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system does not exist. It may be, therefore, that any possible rights of the spouses living in California may be taken away before the present controversy can be heard on its merits.

Esmond Schapiro.

San Francisco, California.

The History of Insanity as a Defence to Crime


in English Criminal Law

O topic in the criminal law has aroused more discussion than

the question of the responsibility of the insane for crime. The discussion breaks out with renewed violence every time that this defence is raised in a criminal case. It has long been the cause of a war of great feeling between the medical and legal professions. The doctors refer to the bench and bar as judicial murderers. In reply, the lawyers shift the blame to the medical profession. In all of these discussions the chief difficulty seems to lie in the fact that there is either a failure to recognize at all, or at least to recognize sufficiently, the fundamental principle underlying mental incapacity. The question of insanity is really not a question of law; it is essentially a question of fact. The legal question is responsibility. From a survey of the history of insanity as a defence in the earlier law, if we may draw a deduction from the scant evidence, insanity is apparently a question of fact not gauged by strict rules. This changes, however, and later we find insanity gauged by inflexible legal tests. Recent tendencies indicate a development towards a recognition of insanity not as a question of law, but as one of fact.

It was not until the late eighteenth and early nineteenth centuries that the medical profession began to study insanity with any degree of thoroughness. Before that time but few of the psychoses were known and recognized. The medieval notions that insanity was a visitation from the Almighty, or that the insane were possessed with demoniacal influences, were not confined to the laymen alone, but were generally current among all classes. Insanity as a disease, known and treated as such, did not get recognition until the last century. It seemed absurd to all but a few medical men that the insane person should be treated as a sick person. Mr. Justice Doe in State v. Pike2 gave a striking example of this, quoting a declaration of the Lord Chancellor, made in the House of Lords in 1862:

"The introduction of medical opinions and medical theories

1 Relazione sul Progetto Preliminare di Codice Penale Italiano (1921) I, 446-7.

2 (1870) 49 N. H. 399, 437, 6 Am. Rep. 533, citing Hansard, CLXV, p. 1297.

into this subject has proceeded upon the vicious principle of considering insanity as a disease."

In commenting on this statement, Mr. Justice Doe said:

"This remark indicates how slowly legal superstitions are worn out, and how dogmatically the highest legal authorities of this age maintain, as law, tests of insanity, which are medical theories differing from those rejected by the same authority, only in being the obsolete theories of a progressive science."

All this is perhaps not so striking when we consider that even at the present time the average person would regard a visit to an insane asylum in much the same light as a visit to the Zoological Gardens.3

The subject of mental aberration may be grouped under two great heads; mental insufficiency and mental perversity. The first term comprehends those whom the law knows as idiots," and the second, those whom the law knows as lunatics. The difference between these is that in the first group there is a lack of something in the mental make-up, whereas in the second there is a disorder of that mind which the subject possesses.

Just what persons should be included in these groups ought to be left solely to the psychiatrist for determination. His determination must change necessarily with the increased progress and knowledge of medical science in the study of mental conditions."

Maudsley, Responsibility in Mental Disease, ch. 1; for a historical summary of the history and treatment of insanity, see Jacoby, The Unsound Mind and the Law, ch. 1.

These terms are used by du Fursac and Rosanoff, Manual of Psychiatry (1916).

5 The Mental Deficiency Act of 1913, 3 and 4 Geo. V, c. 28, § 1.

"1. The following classes of persons who are mentally defective shall be deemed to be defectives within the meaning of this Act:

(a) Idiots; that is to say, persons defective in mind from birth or from an early age as to be unable to guard themselves against common physical dangers;

(b) Imbeciles; that is to say, persons in whose case there exists from birth or from an early age mental defectiveness not amounting to idiocy, yet so pronounced that they are incapable of managing themselves or their affairs, or, in case of children, of being taught to do so;

(c) Feeble-minded persons; that is to say, persons in whose case there exists from birth or from an early age mental defectiveness not amounting to imbecility, yet so pronounced that they require care, supervision, and control for their own protection, or for the protection of others, or, in the case of children, that they by reason of such defectiveness appear to be permanently incapable of receiving proper benefit from the instruction in ordinary schools;

(d) Moral imbeciles; that is to say, persons who from an early age display some permanent defect coupled with strong vicious or criminal propensities on which punishment has had little or no effect."

6 White, Outlines of Psychiatry (1919) p. 275.

A classification of mental disorders has been published by the Bureau

The distinction between idiots and lunatics was important in early times after the Statute de Praerogativa Regis, for by this statute the king was given the lands of the idiot, and was to take the profits without waste or destruction to these lands, and was to provide necessaries for the idiot. In the case of lunatics, however, the king takes the profits of the lunatic's lands and maintains the lunatic and his family, but does not reserve any part of the profits for the royal revenues."

One of the most striking things about the early law is the number and variety of terms used to describe the mentally abnormal. These terms are in Latin, Law French and English, and may be divided into two classes; those denoting the idiot, and those denoting the lunatic. Those denoting the idiot are apparently used as equivalents for the terms which we today apply to the lower grades of mental defectives, and would therefore, include the idiot and the imbecile. Of the terms denoting idiot, we find "idiot"1o in its various forms, "fatuus","1 "stultus",12 "fool" or "foole natural", 18 and "sot." All these denote a mentally deficient condition that existed from birth.15 Fitzherbert gives a definition of idiot in Novel Natura Brevium:

of Statistics of the National Committee for Mental Hygiene; see Statistical Manual for the Use of Institutions for the Insane; see also Kidd and Ball, The Relation of Law and Medicine in Mental Disease, 9 California Law Review, 1, 16, n. 29.

