling on him, "attributes the blame, by a line of argument still not uncommon in more civilised life, to the rock." The gods of the Vedic age cursed the trees which had injured them. Xerxes commanded {261} that the Hellespont should be stricken with three hundred lashes, and Cyrus "wreaked his vengeance" on the river Gyndes by dispersing it through three hundred and sixty channels. Pausanias relates that when Theagenes had died, one of his enemies went up to his statue every night, and whipped the brass. At last, however, "the statue checked his insolence by falling on him; but the sons of the deceased prosecuted the statue for murder. The Thasians sank the statue in the sea, herein following the view taken by Draco, who, in the laws touching homicide which he drew up for the Athenians, enacted that even lifeless things should be banished if they fell on anybody and killed him." As Dr. Frazer remarks, the punishment of inanimate objects for having accidentally been the cause of death was probably much older than Draco. At Athens there was a special tribunal for the purpose. Demosthenes states that, if a stone or a piece of wood or iron or any such thing fell and struck a man, and the person who threw the thing was not known, but the people knew, and were in possession of, the object which killed the man, that object was brought to trial at the court of the Prytaneum. Plato lays down the following rule in his 'Laws':--"If any lifeless thing deprive a man of life, except in the case of a thunderbolt or other fatal dart sent from the gods,--whether a man is killed by lifeless objects falling upon him, or by his falling upon them, the nearest of kin shall appoint the nearest neighbour to be a judge, and thereby acquit himself and the whole family of guilt. And he shall cast forth the guilty thing beyond the border." Teutonic law, which still recognised the principle of private revenge, treated the inanimate murderer with less ceremony. According to the Laws of Alfred, when men were at work together in {262} a forest, and by misadventure one let a tree fall on another, which killed him, the tree belonged to the dead man's kinsfolk if they took it away within thirty days. Later on, in England, a thing by which death was caused was "forfeited to God, that is to the King, God's Lieutenant on earth, to be distributed in works of charity for the appeasing of God's wrath." This law remained in force till 1846.

In some of these cases superstitious dread may have been a motive for destroying or banishing the instrument of death. There are facts which prove that such an object is looked upon as a source of danger. According to the Ripuarian law, people are forbidden to make use of a thing which has been "auctor interfectionis"; and in Norway, in quite modern times, sickles, axes, and other objects with which men have been killed, have been seen lying about abandoned and unused. Again, among the aborigines of West Australia, if a person has been killed by a thrust of the native wooden spear, ghici, his country-men think that his soul remains in the point of the weapon which caused his death, and they burn it after his burial, so that the soul may depart. But it is also obvious that an inanimate thing which is the cause of a hurt is apt to evoke a genuine feeling of resentment. We kick the chair over which we stumble, we curse the stone which hurts us; Dr Nansen says that, when he was crossing Greenland, it would have caused him "quite real satisfaction" to destroy a sledge which was **"heavy to draw." When we thus behave as if the offending object were capable of feeling our resentment, we for a moment vaguely believe that it is alive. But our anger very soon passes {263} away when we realise the true nature of its object. The case is different with men at earlier stages of civilisation. They do not suppose that things which hurt them are senseless; on the contrary, they personify such things, not only hastily and momentarily, but deliberately and permanently; hence their resentment lasts. The Guiana Indian, says Sir E. F. Im Thurn, "attributes any calamity which may happen to him to the intention of the immediate instrument of its infliction, and he not unnaturally sees in the action of this instrument evidence of its possession of a spirit." Trees, especially, are very commonly supposed to possess souls similar to those of men, and are treated accordingly. Pausanias writes that "lifeless things are said to have inflicted of their own accord a righteous punishment on men"; and as the best and most famous instance of this he mentions the sword of Cambyses. In England the inanimate murderer was to be given up to the kinsmen of the slain surely not as a compensation for the loss they had suffered, but as an object upon which their vengeance was to be wreaked. It was called la bane, that is, "the slayer"; Bracton also calls it the "malefactor." It did not matter that its owner was recognised as innocent; the punishment was not intended for him. But in some well-defined cases the "slayer" was free from guilt. A ship or other vessel from which a person was drowned by misfortune was not forfeited as deodand in case the accident happened in salt water--as Coke indicates, on account of the great dangers to which the vessel is exposed "upon the raging waves in respect of the wind and tempest." Moreover, if a boy under fourteen fell from a cart, or from a horse, it was {264} no deodand, "because he was not of discretion to look to himself," and so the cart, or horse, could not be regarded as blamable. But if a cart ran over a boy, or a tree fell upon him, or a bull gored him, it was deodand, because, apparently, it went out of its way to kill him. The fact of motion was one of considerable importance in the case of animals and inanimate things, as it was in the case of men. Thus Bracton would distinguish between the horse which throws a man and the horse off which a man tumbles, between the tree that falls and the tree against which a man is thrown; and, as a general rule, a thing was not a deodand unless it could be said "movere ad mortem." If anybody was drowned by falling from a ship under sail, not only the ship itself but the things moving in it were deemed the cause of his death; whereas the merchandise lying at the bottom of the vessel was not presumed to be guilty, and consequently was not forfeited. But if any particular merchandise fell upon a person and caused his death, that merchandise became a deodand, and not the ship. As Mr. Holmes observes, a ship is the most persistent example of motion giving personality to a thing. "She" is still personified not only in common parlance, but in courts of justice. In maritime cases of quite recent date judges of great repute have pronounced the proceeding to be, not against the owner, but "against the vessel for an offence committed by the vessel."

