1

only the faintest glimmer of reason, and very imperfect speech. Simpletons are the highest class of idiots, in whom the harmony between the nervous and muscular systems is nearly perfect; who consequently have normal powers of locomotion and animal action, considerable activity of the perceptive and affective faculties, and reason enough for the simple individual guidance, but not enough for their social relations." Here we see Dr. Howe classifies idiots and imbeciles into three orders, and the principle of his classification is volition and speech. We cannot doubt that if a satisfactory classification of those who labor under these defects is to be made, it must be founded upon both of these. But all these subdivisions are more or less fanciful, and can only be defended on the ground of practical convenience. We shall now proceed to consider in what light the State regards idiots and imbeciles, and who this disease affects the relations of persons who are undoubtedly the victims of it in their relations to their fellow-men.

Op. cit., p. 147.

CHAPTER V.

THE LEGAL RELATIONS OF AMENTIA.

82. Legal Relations of Idiots.-We have seen that, with regard to the most marked forms of all mental disease, the difficulty of deciding in what way the capacity and responsibility of persons who labor under them is affected is very small. In relation to the kinds of disease which are only differentiated from condition of health by a scarcely perceptible tone or color of mental life, there is always exceeding difficulty in saying whether the mental disability is of such a nature as to entitle society to protection by the incarceration of the individual; or to entitle the individual to protection from those who might take advantage of his weakness or fury, or to protection from those penalties of the law which are designed to fall only on those who wilfully disobey its mandates. Thus it comes that the [48] legal relations of idiots need not occupy much attention. It almost follows, from what has been said, that an idiot labors under complete civil disability. The conveyances of idiots are void. An idiot cannot make a will. An idiot cannot contract marriage. Nor can an idiot be elected member of Parliament. It is, however, true that an idiot cannot appear in an action at law by attorney, and even when an attorney is employed for him, the idiot should be described as appear

3

It is somewhat curious that in the United States of America, while idiots are deprived of almost all their civil rights, they are, by the Constitution of several of the States, left in the enjoyment of the right to vote at elections.

But see Thompson v. Leach, Carth., 435.

1 Hale, P. C. 229; Bac. Abr. Idiot, a, 1; Beverley's Case, 4 Co. Rep., 124 b; Williams, Ex., 16; 4 Burns' Ecc. Law, 55; Ingram v. Wyatt, 1 Hagg. 384.

Roll. Ab., 357; 15 Geo. II., c. 30; Browning v. Rean, 2 Phillim. 90. See also Scotch Law, Fraser i., 48 and 226, Johnston v. Brown, Nov. 15, 1823, and Ferg. Rep., p. 229, Sullivan v. Sullivan, 2 Hagg., p. 246.

5 Com. Journ., 1625; Com. Dig. Parl. D. 9; Sheph. Elect.. 109.

ing in person, or by guardian, according to the nature of the case. An adult idiot can consent to carnal connection, and is not, as female children are, held incapable of giving consent.2

283. Irresponsibility of Idiots. We have seen that the same test of capacity is applicable to all kinds of disease, and that the same amount of capacity which will entitle a man to the enjoyment of civil privileges will also, in case of the commission of crime, subject him to punishment. If an idiot is deprived of the power of contract, of will-making, and the like, on the ground that he has no comprehension of the nature of these acts, that he cannot consent and cannot will, so he is to be held irresponsible for any crime he may perpetrate, on the ground that he did not know what he was doing, and did not know that he was doing what was morally wrong or forbidden by the law. The reason why idiots should not be held criminally responsible [49 for any act which they may commit is obvious. The law takes upon itself to punish crime because it is voluntary, intentional, and malicious. Whenever any act criminal in its nature is committed, the law presumes that the individual was acting wilfully, that the acts were done with some motive or intention, and that that motive or intention was malicious. Of course, any one of these presumptions is liable to be rebutted. By proof of duress, you rebut the presumption of the voluntary character of the act. By proof of fraud or imposition, the motive may be shown to be other than that which reading back, as it were, from the act in question would have been supposed. If, then, any of these presumptions be rebutted, the crime is disproved. It is quite evident that there is nothing in the character of the act itself which indicates its criminal nature. What in one case is called murder, and punished with death, is in another case called justifiable homicide, and rewarded by a money payment.

