if an Action upon this be sued against him he hath nothing to plead for himself or to help him but to say that he was not of Sane Memorie at the time of such Discent c. And he shall not be received to say this for that no Man of full Age shall be received in any Plea by the Law to disable his own Person IX QUERY What kind of Privies can disable him who was deprived of the use of Reason and Understanding Or By whom and what Acts done by a Mad-man or one out of his Wits can be avoided SOLUTION It is to be known That the Disability to disable one's self as to some Persons is personal and extendeth only 4 Co. f. 124. a. Beverley's Case of Non compos mentis to the Party himself and as to other Persons is not personal but shall bind them also And as to that it is to be observed that there are four manner of Privities sc. Privity in Blood as Heir 2. Privity in Representation as Executors or Administrators who as Mr. Littleton Sect. 337. Littleton saith represent the Person of the Testator or Intestate 2 Mar. Dyer 112. Acc. 3. Privity in Estate as Donee in Tail the Reversion or Remainder in Fee c. 4. Privity in Tenure as Lord by Escheat and two of which are Privies only may disable him who was Non compos mentis and avoid his Deeds Grants and Feoffments and two not For Privies in Blood may shew the disability of the Ancestor and Privies in Representation the Infirmity of the Testator or Intestate But neither Privy in Estate nor Privy in Tenure shall so do And therefore if Donee in Tail being Non compos mentis maketh a Feoffment in Fee and dieth without Issue he in the Reversion or Remainder shall not enter or take advantage of the Non sane Memorie of the Donee The same Law of Lord by Escheat if his Tenant being Non compos mentis maketh a Feoffment in Fee and dieth without Heir he shall not avoid it But there are some Acts done by a Man of Non compos mentis which none of them shall avoid and therefore if a Furor Man levieth a Fine suffereth a Recovery or acknowledgeth a Statute or Recognisance neither his Heirs nor his Executors shall avoid it for these are Matters of Record which shall not be avoided by a bare Averment of Non compos mentis for the Inconvenience which may ensue thereupon Also such Averment is against the Office and Dignity of the Judge 18 E. 2. Fines 120. 17 Ass. Pl. 17. For he ought not to take any Conusance of a Fine or Recognisance of him who is Non compos mentis X. QUERY Whether a Man distracted or out of his Wits be relievable in a Court of Equity to avoid a Deed made by himself SOLUTION A. bound himself in a Bond of 1000 l. to B. and this Bond being sued against him he exhibited a Bill in the Court of Requests to be relieved against the same and 4 Co. f. 124. a. Beverley's Case set forth in his Bill that aâ—… the time of the entring into the said Bond he was Noâ—… compos mentis and whether in this Case a Prohibition should be awarded was the Question And in this Case it was resolved That the same being against an express Maxim of the Common Law That the Party shall noâ—… disable himself that he shall not have Relief in any Court of Equity for that shall be in Subversion of a Principle and Ground in Law For the maintaining of this same Principle I will subjoin a Judgment given by the Judges of the King's Bench in the Case of an Action of Debt upon an Obligation and it was thus Debt upon an Obligation The Defendant pleads That at the time of the Obligation made he was Dâ—… Cro. El. f. 398. Pl. 4. Stroud v. Marshal non sane memorie And iâ—… was thereupon demurreâ—… and adjudged to be no Plea For he cannot save himself by such a Plea and the Opinion of Fitzherbert held to be no Law Wherefore it was adjudged for the Plaintiff XI QUERY Whether this Maxim That the Party cannot disable himself shall hold good in Criminal Causes as Felony Murder and Petit Treason SOLUTION The Judges in Beverley's Case do affirm That a Man who is deprived of the use of Reason and Understanding shall not lose his Life for Felony or Murder because the Punishment of a Felon is so grievous sc. 1. To lose his Life 2. To lose his Life in such odious manner sc. By Hanging for he shall be hanged between Heaven and Earth as unworthy of both 3. He shall lose his Blood as to his Ancestry For he is a Son of the Earth without any Ancestor and as to his Posterity also for his Blood is corrupt and he hath neither Heir nor Posterity 4. His Lands 5. His Goods And in such Case the King shall have Annum diem vastum to the intent his Wife and Children shall be cast out his Houses pulled down his Trees eradicated and overthrown his Meadows ploughed up and all that he hath for Comfort Delight or Sustenance wasted and destroyed because that he in such felonious manner offended against the Law and all that was Ut poena ad paucos metus ad omnes perveniat But the Punishment of a Man who is deprived of Reason and Understanding cannot be an Example to others Secondly No Felony or Murder can be committed without a Felonious Intent or Purpose * 21 H. 7. 31. 26 Ass. 27 F. N. B. 202. Stamford's Plea of the Crown 16. 8. c. 9. But Furiosus non intelligit quid agit animo Ratione caret non multum distat a Brutis as †Bracton lib. 5. Tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 6. c. 40. nu 1. Bracton saith and therefore he cannot have a Felonious Intent Also for the same Reason Non compos mentis cannot commit Petit Treason As if a Woman Non compos mentis kill her Husband as appeareth 12 H. 3. Forfeiture 33. Vide Stamford f. 45. Kitchin 56. Tit. Forfeiture Edit 1651. Sir Edward Coke tells us That this Maxim That the Party shall not disable himself holdeth only in Civil Comment on Littleton § 405. f. 247. b. Causes but not in Criminal Causes as Felony c. Foâ—… in such the Act and Wrong of a Mad-man shall not be imputed to him because in those Causes Actus non facâ—… Reum nisi mens sit rea and Note The Mirror of Iustices says That King Alfred hanged Cole for giving Sentence of Death on one Ive when he was mad and distracted in his Wits c. 5. § 1. p. 297. Edit 1642. he is Amens i. e. 〈◊〉 mente without his Mind 〈◊〉 Discretion and Furiosus solâ—… furore punitur a Mad-man 〈◊〉 only punishd by his Madness Add hereunto what Plouden and the Author in his Exposition of the Terms of Law
and Lunatick Persons Dr. Godolphin in his Tract entituled The Orphan's Legacy Part 1. c. 8. nu 2. Instit. 2. 12. 1. c. 6. 22. 9. II. QUERY Whether a Testament can be made by a Lunatick Person betwixt his Fits SOLUTION If a Lunatick Person hath clear or calm Intermissions then during the time of Swinburn Part 2. § 3. Orphan's Legacy Part 1. Chapter 8. such their Quietness and Freedom of Mind he may make his Testament appointing an Executor and disposing of his Goods at his pleasure So that neither the Furor or Madness going before nor following the making of the Testament doth hinder the same Testament begun and finished in the mean time The Lawyer Caius saith thus Hi qui furiosi id est mente insani fuerint non possunt facere testamenta Lib. 2. tit 2. de Testamentis Sed hii qui insani sunt Si intervalla ipsius insaniae habent per intervalla quibus sani sunt possunt facere testamenta The Emperor Iustinian speaks in this manner both in his Institutes and in his Code Furiosi si per id tempus fecerint testamentum quo furor eorum intermissus est jure testati esse videntur Instit. 2. 12. 1. Sancimus tale Testamentum hominis qui in ipso actu Testamenti adversa valetudine tentus est pro nihilo esse Si vero voluerit in dilucidis intervallis aliquod condere Testamentum vel ultimam voluntatem hoc sana mente inceperit facere consummaverit nullo tali morbo interveniente stare Testamentum sive quamcunque ultimam voluntatem censemus c. c. 6. 