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,[1] we must remember that an
{250} observer's inference is not the same as an observed fact.[2] 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.[3]
[Footnote 1: Romanes, _Mental Evolution in Animals_, p. 352. Perty,
_Seelenleben der Thiere_, p. 67. Brehm, _From North Pole to Equator_,
p. 298.]
[Footnote 2: _Cf._ Lloyd Morgan, _Animal Life and Intelligence_, p. 399.]
[Footnote 3: _Cf._ _ibid._ p. 405.]
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."[4] 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."[5] 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.
[Footnote 4: Romanes, 'Conscience in Animals,' in _Quarterly Journal
of Science_, xiii. 156 _sq._]
[Footnote 5: _Idem_, _Animal Intelligence_, p. 439.]
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."[6]
[Footnote 6: Adam Smith, _Theory of Moral Sentiments_, p. 137.]
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.[7] 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."[8]
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."[9] 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."[10]
[Footnote 7: Harmon, _Journal of Voyages and Travels in the Interior
of North America_, p. 327. Southey, _History of Brazil_, i. 223. _Cf._
Bastian, _Der Mensch in der Geschichte_, iii. 25.]
[Footnote 8: Macrae, 'Account of the Kookies,' in _Asiatick
Researches_, vii. 189.]
[Footnote 9: Perham, 'Sea Dyak Religion,' in _Journal of the Straits
Branch of the Royal Asiatic Society_, No. 10, p. 221 _sq._ _Cf._
Frazer, _Golden Bough_, ii. 390.]
[Footnote 10: Sibree, _The Great African Island_, p. 269.]
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]."[11] 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.[12] In Muhammedan East Africa, some time ago, a dog was
publicly scourged for having entered a mosque.[13] The Bogos kill a
bull or cow which causes the death of a man.[14] 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.[15] 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.[16] 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."[17] 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."[18] 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.[19] 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.[20] Not only domestic animals, but even wild ones, were thus put
on trial.[21] "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."[22] 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.[23] Such
maledictions and excommunications, however, were probably regarded
rather as magical means of expulsion than as punishments.[24] 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.
[Footnote 11: Casati, _Ten Years in Equatoria_, i. 176.]
[Footnote 12: Polack, _Manners and Customs of the New Zealanders_,
i. 240.]
[Footnote 13: von Amira, _Thierstrafen und Thierprocesse_, p. 30.]
[Footnote 14: Munzinger, _Die Sitten und das Recht der Bogos_, p. 83.]
[Footnote 15: Newbold, _British Settlements in the Straits of
Malacca_, ii. 257.]
[Footnote 16: _Exodus_, xxi. 28 _sq._ _Leviticus_, xx. 15 _sq._]
[Footnote 17: _ Vendîdâd_, xiii. 31. _Cf._ _ibid._ xiii. 32 _sqq._;
_Yasts_, xxiv. 44.]
[Footnote 18: Plato, _Leges_, ix. 873.]
[Footnote 19: Chambers, _Book of Days_, i. 127. Pertile, 'Gli animali
in giudizio,' in _Atti del R. Instituto Veneto_, ser. vi. vol. iv. 139. ]
[Footnote 20: von Amira, _Thierstrafen_, pp. 2, 15, 16, 28 _sq._ In
England such proceedings seem to have hardly occurred at all (_ibid._
p. 15), but, as we shall see, an animal which caused the death of a
man was forfeited as deodand.]
[Footnote 21: See Chambers, _op. cit._ i. 127 _sq._]
[Footnote 22: Marlinengo-Cesaresco, _Essays in the Study of
Folk-Songs_, p. 183 _sq._]
[Footnote 23: Desmaze, _Les pénalités anciennes_, p. 31 _sq._]
[Footnote 24: This is the opinion of von Amira, who, however--as it
seems to me, without sufficient evidence--suggests that the
maledictions did not refer to ordinary animals, but to human souls or
devils in disguise (_Thierstrafen_, p. 16 _sqq._).]
It has been suggested that the mediæval practice of punishing animals
after human fashion was derived from the Mosaic law.[25] 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.[26] 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.[27] According to the customs or laws of various
so-called Aryan peoples--Greeks,[28] Romans,[29] Teutons,[30]
Celts,[31] Slavs,[32]--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.[33] According to the Welsh Laws, "that is the only
case in which the murderer is to be given up for his deed."[34] 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.