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Like the lower animals, human beings in their earliest childhood are incapable of forming notions of right and wrong, hence they are not responsible for any act of theirs. Responsibility commences with the dawn of a moral consciousness, and increases along with the evolution of the intellect. Only by slow degrees the capacity of recognising {265} act as right or wrong develops in the child. It soon learns that certain acts are forbidden, but to know that an act is forbidden is not the same as to recognise it as wrong. Nor does the knowledge of a moral rule involve the ability to apply that rule in particular cases. Nor can the youthful intellect be expected to possess the same degree of foresight as the intellect of a grown-up man. Hence the total or partial irresponsibility of childhood and early youth.

This irresponsibility is admitted by the laws of civilised nations. In England, Scotland, and the United States, children under seven are absolutely exempt from punishment. In other modern countries criminal responsibility does not commence until the age of nine, ten, twelve, or fourteen. In some it is to be decided in each case whether a child is punishable or not. Thus the French Code Pénal provides that a person under eighteen years of age shall not be punished if it be decided that he has acted without discernment (sans discernement) whereas, if he has acted with discernment (avec discernement), his punishment is to be mitigated according to a fixed scale. Most laws set down an intermediate period between that of complete irresponsibility and that of complete responsibility. According to English law there is a presumption that children from seven to fourteen are not possessed of the degree of knowledge essential to criminality, though this presumption may be rebutted by proof to the contrary; and, according to the German Strafgesetzbuch, a person from twelve to eighteen may be acquitted if, when he committed the offence, he did {266} not possess the intelligence requisite to know that it was criminal. Other laws, again, regard a certain age eo ipso as a ground of extenuation, its upper limit being fixed sometimes at sixteen, sometimes at eighteen, sometimes at twenty, sometimes at twenty-one.

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. 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 fourteen--a provision similar to that of Canon Law. According to Muhammedan law, the rule of talion is applicable only to persons of age. 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 {267} 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."

According to early custom, children who have committed an injury are sometimes, but not always, subject to the rule of retaliation. Even in Homeric Greece, manslaughter committed in childhood seems to have been visited with banishment for life. In other cases parents are responsible for the deeds of their children. 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. 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." 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; according to the Icelandic Grágás, in case he was {268} under sixteen. 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. 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." A little later we hear that a child under the age of seven shall not suffer judgment in a case of homicide. In 1457, an infant of four was held liable in trespass, though the language of the court shows a disposition to exempt the infant. 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. 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. It appears from these facts, and from others of a similar character referring to continental countries, that there has been a tendency to raise the age {269} at which full legal responsibility commences. And we have reason to hope that legislation has not yet said its last word on the subject.