22. 9. III. QUERY If a Testament be made by a Lunatick Person and the time of the making unknown whether this Testament be good or no SOLUTION If a Lunatick Person or one that is besides himself at some times but not continually make his Testament and it is not known whether the same were made whilst he was of sound Mind and Memory or no then in case the Testament be so conceived as thereby no Argument of Frenzy or Folly can be gathered it is to be presum'd that the same was made Vasq. de Success progress lib. 1. § 9. n. 90. during the time of his Calm and clear Intermissions and so the Testament shall be adjudged for a good Testament Yea altho' it cannot be proved that the Testator useth to have any clear and quiet Intermissions at all yet nevertheless 't is supposed that if the Testament be wisely and orderly framed the same ought to be accepted for a lawful Testament But if in the Testament there be a mixture of Wisdom and Folly 't is presumed that the same was made Angel in L. Furiosum c. qui Testa fac poss during the Testator's Frenzy insomuch that if there be one word sounding to Folly it is presum'd that the Testator was not of sound Mind and Memory when he made the same And therefore Idem Angel in eadem L. Furiosum in this Case is the Testament void unless it may be proved that there was Intermission of Furor the same time Swinburn in his Treatise of Testaments and Last Wills Part 2. Sect. 3. f. 38. b. 39. a. Edit 1590. IV. QUERY Whether the Dying seised of a Bastard Eigne without Interruption shall bar the Right of a Mulier Puisne that is a Mad-man or a Lunatick SOLUTION According to some If a Man be seized of Land and hath Issue two Sons Bastard 8 Co. f. 101. Lechford's Case Eigne and Mulier Puisne and the Father dieth seised the Mulier being beyond Sea or within Age or Imprisoned or Non sanae Memoriae and the Bastard Eigne entreth and continueth in peaceable possession of the Lands and hath Issue and dieth and the Lands descend to his Issue the Right of the Mulier in all the said Cases is bound for ever And others hold the contrary V. QUERY Whether a Lunatick can be prejudiced by Laches of suing Livery SOLUTION Sir Ralph Burcher being seised of divers Mannors in the County of York holden in Hobart's Rep. f. 137. Burchers Case Chief died seised Anno 40 Eliz. and the same descended to William Burcher presently after his Death it Lunatick sueth not Livery no mean Rates run against him was found by Office before Commissioners in the County of Middlesex that the said William Burcher was a Lunatick and so had been long before the Death of his Father and that he was seised of the said Mannors and the Queen granted the Custody of him and his Lands to Sir Francis Barrington After which 42 Eliz. there was an Office found in the County of York of the Seisin of Sir Ralph his Death and Heir ut supra and that he was of full Age And it was resolved That the King And Livery was due to him and the Law presumes that he would have sued it being for his Benefit if he had been Compos mentis was not to have any mean Rates in this Case for default of Livery sued or tendred because no Lachess could be imputed unto the Heir being Lunatick before and ever since the Death of his Ancestors and the Lachess of his Friends shall not hurt him otherwise it were if at any time he had been Sanae Memoriae since the Death of his Ancestors And there was shewed unto the Judges the like Decree made Mich. 10 Iac. in the Cause of one Vaughan which the Attorney of the Court of Wards said was made as a Decree of Equity but they resolved also it was a good Decree in Law upon the Reason aforesaid not because the King had seised and committed by force of the Lunacy for that would have changed with the King 's better Estate for it is better for the King to hold for default of Livery than for Lunacy VI. QUERY Whether a Lunatick be punishable for hurting a Man SOLUTION If a Lunatick kill a Man this is no Felony because Felony must be done Animo Hobart's Reports f. 134. Weaver v. Ward Felonico yet in Trespass which tends only to give Damages according to Hurt or Loss it is not so And therefore if a Lunatick hurt a Man he shall be answerable in Trespass and therefore no Man shall be excused in Trespass for this is the Nature of an Excuse and not of a Justification prout ei bene licuit except it may be judged utterly without his fault VII QUERY Whether a Devise by a Lunatick be aided by the Statute of 43 Eliz. Of charitable Uses SOLUTION Collison 15 H. 8. devised Hobart's Rep. 136. Collison's Case an House in Eltham in Kent to Lettice his Wife for Life and after her Death made one Iohn Bricket and others Feoffees as he called them in the said House to keep it in Reparations and to bestow the rest of the Profits upon the Reparation of certain High-ways there Collison and his Wife are dead and the House is descended to one Oliver Rolt an
NON COMPOS MENTIS OR THE LAW RELATING TO NATURAL FOOLS MAD-FOLKS and LUNATICK PERSONS Inquisited and Explained for Common Benefit By IOHN BRYDALL Esq of LINCOLN'S-INN SENECA Lib. XIV Epistolarum Epist. 94. Siquis furioso praecepta det quomodo loqui debeat quomodo procedere quomodo in publico se gerere quomodo in privatoâ—…â—…it ipso quem monebit insanior LONDON Printed by the Assigns of Richard and Edward Atkins Esquires for Isaac Cleave at the Star next Serjeants-Inn in Chancery-Lane 1700. THE AUTHOR TO THE READER SEeing there have been exposed to Publick View a couple of Tracts the one entituled The Woman's Lawyer and the other stiled The Infant 's Lawyer I have been induced to 〈◊〉 a Publication of this perexiguous â—…iece and have named it The Law of Non Compos Mentis It being no other than a Collection methodically digested of such Laws with the Cases Opinions and Resolutions of our common Law Sages as do properly concern the Rights of all such as are wholly destitute of Reason 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 deprived of it as Persons in a high Degree Distracted Some that have their lucid Intervals sometimes in their Wits sometimes out as Lunatick Persons And some who are made so by their own Default as Persons overcome with Drink who during the time of their Drunkenness are compared to Mad-Folks All which Sorts of Non Compos Mentis are the Subject Matter of the ensuing Sheets I shall no longer detain the Reader from the perusal of them than by tendering him the good Advice given by an ingenious Author touching Witless Persons which is as follows Take no Pleasure in the Folly of an Idiot nor in the Fancy of a Lunatick nor in the Frenzy of a Drunkard make them the Object of thy Pity not of thy Pastime When thou beholdest them behold how thou art beholding to Him that suffered thee not to be like them This wholsome Counsel of his to embrace will be look'd on as an Act of Prudence But to reject it will be such a piece of Folly as will undoubtedly bring him that shall be guilty of it under the hard Sentence of our old English Proverb Let him be begg'd for a Fool. A TABLE OF THE QUERIES RELATING First To IDIOTS 1. IF the King commit the Body or Estate of an Idiot to J. S. to do with him as he pleases whether this Grant be good 26 2. Whether the King shall have the Mean Profits from the time of the first Seisure of the Idiot or from the time of the Office found 27 3. At what time was the Prerogative in the Custody of Idiots Lands conferred on the Crown during the Life of an Idiot or Natural Fool 29 4. Whether the