[Footnote 25: _Ibid._ pp. 4, 47 _sqq._]
[Footnote 26: Pertile, _loc. cit._ p. 148.]
[Footnote 27: _Cf._ Brunner, _Forschungen zur Geschichte des deutschen
und französischen Rechtes_, p. 517 _sqq._]
[Footnote 28: Plutarch, _Vita Solonis_, 24. Xenophon, _Historiæ
Græcæ_, ii. 4. 41.]
[Footnote 29: _Institutiones_, iv. 9. _Digesta_, ix. 1.]
[Footnote 30: _Lex Salica_ (cod. i.), 36. _Lex Ripuariorum_, 46.
Grimm, _Deutsche Rechtsalterthümer_, p. 664 _sqq._ Brunner,
_Forschungen_, p. 513 _sqq._]
[Footnote 31: _Ancient Laws of Ireland_, i. 161; iv. 177, 179, 181.
_Welsh Laws_, iv. i. 17 (_Ancient Laws and Institutes of Wales_,
p. 391).]
[Footnote 32: Macieiowski, _Slavische Rechtsgeschichte_, iv. 333.]
[Footnote 33: See _Lex Wisigothorum_, viii. 4. 20; _Schwabenspiegel_,
Landrechtbuch, 204; Dirksen, _Civilistische Abhandlungen_, i. 104; von
Jhering, _Geist des römischen Rechts_, i. 123; Hepp, _Die Zurechnung
auf dem Gebiete des Civilrechts_, p. 103; Grimm, _Deutsche
Rechtsalterthümer_, p. 664; Brunner, _Deutsche Rechtsgeschichte_, ii.
556; _Idem_, _Forschungen_, p. 513.]
[Footnote 34: _Welsh Laws_, iv. 1. 17 (_Ancient Laws and Institutes of
Wales_, p. 391).]
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.[35] According to others, the animal was
executed in order that the hateful act should be forgotten; Gratian,
referring to St. Augustine,[36] says, "Non propter culpam, sed propter
memoriam facti pecus occiditur, ad quod mulier accesserit."[37] 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.[38] 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."[39] It has also been supposed
that the animal was punished with intention to intimidate those {257}
who were responsible for its acts,[40] or that it was killed because
it was dangerous.[41] 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.[42] In early
records the punishment is frequently spoken of as an act of
"justice";[43] and the protests of Beaumanoir and others against this
opinion[44] 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."[45] 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."[46] 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.[47] 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.[48] The repetition of a
crime aggravated the punishment;[49] {258} and the animal "principal"
was punished more severely than the "accessories.[50]
[Footnote 35: Leibniz, _Essais de Theodicée_, p. 182 _sq._ Lessona,
quoted by d'Addosio, _Bestie delinquenti_, p. 145.]
[Footnote 36: St. Augustine, _Quæstiones in Leviticum_, 74 (_ad Lev._
xx. 16): "Nam pecora inde credendum est jussa interfici, quia tali
flagitio contaminata, indignam refricant facti memoriam" (Migne,
_Patrologiæ cursus_, xxxiv. 709).]
[Footnote 37: Gratian, _Decretum_, ii. 15. 1. 4. _Cf._ _Mishna_, fol.
54, quoted by Rabbinowicz, _Législation criminelle du Talmud_, p. 116.]
[Footnote 38: Ayrault, _Des procès faicts au cadaver, aux cendres, à
la mémoire, aux bestes brutes_, fol. 24. Ortolan, _Éléments du droit
pénal_, p. 188. Tissot, _Le droit pénal_, i. 19 _sq._]
[Footnote 39: Thonissen, _Le droit pénal de la république Athénienne_,
p. 414.]
[Footnote 40: Du Boys, quoted by d'Addosio, _op. cit._ p. 139.]
[Footnote 41: Lessona, quoted _ibid._ p. 145.]
