[123] Wigmore, loc. cit. p. 447.
[124] Three Early Assize Rolls for the County of Northumberland, p. 323.
[125] Pollock and Maitland, op. cit. ii. 84.
[126] Wigmore, loc. cit. p. 447 sq. n. 7.
[127] Wilson, History of Modern English Law, p. 124.
[128] Foster, Report of Crown Cases, p. 70 sqq.
[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.
[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, ‘I was mad; I had not my senses about me.’ And the others would accept this explanation and exact no vengeance.”[136] The Melanesians “are sorry for lunatics and are kind to them, though their remedies are rough”; at Florida, for instance, a man went out of his mind, chased people, stole things and hid them, but “no one blamed him, because they knew that he was possessed by a tindalo ghost.”[137] Among the West African Fjort fools and idiots are not responsible personally for their actions.[138] Among the Wadshagga crimes committed by lunatics are judged of more leniently than others.[139] Among the Matabele madmen, being supposed to be possessed of a spirit, “were formerly under the protection of the King.”[140] In Eastern Africa the natives say of an idiot or a lunatic, “He has fiends.”[141] El Hajj ʿAbdssalam Shabeeny states that in Hausaland “a man guilty of a crime, who in the opinion of the judge is possessed by an evil spirit, is not punished.”[142]