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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; 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; and so mild was their lot at Rome, that it became a practice for citizens to shirk their public duties by feigning madness. 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." Among the North American Potawatomis many "are said to be 'foolish,' and not sensible of crime." 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." 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, {270} 'I was mad; I had not my senses about me.' And the others would accept this explanation and exact no vengeance." 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." Among the West African Fjort fools and idiots are not responsible personally for their actions. Among the Wadshagga crimes committed by lunatics are judged of more leniently than others. Among the Matabele madmen, being supposed to be possessed of a spirit, "were formerly under the protection of the King." In Eastern Africa the natives say of an idiot or a lunatic, "He has fiends." El Hajj [(]Abdssalam 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."

The idea that derangement of the mind is due to spiritual possession, often makes the idiot or the insane an object of religious reverence. The Macusis regard lunatics as holy. The Brazilian Paravilhana believe that idiots are inspired. According to Schoolcraft, "regard for lunatics, or the demented members of the human race, is a universal trait among the American tribes." 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. A certain kind of madness was regarded by the ancient Greeks as a divine gift, and consequently as "superior to a sane mind." Lane states that, among the modern {271} 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." 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."

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." 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; 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." Among the Turks of Daghestan, we are told, mad people are subject to the rule of blood-revenge.

{272} 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.

According to ancient Welsh law, no vengeance is to be exercised against an idiot, nor is the king to have any fine for the act of such a person. 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." 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. 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. 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. 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 {273} 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. 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." In none of the German town-laws before the beginning of the seventeenth century is there any special provision for the offences of lunatics; 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. In Germany recognised idiots and madmen were not seldom punished with great severity, and even with death, in the seventeenth and eighteenth centuries. 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. 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"; 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." The writings of {274} 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."

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." Moreover, as we have seen, madness is often attributed to demoniacal possession, and in other cases it is regarded as a divine punishment. From a pagan {275} 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. 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, 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; 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.

From the year 1724 there is a dictum of an English judge to the effect that a man who is to be exempted from punishment "must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast." From the beginning of the nineteenth century, the power of distinguishing right from wrong in the abstract was regarded as the test of responsibility; whilst in the existing doctrine, dating from the trial of M[(]Naughten in 1843, the question of knowledge of right and wrong, instead of being put generally and indefinitely, is put in reference to the particular act at the particular time of committing it. This series of doctrines certainly shows a noteworthy progress {276} in discrimination. But at the same time the answers given by the fourteen English judges to the questions put to them by the House of Lords in consequence of M[(]Naughten's case still display an ignorance which would nowadays be hardly possible. In reply to the question--"If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?"--the judges declared that, on the assumption "that he labours under such partial delusion only, and is not in other respects insane, . . . he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment." The mistake committed in this answer does not lie in the conclusion, but in the premise. "Here," as Professor Maudsley observes, "is an unhesitating assumption that a man, having an insane delusion, has the power to think and act in regard to it reasonably; that, at the time of the offence, he ought to have and to exercise the knowledge and self-control which a sane man would have and exercise, were the facts with respect to which the delusion exists real; that he is, in fact, bound to be reasonable in his unreason, sane in his insanity." Modern science, however, teaches us another lesson. It has shown that a delusion of the kind suggested never stands alone, but is in all cases the result of a disease of the brain which interferes more or less with every function of the mind, and that few insane persons who do violence can be truly said to have a full knowledge of the nature and quality of their acts at the time they are performing {277} them. A perhaps still greater defect in the doctrine of the fourteen judges is the absence of all reference to the influence of insane impulses; but with this subject we are not concerned at present. In this connection my object has been merely to show that the irresponsibility of the insane, in so far as it depends on intellectual derangement, has been generally recognised in proportion as their intellectual derangement has been recognised, and that the exceptions to this rule are explicable from beliefs which, though materially affecting the treatment of the insane, have no reference to the principle of responsibility itself.

