COMMENTS

raising the level of the river necessarily raises that of the tributary at their con-
juncture and as far upstream as the effects of the lifting may go. These facts
are equally apparent to both types of owners. We think they should be antici-
pated by both, and that the one has no more power to obstruct or burden the
power of Congress in its control of the river's bed in the interest of navigation
than the other."39
justice Douglas would apply the ordinary high water mark rule to that part
of the bed of the nonnavigable tributary that is affected by the raising of the
navigable stream to ordinary high water mark and thus allow "change in the
natural flow to the extent of lifting the mean level to high water mark without
liability for constitutional compensation."4o
The effect of the Kansas City decision is to shift from the individual riparian
owners to the government a greater burden of the costs of federal river projects.
It is arguable that this greater cost should be spread among all the national tax-
payers. On the other hand, it may be that the necessity for increasing Congres-
sional appropriations for such river developments induced Justices Black,
Douglas, Minton, and Reed to dissent. They argue that riparian owners on
navigable and non-navigable streams should be treated alike since "[n]either
has any greater right to have the river flow in its natural state than the other."4'
The present Court appears unwilling to adopt such a view of federal power and
restricts the doctrine of federal immunity to the area below the ordinary high
water mark on navigable streams.
If the doctrine of immunity against landowners within the bed of the navi-
gable stream was originally justified under the commerce clause,42 it would seem
that the same reasoning would grant this immunity on the tributaries of the
navigable stream. It is difficult to understand why the Court has balked.

LUNACY AND IDIOCY-THE OLD LAW

AND ITS INCUBUS
The law pertaining to the insane embodies a most peculiar paradox. On the
one hand, it is gradually being realized that our concept of "insanity" should
be revised and reworked in accordance with new psychological learning. On the
other hand, insanity as a defense in criminal trials, the field where the problem
is most acute, is used in a loose and unscientific manner, the test being phrased
in terms of "knowledge of right and wrong." This note will attempt to shed
some light on the causes of this situation by an examination of the origins and
early development of the legal doctrines relating to the insane.
The central distinction employed by the old law was between the "lunatic"
and the "idiot." The lunatic was subject to fits of madness, with lucid intervals
39 339 U.S. 799, 812 (195o). 40 Ibid., at 8x3. 4' Ibid., at 812.
4' Compare Leovy v. United States, 177 U.S. 621, 632 (1900).
 THE UNIVERSITY OF CHICAGO LAW REVIEW

in between. He was not congenitally insane. The idiot, on the other hand, was
born mentally deficient or disturbed. Apparently the idiot was classified more in
terms of mental equipment and intelligence than the lunatic, who was violently
insane rather than feeble-minded.
It is impossible to fix definitely the point in time when this distinction first
became meaningful; a good guess would be the i 3 th century, although the dis-
tinction was not clearly formulated at that time., At any rate, the classification
appears to have "set" by 1324, when the statute De PraerogativaRegis2 was
enacted. Here a clear and simple distinction is made between the lunatic and
the idiot, though not in those terms. The statute provided that the custody of
the lands of "natural fools" is to be vested in the king; the profits from the
land go to the king, except that he is to grant necessaries to the "natural fool,"
and after the fool's death, the land is to be returned to the "right heirs." On
the other hand, those "who formerly had memory and intellect but became
non compos mentis" are to be treated more gently. The king is to have their
custody, but he is not to take the profits for his own use.
Both economic and psychological factors may have entered into the statute.
The 14th century was a period of expansion of the royal power. The king de-
manded military and other modes of feudal service from the lords. The strength
of the lords was dangerous to the king, but it was also necessary. When a lord
was insane, it was necessary for the lands to be under the protection of someone.
If the king did not assume the power of guardianship over these lands, the
neighboring lords would take over. There is evidence that before the statute
De _PraerogativaRegis the lords exercised this function. But the lord was quite
likely not to return the land to the heirs of the insane lord; thus too much
power might be gathered into the hands of one lord. The assumption of this
power by the king served the valuable function of consolidating and strengthen-
ing his power. In this way, the custody over the lands of the insane is similar
to the right of the king over infant heirs ("wardship") and the right to dictate
or approve the marriage of female heirs of tenants in capite.
On the other hand, the reasons for this distinction between the idiot and the
lunatic cannot be readily explained on this basis. It might be suggested that
I Texts of the late i 3th century exhibit a bewildering multiplicity of terms for the insane.
Thus Britton, who wrote in 129o, during the reign of Edward I, speaks of lunatics, frenetics,
fools, those who become insane from some illness ("ceux qe deveignent fous par aucune
maladie"), madmen ("arrag~s") sots, and those who are "without sense." Britton *62b,
*88b, *9o , *x67, *217b, *279. The Mirror of Justices, dating from the same period, shows the
same tendency. Mirror, Bk. 2, cc. 2, 3, 27, 3o , Bk. 4, c. 16.
Despite the confusion and multiplicity of terms, these texts indicate a groping toward
the primary dual classification of "idiots" and "lunatics." The distinction is constantly made
between "born fools" and "raging madmen." In contrast, the Statute Modus Levandi Fines,
r8 Edw. I, stat. 4 (1290), speaks simply of those who are "de bone memorie," as contrasted
with those who are not. See also an entry in the Coram Rege Roll, no. 133, M. 22 (Trinity,
1292), using the terms fatuitas ("foolishness"); and Y.B. 8 Edw. IT, 24 (1314) ("noun seyne
memorie").
1 7 Edw. 2, cC. 9, 10 (1324).
 COMMENTS