Ter-Tenant shall be allowed to Traverse an Office of Idiocy upon a Scire Facias brought against him by the King 32 5. Whether there be any Diversity in the Case of the King to answer either to the Tenure or the Possession 32 6. Whether an Idiot or Fool Natural can be bound by the Sale of his Goods in Market Overt 33 7. Whether a Stranger may tender Money in Performance of a Condition to save the Estate of an Idiot 33 8. If an Idiot should make his Testament wisely and reasonably to the Shew whether this Testament of his be good or not 34 9. If an Idiot above the Age of 21 Years makes a Feoffment in Fee of his Inheritance how and in what manner that Feoffment may be avoided during his Life 39 10. A Fine levied by an Idiot what it operates 40 11. A Fine levied by J. S. Uncle of an Idiot who was seised of an Inheritance the said J. S. dying in the Life of H. the Idiot whether this Fine so levied can bar the Grand-Child of J. S. 42 12. Whether the Custody of an Idiot holding by Copy of Court-Roll belongs to the King by his Prerogative or to the Lord of the Copyhold Mannor 44 13. Whether there be any Difference between an Estate made in Person or by Attorney as to an Idiot or any other Non Compos Mentis 45 14. A Man dies seised of Land his Heir being an Idiot and before Office he levies a Fine whether the King shall have the Custody of the Lands or not 47 15. Idiots in the Custody of the Prince whether such Custody can be devised by the Testator 47 16. Idiocy whether in any Case triable in the Ecclesiastical Court 48 17. An Executor having obtained Iudgment in an Accompt and having the Defendant in Execution for Arrearages and the Testament being afterwards annulled for Idiocy in the Testator whether the Testament being disapproved an Audita Querela will lie for the Defendant 49 18. Whether an Attornment made to a Grant by an Idiot or other Non Compos Mentis can be good in Law 50 19. Whether an Inquisition shall bind an Idiot without an Examination by the Council 51 20. No Possessions in Lands descending to an Idiot but only a Right whether the King can enter and have the Custody of it 51 Secondly To Persons Furious or Distracted 1. WHether Madness or Insanity of Mind ought to be proved by him that objecteth the same 66 2. Madness before the making of a Testament whether it can be presumed to continue 67 3. Furor or Madness whether hard to be proved 68 4. Madness whether it may be proved by singular Witness 69 5. Whether the Grant of a Copyhold Estate made by the Lord of the Copyhold Mannor that is a Mad-man can be good in Law 69 6. A Mad-man being seised of Land and granting a Rent-Charge out of this same Land dies his Heir entring and the Grantee distraining for Rent-Arrears whether the Heir may bring an Action of Trespass 70 7. A Man of Sane Memorie seised of Land makes a Feoffment and after when he is besides himself or distracted makes a Letter of Attorney for Livery of Seisin which is executed accordingly the Feoffor dies whether the Heir may lawfully enter upon the Feoffee 71 8. Whether the Entry of the Heir of a Furor Man be lawful maugre a Descent had in the Life of his Ancestors 71 9. What kind of Privies can disable him who was deprived of the Use of Reason and Understanding Or by whom and what Acts done by a Mad-man can â—…e avoided 72 10. Whether a Man Distracted or out of his Wits be relievable in a Court of Equity to avoid a Deed made by himself 73 11. Whether this Maxim That the Party cannot disable himself shall hold good in Criminal Causes as Felony Murther and Petit Treason 74 12. If a Man while he is Non Compos Mentis destroys himself whether he can be said to be Felo de se 78 13. Whether he that is Non Compos Mentis and totally deprived of all Compassings and Imaginations can commit High-Treason
and it shall be a good Plea or Exception to the Demandant or Plaintiff's Suit or Action Fleta lib. 2. cap. 54. numb 3. p. 116. and lib. 6. cap. 38. numb 1. p. 431. and cap. 40. numb 1. p. 434. Bracton lib. 5. tract 5. cap. 20. numb numb 1. f. 420. b. Mirror des Iustices cap. 2. sect 3. s. 117. XIII REMARK There is required in them who contract Matrimony a sound and whole Mind to consent for he that is either an Ideot or Madman without intermission of Fury cannot Marry The Womans Lawyer lib. 2. sect 10. p. 57. Edit 1632. This Consent saith Amesius must be voluntary and free else it 's not esteemed a humane consent and hence the consent of such as have not the use of Reason is no force to such a Contract Lib. 5. cap. 35. Qu. 4. XIV REMARK A Man that is Deaf and Dumb and yet hath Understanding may Attorn by signs but one that is Non compos mentis as an Idiot cannot attorn for that he hath no understanding cannot agree to the Grant Co. Lit. f. 315. a. 26 E 3. 63. 18 E. 3. 53. 6 Co. f. 69. a. Sir Moyle Finch's Case XV. REMARK Minoribus acquiruntur possessiones naturaliter fatuis furiosis per Tutores inde aliter vero minime eo quod intellectum recipiendi non habent nec retinendi Curatores autem sanum intellectum oportet habere quia si minorem fatuum a Nativitate vel furiosum miseris ut possideas nequaquam videris per eos possessionem apprehendisse quia intellectum non habent Fleta lib. 3. c. 15. nu 1 4. p. 203. VdeBracton lib. 2. c. 18. nu 6. f. 43. b. XVI REMARK It appears in the old Books of Law that it was expedient that Ideots should have a Curator or Tutor or one that should take the charge of their Persons Lands and Goods which Office since Bracton lib. 5. tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 1. c. 11. nu 10. Cowel's Institutes lib. 1. tit 23. sect 1. de Curatoribus is devolved to the King and made parcel of his Prerogative 17 E. 2. cap. 9. As Fitzherbert very well saith in his Natura Brevium The King is the Protector of all his Subjects their Goods Lands and Tenements and therefore of such as cannot govern themselves Stamford Sur Praerog Regis cap. 9. Britton c. 66. f. 167. b. Sir Thomas Smith's Common-weath lib. 2. c. 4. p. 98. Eng. Edit 1640. XVII REMARK The King having the custody of the Persons and Estates of Idiots can let to Farm rendring Rent all the Possessions of a Fool natural but not that which he hath Title unto or Action And therefore upon an Office finding that the Idiot's Ancestors died seized of an Estate Tail it is sufficient to Traverse the dying seized for that only entituleth the King 31 E. 3. Saver de Fault 37. 1 H. 7. 24. Finch's Law lib. 2. c. 2. XVIII REMARK By the Common Law the King shall have as great protection of the Goods and Chattels of an Idiot as of his Lands and that as well the scattering of his Goods 4 Co. f. 128. Beverly's Case and Chattels as the Alienation of his Lands is to be remedied and redressed by the King to whom the Law hath given the Protection and Custody of him XIX REMARK As after Office found an Idiot cannot Alien Give c. So Alienations Gifts c. made before Office found shall be avoided after Office thereof found for no Latches shall be found in the King nor any prejudice thereby shall accrue to the Idiot for not suing the Office before the Feoffment of Gift 4 Co. f. 428. Beverley's Case XX. REMARK If the Idiot dies before Office found after his Death no Office can be found for the words of the Writ are Et ipsum viis modis quibus super statu suo melius poteritis informari circumspecte examinaretis c. which cannot be done when he is dead and without Office the King cannot be entituled 16 E. 3. Livery 30. 