[Footnote 42: _Cf._ Post, _Die Grundlagen des Rechts_, p. 359;
Friedrichs, 'Mensch und Person,' in _Das Ausland_, 1891, pp. 300, 315;
and, especially, d'Addosio, _op. cit._ p. 146 _sqq._: "Nel medioevo si
punì l'animale perchè lo si ritenne in certo modo _conscio_ delle sue
azioni, in certo modo _libero_, in certo modo _responsabile_."]
[Footnote 43: von Amira. _op. cit._ p. 9.]
[Footnote 44: Beaumanoir, _Les coutumes du Beauvoisis_, lxix. 6, vol.
ii. 485 _sq._ Chambers, _op. cit._ i. 127. Lichtenberg, _Vermischte
Schriften_, iv. 481.]
[Footnote 45: _Lex Salica_, edited by Hessels, coll. 209-212, 215.]
[Footnote 46: _Ancient Laws of Ireland_, iv. 179.]
[Footnote 47: Chambers, _op. cit._ i. 128.]
[Footnote 48: _Ancien Coutumier de Bourgogne_, 23 (_Revue historique
de droit français et étranger_, iii. 549): "Il deust hauoir faire
justice del larron."]
[Footnote 49: Pertile, _loc. cit._ p. 148: "La _Carta de Logu_
d'Eleonora giudicessa d'Arborea (1395) prescrive: che venendo trovato
un asino in danno sui fondi altrui, per la prima volta gli si tagli un
orecchio; la seconda, l'altro; e la terza, si confischi la bestia
consegnandola alla corte principesca." _Cf._ _Vendîdâd_,
xiii. 32 _sqq._]
[Footnote 50: d'Addosio, _op. cit._ p. 16.]
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.[51] 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?
[Footnote 51: Tylor, _Primitive Culture_, i. 467 _sqq._ Frazer,
_Golden Bough_, ii. 389 _sqq._ Liebrecht, _Zur Volkskunde_, p. 17.
Achelis, _Moderne Völkerkunde_, p. 373 _sqq._ _Idem_, 'Animal
Worship,' in _Open Court_, xi. 705 _sq._ Waitz, _Anthropologie der
Naturvölker_, ii. 180 (Negroes). von den Steinen, _Unter den
Naturvölkern Zentral-Brasiliens_, p. 351. Im Thurn, _Among the Indians
of Guiana_, p. 350 _sqq._ Dorman, _Origin of Primitive Superstitions_,
pp. 223, 253. Lumholtz, _Unknown Mexico_, i. 331 (Tarahumares).
Mooney, 'Myths of the Cherokee,' in _Ann. Rep. Bur. Ethn._ xix. pp.
250, 261 _sq._ Nelson, 'Eskimo about Bering Strait,' _ibid._ xviii.
423. Hose and McDougall, 'Relations between Men and Animals in
Sarawak,' in _Jour. Anthr. Inst._ xxxi. 173 _sqq._, especially
p. 205 _sq._]
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."[52] 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.[53] The fable and the _Märchen_ for a long
time related in good earnest their stories of animals that behaved
exactly like men.[54] 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;[55] 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.[56] 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.[57] 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;[58] and the same idea is expressed by Christian writers of a
much later date. In the sixteenth century, Benoît wrote that animals
often speak.[59] 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.[60] 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.[61] The beast or insect was retaliated upon for the simple
reason that it was regarded as a rational being.
[Footnote 52: _Koran_, vi. 38. Sell, _Faith of Islám_, p. 223.]
[Footnote 53: _Vendîdâd_, xiii. 44 _sqq._]
[Footnote 54: See Grimm, _Reinhart Fuchs_, p. i. _sqq._]
[Footnote 55: Ralston, _Songs of the Russian People_, p. 315. Wuttke,
_Der deutsche Volksaberglaube der Gegenwart_, p. 428.]
[Footnote 56: Ralston, _op. cit._ p. 318.]
[Footnote 57: Michelet, _Origines du droit français_, pp. 76, 279
_sq._ Chambers, _op. cit._ i. 129.]
[Footnote 58: Porphyry, _De abstinentia ab esu animalium_, iii. 6.]
[Footnote 59: Benoît, quoted by d'Addosio, _op. cit._ p. 214.]