the lunatic, by definition one who has "lost his memory and intellect" (and,
therefore, might regain it) is to be rendered back his property when he is again
able to manage it. The "lunatic" has historically been regarded as responding
to therapy, or at least, of being manageable. Thus, though the king may pocket
the profits of the lands of the idiot, the land of the lunatic is sacrosanct. The
"born fool" is simply lacking in the rudiments of intelligence.
Frances' Case,3 decided in the x6th century, shows how the doctrine has de-
veloped.4 The statute is quoted and followed, but there is an indication of ad-
vance and growth. For example, a clear indication is given of the mechanism of
discovering whether a suspected individual is an idiot or a lunatic or sane. In
Frances'Caseit can be noted also that whereas the statute De PraerogativaRegis
used "fatuus" for "idiot" and a circumlocution for "lunatic," the terms "idiot"
and "lunatic" are used quite clearly and explicitly here.
The commissions ("offices") mentioned in Frances' Case, which conducted
the inquiries into the sanity of individuals, were set into motion by two regular
chancery writs, the writ "de lunatico inquirendo" and the writ "de idiota in-
quirendo et examinando," of which a full and complete report appears in Fitz-
Herbert's NaturaBrevium, from the middle of the 16th century.5 Fitz-Herbert
also sets forth an interesting though rudimentary symptomatology:
And he who shall be said to be a Sot and Idiot from his birth, is such a Person who
cannot account or number twenty Pence, nor can tell who his Father or Mother is,
nor how old he is &c, so as it may appear that he hath no Understanding or Reason
what shall be for his Profit and what for his Loss: But if he hath such Understanding,
that he know and understand his Letters, & do read by Teaching or Information of
Another man, then it seemeth he is not a Sot nor a natural Idiot....
Note here that the "idiot" is defined in terms of intelligence. 6
An excerpt from the Middlesex Sessions Rolls 7 in the 17 th century indicates
the use of insanity as a defense in cases at criminal law. The notion appeared
3 Moore 4 (K.B., 1536), reprinted also in i And. 22, and Ben]. 17.
4 Where the early statute read "the king has the custody of the lands of natural fools,"
it is said in Frances' case that "the King seised himself of the lands and of the body ......
This is in line with the psychological position of the king as father-object in the medieval law,
since it could never have been more than fiction to suppose that the king actually troubled
himself with the guardianship of idiots. It was, of course, farmed out to specific individuals.
s Fitz-Herbert, Nat. Brev. *232-233; see also Darwin's Case, Ley 25, (K.B., 16io).
6 When it was desired to distinguish merely between the sane and the insane, and not be-
tween the lunatic and the idiot, a generic term covering both was used. In early texts the
term "de non sane memorie" was common. Y.B. 8 Edw. II, 24 (i3r4); Cross v. Andrews, Cro.
Eliz. 622 (K.B., 1598); see also statutes, i Rich. III, c. 7 (1483), and 23 Eliz., c. 3 (i581). Later
on the term non compos mentis replaced this. We first noted this expression in the statute
De Praerogativa Regis, c. io. See the interesting entry in the Middlesex Sessions Rolls, 22
James I, entry of 29 th July, 1625: "Anne Muskett late of the said parish spinster killed
and murdered Clement Harrison, a girl of the age of 8 years by seizing the said Clement with
both hands and throwing her 'in quoddam flumen vocatum the newe River.' Acquitting her
of murder, the jury found that she was a lunatic, and whilst 'non compos mentis' had
drowned the said Clement Harrison."
7Quoted in note 6 supra.
 THE UNIVERSITY OF CHICAGO LAW REVIEW

