Lucid Intervals III
Bill Long 11/20/05
The Law of Suicide; The Early Appearance of the Term
We have seen in the previous two essays that law has been sort of entranced by the "lucid interval" exception in sales/contract law, the law of wills and estates, and tort law. This essay shows how one further area of law, the law of homicide/suicide, finds the phrase useful. I conclude with references to its use as attested in the OED and then with the earliest attestation in English that I have found.
Blackstone's Treament of Homicide, 4.14
Blackstone's elegant writing style in his treatment of homicide is the subject of another essay. Suffice it to say for my purposes here that he lays out the threefold approach to homicide that has generally been followed by subsequent commentators: justifiable, excusable and felonious homicide. He divides his discussion of felonious homicide (the killing of a human creature without justification or excuse) into two categories: killing one's self or "another man." His treatment of "self-murder" as a crime fell into disuse in the early 20th century but here is what he says. Blackstone maintains that the person committing suicide is guilty of a double offense: against God ("invading the prerogative of the Almighty") and the king, who has an interest in the preservation of all his subjects.*
[*It is interesting that Blackstone doesn't mention that a suicide is a "crime" against the family or loved ones, even though they perhaps were financially and emotionally dependent on the person committing suicide.]
Blackstone says "The party must be of years of discretion, and in his senses, else it is not crime." But some juries have concluded, Blackstone says, that the mere fact of suicide demonstrates that one is insane and cannot be culpable of a crime. Blackstone, however, will have none of this.
"The law very rationally judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of discerning right from wrong; which is necessary, as was observed in a former chapter, to form a legal excuse. And therefore, if a real lunatic kills himself in a lucid interval, he is a felo de se as much as another man."
After considering these four areas of law that have something to say about "lucid intervals," I am not sure that I am in favor of lucidity. Seems like being lucid gets you into more trouble than if you just plead lunacy or imbecility, to use technical legal terms of a century or more ago.
The First Appearances of the Term
The Oxford English Dictionary, usually the source that ends the debate on issues of English word usage, actually helps but not considerably. Under the term "lucid," it has "3. lucid interval. Also in early use in med. L. form (pl.) lucida intervalla. a. A period of temporary sanity occurring between attacks of lunacy." Well, this comports with what we have learned so far. But it only takes us back to about 1600 for attestations. From 1603: "Sometimes shee [the moon] granteth to them [lunatics] Lucida intervalla." The OED goes on to give several attestations of "Lucid interval" over the next two hundred years, quoting Blackstone (a different passage) and other legal usages along the way. But two things disappoint me about the OED's attempt. First, it avoids mention of the most impressive 17th century work on melancholy, where you would have expected, and do, find an appearance of lucida intervalla. Second, it ignores completely a law from the days of Edward II where the term is used. One thing pleases, however. The OED suggests that the etymological sense of lucida intervalla comes from the appearance of the sunshine on a rainy day. Ah, now we can almost see it in our mind's eye. A "lucid interval," therefore, is like the sun which peeks out between the dark clouds between showers.*
[*The OED also points out that the phrase ‘non est compos mentis, sed gaudet lucidis intervallis’ ['he is not of sound mind but he delights in lucid intervals'] is common in English legal documents from the 13th to the 15th c.; so also in the med.L. commentators on Justinian's Institutes. But, alas, it provides no citations.]
Finishing with Two Examples
Burton's Anatomy of Melancholy (mid-17th century) is so copiously annotated, so long and rambling and so inconclusively written (is it simply a compilation of opinions of scholars going back to antiquity or is it a statement of Burton's approach to melancholy?) that it is very difficult to read. But in Member VIII of Section III of the Second Partition, he inquires about whether the melancholic disease is "either in habit or disposition, curable or incurable." He goes on:
"If inveterate, or a habit, yet they have lucida intervalla, sometimes well, and sometimes ill..."
But then I found the following statute passed under the reign of Edward II (1324).
"The Custody of Lands of Idiots. The King shall have the Custody of the Lands of natural Fools, taking the Profits of them without Waste or Destruction, and shall find them their Necessaries, of whose Fee soever the Lands be holden; and after the Death of such Idiots he shall render it to the right Heirs, so that such Idiots shall not align, nor their Heirs shall be disinherited." Prerogativa Regis, 1325, 17 Edw. 2, ch. 9.
Then, with this as background, we have the following section:
"Of Lands of Lunatics. Also the King shall provide, when any (that before time hath had his Wit and Memory) happen to fail of his Wit, as there are many per lucida intervalla that their Lands and Tenements shall be safely kept without Waste and Destruction, and that they and their Household shall live and be maintained competently with the Profits of the same, and the Residue besides their Sustenation shall be kept to their Use, to be delivered unto them when they come to right Mind; so that such Lands and Tenements shall in no wise be aliened; and the King shall take nothing to his own Use. And if the Party die in such estate, then the Residue shall be distributed for his soul by the Advice of the Ordinary" 17 Edw. 2, ch. 10.
Actually, if you read the statute closely, you can see that it is a fairly merciful one, with the King not "cashing in" on the unfortunate mental condition of one of his subjects.
This concludes our trip into the byways of "lucid intervals."
Copyright © 2004-2007 William R. Long