* * * * *

There are temporary states of mind in which the agent no more knows what he is doing than an idiot or a madman, such as somnambulism, narcosis, fury. For these states, of course, the rule holds good, that nobody is responsible for what he does in ignorance, although he may be responsible for his ignorance. Responsibility in connection with anger and rage will be more appropriately dealt with in another place. I shall here restrict myself to the case of drunkenness.

A person is irresponsible, or only partly responsible, for what he does when drunk, according as he is ignorant of the nature of his act, as also in so far as the intoxicant contributed to the rise of some powerful impulse which determined his will. If he commits an offence in a state of extreme intoxication, he can reasonably be blamed only for what he did when sober. If he made himself drunk for the purpose of committing the offence, then the offence is intended, and he is equally responsible for his act as if he had accomplished it straightway. If he became intoxicated without any fault of his, for instance, if he did not know, and could not know, the intoxicating quality of the liquor which made him drunk, he is free from blame. But in other cases he is guilty of heedlessness, or rashness, or, if he foresaw the danger, of blamable indifference to {278} the probable consequences of his act. This is the clear theory of the question. But we cannot expect to find it accurately expressed in practice.

Very generally drunkenness is recognised as a ground of extenuation. We hear from various sources that the North American Indians were exceedingly merciful to intoxicated offenders. According to Charlevoix, the Iroquois "suffer themselves to be ill used by drunken people, without defending themselves, for fear of hurting them. If you endeavour to shew them the folly of this conduct, they say, 'Why should we hurt them? They know not what they do.'" Even "if a savage kills another belonging to his cabin, if he is drunk (and they often counterfeit drunkenness when they intend to commit such actions), all the consequence is, that they pity and weep for the dead. 'It is a misfortune (they say), the murderer knew not what he did.'" James makes a similar statement with reference to the Omahas. In his description of the aborigines of Pennsylvania, Blome observes, "It is rare that they fall out, if sober; and if drunk they forgive it, saying, it was the drink, and not the man that abused them." Benjamin Franklin tells us of some Indians who had misbehaved in a state of intoxication, and in consequence sent three of their old men to apologise; "the orator acknowledged the fault, but laid it upon the rum, and then endeavoured to excuse the rum." The detestable deeds which men did under the influence of pulcre, or the native Mexican wine, the Aztecs attributed to the god of wine or to the wine itself, and not in the least to the drunken man. Indeed, if anybody spoke ill of or insulted an intoxicated person, he was liable to be punished for disrespect to the god by which that person was supposed to be possessed. {279} Hence, says Sahagun, it was believed, not without ground, that the Indians made themselves drunk on purpose to commit with impunity crimes for which they would have been punished if they had committed them sober.

Among the Karens of India "men are not unfrequently killed in drunken broils; but such cases are not allowed by Karen custom to be a cause of action. No price can be demanded for persons who lose their lives in such circumstances. It is argued there was no malice, no intention to kill; and the person who died was perhaps as much to blame as the man who killed him; and people are not well responsible for what they do in a state of intoxication." Among the Kandhs, "for wounds, however serious, given under circumstances of extreme provocation, or in a drunken squabble, slight compensation is awarded." Among some of the Marshall Islanders blood-revenge is generally not taken for an act of homicide which has been committed in drunkenness, compensation being accepted instead. So, also, according to the ancient law of the East Frisians, a man who has killed another when drunk is allowed "to buy off his neck by a sum of money paid to the king and to the relatives of the slain."