much earlier in the Mirror of Justices."There is very scant authority on this

point during the middle ages and renaissance apparently because the main
emphasis in lunacy law was fixed on the lunatic's and idiot's right to property.
There is dictum in Beverley's Casey that "the law of England is that [the insane]
shall not lose his life for felony or murder... because ...the punishment of a
man who is deprived of reason and understanding cannot be an example to
others.... No felony or murder can be committed without a felonious intent
or purpose ...and ... he cannot have a felonious intent. . .. "10
In general, the early years of the i 7 th century represent a turning point in
the English law of lunacy. Beverley's Case, perhaps the most important case
on the subject in Anglo-American jurisprudence, contains an analysis, exposi-
tion, and codification of the entire previous law of lunacy. Lord Coke here sets
up a fourfold classification of those who are non compos mentis (which he uses
as a generic term). There are lunatics, idiots, distracted persons (a term former-
ly included in the concept of the lunatic) and drunkards. The common charac-
teristic of the class is loss of control over the will.
Although the practical bases of Coke's classification began to dissolve very
soon,"' in theory Coke's classification remained the law of the land for several
8
Mirror, Bk. 4, c. x6, where it is stated that "a crime cannot be committed ...except
among [those with] a corrupt will, and corruption of will is impossible where there is no dis-
cretion." The author goes on to say that although "frenetics" and "lunatics" can sin feloni-
ously, this is not true of those who are continuously mad ("les continuellement arragez").
However, it hardly need be pointed out that as a legal authority, the Mirror is well-nigh the
most untrustworthy book ever written.
94 Co. *123b (K.B., 16o3).
xoCoke lays down a very interesting exception in the text: "non compos mentis cannot com-
mit petit treason.... But in some cases [he]... may commit high treason, as if he kills, or
offers to kill the King.... [The King's] person is so sacred that none can offer them any
violence." This doctrine is echoed also in Sheffield & Ratcliffe's Case, Godb. 3oo, 316 (K.B.,
624), reprinted also in 2 Rolles Rep. 344. Perhaps the source of this rule is to be found in the
statute 33 Hen. VIII, c. 2o (154i), which reads in part:
"Forasmuch as sometimes some persons being accused of high treason.., have fallen to
madness and lunacy whereby the condign punishment of their treasons, were they never so
notable and detestable, hath been deferred... ; and whether their madness or lunacy by them
outwardly shewed were of truth, or false contrived and counterfeited, it is a thing almost
impossible, certainly, to try and judge. Be it therefore enacted.., to avoid all sinister, coun-
terfeit, and false practices and imaginations that may be used for excuse of punishment of
high treason.., if any person commit high treason, when they were in good, whole, and per-
fect memory, and after their accusation, examination & confession thereof, shall happen to
fall into madness or lunacy... then the offender ... shall have such judgment and suffer
such pains of death.., as is commonly limited in cases of high treason and as if such person
had been of good and whole memory.. .."
Of course, Coke's dictum in Beverley's Case goes far beyond the statute, which deals only
with confessed traitors. Probably the symbolic nature of kingship entered into the question
here too. InTourson's Case, 8 Co. *17oa (K.B., r6ii) it is said that "the King has the custody
of an idiot, not in respect of any seigniory, but jure protectionissuae regis, because his subject is
not able to govern himself, nor the lands or tenements which he has," which is questionable
history, but very illuminating.
11Juries were unwilling to find that persons were idiots (and thus vest absolute power over
their estates in the king) and tended always to find them lunatics. See Prodgers v. Frazier, 3
 COMMENTS