4 Co. f. 128. Beverley's Case XXI REMARK When the King is informed that one who hath Lands and Tenements and is a natural Fool from his Birth the King may award his Writ called Idiota inquirendo vel examinando which directed to the Escheator or Sheriff of any County where the King hath information or understanding that there is an Idiot naturally so Born so weak of Understanding that he cannot govern or manage his Inheritance to call before him the Party suspected of Idiocy and examine him and also to inquire by the Oaths of twelve Men whether he be sufficiently witted to disposâ—… 〈◊〉 his own Lands with discretion or not and to certifie accordingly into the Chancery for the King as hath been said before hath the Protection of his Subjects and by his Prerogative the Government of their Lands and Substance that are naturally defective in their own discretion Doctor Cowel's Interpreter Brevia de inquirendo de Idiota tit Idiota inquirendo c. Minshew's Guide to the Tongues 373. Note The several Forms of the Writs in Latine directed either to the Escheator or the Sheriff are to be seen in the Register Orig. f. 266. a. b. XXII REMARK When a Man is found an Idiot from his Birth by Office he who is so found Idiot falsely as he supposeth may come personally into The manner how he that is falsely found to be an Idiot shall avoid the Office Chancery before the Chancellor and pray that before him and the Justices and Sages of the Law which he shall call to him and are called the King's Council he may be examined if he be an Idiot or not or by his Friends he may sue forth a a The Writ De Idiota coram consilio ducendo ad examinandum Reg. Orig. f. 267. Writ out of the Chancery returnable in the Chancery ibidem coram nobis consilio nostro examinand And if he be found upon examination that he is no Idiot the Offic found thereof and all the Examinations which hath been made by force of the Writ or the King's Commission is utterly void without any Traverse or Monstrans de droit or other Suit as appeareth by the Register Orig. f. 267. and F. N. B. 233. vide 15 E. 3. in Fitz. Tit. Livery 306. 9 Co. f. 31. The Case of the Abbot of Strâ—…ta Marcella Stamford super Praerog c. 9. f. 34. a. 36â—… Edit 1567. XXIII REMARK If a Scire Facias be awarded against the Feoffee of an Idiot and the Feoffee appearing upon the Scire Facias may traverse the Idiocy as appears he did in the Book of 18 E. 3. XXIV REMARK The Law gave the King but the Custody of the Lands of-the Idiot and altho' the same continued during the Life of the Idiot yet having but the Custody the King hath not the Freehold or Fee but the Freehold is in the Idiot For the
Statute of Praerogativa Regis c. 9. saith Quod post mortem eorum reddet ea rectis Haeredibus That after the Death of such Idiots he shall render it to the right Heirs 17 E. 3. 11. 13 E. 3. Saver Default 37. 4 Co. f. 126. b. Beverley's Case Stamford Super Praerog c. 9. is of the same Opinion Tho' the King saith he has the possession during the Idiot's Life yet the King hath 1 H. 7. 15. not the Freehold thereby but only a bare Custody for the Freehold remains in the Heir XXV REMARK The King ought not to seize an Idiot's Lands until such time as he is found an Idiot by Office Stamford Super Praerog Regis c. 9. XXVI REMARK The Office when a Person is found to be an Idiot shall have relation a Nativitate to avoid all mean Acts done by him that is to say Feoffments Releases or the like Fitzherbert and Stamford Super Praerog c. 9. XXVII REMARK Altho' the Statute of Praerogativa Regis c. 9. saith Custodiam Terrarum yet the King shall have as well the Custody of the Body and of the Goods and Chattels of Idiots as of their Consillo Opera Curatoris tueri debet non solum Patrimonium sed corpus salus furiosâ—…seu fatui D. 25. 10. 7. Lands and other Hereditaments as well those which they have by Purchase as those which they have as Heirs by the Common Law 4 Coke f. 127. a. Beverley's Case XXVIII REMARK The Person by the Statute ought to be an Idiot a Nativitate sc. Fatuus Naturalis and not by Accident or Infirmity For if he were once Wise and became a Fool by Misfortune the King shall not have the Custody of him 18 E. 3. Fitz. Tit. Scire Facias Pl. 10. Fitzherbert's Natura Brevium Stamford Super Praerog Regis c. 9. f. 34. b. 4 Co. Beverley's Case XXIX REMARK No Feoffment Gift Lease or Release that an Idiot can make of his Inheritance but it may be avoided during his Life which is apparented by these words of the Prerogative Statute Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum Hâ—…redes exhaeredentur So that such Idiots shall not alien nor their Heirs shall be disinherited 4 Co. 127. Beverley's Case Stamford Super Praerog Regis c. 9. f. 35. b. Edit 1567. XXX REMARK The King is to take the Profits belonging to the Idiot to his own use finding him Necessaries and this is evidenced by the words of our Statute Capiendo necessaria sua Stamford Super Praerog Regis c. 9. f. 34. b. The King says Wingate shall have to his own use all the Possessions of a Fool Natural during his Idiocy His Body of the Common Law of England c. 2. of Possessions Nu. 3. XXXI REMARK The King is bound to Reparations of the Idiot's Lands and Tenements for the words of the Statute are The King shall have the Custody of the Lands of Natural Fools taking the Profits of them without waste or destruction Stamford Super Praerog Regis cap. 9. f. 35. a. XXXII REMARK The King by the Statute of Praerogativa Regis is to be preferred in this Title of Idiocy before any other Lord which might claim the Idiot as his Ward and this is evidenced by the words of the said Statute De cujuscunque feodo Terrae illae fuerint Of whose Fee soever the Lands be holden Stamford Super Praerogativam Regis c. 9. f. 35. a. Edit 1567. XXXIII REMARK If one be found an Idiot by Office and before the King doth make a Seizure of the Lands the Idiot departs this Life yet the King shall seize the Lands because of these words of the Statute Post mortem eorum eam rectis Haeredibus After the Death of such Idiots he shall render it to the right Heirs Which the King cannot do but upon a Seizure Stamford Super Praerog Regis c. 9. f. 34 a b. XXXIV REMARK When an Idiot doth sue or defend he shall not appear by Guardian or Prochein Idiota a nativitate non recipitur vel ad agendum vel defendendum in aliqua causa per Custodem vel proximum propinquum sed requiritur ut ipse semper praesens sit in propria persona Cowell's Institutes lib. 1. tit 23. sect 6. de Curatoribus Amy or Attorney but he must be ever in Person and whosoever will plead best for him shall be admitted 33 H. 6. 18. 21. F. N. B. 27. G. Co. Lit. f. 135 b. Stampford c. 9. 35. b. 36. a. 4 Co. 124. b. Beverley's Case Saunders Rep. 2 Part f. 335. Dennis v. Dennis But an Infant or a Minor shall sue by Prochein Amy and defend by Guardian 27 H. 8. 11. 40 E. 3. 16. 20 E. 4. 2. F. N. B. 27. H. Co. Litt. f. 135. b. Cro. Iac. f. 640 641. Simpson Simpson v. Iackson 4 Co. f. 124. b. Beverley's Case XXXV REMARK By the Statute of Westmin 2 c. 15. it is ordained That if an Infant be eloined he may sue by Prochein Amy but this same Statute extendeth not to an Idiot Co. Inst. f. 391. XXXVI REMARK A Descent shall not take away the Entry of an Idiot albeit the want of Understanding was perpetual for Cook in his Comment on Littleton sect 405. f. 247. a. Littleton sect 405. speaks generally of a Man of Non sane Memorie Vide Noy's Treatise of the Grounds of the Common Law Cap. 16. Of Descents XXXVII REMARK If an Idiot makes a Feoffment in Fee he shall in Pleading never avoid it by saying That he was an Idiot at the time of his Feoffment and so had been from his Nativity But upon an Office found for the King the King shall avoid the Feoffment for the benefit of the Idiot whose Custody the Law giveth to the King 39 H. 6. 