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 at which full legal responsibility commences. And we have reason to hope that legislation has not yet said its last word on the subject.
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.
116 Lang, in Steinmetz, Rechtsverhältnisse, p. 257 (Washambala).
117 Iliad, xxiii. 85 sqq. Cf. Müller, Dissertations on the Eumenides, p. 95.
118 Nicole, in Steinmetz, Rechtsverhältnisse p. 132 (Diakité-Sarrakolese). Marx, ibid. p. 357 (Amahlubi).
119 Dennett, in Jour. African Society, i. 276.
120 Wigmore, ‘Responsibility for Tortious Acts,’ in Harvard Law Review, vii. 447.
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.
122 Grágás, Vigsloþi, 32, vol. ii. 63.
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