[Footnote 60: Crell, _Ethica Christiana_, ii. 1, p. 65 _sq._:--"Hinc
aliquid etiam virtuti et vitio simile, seu recte et prave factum:
quorum illud est, cum bruta naturæ suæ ductum sequuntur, hoc cum a
naturali via exorbitant. Unde tandem etiam aliquid **præmio aut
p[oe]næ, et huic quidem maxime simile. Unde bestias etiam a Deo
punitas, aut p[oe]nas certas lege illis constitutas, cernimus."]
[Footnote 61: Ménabréa, _De l'origine de la forme et de l'esprit des
jugements rendus au moyen-age contre les animaux_, p. 35.]
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."[62] 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."[63] 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."[64] 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."[65] The gods of the
Vedic age cursed the trees which had injured them.[66] Xerxes
commanded {261} that the Hellespont should be stricken with three
hundred lashes,[67] and Cyrus "wreaked his vengeance" on the river
Gyndes by dispersing it through three hundred and sixty channels.[68]
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."[69] As Dr. Frazer remarks, the punishment of
inanimate objects for having accidentally been the cause of death was
probably much older than Draco.[70] At Athens there was a special
tribunal for the purpose.[71] 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.[72] 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."[73] Teutonic law, which still
recognised the principle of private revenge, treated the inanimate
murderer with less ceremony.[74] 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.[75] 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."[76] This law
remained in force till 1846.[77]
[Footnote 62: Macrae, in _Asiatick Researches_, vii. 189 _sq._]
[Footnote 63: Dawson, _Australian Aborigines_, p. 53.]
[Footnote 64: Robertson, _History of America_, i. 351 _sq._]
[Footnote 65: Im Thurn, _op. cit._ p. 354.]
[Footnote 66: Oldenberg, _Religion des Veda_, p. 518.]
[Footnote 67: Herodotus, vii. 35.]
[Footnote 68: _Ibid._ i. 190.]
[Footnote 69: Pausanias, vi. 11. 6. _Cf._ _ibid._ v. 27. 10.]
[Footnote 70: Frazer, _Pausanias_, ii. 371.]
[Footnote 71: Aristotle, _De republica Atheniensium_, 57. Pausanias,
i. 28. 10.]
[Footnote 72: Demosthenes, _Contra Aristocratem_, 76, p. 645.]
[Footnote 73: Plato, _Leges_, ix. 873 _sq._]
[Footnote 74: See Trummer, _Vorträge über Tortur, &c._ i. 376 _sq._
Brunner, _Forschungen_, p. 521 _sqq._]
[Footnote 75: _Laws of Alfred_, ii. 13.]
[Footnote 76: Coke. _Third Part of the Institutes of the Laws of
England_, p. 57.]
[Footnote 77: Stephen, _History of the Criminal Law of England_, iii.
78. Pollock and Maitland, _History of English Law before the Time of
Edward I._ ii. 473.]
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";[78] 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.[79]
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.[80] 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."[81] 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.[82] 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."[83]
Trees, especially, are very commonly supposed to possess souls similar
to those of men, and are treated accordingly.[84] 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.[85] 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.[86] It was called
_la bane_, that is, "the slayer"; Bracton also calls it the
"malefactor."[87] It did not matter that its owner was recognised as
innocent; the punishment was not intended for him.[88] 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."[89] 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.[90] 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."[91] 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.[92] But if any particular
merchandise fell upon a person and caused his death, that merchandise
became a deodand, and not the ship.[93] 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."[94]
[Footnote 78: _Lex Ripuariorum_, lxx. 1.]
[Footnote 79: Liebrccht, _Zur Volkskund_, p. 313.]
[Footnote 80: Salvado, _Mémoires historiques sur l'Australie_,
p. 260 _sq._]
[Footnote 81: Nansen, _Eskimo Life_, p. 213 _sq._]
[Footnote 82: _Cf._ Dugald Stewart, _Philosophy of the Active and
Moral Powers of Man_, i. 125; Hall, 'Study of Anger,' in _American
Journal of Psychology_, x. 506 _sq._]
[Footnote 83: Im Thurn, _op. cit._ p. 354.]
[Footnote 84: See Frazer, _Golden Bough_, i. 169 _sqq._]
[Footnote 85: Pausanias, i. 28. 11.]
