The origin and development of the moral ideasWestermarck, Edward
Philosophy
The origin and development of the moral ideas
Westermarck, Edward
Ethics; Ethics -- History; Prehistoric peoples
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.
[Footnote 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,
{270} '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 [(]Abdssalam 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]
[Footnote 131: 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.]
[Footnote 132: _Digesta_, xxvii. 10. 6.]
[Footnote 133: Dobrizhoffer, _Account of the Abipones_, ii. 234.]
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