centuries. 2 In an interesting little book written in 17oo at London by John

Brydall, entitled "Non Compos Mentis, or the Law relating to Natural Fools,
Mad-Folks, and Lunatick Persons, Inquisited and Explained for Common
Benefit," substantially the same classification is set out. Brydall accepts the
term "non compos mentis" as the generic term, and goes on to subdivide it
as follows:
Some whereof are become so by a perpetual Infirmity, as Idiots, or Fools Natural;
some, who were once of good and sound memory, but by the Visitation of God are de-
prived of it, as Persons ... Distracted; Some that have their lucid intervals... as
Lunatick Persons: and some who are made so by their own Default; as Persons over-
come with drink, who during the time of their Drunkenness are compared to Mad-
Folks.
Brydall's book is written as a series of questions and answers relating to the
law of non compos mentis. It is interesting to gage the emphasis placed on the
various types of legal problems arising in connection with the insane. As might
be expected, the book is concerned chiefly with problems involving the property
or custody of the insane, and only very secondarily with questions of testamen-
tary and contractual capacity, and criminal responsibility.
The Coke-Brydall fourfold division continued into the next century. Z3 Little,
however, was left of the old mechanism of the kingly prerogative. Instead, the
custom had long been for the king, by sign manual, at the beginning of his reign,
to direct the Chancellor, the Lord Keeper of the Seal of England, to take charge
of these matters. And cases invoking lunacy law were regularly treated in the
courts of equity.14
Mod. 43 (K.B., 1684) reported also in i Vern. 9, 137, 2 Show. 171, Skin. 4, r38, 177, where the
court twisted an inconsistent finding by the jury, obviously meant to convey a finding of lu-
nacy, into a findingof idiocy. In Ex parte Barnsley, 3 Atk. 168, 174 (Ch., i744),Lord Hardwicke
remarked that "the reason that Lord Wenman was so long before he could be found [non
compos mentis] ... was the unwillingness the jury had to find him an idiot, because of the
consequence, but upon an inquisition of lunacy, they found him a lunatick immediately .... "
By 1812, Collinson could say in his textbook on the law of lunacy (at p. ioo) that "a jury
seldom finds a person idiot a nativitate, but only non compos mentis [i.e., lunatic].... It is
moreover, observable that of those found idiots, the instances in modern times are very rare,
where the crown has claimed that interest in their property to which it is legally entitled."
2 See, for example, Foster v. Marchant, i Vern. 262 (Ch., 1684).
'3It appears almost verbatim in 2 Lilly's Register 284 (1735); see also the definition of the
lunatic and the idiot. Ibid., at 250,35. Interestingly enough, the crude "twenty-pence" sympto-
matology set up by Fitz-Herbert nearly two centuries before is still followed: the idiot "know-
eth not how to count or number twenty, or cannot name his Father or Mother, or such-like
easy and common Matters." Ibid., at 35-
'4An invaluable collection of these is to be found in i Eq. Cas. Abr. 276-79, collecting the
Chancery cases for the years 1667 to 1774, inclusive. The allegation found in the statement of
facts in Sheldon v. Aland, 3 P. Wins. io4-5 (Ch., 1731) is typical:
"King William and Queen Mary, by virtue of their undoubted prerogative, by their royal
sign manual directed to Sir John Sommers Knight then Lord Keeper of the great seal of
England, reciting, that the care of idiots and lunatics doth of right belong to the Crown, did
grant to the said Sir John Somers full power and authority ... to give orders and direction
 THE UNIVERSITY OF CHICAGO LAW REVIEW

