href="#ulink_b749f9a3-4a32-5bbd-b036-9221697e44a7">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 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 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
156 Dimetian Code, ii. 1. 32 (Ancient Laws and Institutes of Wales, p. 200).
157 Venedotian Code, ii. 28. 3 (ibid. p. 98).
158 Welsh Laws, iv. 1. 2 (ibid. p. 389).
159 von Amira, Nordgermanisches Obligationenrecht, i. 375.
160 Grágás, Vigsloþi, 33, vol. ii. 64.
161 Stephen, op. cit. ii. 151.
162 Wigmore, loc. cit. p. 446.
163 Bacon, Maxims of the Law, reg. 7 (Works, vii. 347 sq.).
164 Trummer, op. cit. i. 428.
165 Ibid. i. 432.
166 Ibid. i. 438 sqq.
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.
168 Shakespeare, As you Like it, iii. 2.
169 Swift, Tale of a Tub, sec. 9 (Works, x. 163).
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 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