42. b. F. N. B. 202. 5 E. 3. 70. Britton cap. 28. f. 66. a b. Coke in his Comment on Littleton sect 405. f. 247. a. Stamford in his Exposition of the Statute of 17 E. 2. cap. 9. XXXVIII REMARK A Copyholder of unsound Memory an Idiot or Lunatick cannot forfeit his Estate Sheppard in his Treatise entituled The Court-Keeper's Guide cap. 22. p. 172. Edit 1656. XXXIX REMARK A Grant or Surrender of Copyhold-Land made by an Idiot is not valid in the Laws of England Sheppard's Court-Keeper's Guide Cap. 19. Page 117 118. XL. REMARK A Surrender or Grant of Copyhold-Land may be made to an Idiot or any other Man of unsound Memory and good in Law Sheppard Cap. 19. p. 118 119. XLI REMARK By the Statute of 32 H. 8. c. 46. the Master of the Court of Wards and Liveries by the Advice of the Attorney Receiver-General Note This Act of 32 H. 8. for the Erecting of the Court of Wards is taken away by the Statute of 12 Car. 2. c. 24. and Auditors or three of them had Authority to survey govern and order all and singular Idiots and Natural Fools now being in the King's Hands or
that hereafter shall come and be in the King's Hands and to survey and order all the Mannors Lands Tenements and other Hereditaments whatsoever and also to let and set the same to the King's Use for the time of the King's Interest for such Rent and fined as by their Discretion shall be thought convenient the finding and keeping of the said Persons their Wives and Children and the Reparations of their Houses and Lands always to be considered in the doing thereof c. Note Tho' these Officers of the Court of Wards and Liveries had Power to let and set the Lands of Idiots and Natural Fools yet according to the Sentiment of Stamford they had no Power to grant the Custody of their Bodies XLII REMARK Regularly Conveyances or other Acts of Record acknowledged or made by one that is an Idiot are unavoidable by him or his Heirs in the Laws of England 4 Co. Beverley's Case XLIII REMARK If an Idiot or other Non Compos Mentis does levy a Fine and declare the use thereof this Declaration shall bind him as long as the Fine continues in force for inasmuch as he hath been admitted by the Judges as a Man that hath the use of Reason the Law as long as the Fine remains in force permits him to limit the use thereof 10 Co. 42. b. Mary Portington's Case 2 Co. f. 58. Beckwith's Case 12 Co. f. 123 124. Mansfield's Case XLIV REMARK There is a diversity taken between an Idiot and an Unthrift or Spendthrift as appears in the Case of one Brent of the County of Somerset who was presented for an Idiot but it was evidenced That he could write Letters and make Acquittances and such-like whereupon he was adjudged an Unthrift but no Idiot Br. 4. in Fine Note That as Minors have Curators and Governors so also mad Persons and Spendthrifts Unthrifts or prodigal Persons are appointed by the Civil Law of the Romans to have Governours for that they can no more govern their own State than the others can For they and such as know no time nor end of Spending but riot or lavish out their Estates without all Discretion and for their sakes I will here subjoyn the Sentiments that the old Roman Jurists have had of these Prodigals or Spendthrifts Note Cicero 3 de Officiis tells us That there was a Law made by Laetorius which provided that there should be appointed for those which were Distracted or did prodigally waste their Patrimony For as it appeareth by the common Adage used among the Romans Ad Agnatos Gentiles deducendus est They did account all Prodigals or Spendthrists Mad men they meaning no more by that than we do by our English Proverb Let him be begged for a Fool. The Reason of their Adage was because if any were distracted by the Roman Law his Wardship fell Ad Agnatos Gentiles i. e. to the next of the Kindred Goodwin's Roman Antiquities lib. 3. sect 4. c. 24. Qui Eversores aut insani sunt saith Caius omni tempore vitae suae sub Curatore esse jubentur Quia substantiam suam rationabiliter gubernare non possunt Lib. 2. Tit. 8. de Curationibus Lege 12 Tabularum says Ulpian Prodigo interdicitur bonorum suorum administratio Quod moribus quidem ab initio introductum est sed solent hodie praetores vel praesides si talem hominem invenerint qui neque tempus neque finem expensarum habet sed bona sua dilacerando dissipando profudit Curatorem ei dare exemplo furiosi Et tam diu erunt Ambo in Curatione quam diu vel furiosus sanitatem vel ille sanos mores receperit quod si evenerit ipso jure desinunt in potestate Curatorum D. 28. 10. 1. Divus pius saith the same Lawyer Ulpian matris querelam de filiis prodigis admisit ut Curatorem accipiant in haec verba Non est novum quosdam etsi mentis suae videbuntur ex sermonibus Compotes esse Tamen sic tractare bona ad se pertinentia ut nisi subveniatur his deducantur in Egestatem Eligendus itaque erit qui â—…os consilio regat Nam aequum est prospicere nos etiam eis â—…ui quod ad bona ipsorum pertinet furiosum faciunt exiâ—…um D. 25. 5. 12. 2. Furiosi saith Pomponius vel ejus cui bonis interdictus sit nulla voluntas est D. 50. 17. 40. Hence it is that Spendthrifts or Prodigals are forbidden to make their Testaments or to dispose of Is cui lege bonis interdictum est testamentum facere non potest si fecerit ipso jure non valet Ulpian their Lands or Goods any other ways Instit. 2. 12. 2. D. 28. 1. 18. Swinburn in his Tract of Testaments and Last Wills 2d Part sect 24. Ulpianus Tit. 20. de Testamentis Among the Grecians such as were Spendthrifts were branded with Infamy Decoctores paternae aut alterius cujusvis haereditatis ignominiosi sunto All wild Extravagants and Spend-thrifts who lavishly run out the Estates left them by their Fathers or others shall be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 From the Remarks touching Idiots or Fools Natural we come to our Queries attended with Solutions relating to them SECT III. The Queries with their Solutions concerning Idiots or Natural Fools I. QUERY If the King commit the Body or Estate of an Idiâ—… 〈◊〉 J. S. to do with them as he pleases whether this Graâ—… be good SOLUTION THE Estate and Persons of Idiots and Lunatickâ—… are by Law intrusted with the Supreme Should thâ—… Sovereign Trustee commit the Body or Estate of either of them to I. S. to do with them as absolutely and inordinately as he pleases the Grant were void because Breach of Trust and the Committee punishable for any exorbitant Usage The Author of an Act entituâ—… led Defensio Legis Sect. 10. Par. 81. p. 139. Edit 1674. The Estates and Persons of Idiots and Lunaticks saith the Lord Chief Justice Hobart are by Law intrusted to the King if therefore the King should grant to one that intrudeth upon the Possessions of an Idiot or Lunatick or take their Persons unlawfully that he would not meddle with them but suffer them to do their pleasure these Grants were void For these are Acts of Justice and Offices of a King which he cannot put off Cessa regnare si non vis judicare And in these things the King is never supposed by Law ill affected but abused and deceived for Eadem praesumitur mens Regis â—…ae est Iuris Hobart's Princeps jura tueri praesumitur Princeps Custos legis c. 3. 28 35. D. 43. 8. 1. 10. â—…eports f. 155. Colt and â—…lover v. Bishop of Coâ—…ntry and Litchfield II. QUERY â—…hether the King shall have the mean Profits from the time of the first Seizure of the Idiot or from the time of the Office found SOLUTION William Tourson an Idiot from his Birth by force of Remainder after the Death of his Father was Co.