This was, in general, the state of the law of lunacy up to the time of Black-
stone, which is a convenient breaking off point. In Blackstone we find almost
the last statement of the classical mode of classification:
An ideot or natural fool, is one that hath no understanding from his nativity; and
therefore is by law never likely to attain any.... [Tlhe custody of him and of his lands
[is].. . given to the king.... A lunatic or non compos mentis (sic) is one who hath had
understanding, but by disease, grief, or other accident hath lost the use of his reason. A
lunatic is indeed properly one that hath lucid intervals.... But under the general
name of non cowpos nentis ... are comprised not only lunatics, but persons under
frenzies; or who lose their intellects by disease... or such, in short, as are judged by
the court of chancery incapable of conducting their own affairs .... x5
It is apparent from this brief historical sketch that the old law, unlike some
modem psychological systems, defined non compos mnentis not in terms of an
analysis of personality adjustment, but largely in terms of memory and in-
tellect. Will was a function of the intellect, not of the "character," the "per-
sonality." The insane person was incapable of crime, because crime presup-
posed corruption of the will, but where there was no intellect, there was also
no will; and on this basis is explained incapacity to contract, to make a testa-
mentary disposition, and to marry. 6 Many of these legal disabilities are re-
tained in modem law; often vestiges of the old justifications hang on, as, for
example, the recital in modem wills that the testator was of "sound mind" (not,
as some might have it, of well-adjusted personality).
This hypothesis may be tested by a look at a largely neglected branch of
the law: that relating'to the deaf, dumb, and blind, and to various similarly
handicapped persons. These physical disabilities per se, of course, do not result
in what would today be called strict insanity, but in an age which did not know
lip-reading, or in an age in which the mute most likely did not know how to
write, and thus could not express himself at all, any distinction between the
insane and these physically handicapped individuals was academic, and, as a
matter of fact, was not likely to be made.

for preparing of grants for the custody or commitment of the estates or persons of lunatics
or idiots."
. The i8th century showed an increased interest in the problem of the comnmitment of the
insane. Feudal law was not concerned with the problem of the insane man who did not have
an estate. The pauper madman was a problem for the church, the lord of the manor, or any
other relevant social institution. With the growth of a proletariat, the problem had to be faced.
See the statute, 17 Geo. 2, cc. 5 and 29 (1744), and Lunatick Petitions, 2 Atk. 52 (Ch., 1740),
apparently referring to an earlier, similar act of Parliament, where it is said that "the act of
Parliament that empowers justices of peace to take care of lunaticks, upon complaint made to
them of any outrages committed, relates to vagrant lunaticks only... and does not extend to
persons who are of rank and condition in the world and whose relations can take care of them
properly, by applying to this court [Chancery] as is usual in cases of lunacy."
is i Bl. Comm. *3o2-4.
6 Note that a certain type of testament is denoted by that very word: a "will."
 COMMENTS

As early as Bracton (ca. 126o) we find the doctrine expressed that the deaf-
mute by birth cannot acquire property.' 7 Further disabilities are added by
Britton, at the end of the 13 th century. Both Bracton and Britton draw a dis-
tinction between the man who is born deaf and dumb and the man who becomes
so from disease or accident.' 8 This distinction is analogous to the distinction
drawn between the idiot ("a nativitate") and the lunatic. No explanation is
given for the rule. A good guess would be that it was suggested by the analogy
between the deaf-mute, who cannot express his will, and the insane, who have
no will.
The doctrine developed in Bracton and Britton reaches a state of codification
in Coke, who states that a man "deafe, dumbe and blind from his nativity"
may not enfeoffe, "but if he be deafe, dumbe or blind, so that he hath under-
standing, and sound memory, albeit he expresse his intention by signes" he
may enfeoffe.9 The distinction drawn is essentially that of Bracton and Britton.
However, the addition of the phrase "albeit he expresse his intention by signes,"
indicates that the doctrine was weakening in the face of an advancement in the
communicative powers of the handicapped. 2 The rule was coming to be that
if the incapacitated man could make a showing that he was not in reality unfit
for the management and understanding of his business, he was not automatical-
ly disqualified.
Blackstone, some 1o years after Coke, shows an even more decided change:
"A man who is born deaf, dumb, and blind, is looked upon by the law as in the
same state as an idiot.""1 The language would seem to indicate that the rule
of law was being reduced to the status of a rebuttable presumption."
It is clear from all the authorities that the coupling of the idiot and the
handicapped cannot be based on notions of personality structure; the terms
"memory" and "understanding" constantly reappear. And, when better meth-

X7Bracton *42ob.

