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.
132 Digesta, xxvii. 10. 6.
133 Dobrizhoffer, Account of the Abipones, ii. 234.
134 Keating, Expedition to the Source of St. Peter’s River, i. 127.
135 Charlevoix, Voyage to North America, ii. 24 sq.
136 Hennepin, Description de la Louisiane, Les Mœurs des Sauvages, p. 71 sq.
137 Codrington, Melanesians, p. 218.
138 Dennett, in Jour. African Society, i. 276.
139 Merker, quoted by Kohler, in Zeitschr. f. vergl. Rechtswiss. xv. 64.
140 Decle, Three Years in Savage Africa, p. 154.
141 Burton, Lake Regions of Central Africa, ii. 320.
142 ʿAbdssalam 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 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
143 Cf. Tylor, Primitive Culture, ii. 128.
144 Andree, Ethnographische Parallelen, Neue Folge, p. 3.
145 von Martius, Beiträge zur Ethnographie Amerika’s, i. 633.
146 Schoolcraft, Indian Tribes of the United States, iv. 49.
147 Tylor, Primitive Culture, ii. 130.
148 Plato, Phædrus, p. 244.
149 Lane, Manners and Customs of the Modern Egyptians, p. 237.
150 Cf. Gråberg di Hemsö, Specchio geografico, e statistico dell’ impero Marocco, p. 182 sq.
On the other hand there are peoples who treat their lunatics in a very different manner. The tribes of Western Victoria put them to death, “as they have a very great dread of mad people.”151 In Kar Nicobar madness is said to be the only cause for a death “penalty” that seems to exist there, the afflicted individual being garrotted with two pieces of bamboo;152 but this practice seems to be a method of getting rid of a dangerous individual, rather than a penalty in the proper sense of the word. Among the Washambala a lunatic who commits homicide is killed—as our informant observes, “not really on account of his deed, but in order to prevent him from causing further mischief.”153 Among the Turks of Daghestan, we are told, mad people are subject to the rule of blood-revenge.154
151 Dawson, op. cit. p. 61.
152 Distant, in Jour. Anthr. Inst. iii. 6.
153 Lang, in Steinmetz, Rechtsverhältnisse, p. 257.
154 Miklosich, loc. cit. p. 131.
In China lunatics are held responsible for their acts, although the ordinary penalty applicable is commuted, as for instance, in murder to imprisonment with fetters subject to His Majesty’s pleasure. But when a lunatic deliberately kills his parents or grandparents, a representation will not serve; he is to be executed at once on the spot where the murder was committed or on the city execution ground, and the sentence—slicing to pieces—is to be carried out in all its horror though the lunatic be already dead.155
155 Alabaster, Commentaries on Chinese Law, pp. 93, 96. Cf. Douglas, Society in China, pp. 72, 122.
According to ancient Welsh law, no vengeance is to be exercised against an idiot,156 nor is the king to have any fine