Anâ—…rew as of one from whom he claims but only as â—…awing his Descent from him by way of Pedigree and â—…ot by way of Title and therefore it was compared to â—…obbes Case Litt. fol. where the Father is attainted of â—…elony having Issue two Sons and the one of them â—…urchaseth Lands and dies without Issue it shall not bar â—…e other Son to claim as Heir to his Brother And the Corruption of Blood in the Father shall not hurt him â—…nd Berkley compared it to the Case 10 Eliz. Dyer â—…74 where there were two Brothers the Eldest hath good Cause del petition de droit the Youngest hath â—…ssue a Son and is attainted of Felony and executed The Eldest Son dieth without Issue the Issue of the Younger Brother is barred of the Petition because his Blood is corrupt and he cannot claim but by mentioning his Father and from him c. But here forasmuch as he doth not claim nor derive by him who levied the Fine they field he should not be barred by the Fine XII QUERY Whether the Custody of an Idiot holding by Copy of Couâ—… Roll belongs to the King by his Prerogative or to 〈◊〉 Lord of the Copy-hold Mannor SOLUTION The King say the Judgâ—… Co. Lib. 4. f. 127. b. in Beverley's Case shall 〈◊〉 have the Custody of the Lands of an Idiot holden by Câ—…py for the same is but an Estate at Will by the Coâ—…mon Law And if the King should have the Custoâ—… thereof it would be mischievous to the Lord of the Maâ—…nor but yet an Alienation made by an Idiot of 〈◊〉 Copyhold-Land after Office found shall be avoideâ—… Vide 11 El. Dyer 302. It is a Rule in the Court of Wards That if an Idiâ—… has not any Goods or Châ—…tels or Lands but Copyhold-Lands Pasch. 13 Eliz. Iohn Roger's Case C. W. f. 74. held of a common Person the King shâ—… not have the Custody but the Lord of whom the Copy-hold is holden but if he has any other Land then thâ—… Copyhold-Land also In the Court of Wards it was clearly agreed by thâ—… Council of that Court That a Copyholder who 〈◊〉 13 14 El. Dyer 302. b. 303. a. 2 H. 7. 3. Noy 27. an Idiot ought not to bâ—… ordered in this Court foâ—… his Copyhold but shall be done in the Court of the Lorâ—… of the Mannor Sheppard in his Court-Keeper's Guide tells us That â—…e Lord shall retain the â—…opyhold-Land of the Idiâ—…t Cap. 19. p. 119. The Fourth Edit 1656. or Lunatick till he â—…ome to himself Note One Sir Edward Champernon being Committee 〈◊〉 a Ward who had a Mannor wherein were divers Copyâ—…olders amongst whom â—…e was Mutus Surdus Concerning such as are deaf and dumb See Bracton lib. 5. tract 5. cap. 20. n. 2. f. 421. a. Fleta l. 6. c. 40. nu 2. Instit. 2. 12. 3. D. 28. 1. 6. 1. Swinburn 2d Part § 10. Cod. 6. 22. 10. â—…ranted the Custody of that Copyhold-Land to another â—…ho entred the Prochein Amie of the Copyholder â—…ntred And which of â—…em should have the Custody Or If none of them â—…as the Question And it was resolved That the Lord â—…ould have the Custody for otherwise he should be â—…rejudiced in his Rents and Services and his Grant was Good Wherefore it was adjudged for the Grantee Cro. â—…ac f. 105. Eavers v. Skinner C. XIII QUERY Whether there be any Difference between an Estate made or conveyed in Person or by Attorney as to an Idiot or any other Non compos mentis SOLUTION There is a diversity taken in the Books of Law between an Estate made or conveyed in Person and by Co. l. 4. f. 125. Beverley's Case of Non compos mentis Attorney For if an Idiot or other Non compos mentis makes a Feoffment in Fee in propria persona and dieth his Heir within Age he shall not be in Ward or if he dieth without Heir the Land shall not Escheat but 〈◊〉 the Feoffment be made by Letter of Attorney altho' 〈◊〉 shall not avoid the same yet after his Death as to 〈◊〉 others in Judgment of Law the Estate was void anâ—… therefore in such Case if his Heir be within Age he shaâ—… be in Ward or if he dieth without Heir the Land shaâ—… Escheat And likewise in the Case of an Infant if 〈◊〉 maketh a Feoffment in Person if he dieth without Hâ—… the Land shall not Escheat but otherwise if it were maâ—… by Letter of Attorney but the Infant himself shall 〈◊〉 avoid it but others shall But things done by matter 〈◊〉 Record as Fines Recoveries Judgments Statutes Râ—… cognisances shall bind as well the Idiot as he who is Noâ—… compos mentis 31 E. 3. Saver Default 371. 1 Maâ—… Dum fuit infra aetatem 7. A Grant of an Infant saith Finch under the Age 〈◊〉 21 Years and one out 〈◊〉 his right Mind whom 〈◊〉 Lib. 2. c. 2. of Possessions p. 102 103. Edit 1627. call Non sane memorie 〈◊〉 Non compos mentis as 〈◊〉 Idiot may be avoided at any time by Entry Action c. or a Feoffment by Letter of Attorney c. if they deliver it with their Hands as in a Feoffment and themselves make Livery or a Gift of Goods and themselves deliver them but if they deliver not with their Hand as in a Grant of a Rent Advowson c. it is meerly void and nothing at all passeth so as they may have a Trespass or Assize and remain Tenant to the Lord and therefore shall be in Ward notwithstanding such Feoffment XIV QUERY A Man dies seised of Land his Heir being an Idiot or Sot Natural and before Office he levies a Fine whether the King shall have the Lands per Praerogativam Regis cap. 9. or not SOLUTION Home devie seisi de Terre son Heire esteant sotte natural avant Office il leva fine le Roy navera les terres per Praerogativam Regis Crompton fol. 117. a. tit Court de Gards Liveries Edit 1594. cap. 9. Car ne serra intende que fuit sotte Conuter le Fine Car ceo va encounter le credit del Iustice que prist le fine car serra intend que le Iustice ne voile prender fine de luy si ust este Ideot Englished thus A Man seized of Land his Heir being an Idiot and before any Office this Idiot levieth a Fine the King shall not have the Custody of the Lands by his Prerogative for that it shall not be intended or presumed that he was a Natural Fool against the Fine levied because this will impeach the Reputation or Credit of the Judge before whom the Caption of the Fine was For it shall be presumed that the Judge would not take the Fine if he had not been an Idiot XV. QUERY Idiots in the Custody of the Prince whether the Custody of an Idiot can be devised by the Testator SOLUTION Concerning Idiots such is the Prerogative of the Princes
of this Land that they shall have the Custody of all the Lands of Natural Fools and may take the Profits Swinburn in his Treatise of Testaments and Last Wills 3. Part § 11. nu 13. p. 99. a. b. Edit 1590. thereof without waste oâ—… destruction of whose Fee soever the same be holden finding to them Necessaries and after the Death of such Idiots the Land must be restored to the right Heirs But in the mean time that is to say during the Life of the Idiot the Tuition of the Idiot or of his Lands cannot be devised by Testament to any other Person contrary to the Course of the Common Law in prejudice of him to whom the Wardship doth belong saving the Testator may commit the Custody of such Goods and Chattels as he doth bequeath to the Idiot to whom he will and during so long time as he will * Si quidem unusuisque potest rebus suis quam velit legem imponere Mautic l. 7. tit 1. nu 38. Et Testatoris voluntas habetur pro lege L. Servus de manumiss licet alias videatur per Fitzherbert's Nat. Br. de Idiots inquirendo quod bona quae Idiotae obvenirent suo Gardiano accrescunt Quaere tamen per Stamford super Praerogativam Regis c. Idiot C. XVI QUERY Idiocy whether in any Case triable in the Ecclesiastical Court SOLUTION If an Administrator sue for a Legacy due to the Deceased Mich. 15 Iac. B. R. Inter Percher Wheeble per Curiam Dr. Godolphin in his Repertorium Canonicum c. 11. p. 120. § 17. in the Ecclesiastical Court and the Defendant plead the Release of the Deceased and the Plaintiff avoid it for that the Deceased was an Idiot that Idiocy shall be tried there and no Prohibition shall be granted for that they have Jurisdiction of the Original Matter and that according to the old Rule to be found in the Register and in the Books of Law Non est consonum Rationi quod cognitio accessorii Cujus Juris i. e. Jurisdictionis est principale ejusdem Juris erit accessorium in Curia Christianitatis impediatur ubi cognitio causae principalis ad forum Ecclesiasticum noscitur pertinere Register Orig. f. 58. a. Co. 2 Inst. f. 493. Cro. Jac. f. 269. Roberts Case Cro. Car. Netter v. Bret. Cro. Jac. f. 348. Egerton v. Egerton 12 Co. f. 65. Tit. Court Ecclesiastical C. Bulâ—…rode's