[Footnote 86: Pollock and Maitland, ii. 474.]
[Footnote 87: Bracton, _De Legibus et Consuetudinibus Angliæ_, fol.
116, vol. ii. 236 _sq._]
[Footnote 88: Holmes, _Common Law_, p. 25.]
[Footnote 89: Bracton, _op. cit._ fol. 122, vol. ii. 286 _sq._ Coke,
_op. cit._ p. 58. Sir James Stephen supposes (_op. cit._ iii. 78) that
"deodands were not in use at sea, because the local customs of England
did not extend to the high seas." But Coke expressly says (p. 58) that
there can be no deodand of the ship even "in _aqua salsa_, being any
arm of the sea, though it be in the body of the County."]
[Footnote 90: Coke, _op. cit._ p. 57. Hale, _History of the Pleas of
the Crown_, i. 422. Stephen, _op. cit._ iii. 78.]
[Footnote 91: Bracton, _op. cit._ fol. 136 b, vol. ii, 400 _sq._ Hale,
_op. cit._ i. 420 _sqq._ Pollock and Maitland, _op. cit._ ii. 474, n.
4. Stephen, _op. cit._ iii. 77. Holmes, _op. cit._ p. 25
_sq._]
[Footnote 92: Britton, i. 2. 14, vol. i. 16.]
[Footnote 93: Hale, _op. cit._ i. 422.]
[Footnote 94: Holmes, _op. cit._ p. 29.]
* * * * *
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,[95] Scotland,[96] and the United States,[97] children under
seven are absolutely exempt from punishment. In other modern countries
criminal responsibility does not commence until the age of nine,[98]
ten,[99] twelve,[100] or fourteen.[101] In some it is to be decided in
each case whether a child is punishable or not.[102] 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.[103] 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;[104] 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.[105] Other laws,
again, regard a certain age _eo ipso_ as a ground of extenuation, its
upper limit being fixed sometimes at sixteen,[106] sometimes at
eighteen,[107] sometimes at twenty,[108] sometimes at twenty-one.[109]
[Footnote 95: Stephen, _op. cit._ ii. 97 _sq._]
[Footnote 96: Erskine-Rankine, _Principles of the Law of Scotland_,
p. 546.]
[Footnote 97: Bishop, _Commentaries on the Criminal Law_, § 368, vol.
i. 209.]
[Footnote 98: Italian _Codice Penale_, art. 53. Spanish _Código Penal
reformado_, art. 8, § 2.]
[Footnote 99: Austrian (Finger, _op. cit._ i. 110), Dutch (van Hamel,
in _Législation pénale comparée_, edited by von Liszt, p. 444),
Portuguese (Tavares de Medeiros, _ibid._ p. 199), Russian (Foinitzki,
_ibid._ p. 529) law.]
[Footnote 100: German _Strafgesetzbuch_, art. 55.]
[Footnote 101: Swedish (Uppström, in _Législation pénale comparée_, p.
483), Finnish (Forsman, _ibid._ p. 565) law.]
[Footnote 102: French, Belgian, Ottoman law (Rivière, _ibid._ p. 7).]
[Footnote 103: _Code Pénal_, art. 66 _sqq._]
[Footnote 104: Stephen, _op. cit._ ii. 98. Kenny, _Outlines of
Criminal Law_, p. 50.]
[Footnote 105: _Strafgesetzbuch_, art. 56.]
[Footnote 106: Dutch law (van Hamel, _loc. cit._ p. 444).]
[Footnote 107: Spanish (_Código Penal reformado_, art. 9, § 2),
Swedish (Uppström, _loc. cit._ p. 484), Finnish (Forsman, _loc. cit._
p. 566) law.]
[Footnote 108: Austrian law (Finger, _op. cit._ i. 112).]
[Footnote 109: Italian (_Codice Penale_, art. 56), Russian (Foinitzki,
_loc. cit._ p. 529), Portuguese (Tavares de Medeiros, _loc. cit._ p.
199), Brazilian (_Codigo Penal dos Estados Unidos do Brazil_, art. 42,
§ 11) law. According to the _Ottoman Penal Code_, art. 40, "a guilty
person who has not arrived at the age of puberty may not be punished
with the punishment enacted against the offence of which he has been
found guilty."]
