A reassessment of common law protections for "idiots".

AuthorClemente, Michael
PositionContinuation of III. Reassessing Insanity Protections for Idiots through Conclusion, with footnotes, p. 2775-2803
  1. Idiocy, Lunacy, and the Range of Intellectual Disabilities

    The history of idiocy is inseparably paired with the history of lunacy. In fact, when idiocy is discussed at all, it is generally mentioned as a corollary to the primary subject of lunacy. The coupling of idiocy and lunacy is not a new phenomenon; its roots reach deep into the development of the two concepts. (167) Since the thirteenth century, idiocy and lunacy were consistently coupled and juxtaposed. (168) This interplay continued throughout the English common law and carried over to the North American colonies. (169) While theoretical expositions consistently distinguish between idiocy and lunacy, (170) the distinction often did not hold in practice. Because idiots and lunatics were often subsumed into the large category of "paupers," there are numerous instances of their conflation. (171) When this distinction was made in practice, there is little evidence regarding how it was made. (172)

    The primarily theoretical difference between idiocy and lunacy was the permanence of idiocy as contrasted with the intermittency of lunacy. (173) Other important characteristics of idiocy included: heightened dependence on others, (174) ineducability, (175) a lack of normalcy (176) or maturity, (177) and sometimes idiocy's congenital origins (178) and accompanying physical abnormalities. (179) Lunacy, however, was marked by its intermittent periods of "madness." These periods were compared to the permanent mental state of an idiot; however, there was often a heightened emphasis on the lunatic's "phrenzy." (180) If lunacy became permanent--as in cases of "chronic lunacy"--hardly any distinction remained between lunacy and idiocy. (181)

    Many of the earliest examples of the idiocy/lunacy distinction originate in property law. In the thirteenth century, pursuant to the Prerogativa Regis, the King had the right and duty to take the land of subjects who could not manage their property. (182) The Crown exercised this right by seizing an idiot's inherited land, providing him with his "necessaries," and then transferring the land to his heirs upon his death. (183) The practice was largely similar for lunatics; however, since their insanity was intermittent, the King only assumed custody of their land and diverted the profits to the lunatic. (184) Because the financial ramifications for a finding of idiocy were so much harsher than for a finding of lunacy, Blackstone notes that jurors sometimes found a landowning idiot to be a lunatic just to ensure that he received the profits of his land. (185) This general structure carried over to the North American colonies, and most surviving idiocy cases from the colonies revolved around property disputes. (186)

    Eighteenth-century colonial newspapers show that the general public was familiar with the property laws for idiots and lunatics. For instance, the Pennsylvania Gazette in 1773 reported a case where a fraudster married a wealthy "idiot" woman, apparently as part of a scheme to acquire her property. (187) In the article, the authors petitioned the colonial assembly to grant relief "in the same manner as a Committee of Lunaticks might or could do in England." (188) Other late-eighteenth-century newspaper accounts included jokes about idiots, (189) speculation about their chances in the afterlife, (190) and scandalous or lurid stories. (191)

    The distinction between idiocy and lunacy also existed in criminal law. Since idiocy was generally considered congenital and permanent, an idiot was protected from punishment throughout life. However, since lunacy was intermittent, these cases required additional investigation to determine whether the defendant acted under such a disability. (192) The idiocy/lunacy distinction may have been relevant because of heightened concern that defendants would feign lunacy. Because idiocy was congenital, and community members could testify to this fact, it was much more difficult to fake. (193)

    The general public was also aware of the criminal protections afforded idiots and lunatics. In 1788, Philadelphia's Independent Gazetteer reported a case of a man with "deranged understanding" who attacked people on several different occasions, broke windows, and spit in the face of a judge; however, he was consistently remanded to hospitals instead of criminally prosecuted. (194) Many colonial newspapers closely covered the 1786 acquittal of Margaret Nicholson, a non compos mentis woman who made an attempt on the life of King George III. (195) In 1789, Boston's Herald of Freedom relayed an account from London in which seventeen-year-old Eleanor Johnson committed suicide. (196) The paper reported that "an intimacy had fulfilled between the deceased and a black man, named Thomas Cato, a native of the East Indies, on whom she had fixed her affection ...," (197) After Cato "accused her of deceit," Johnson poisoned herself. (198) The report goes on: "When examined before the Jury, the Black appeared so ignorant and illiterate, that nothing could be collected from his evidence .... The Jury, after a very humane and attentive consideration, brought in their verdict, LUNACY." (199) These accounts show that the general colonial population was aware of idiocy protections and their English origins.