Reports Second Part f. 210 211. Egerton v. Egerton XVII QUERY An Executor having obtained Iudgment in an Accompt and having the Defendant in Execution for Arrerages and the Testament being afterwards annulled for Idiocy in the Testator whether the Testament being disapproved an Audita Querela will lie for the Defendant SOLUTION Anno 35 H. 8. in the Exchequer Chamber a Case was well debated by the Justices 3 4 Eliz. Dyer f. 203. b. 204. a Co. lib. 8. f. 144. Drury's Case of both Benches which was â—…uch One Moyer who was Executor of the Testament of Iohn Gisors sued a Writ of Account against one Carvanel as Receiver of the Money of the said Gisors the Defendant pleads Ne unques Receiver pur Accompt render And it was found for the Plaintiff and Judgment given that he should account and upon this a Capias ad Computandum was awarded Whereupon the Defendant came in and Accounts in Ward and he was found in Arrerages and his Body was committed to Prison for Execution And after the said Testament was annulled by Sentence in the Spiritual Court for that the said Iohn Gisors the Testator was an Idiot from his Birth and this Record Spiritual is certified into the Chancery by Writ and thence sent into the King's Bench where the Action of Accompt was brought And the said Carvanel sued forth an Audita Querela in the same Court containing this Matter in his Writ and a Venire Faciaâ—… against Moyer who demurred in Law upon the whole Matter And it was resolved that the Audita Querelâ—… did lie because the Will was disapproved and annulled XVIII QUERY Whether an Attornment made to a Grant by an Idiot 〈◊〉 other Non compos mentis can be good in Law SOLUTION A Man that is an Idiot or other Non compos mentiâ—… cannot Attorn For he who is Amens without Understanding cannot make an Attornment which is an Agreement And yet if a Man Non compos mentis be Lesse for Years rendring Rent and the Lessee ejecteth him and maketh a Feoffment and afterwards the Non compâ—… mentis re-entreth this Act of Re-entry doth subject himself to Distress and an Action of Waste altho' he cannâ—… make an express Attornment Coke in his Comment oâ—… Littleton sect 566. f. 315. a. 6 Co. 69. a. Sir Moyle Finchâ—… Case 32 E. 3. Age 80. 18 E 3. 35. XIX QUERY Whether an Inquisition shall bind an Idiot without an Examination by the Council SOLUTION It was said by Dyer in the Case of one Brent that the Law is Altho' a Man be found an Idiot by Inquisition Dallison's Rep. pl. 19. f. 95. yet he ought to be examined by the Counsel and affirmed by them to be an Idiot or otherwise he shall not be bound by the Inquisition And he said further That Brent was found an Idiot by Inquisition and after being examined by the Lords of the Star-Chamber he was adjudged to be no Idiot whereupon he was delivered from the Thraldom of Idiocy XX. QUERY No Possessions in Lands descending to an Idiot but only a Right whether the King can enter and have the Custody of it SOLUTION If there descend to an Idiot no Possession in Lands but only a Right be it Right of Entry or Title of Entry or Right of Action the King shall not enter and have the Custody of the same 1 H. 7. 15. Stamford Super Praerog Regis c. 9. f. 35. b. Edit 1567. Hitherto of the Description Remarks and Queries relating to an Idiot or Sot Natural I proceed now to speak of the Furor Man that is totally bereft of his Wits PART the Second Of him who is by Accident wholly deprived of his Wits SECT I. This sort of Non Compos Mentis how described HE is said to be one that was of good and sound Memory and by the Visitation of God through some Sickness Grief or other Accident utterly loseth Furor est continuata mentis Alienatio qua quis omni intellectu caret D. 1. 18. 14. Gothofredus ad Lor. his Memory and Understanding and so falls into some high or low degree of Fury or Madness Co. Litt. f. 247. a. 4 Co. f. 124. b. Beverley's Case of Non compos mentis SECT II. The Remarks concerning Mad or Distracted Persons I. REMARK THE true Account of the Cause of Distraction is this When the Animal Spirits by some Accident or other are so over-heated that they become unserviceable Dr Goodman's Treatise entituled The Penitent pardoned under the Parable of the Prodigal Part 1. c. 5. p. 123 124.
the Judges in Beverley's Case Sir Robert Holbourn in his Reading upon the Statute of 25 E. 3. c. 2. De Proditionibus Reading Printed Anno 1681. p. 17 18. says thus All Ages are within this Law as in Folks which have Knowledge or Men of Non Sanae Memoriae and a Mad-man is also within this Law as to that part of the Statute which concerns more immediately the Person of the King For if any of them aforementioned in this Division shall compass his Death it is Treason within the first Clause but not in the Clause of levying War But a Man that is Surdus coecus mutus is not within this Law for it is impossible for him to have Understanding And afterward he tells us That I. S. after he became mad kills the Queen this is Treason P. 31 32 33 34. within this Law First Because a Man may counterfeit himself to be mad and he may do it so cunningly as it cannot be discerned whether he be mad or no. The Second is in respect of the great Esteem that the Law gives to the Person of the King for he is the Fountain of Justice And for the Proof of this Point that it may be understood we ought to see what the Common Law was before the making of this Statute as to this Point and then ought to enquire and see how the Law is altered since the making of the Statute and by this means we shall find out the Law and the Reason thereof It is true that the Law without special words will not bind an Infant or a Mad-man as to the Punishment of their Bodies but yet it will extend to their Lands and Estates But this our Law is no new Law but only a declarative Law and in that Case general words will bind an Infant or a Mad-man without any special words That it was Treason at the Common Law is apparent Britton f. 16. a. c. 8. c 22. f. 39. a. b. Mirror c 2. § 11. c. 1. § 4. Vide Bracton fol. 118. b. in Britton and the Mirror of Iustice and this Statute doth not declare who shall be Traitors but what shall be Treason and therefore by this Act it is Treason in a Mad-man or whomsoever shall commit it for a Mad-man is not excepted out of this Law And to make this appear more fully you may be pleased to read the Case of Beverley That a Man that is Non compos mentis may commit High-Treason altho' he cannot commit Petty-Treason nâ—…r Felony And so it is also in Dalton's Iustice of Peace 206. That if a Man that is Non compos mentis shall kill the King this is High-Treason Nay Beverley's Case goes farther and says That if he shall offer only to kill the King this is High-Treason Thus much for the Opinions of the Judges in Beverley's Case and of Holbourn now let us see what Sir Edward Coke says concerning Mad-men as to the Point of committing High-Treason A Man saith he that is Non compos mentis or an Infant within the Age of Discretion is not un Home Coke in his Third Institutes fol. 4. within the Statute of 25 E. 3. c. 2. for the principal End of Punishment is That others by his Example may fear to offend * Ut unius poena metus possit esse multorum D. 16. 3. 31. D. 48. 3. 6. Cod. 9. 27. 1. D. 48. 19. 6. 