For works on psychiatry, see Grasset, The Semi-Insane and the SemiResponsible (1907 trans. by Jeliffe); du Fursac and Rosanoff, Manual of Psychiatry (1916); Jacoby, The Unsound Mind and the Law (1918); Kraepelin, Psychiatrie (1914-1920); White, Outlines of Psychiatry (1919); White, Insanity and the Criminal Law (1923). On feeble-mindedness, see Goddard, Feeble-mindedness. Maudsley, Responsibility in Mental Disease, (3d ed. 1876) is still used a great deal in England.

8 The date of this statute is usually put at A. D. 1324, Stat. 17 Edw. II, Stat. 1, c. 10. The date is uncertain. Pollock and Maitland, History of English Law, 481; Plucknett, Interpretation of Early 14th Century Statutes (1922) p. 12, n. 8.

9 Staundford, De Praerogativa Regis (1607) ch. 9 and 10; Blackstone's Commentaries, 304.

10 Bracton, De Legibus etc., f. 375b (Twiss ed., vol. V, p. 454); Terms de la Ley, "Ideot" (Rastall, 1602); Fitzherbert, Novel Natura Brevium (1616) p. 233; Registrum Brevium, f. 266; Co. Litt. 246b; Staundford, De Praerogativa Regis, ch. 9.

11 Registrum Brevium, f. 266; Fleta, Bk. 6, ch. 40; Fitzherbert, Novel Natura Brevium, 232b; Stat. de Praerogativa Regis, supra, n. 8; Staundford, De Praerogativa Regis, ch. 9, p. 33.

12 Bracton, De Legibus etc., f. 375b (Twiss ed., vol. V, p. 454).

13 Fitzherbert, Novel Natura Brevium, 232b; Brooke's Abridgment, title "Ideot" pl. 2., citing 50 Lib. Ass. pl. 2.

14 Britton, f. 62b, (Nichols, I, 158) f. 167b (Nichols, II, 20).

15 Terms de la Ley defines idiot as a natural fool from birth. Registrum Brevium, f. 266, in writ number three, speaks of "Ideota et fatuus a nativitate"; Pollock and Maitland, History of English Law, 481.

"And he who shall be said to be a Sot and Idiot from his Birth, is such a person who cannot accompt or number Twenty-pence, nor can tell who was his Father, or Mother, nor how old he is, &c. so as it may appear that he hath no understanding of Reason what shall be for his Profit, or what for his Loss: But if he have such Understanding that he know and Understand his Letter, and do read by Teaching or Information of another Man, then it seemeth he is not a Sot, nor a natural Idiot."


Other definitions equally helpful are given by Staundford" and Swinburne.18 Hale recognized that the tests given by these writers showed merely evidences of idiocy, and that whether or not a person was an idiot was a question of fact to be tried either by the jury or by inspection.1


Those terms denoting the idiot are always sharply distinguished from those denoting the lunatic. While it is easy to distinguish terms relating to lunacy from those denoting idiocy, it is almost impossible either to determine the meaning of the terms denoting lunacy as they were used in early times, or to give any more than a very general meaning to them. In this second group we find the terms, "lunatic"20 in its various forms, "amens","1 "furiosus",22 "mente captus", 23 “insanus", "arrages",25 "frenetycs",26 "non sane memory", "non bon memory" and "non compos mentis", as used


16 From the 1616 edition of Novel Natura Brevium.

17 De Praerogativa Regis, 35, “That if hee bee able to beget eyther soune, or daughter, hee is no foole natural."

18 Wills, pt. II, ch. 4, p. 72, (1728) "Unless he [the idiot] be yet more foolish and so very simple and sottish, that he may easily be made to believe Things incredible or impossible; as that an Ass can fly, or that Trees did walk, Beasts and Birds could speak, as it is in Aesop's Fables. For he that is so foolish cannot make a Testament, because he hath not so much Wit as a Child of Ten or Eleven Years old, who is therefore intestable, namely, for Want of Judgment. I do read, that if one have so much Understanding as he can Measure a Yard of Cloth, or rightly name the days in the Week, or beget a Child, Son, or Daughter, he shall not be accounted an Idiot or Natural Fool by the Laws of the Realm."

19 Pleas of the Crown, I, p. 29.

20 Registrum Brevium, (1687 ed.) Appendix f. 19; Stat. 33 Henry VIII, c. 20, § 1; Britton, 62b (Nichols, I, 159); Staundford, Plees del Corone, 16b. 21 Co. Litt., 246b; Maitland, Bracton's Note Book, III, p. 660, case 1878, A. D. 1226, "amens et extra sensum.”

22 Bracton, De Legibus etc., f. 12 (Woodbine, II, 51), f. 100 (Woodbine, II, 286), f. 375b (Twiss, V, 454); Fleta, Bk. 6, ch. 40.

23 Bracton, De Legibus etc., f. 12 (Woodbine, II, 52), f. 375b (Twiss, V, 454).

24 Leges Hen. Primi, LXXVIII, No. 7, see Liebermann, Gesetze der Angelsachsen, I, 595; Beverley's Case (1603), 4 Co. Rep. 123b, 128a, 76 Eng. Rep. R. 1118, "Insanus qui abjecta ratione omnia cum impetu et furore facit." 25 Britton, 62b (Nichols, I, 159), f. 90 (Nichols, I, 227); Mirror of Justices, 7 Seld. Soc. p. 73.

26 Britton, 62b (Nichols, I, 159).

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