The history of Anglo-American attitudes regarding the criminal responsibility of the insane is characterized by a resonance between the wish t o punish and the wish to protect and treat. The present state of the legal machinery for dealing with the insane is, on almost all levels, a source of dissatisfaction, confusion and controversy. I propose to review the history of our present laws, with the belief that a more thorough understanding of their historical vicissitudes may allow for a stabilizing influence on future legal changes and will highlight the problems requiring attention from behavioral scientists.
Anglo-American law is largely rooted in the Judaic-Christian traditions and principles. Jewish law, stemming from the time of Moses, was traditional and verbal. It was first written about the second century b y the scholar known as "Rabbi" or Judah the Prince. Throughout the Mishnah, as this body of law is called, there is a consistent grouping of the imbecile (insane), the minor and the deaf-mute.' "It is an ill thing to knock against a deaf-mute, an imbecile, or a minor: He that wounds them is culpable, but if they wound others they are not culpable.2 . . . For with them only the act is of consequence while the intention is of no con-~equence."~ This reference to the intention behind the act relates to the earliest biblical reference t o the principle determining our current legal irresponsibility of the insane. "And this is the case of the manslayer . . . whoso killeth his neighbor unawares, and hated him not in time past; as when a man goeth into the forest with his neighbor t o hew wood . . . [and accidentally kills him] . . . he is not worthy of death inasmuch as he hated him not in time p a ~t . " ~ Thus the biblical injunction is that the absence of malice or intent exempts the "manslayer" from criminal punishment. Another biblical reference that would seem to relate to this, although not mentioned in discussions of the problem, are the words uttered by Jesus, "Forgive them, Father, for they know not what they d ~. " ~ Few outside the legal profession realize that there is more than one body of law relating to crime. Statutory law is that law which is legislated by governmental bodies, while the common law is the "unwritten law of England, administered by the King's courts, based on ancient and universal usage, and embodied in the com-