Roman law regarded drunkenness as a ground of extenuation; the Jurist Marcian mentions ebrietas as an example of impetus, thereby intimating that a drunken person, when committing a crime, should not be put on the same footing with an offender acting in cold blood, and calculating his act with clear consciousness. In Canon law drunkenness is said to be a ground which deserves the indulgence of a reasonable judge, because whatever is done in that state is done without consciousness on the part of the actor. Indeed, had not God shown {280} indulgence for the offence committed by Lot when drunk? Partly on the authority of Roman law, partly on that of Canon law, the earliest practitioners of the Middle Ages followed the principle that drunkenness is a ground of extenuation; and this doctrine remained strongly rooted in the later jurisprudence, in which a drunken person was likened to one under the influence of sleep, or drunkenness was regarded as equivalent to insanity. It was not until the sixteenth century that a mere general rule, with regard to drunkenness as a ground of extenuation, was felt to be insufficient. Since the time of Clarus, especially, the opinion began to prevail, that the effect of the highest degree of drunkenness was, indeed, to exempt from the punishment of dolus, but that the offender was still subject to the punishment of culpa, except in two cases, namely, first, when he inebriated himself intentionally, and with a consciousness that he might commit a crime while drunk, in which case the drunkenness was not allowed to be any ground of exculpation at all; and, secondly, when he became intoxicated without any fault on his part, as, for example, in consequence of inebriating substances having been mingled with his wine by his comrades, in which case he was relieved even from the punishment of culpa. These views, in the main, gradually determined the German practice, and similar opinions prevailed in the practice of Italy, Spain, Portugal, and the Netherlands. In the annals of Prussian criminal justice of 1824, a case is reported of a man who was punished with only one year's imprisonment for having killed his little child in a state of drunkenness. In other countries a different principle was acted upon. An ordinance of Francis I. declared that drunkenness should not in any case absolve from the ordinary punishment; and this rule was sanctioned and {281} applied by the later French jurisprudence. In the Code Pénal, the state of drunkenness is not mentioned as a mitigating circumstance; yet the rigour of the law has been tempered by the doctrine that intoxication produces a temporary insanity and that every kind of insanity is a ground of exculpation. In England, Scotland, and the United States, a state of voluntary drunkenness is no excuse for crime. Speaking of a person who commits homicide when drunk, Hale says that "by the laws of England such a person shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses." However, in a case where the intention with which the act was done is the essence of the offence, the drunkenness of the accused may be taken into account by the jury when considering the motive or intent with which he acted. According to Chinese law, also, intoxication does not affect the question of responsibility.

The great forbearance with which injuries inflicted in a state of intoxication are treated by various peoples at comparatively low stages of civilisation, is no doubt, to some extent, due to lack of foresight. Failing to anticipate the harmful consequences which may follow from drunkenness, they also fail to recognise the culpability of indulging in it. The American Indians are notorious drunkards, and look upon drunkenness as a "delightful frolick." Among the Kandhs drunkenness is likewise universal, and their "orgies are evidently not regarded as displeasing to their gods." The belief that an intoxicated person is possessed with a demon and acts under its influence, also helps {282} to excuse him. On the other hand, where the law makes no difference between an offender who is sober and an offender who is drunk, the culpability of the latter is exaggerated in consequence of the stirring effect which the outward event has upon public feelings. So great is the influence of the event that certain laws, most unreasonably, punish a person both for what he does when drunk and for making himself drunk. Thus Aristotle tells us that legislators affixed double penalties to crimes committed in drunkenness. The same was done by Charles V., in an edict of 1531, and by Francis I. in 1536. Hardly more reasonable is it that the very society which shows no mercy whatever to the intoxicated offender, is most indulgent to the act of intoxication itself when not accompanied by injurious consequences. Of course it may be argued that drunkenness is blamable in proportion as the person who indulges in it might expect it to lead to mischievous results. It has also been said that, if drunkenness were allowed to excuse, the gravest crimes might be committed with impunity by those who either counterfeited the state or actually assumed it. Some people even maintain that inebriation brings out a person's true character. In a Chinese story we read, "Many drunkards will tell you that they cannot remember in the morning the extravagances of the previous night, but I tell you this is all nonsense, and that in nine cases out of ten those extravagances are committed wittingly and with malice prepense." However, with all allowance for such considerations, I venture to believe that in this, as in many other cases where an injury results from want of foresight, the extreme severity of certain laws is largely due to the fact that the legislator has been more concerned with the external deed than with its source.