,&"And so when one is naturally deaf and dumb, he cannot acquire [property], because
he cannot consent ....I say 'naturally,' that is, from birth." ("Naturaliter dico, hoc est a
nativitate") Bracton *42ob; Britton *88b, *217b, *279.
'9 Co. Litt. *42.
20Shepherd, in his Touchstone of Common Assurances, written in the same century as
Coke's work, says that "a man that is both deaf and dumb, and that is so by nature, cannot
make a testament.... But a man that is so by accident may, by writing or signs, make a
testament."
211 BL. Comm. *304.
- This process had started much before Blackstone. In Dickinson v. Blisset, i Dick. 268
(Ch., 1754), we read: "A party born deaf and dumb, attaining twenty-one applies for posses-
sion of her real estate, and to have an assignment of her chattel estate; Lord Hardwicke, C.,
having put questions to the party in writing, and she having given sensible answers thereto
in writing, the same was ordered." See Collinson on Lunacy § 7 (1812).
 THE UNIVERSITY OF CHICAGO LAW REVIEW

ods of communication, in particular lip-reading and Braille, appear, the doc-

trine dies. 23 The last case dealing with the subject was decided in J908.24
To sum up, the older law of lunacy showed two important characteristics
that helped shape it: (a) emphasis on questions of property rights rather than
capacity and criminal responsibility; and (b) the use of criteria based on no-
tions of "will" and "intellect" rather than on notions of personality. The nine-
teenth century shows a decisive shift of emphasis to the field of criminal re-
sponsibility. The modem learning on this subject owes most to M'Naglten's
Case,25 which was decided in 1843; and this has been followed by a spate of
cases developing the so-called "right-or-wrong" and "irresistible impulse" tests
for criminal responsibility. The "right-or-wrong" test, stated in its most simple
form, is that a "person is not criminally responsible for an offense if at the time
it is committed he is so mentally unsound as to lack: i. Knowledge that the act
is wrong."'26 Under the "irresistible impulse" test, a person is not responsible if
he lacks "will power enough to resist the impulse to commit it."127 These rules
have an archaic ring; they are concerned with "will," with "knowledge," with
intellect, in short. The result is that the old common law of insanity, developed
to provide a rough norm for deciding questions of the management of feudal
estates, still lingers on in the twentieth century to decide questions of life and
death in criminal trials. Where the question involved was the ability to manage
a feudal estate, the common-sense judgment of the jury as to the "insanity" or
"sanity" of the party was as precise and accurate as one might hope to get. To
use the same modes of thought and procedure in a modem criminal trial is to
undermine the principles underlying criminal responsibility.
23 The earliest American cases repeat the rule. Commonwealth v. Timothy Hill, 14 Mass.
207 (1817); Brown v. Brown, 3 Conn. 299 (i82o). In the Hill case the rule is treated more like a
rebuttable presumption. See, to this effect also, Chancellor Kent's opinion in Brower v.
Fisher, 4 Johns. Ch. (N.Y.) 441 (1820).
Christmas v. Mitchell, 38 N.C. 535, 541 (1845), questions whether the presumption even
remains in existence. The judge was much impressed by the "wonders worked in modern
time, in giving instruction" to the deaf and dumb. See also, by way of dictum, Potts v. House,
6 Ga. 324, 356 (1849), where the existence of the presumption is admitted, but its wisdom
challenged. The later cases generally agree that the presumption is a matter of history only.
Barnett v. Barnett, 5 4 N.C. 221 (1854). In Alleged Lunacy of Perrine, 4x N.J. Eq. 409, 5 AtI.
579 (i886), a deaf mute was held "incapable of managing his own affairs," but the court con-
ceded that a "person born deaf and dumb, but not blind, is not an idiot." There was sufficient
evidence of incompetency aside from the physical handicap to support the verdict in the case.
In Collins v. Trotter, 8i Mo. 275 (1883), it was said that deaf mutes were "pritnafacie in-
competent to make any contract," but this doctrine was expressly repudiated in the later
case of State v. Howard, 118 Mo. 127, 24 S.W. 41 (1893). Accord: Succession of M4lasie H6bert,
33 La. Ann. iogg (188i); State v. Weldon, 39 S.C. 318, 17 S.E. 688 (1893); Alex v. Matzke,
Ir Mich. 36, I5 N.W. 251 (19o8).
'4 Alex v. Matzke, 151 Mich. 36, 115 N.W. 251 (I908).

2S io Cl. & Fin. 200 (H.L., 1843).

26Weihofen, Insanity as a Defense in Criminal Law 15 (1933).
27 Ibid.