Now the proof of idiocy does, by a necessary inference, disprove the existence of will, as it is understood by us, and

Co. Litt. 135 b, 2 Saund. 212 n; Oulds v Sansom, 3 Taunt. 261. A lunatic may, however, appear by attorney, Beverley's Case, Humphreys v. Griffiths, 6 Mees. & W.

89.

2 Reg. v. Ryan, 2 Cox, Cr. Ca. 115.

of malice, or intention, as it is defined by law. And these presumptions, which exist in ordinary cases, having been rebutted, the criminal character of any act done by an idiot is disproved. It would be absurd to punish a man for a thing he did not do, either with a view of deterring him from a repetition of the act of which he was supposed to be guilty or of deterring others from the commission of a like offence. We do not punish a stone because it hurts a man by falling upon him. The lead that forms the bullet which shoots a man is not culpable. We only blame in relation to sentiency. And as a man who does not know what he is doing at a particular moment, or if his will with regard to the doing or not doing that particular thing is in abeyance, is not sentient in relation to that particular circumstance, therefore it would be ridiculous to blame him for it, or to punish him for what, in point of fact, he did not commit.

284. The Principles of Exemption from Punishment.It seems a fair conclusion to come to in reference to all these cases that, where approval can be vouchsafed, there also can punishment be, under the opposite circumstances, awarded. In the case of an idiot, it would be as absurd to feel a moral approbation upon the ground of any act, as it would be in the case of a steam-engine to indulge in the same feeling upon the ground of any of its motions. Their acts have no moral character.

The principles that enable men to take cognizance of crime at all are found in the fact that a certain uniformity exists in the mental conditions of all men. This uniformity, with its subject variety, is called the normal condition. It is calculated that all men shun pain; that the pursuit of pleasure is universal. And if any very large section of mankind were not so constituted as to be thus operated upon by pleasure and pain, the law would utterly fail with regard to them. It is true that every man follows a different pleasure--every man dreads a different pain. Some dread everything from the great unknown future; others dread everthing from the little present. Still the law is founded upon this principle, and its punishments are awarded upon this ground. But such a fact implies that those to whom an enactment ad

dresses itself possess a certain amount of knowledge. If a man does not possess sufficient experience to conduct the ordinary affairs of life, if he does not comprehend the most simple and ordinary propositions, then it would be absurd to expect him to be influenced by considerations which require for their comprehension a somewhat considerable mental power. To an idiot who does not gain any experience from having once fallen in the fire-who does not understand words-acts of parliament are not in existence. And to many imbeciles who have the power of speech, who have some powers of acquisition, the proposition that if they do something just now they will suffer something in the time to come, is utterly incomprehensible. It is upon these principles that the law, which is a great lathe upon which human conduct is to be shaped, in accordance with certain principles, regards idiots as irresponsible for their criminal acts. And it is only in the application of these principles to the cases in which mental defect is not very marked-cases in which the individual manifests considerable intelligence, and at the same time great intellectual weakness, that any difficulty arises. "The only proper object of hatred or vengeance,," says Hume, "is a person or creature endowed with thought and consciousness, and when any criminal or injurious actions excite the passion, it is only in relation to the person, or in connection with him. Actions are by their very nature temporary and perishing, and where they proceed n from a cause in the character and disposition of the person who performed them, they can neither redound to his honour if good, nor infamy if evil. The actions themselves may be blameable--they may be contrary to all the rules of morality and religion, but the person is not answerable for them, and as they proceeded from nothing in him that is durable and constant, and have nothing of that nature behind them, it is impossible he can, upon their account, become the object of punishment or vengeance." Now that is exactly the condition in which we find the idiot actually to be. He has no thought, no consciousness. It is not, in fact, he who did the deed. Shakespeare puts this admirably:

Inquiry concerning the Human Understanding, § 8.