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
fourteen[111]--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 {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."[114]
[Footnote 110: Clark, _Analysis of Criminal Liability_, p. 70. von
Jhering, _Das Schuldmoment im römischen Privatrecht_, p. 42 _sqq._
Mommsen _Römisches Strafrecht_, p. 75 _sq._ In the _Institutiones_ (i.
22) puberty is fixed at the completion of the fourteenth year for
males, and of the twelfth for females. According to the Law of the
Twelve Tables, children were punished for theft, though less severely
than adults (Gellius, _Noctes Atticæ_, xi. 18. 8. Pliny, _Historia
naturalis_, xviii. 3).]
[Footnote 111: _Ancient Laws of Ireland_, iii. 157.]
[Footnote 112: Katz, _Grundriss des kanonischen Strafrechts_, p. 8.]
[Footnote 113: Sachau, _Muhammedanisches Recht_, p. 762. Jaffur
Shurreef says (_Qanoon-e-Islam_, p. 36) that, among the Muhammedans of
India, previous to the period of puberty all the good and evil deeds
of boys and girls are laid to the charge of their parents.]
[Footnote 114: _Ta Tsing Leu Lee_, sec. xxii. _sq._]
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
{268} 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 {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.
[Footnote 115: Senfft, in Steinmetz, _Rechtsverhältnisse_, p. 449
(Marshall Islanders). Miklosich, 'Blutrache bei den Slaven,' in
_Denkschriften d. kaiserl. Akadamie d. Wissensch. Philos.-hist.
Classe_, Vienna, xxxvi. 131 (Turks of Daghestan). See also _supra_,
p. 217 _sq._]
[Footnote 116: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257
(Washambala).]
[Footnote 117: _Iliad_, xxiii. 85 _sqq._ _Cf._ Müller, _Dissertations
on the Eumenides_, p. 95.]
[Footnote 118: Nicole, in Steinmetz, _Rechtsverhältnisse_ p. 132
(Diakité-Sarrakolese). Marx, _ibid._ p. 357 (Amahlubi).]
[Footnote 119: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 120: Wigmore, 'Responsibility for Tortious Acts,' in
_Harvard Law Review_, vii. 447.]
[Footnote 121: Wilda, _Strafrecht der Germanen_, p. 642 _sq._
Nordström, _Bidrag till den svenska samhälls-författningens historia_,
ii. 73. _Cf._ von Amira, _Nordgermanisches Obligationenrecht_,
i. 375 _sq._]
[Footnote 122: _Grágás_, Vigsloþi, 32, vol. ii. 63.]
[Footnote 123: Wigmore, _loc. cit._ p. 447.]
[Footnote 124: _Three Early Assize Rolls for the County of
Northumberland_, p. 323.]
[Footnote 125: Pollock and Maitland, _op. cit._ ii. 84.]
[Footnote 126: Wigmore, _loc. cit._ p. 447 _sq._ n. 7.]
[Footnote 127: Wilson, _History of Modern English Law_, p. 124.]
[Footnote 128: Foster, _Report of Crown Cases_, p. 70 _sqq._]
[Footnote 129: Trummer, _op. cit._ i. 428, 432 _sqq._ (Germany).
Jousse, _Traité de la justice criminelle de France_, ii. 617; Tissot,
_Droit pénal_, i. 30 (France).]
* * * * *
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.
[Footnote 130: von Krafft-Ebing, _Lehrbuch der gerichtlichen
Psychopathologie_, p. 70.]
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,
{270} '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 [(]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."[142]
[Footnote 131: von Vangerow, _Lehrbuch der Pandekten_, iii. 36. von
Jhering, _Das Schuldmoment im römischen Privatrecht_, p. 42. Thon,
_Rechtsnorm und subjectives Recht_, p. 106, n. 70.]
[Footnote 132: _Digesta_, xxvii. 10. 6.]
[Footnote 133: Dobrizhoffer, _Account of the Abipones_, ii. 234.]
[Footnote 134: Keating, _Expedition to the Source of St. Peter's
River_, i. 127.]
