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146 Schoolcraft, Indian Tribes of the United States, iv. 49.

147 Tylor, Primitive Culture, ii. 130.

148 Plato, Phædrus, p. 244.

149 Lane, Manners and Customs of the Modern Egyptians, p. 237.

150 Cf. Gråberg di Hemsö, Specchio geografico, e statistico dell’ impero Marocco, p. 182 sq.

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

151 Dawson, op. cit. p. 61.

152 Distant, in Jour. Anthr. Inst. iii. 6.

153 Lang, in Steinmetz, Rechtsverhältnisse, p. 257.

154 Miklosich, loc. cit. p. 131.

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

155 Alabaster, Commentaries on Chinese Law, pp. 93, 96. Cf. Douglas, Society in China, pp. 72, 122.

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

156 Dimetian Code, ii. 1. 32 (Ancient Laws and Institutes of Wales, p. 200).

157 Venedotian Code, ii. 28. 3 (ibid. p. 98).

158 Welsh Laws, iv. 1. 2 (ibid. p. 389).

159 von Amira, Nordgermanisches Obligationenrecht, i. 375.

160 Grágás, Vigsloþi, 33, vol. ii. 64.

161 Stephen, op. cit. ii. 151.

162 Wigmore, loc. cit. p. 446.

163 Bacon, Maxims of the Law, reg. 7 (Works, vii. 347 sq.).

164 Trummer, op. cit. i. 428.

165 Ibid. i. 432.

166 Ibid. i. 438 sqq.

167 See Tuke, Chapters in the History of the Insane in the British Isles, p. 43 sq.; Maudsley, Responsibility in Mental Disease, p. 10 sq.; Lecky, History of European Morals, ii. 85 sqq.

168 Shakespeare, As you Like it, iii. 2.

169 Swift, Tale of a Tub, sec. 9 (Works, x. 163).

170 Wood-Renton, ‘Moral Mania,’ in Law Quarterly Review, iii. 340.

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.

171 Smollett, quoted by Tuke, op. cit. p. 96.

172 See also Doughty, Arabia Deserta, i. 258 sq.; Westermarck, ‘Nature of the Arab Ğinn illustrated by the Present Beliefs of the People of Morocco,’ in Jour. Anthr. Inst. xxix, 254; Andree, op. cit. p. 2 sq.; Tuke, op. cit. p. 1; Pike, History of Crime in England, i. 39; von Krafft-Ebing, op. cit. p. 5.

173 Plato, Leges, ix. 854. Esquirol, Des maladies mentales, i. 336.

174 Digesta, i. 18. 14; xlviii. 9. 9.

175 Wood-Renton, loc. cit. p. 339.

176 Ibid. p. 339.

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.”177 From the beginning of the nineteenth century, the power of distinguishing right from wrong in the abstract was regarded as the test of responsibility;178 whilst in the existing doctrine, dating from the trial of MʿNaughten 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.179 This series of doctrines certainly shows a noteworthy progress 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 MʿNaughten’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.”180 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.”181 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 them.182 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.

177 Howell, Collection of State Trials, xvi. 765.

178 Harris, Principles of the Criminal Law, p. 18. Kenny, op. cit. p. 53.

179 Clark and Finnelly, Reports of Cases decided in the House of Lords, x. 202.

180 Ibid. x. 211.

181 Maudsley, op. cit. p. 97.

182 Griesinger, Mental Pathology and Therapeutics, p. 72 sq. Maudsley, op. cit. p. 96.

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 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),183 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.’ ”184 James makes a similar statement with reference to the Omahas.185 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.”186 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.”187 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. 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.188

183 Cf. Hennepin, op. cit. p. 71.

184 Charlevoix, op. cit. ii. 23, 25. According to Loskiel (History of the Mission of the United Brethren among the Indians in North America, i. 16), the Iroquois, though they laid all the blame on the rum, punished severely murder committed in drunkenness.

185 James, Expedition from Pittsburgh to the Rocky Mountains, i. 265.

186 Blome, in Buchanan, North American Indians, p. 328.

187 Franklin, Autobiography, ch. ix. (Works, i. 164).

188 Sahagun, Historia general de las cosas de Nueva España, i. 22, vol. i. 40.

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.”189 Among the Kandhs, “for wounds, however serious, given under circumstances of extreme provocation, or in a drunken squabble, slight compensation is awarded.”190 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.191 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.”192

189 Mason, in Jour. As. Soc. Bengal, xxxvii. pt. ii. 146.

190 Macpherson, Memorials of Service in India, p. 82.

191 Jung, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xiv. 446.

192 Das Ostfriesische Land-Recht, iii. 18.

Roman law regarded drunkenness as a ground of extenuation;193 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.194 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.195 Indeed, had not God shown indulgence for the offence committed by Lot when drunk?196 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.197 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.198 These views, in the main, gradually determined the German practice, and similar opinions prevailed in the practice of Italy, Spain, Portugal, and the Netherlands.199 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.200 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;201 and this rule was sanctioned and applied by the later French jurisprudence.202 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.203 In England,204 Scotland,205 and the United States,206 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.”207 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.208 According to Chinese law, also, intoxication does not affect the question of responsibility.209

193 Digesta, xlviii. 19. 11. 2; xlix. 16. 6. 7. Mommsen, Römisches Strafrecht, p. 1043.

194 Digesta, xlviii. 19. 11. 2.

195 Gratian, Decretum, ii. 15. 1. 7.