    There appear to be fewer idiocy criminal cases than lunacy criminal cases. Some speculate that this difference is due to a lower incidence of crime in the demographic of idiots. (200) Others note that idiots were more likely to be acquitted extrajudicially. (201) Because idiots were known by their communities as such, when they committed crimes, they were often remanded to an almshouse, hospital, jail, or the custody of their families. (202) As a general matter, it seems there was less penological interest in idiots than in lunatics. Idiots were largely viewed as followers who were easily persuaded by others into criminality; however, they were also easily apprehended. (203)

    In the colonies, idiots "blended into the general population unless they were apprehended for criminal behavior, and if the surviving records are any indication, few were brought before the courts." (204) Nonetheless, many colonies, similar to England, enacted statutes that explicitly exempted idiots from criminal punishment. For instance, the Colony of Rhode Island adopted a burglary provision holding that one who "in the night time do breake and enter into a Dwelling house with an intent to robb" is punished under a "Felonie of Death." (205) However, the provision "extends not to ... fooles, nor to madd men." (206) The terms "fool" and "natural fool" were common synonyms of the word "idiot" in the eighteenth century. (207) Other colonies enacted similar statutes protecting idiots from criminal punishment. (208) In addition, idiots and lunatics who committed suicide were not counted as felo de se (which was a property sanction levied against the estates of those who committed suicide). (209)

  2. Identifying Idiots: Community Reputation

    There are several hurdles in identifying the characteristics of eighteenth-century idiots. The colonial criminal statutes make no effort to explain who qualified for these protections. (210) Other legal sources offer similarly scant description. For instance, a review of law student notebooks from the colonies show that these criminal protections existed, but it does not explain the legal standard by which idiocy was determined. (211) However, the historical record is clear about one identifying factor: the probative role of an idiot's reputation in her community.

    Before the wave of institutionalization that swept England and the United States in the nineteenth century, idiocy was addressed on a local level by the idiot's family and community. (212) Since the community--not medical experts--was the locus of care for idiots, community members were the ones called on to testify at trials. Nigel Walker explains that the earliest insanity cases relied entirely on local knowledge: "Being local men, they knew--or thought they knew--who was born when and who was a lunatic or an idiot." (213) The "popular reputation" approach carried on throughout the eighteenth century and, to a lesser extent, into the nineteenth. (214) While many legal tests-such as Fitzherbert's --contained seemingly rigid language, there is little evidence that they were implemented in such an unforgiving manner. (215) When they were, it was either because the crime created a fierce political response, (216) or, in civil cases, when a powerful person wanted to dispossess another of his property. (217)

    Reports from the Old Bailey Courthouse in London provide illustrative examples of the community's probative role in eighteenth-century idiocy trials in England. (218) In 1767, Samuel Straham was indicted for bigamy because he married a second wife. (219) After Straham plead idiocy, the court heard testimony of witnesses who knew Straham. One said, "I have known [Straham] for sixteen years ... [and] count him no better than an ideot." (220) Another said that he "always took [Straham] to be a fool" and that he "does not know right from wrong." Following this testimony, he was acquitted. (221) In (1762), Ann Wildman was indicted for stealing. (222) Several witnesses "who had known [Wildman] some years" testified to her idiocy. (223) They said "she was a very weak, easy, foolish girl, next a kin to an idiot." (224) Without mention of any formal tests, this evidence was sufficient to acquit Wildman as an idiot. (225) Many other acquittal cases exist; likewise, they often make little effort to explain why the defendant was considered an idiot. (226)

    The Old Bailey accounts also contain instances where community witnesses were insufficient to secure an idiocy acquittal. For example, in 1748, Robert Miller was found guilty of stealing a linen handkerchief. (227) Community witnesses came forward to testify on Robert's behalf, including his employer and his...

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