[Footnote 135: Charlevoix, _Voyage to North America_, ii. 24 _sq._]
[Footnote 136: Hennepin, _Description de la Louisiane_, Les M[oe]urs
des Sauvages, p. 71 _sq._]
[Footnote 137: Codrington, _Melanesians_, p. 218.]
[Footnote 138: Dennett, in _Jour. African Society_, i. 276.]
[Footnote 139: Merker, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xv. 64.]
[Footnote 140: Decle, _Three Years in Savage Africa_, p. 154.]
[Footnote 141: Burton, _Lake Regions of Central Africa_, ii. 320.]
[Footnote 142: [(]Abdssalam Shabeeny, _Account of Timbuctoo and
Housa_, p. 49.]
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 {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."[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]
[Footnote 143: _Cf._ Tylor, _Primitive Culture_, ii. 128.]
[Footnote 144: Andree, _Ethnographische Parallelen_, _Neue Folge_, p. 3.]
[Footnote 145: von Martius, _Beiträge zur Ethnographie Amerika's_,
i. 633.]
[Footnote 146: Schoolcraft, _Indian Tribes of the United States_,
iv. 49.]
[Footnote 147: Tylor, _Primitive Culture_, ii. 130.]
[Footnote 148: Plato, _Phædrus_, p. 244.]
[Footnote 149: Lane, _Manners and Customs of the Modern Egyptians_,
p. 237.]
[Footnote 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]
[Footnote 151: Dawson, _op. cit._ p. 61.]
[Footnote 152: Distant, in _Jour. Anthr. Inst._ iii. 6.]
[Footnote 153: Lang, in Steinmetz, _Rechtsverhältnisse_, p. 257.]
[Footnote 154: Miklosich, _loc. cit._ p. 131.]
{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.[155]
[Footnote 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
{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.[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 {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."[170]
[Footnote 156: _Dimetian Code_, ii. 1. 32 (_Ancient Laws and
Institutes of Wales_, p. 200).]
[Footnote 157: _Venedotian Code_, ii. 28. 3 (_ibid._ p. 98).]
[Footnote 158: _Welsh Laws_, iv. 1. 2 (_ibid._ p. 389).]
[Footnote 159: von Amira, _Nordgermanisches Obligationenrecht_, i. 375.]
[Footnote 160: _Grágás_, Vigsloþi, 33, vol. ii. 64.]
[Footnote 161: Stephen, _op. cit._ ii. 151.]
[Footnote 162: Wigmore, _loc. cit._ p. 446.]
[Footnote 163: Bacon, _Maxims of the Law_, reg. 7 (_Works_,
vii. 347 _sq._).]
[Footnote 164: Trummer, _op. cit._ i. 428.]
[Footnote 165: _Ibid._ i. 432.]
[Footnote 166: _Ibid._ i. 438 _sqq._]
[Footnote 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._]
[Footnote 168: Shakespeare, _As you Like it_, iii. 2.]
[Footnote 169: Swift, _Tale of a Tub_, sec. 9 (_Works_, x. 163).]
[Footnote 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
{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.[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.
[Footnote 171: Smollett, quoted by Tuke, _op. cit._ p. 96.]
[Footnote 172: See also Doughty, _Arabia Deserta_, i. 258 _sq._;
Westermarck, 'Nature of the Arab _[vG]inn_ 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.]
[Footnote 173: Plato, _Leges_, ix. 854. Esquirol, _Des maladies
mentales_, i. 336.]
[Footnote 174: _Digesta_, i. 18. 14; xlviii. 9. 9.]
[Footnote 175: Wood-Renton, _loc. cit._ p. 339.]
[Footnote 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 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.[179] 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."[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 {277} 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.
[Footnote 177: Howell, _Collection of State Trials_, xvi. 765.]
[Footnote 178: Harris, _Principles of the Criminal Law_, p. 18. Kenny,
_op. cit._ p. 53.]
[Footnote 179: Clark and Finnelly, _Reports of Cases decided in the
House of Lords_, x. 202.]
[Footnote 180: _Ibid._ x. 211.]
[Footnote 181: Maudsley, _op. cit._ p. 97.]
[Footnote 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 {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),[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. {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.[188]
[Footnote 183: _Cf._ Hennepin, _op. cit._ p. 71.]