1. Ut poena ad paucos metus ad omnes perveniat But such Punishment can be no Example to Mad-men or Infants that are not of the Age of Discretion And God forbid quoth he that in Cases so penal the Law should not be certain And if it be certain in Case of Murther and Felony a fortiori it ought to be certain in Case of Treason If a Man commit Treason or Felony and confesseth the same or be thereof Convict if afterward he Co. 3 Inst. f. 4. become De non sane Memorie qui patitur exilium mentis he shall not be called to answer Or if after Judgment he become De non sane Memorie he shall not be executed for it cannot be an Example to others Add to what he said before this which follows If a Mad-man had killed or offered to kill the King it was holden for Treason and so it appeareth by King Co. 3 Inst. f. 6. Alfred's Law before the Conquest But now by the Statute of 25 E. 3. c. 2. and by force of these words Fait compasser ou imaginer la mort he that is Non compos mentis and totally deprived of all Compassings and Imaginations cannot commit Treason by Compassing or Imagining the Death of the King For Furiosus solo furore punitur But it must be an absolute Madness and a total Deprivation of Memory And this appeareth by the Statute of 33 H. 8. for thereby it is provided That if a Man being Compos mentis Cap. 20. commit Treason and after Accusation c. fall to Madness that he might be tried in his Absence c. and suffer Death as if he were of perfect Memory For by this Statute of 25 E. 3. a Mad-man could not commit Treason It was further provided by the said Act of 33 H. 8. That if a Man attainted of Treason became mad that notwithstanding he should be executed which cruel and inhuman Law says he lived not long but was repealed For in that Point also it was against the Common Law because by Intendment of Law the Execution of the Offender is for Example but so it is not when a Mad-man is executed but should be a miserable Spectacle both against Law and of extreme Inhumanity and Cruelty and can be no Example to others XIV QUERY Whether a Mad-man be punishable in Trespass SOLUTION In Capital Causes in favorem vitae the Law will not punish in so high a degree Sir Francis Bacon in his Elements of the Common Laws of England Reg. 7. p. 31 32. except the Malice of the Will and Intention appear But in Civil Trespasses and Injuries that are of an inferiour Nature the Law doth rather consider the Damage of the Party wronged than the Malice of him that was the Wrong-doer And therefore if an Infant within Years of Discretion or a Mad-man kill another he shall not be impeached thereof but if they put out a Man's Eye or do him like corporal Hurt they shall be punished in Trespass Concerning a Mad-man's doing a corporal Hurt the Civil Law runs thus Quaerimus si Furiosus damnum dederit an Legis Aquiliae Actio sit Et pegasus negavit Quae enim in eo culpa sit cum suae mentis non sit Et Culpam non admittit qui suae mentis non est Gothofreda 1 hoc verissimum Cessabit igitur Aquilia Actio quemadmodum si quadrupes damnum dederit Aquilia cessat aut si tegula ceciderit D. 9. 2. 5. 2. XV. QUERY Whether a Furor Man can be a
Infant This Case being in the Chancery between the Parishioners and Rolt was referred by the Court to Hobart and Tanfield and they resolved clearly that it was within the Relief of the Statute of 43 Eliz. for tho' the Devise was utterly void yet it was within the Words limited and appointed to charitable Uses Otherwise if he were an Infant Lunatick or the like that gave it or that one appointed that that were not his own to charitable Uses VIII QUERY Actions touching a Lunatick's Lands whether they must be brought in his own Name SOLUTION One Cockes brought an Action of Trespass of Trover and Conversion of Beans against Darson and coming to Trial at the Assizes upon Hobart's Rep. 215. Cockes v. Darson Not Guilty because it was a small Cause the Judge took not the Jury but directed to move the Court and so it was and the Cause was That the Lands whereupon the Beans grew were a Lunatick's and Copyhold and the Lord had granted unto one the Custody of the Land by whose Leave and Assent the Plaintiff did sow the Land And the Court was of Opinion That the Action was to be brought in the Name of the Lunatick For there was no Interest gained in his Land by this Commitment That an Action must be brought in the Name of the Lunatick I shall subjoin what Popham has reported in the Matter The Custody of a Copyholder that was a Lunatick was committed to I. S. Popham's Rep. f. 141. Darcy's Case in the Common Pleas. and for Trespass done upon his Land it was demanded of the Court In whose Name I. S. should bring the Action And their Opinion was That it should be in the Name of the Lunatick IX QUERY Whether the Lord of a Mannor can grant the Custody of a Copyhold belonging to a Lunatick without a special Custom SOLUTION Lord Chief Justice Hobart did not agree That the Lord hath power over the Hobart's Reports f. 215 216. Cockes v. Darson Lunatick's Land without a special Custom for the imitation of the King's Power over Freeholds makes no Consequence For tho' he takes the Statute to be but an â—…ffirmance of the Common Law in the Case of the King â—…et the Collateral Incidents of Estates as Dower Tenancy 〈◊〉 the Courtesie Wardships and the like are not without secial Custom That Copyhold Estates shall not have such Qualities as â—…states at Common Law without special Custom See â—…ore 4 Co. f. 21. Brown's Case f. 22. b. Rivet's Case 〈◊〉 23 Deal Rigden's Case f. 23. Bullock Dibley's Case Cro. Eliz. f. 391. Pl. 14. Clun v. Pease and â—…urner and Palter v. Cornhill f. 361. Pl. 22. X. QUERY Whether the Acts of a Lunatick during his Intermissions or lucid Intervals be binding SOLUTION The Acts that Lunatick Persons do during the time of their Lucida Intervalla tho' it be by Deed in the Country as by Feoffment Obligation or the like shall bind them and others concerned in it as any other Men are by their Acts bound Sheppard in his Abridgment Part 2. Tit. Idiot 4 Co. f. â—…125 a. Beverley's Case of Non compos mentis Bracton lib. 5. tract 5. de Exceptionibus c. 20. nu 1. f. 420. b. Fleta lib. 6. c. 40 n. 1. XI QUERY Whether the King who is to keep the Lunatick his Wife and Children with the Profits of the Lands can granâ—… them over to the proper use of another Person SOLUTION In Trespass Quare clausum fregit and cutting hiâ—… Trees in Paddington in the Country of Middlesex bâ—… Iohn Francis against William Holms The Defendant Hil. 28. H. 8. Rot. 401. in the Common Pleas Francis Holms Case Dyer f. 25. b. 26. a. Pl. 164. Edit 1688. 4 Co. 128. b. Beverley's Case pleaded that it was found by Office before thâ—… Escheator of the said County of Middlesex that thâ—… said Iohn Francis was a Lunatick and that he was seizeâ—… in Fee of the Land in which c. for which the King seised his Person and his Land and by his Letters Patentâ—… granted the Rule Government and Custody of the same Person and Lands to the said Holmes Quamdiu that the Person was Lunatick to take the Profits to his own use and so justified and prayed in Aid of the King and thereupon it was demanded in Law If he should have Aid or not And it was adjudged That he should not have Aid of the King for this Grant was utterly void for the King is bound to keep the Lunatick his Wife Children and Houshold with the Profits of the Lands and without taking any thing to his own use but all to the use of the Lunatick and his Family and all to the intent that the King may provide that he who wanteth Reason should not alien his Lands and waste his Goods And the King after Office found hath only Provision and hath not any Custody of the Body or Lands of a Lunatick as he hath of an Idiot and he hath nothing to grant over But if the King provides one to have Care and Charge of him who is Non compos mentis that his Family shall be maintained and that nothing be wasted or if one of his own Head taketh so much upon himself in this Case he is but as Bailiff of him that is Non compos mentis and shall be accountable to him as Bailiff or to his Executors or Administrators and he cannot cut down Trees but for necessary House-boot Plough-boot and Cart-boot and to repair the ancient Pales and all that the Bailiff may do he may do and not otherwise XII QUERY Whether the Committee of a Lunatick can grant Copyhold Estates SOLUTION The Committee of a Lunatick cannot grant Copyhold Estates but he himself may do so by his Steward as appears by this subsequent Resolution A. seised of a Mannor for Life where there were many Copyhold Estates grantable Trin. 9 Iac. in the Court of Wards Blewits Case Leonard 47 48. by Copy of Court-Roll for Life in Possession and for another in Reversion granted the Stewardship by Deed under his Hand and Seal to I. S. for Life with a Fee for executing thereof and after he became a Lunatick and Non compos mentis and so was found by Inquisition who was committed to I. D. under the Seal of the Court of Wards The Question was Whether the Steward by the Consent of the Committee or the Committee himself by their Steward might grant Copyhold Estates according to the Custom of the Mannor It was resolved by Hobart Chief Justice and Tanfield Chief Baron That the said Committee could not grant any Copyhold Estate for that they themselves by Law had no Estate in the Mannor nor are Lords thereof for the time being but that the said Lunatick by his Steward might grant Copyhold Estates according to the Custom of the Mannor XIII QUERY If a Dean of Paul's happen to be a Lunatick who shall have the Custody of him SOLUTION In the Reign of H.