Talk:Dorothy Talbye trial

Comment on MA common law

The comment that there was no insanity defense for Dorothy contradicts the statement that Massachusettes law followed the English Common Law. Insanity was a defense for murder at English Common Law according to Lord Blackstone.

FIRST, it muft be committed by a perfon of found memory and difcretion: for a lunatic or infant, as was formerly obferved, are incapable of committing any crime; unlefs in fuch cafes where they fhew a confcioufnefs of doing wrong, and of courfe a difcretion, or difcernment, between good and evil.(sic)

Additionally, the assertion that the English Common Law was essentially biblical is not entirely accurate. English Common Law has at its basis the laws of Rome and pre-Roman England. It has been heavily influenced by Christianity, which includes not only the Bible, but also centuries of monks, bishops, popes, and emperors. For instance, the common law punishment of death for treason, rape, and arson does not follow "eye for an eye." A good source for the origin of The Common Law is "The Common Law" by Oliver Wendell Holmes. Legis Nuntius (talk) 00:40, 21 November 2007 (UTC)

Check the dates. I think you will find that came after 1639. Mattisse 00:43, 21 November 2007 (UTC)

As far as the biblical basis, you are free to supply superior references to support your point of view. Mattisse 00:45, 21 November 2007 (UTC)

The Common Law Latin term for insanity is non compos mentis, which is a clue to its age: ancient. The date of Blackstone's treatise in the 18th century is important not for its relation to 1639, but that it was before 1843, when the Common Law changed in the case of Daniel M'Naghten. The Common Law test for insanity from the Middle Ages was known as the "wild beast" test. Our record of this comes from Bracton who describes a madman facti infelicitas excuset; "The misfortune (infelix) of circumstances (factus) excuses (excusare)". After 1843, mental disability as to the appreciation of the wrongness of an action was sufficient in an insanity defense. Talbye did not meet the definition of insanity under the "wild beast" test and her initial confession might have failed her under the M'Naghten test 200 years later. Teddi DiCanio appears to be an artist and story teller from Salem Mass. His assertion that the insanity defense is of recent origin is off. Ignoratia legis non excusat.

You may compare the Latin of Bracton with the Latin of Emperor Justinian. The striking similarity between the two authors' descriptions of the origin of the law is no accident. The law of Rome influenced English law because England was a Roman colony. Take note that Justinian's Institutiones were based on the Institutiones of Gaius written in 161 AD, well before the Christianization of the empire. US Supreme Court Justice Oliver Wendell Holmes also speaks of the Roman, Saxon and Germanic origins of the Common Law in the link provided above. It is in the first lecture of "Early Forms of Liability" were Holmes finds Common Law principles in the Twelve Tables of 451 BC .

The current quoted source, Ann Jones, is from a scholar neither of law nor of Latin. I'm not exactly sure why she quoted the Bible in her work, but it is clear that she did not make the assertion "American colonial law regarding murder followed English common law, the basis of which was essentially biblical". On the other hand, the works of Chief Justice Holmes and Lord Blackstone both say the same thing: the Common Law arose out of the customs and laws of the ancient European tribes. It may be that Salem abandoned English Common law in favor of the Bible at some point, but this is not an example of a lack of recognition of an insanity defense at Common Law. Talbye did not fit the Common Law definition of insanity and it is questionable as to whether she would meet the modern definition. For a modern example of a clearly delusional yet convicted killer, see David Berkowitz. Legis Nuntius (talk) 06:53, 21 November 2007 (UTC)

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