[Footnote 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.]
[Footnote 185: James, _Expedition from Pittsburgh to the Rocky
Mountains_, i. 265.]
[Footnote 186: Blome, in Buchanan, _North American Indians_, p. 328.]
[Footnote 187: Franklin, _Autobiography_, ch. ix. (_Works_, i. 164).]
[Footnote 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]
[Footnote 189: Mason, in _Jour. As. Soc. Bengal_, xxxvii. pt. ii. 146.]
[Footnote 190: Macpherson, _Memorials of Service in India_, p. 82.]
[Footnote 191: Jung, quoted by Kohler, in _Zeitschr. f. vergl.
Rechtswiss._ xiv. 446.]
[Footnote 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 {280} 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 {281} 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]
[Footnote 193: _Digesta_, xlviii. 19. 11. 2; xlix. 16. 6. 7. Mommsen,
_Römisches Strafrecht_, p. 1043.]
[Footnote 194: _Digesta_, xlviii. 19. 11. 2.]
[Footnote 195: Gratian, _Decretum_, ii. 15. 1. 7.]
[Footnote 196: _Ibid._ ii. 15. 1. 9.]
[Footnote 197: Mittermaier, _Effect of Drunkenness on Criminal
Responsibility_, p. 6.]
[Footnote 198: Clarus, _Practica criminalis_, qu. lx. nr. 11 (_Opera
omnia_, ii. 462).]
[Footnote 199: Mittermaier, _op. cit._ p. 7. Du Boys, _Histoire du
droit criminel de l'Espagne_, p. 290. Italian _Codice Penale_, art. 46
_sqq._ Spanish _Código Penal reformado_, art. 9, §6.]
[Footnote 200: _Zeitschr. f. die Criminal-Rechts-Pflege in den
Preussischen Staaten_, edited by Hitzig, iii. 60.]
[Footnote 201: Isambert, Decrusy, and Armet, _Recueil général des
anciennes lois françaises_, xii. 527.]
[Footnote 202: Mittermaier, _op. cit._ p. 8.]
[Footnote 203: _Ibid._ p. 12 _sq._ Rivière, _loc. cit._ p. 7.]
[Footnote 204: Stephen, _History of the Criminal Law of England_,
ii. 165.]
[Footnote 205: Hume, _Commentaries on the Law of Scotland_, i. 38.
Erskine-Rankine, _op. cit._ p. 545.]
[Footnote 206: Bishop, _op. cit._ § 400 _sq._ vol. i. 231 _sqq._]
[Footnote 207: Hale, _op. cit._ i. 32.]
[Footnote 208: Harris, _op. cit._ p. 21. Stephen, _Digest_, art. 32,
p. 22.]
[Footnote 209: Giles, _Strange Stories from a Chinese Studio_, ii. 30,
n. 2.]
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."[210] Among the Kandhs
drunkenness is likewise universal, and their "orgies are evidently not
regarded as displeasing to their gods."[211] The belief that an
intoxicated person is possessed with a demon and acts under its
influence, also helps {282} to excuse him.[212] 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.[213] The same was done by Charles V., in an edict of
1531,[214] and by Francis I. in 1536.[215] 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."[216]
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.
[Footnote 210: Adair, _History of the American Indians_, p. 5. Catlin,
_North American Indians_, ii. 251. Colden, in Schoolcraft, _Indian
Tribes_, iii. 191. Prescott, _ibid._ iii. 242. James, _op. cit._ i. 265.]
[Footnote 211: Campbell, _Wild Tribes of Khondistan_, p. 165.
Macpherson, _op. cit._ p. 81 _sq._]
[Footnote 212: _Cf._ Dorsey, 'Siouan Cults,' in _Ann. Rep. Bur. Ethn._
xi. 424.]
[Footnote 213: Aristotle, _Ethica Nicomachea_, iii. 5. 8.]
[Footnote 214: Damhouder, _Praxis rerum criminalium_, lxxxiv. 20,
p. 241.]
[Footnote 215: Isambert, Decrusy, and Armet, _op. cit._ xii. 527.]
[Footnote 216: Giles, _op. cit._ ii. 30.]