Lib. 8. f. 170. Thompson's Case â—…intly seized with his Elâ—…er Brother for Term of â—…eir Lives the Lessor did purchase the Estate of the Elâ—…er Brother and took the Body of the Idiot and all the Profits of the Lands and afterwards William Tourson was found Idiot from his Birth by Inquitision The Question was Whether the King shall have the mean Profits of the Moiety from the time of the first Seizin of â—…he Idiot or from the time of the Office And it was â—…esolved That the King should not have the Profits but after the Office and yet to some intent the Office shall have relation from the time of the Birth Scilicet to avoid all mean Acts done by the Idiot and therewith agreeth F. N. B. 202 E. and 18 E. 3. Scire Fac. 10. 32 E. 3. Scire Fac. 106. 50 Ass. Pl. 2. But for the mean Profits it shall not have relation but from the time of the Office found for the same appeareth of Record that the King hath Right to seize the Lands As if the King's Tenant commit Felony Anno 1 Iac. and afterwards Anno 3. he is attainted for the same Felony and afterwards Anno 4. all is found by Office Noâ—… this Office shall have relation to the time of the Felony tâ—… avoid all mean Alienations and Incumbrances but foâ—… the mean Profits it shall have relation to the time oâ—… the Attainder for then the King's Title appeareth of Record and there is a difference where the King shall havâ—… the Custody by reason of a Seigniory as in the Case oâ—… Wardship there the King after Office found shall havâ—… the mean Profits from the time of the Death of the Ancâ—…stor for the King hath Wardship by reason of his Seigniory and he loseth his Rent and Services in the mean time But the King hath the Custody of an Idiot noâ—… in respect of any Seigniory but in the Right of hiâ—… Royal Protection because that his Subject is not able to govern himself nor his Lands or Tenements which he hath and this Protection doth begin by the Office found And the Statute of Praerogativa Regis c. 9. saith The King shall have the Ward of Lands of Natural Fools taking the Profits c. to find them Necessaries c. By which it appeareth that the King shall take the Profits from the time that he is charged with the finding of the Idiot and his Family Necessaries c. and that is after the Office found so that when the King seizeth in the Right of his Regal Protection as in the Case at Bar or Nomine districtionis as in Case of Alienation of Lands in Capite without License or of Marriage of his Widow without License there after Office found the King shall not have any of the mean Profits before the Office as it is holden in 8 E. 4. 4. 40 Ass. Pl. 36. But when the King seizeth by reason of a form'd Right or Title there the King shall have the mean Profits from the time of his Right or Title first accrued as 18 Ass. Pl. 18. from the time of a Condition broken 41 E. 3. 21. from the time of the Alienation of his Tenant in Mortmain And if the Lands holden of others from the time the Title came to him 46 E. 3. Forfeiture 18. upon the â—…atute of West 2. c. 45. which giveth the Contra forâ—…am Collationis from the time of the Alienation for these Acts the King's Title and Right doth accrue â—…nd in the principal Case no Precedent can be found at the King was answered the mean Profits before the â—…ffice found but only after the Office and so the Quere Stamford's Praerogativa Regis 34. is well resolved III. QUERY â—…t what time was the Prerogative in the Custody of Idiots Lands conferred on the Crown during the Life of an Idiot or Natural Fool SOLUTION Sir Edward Cook tells us That at the making of the â—…atute of Magna Charta c. 4. Anno nono Henrici terâ—… the King had not any Prerogative in the Custody of 〈◊〉 Lands of Idiots during the Life of the Idiot For if 〈◊〉 had had this Act of Magna Charta would have proâ—…ded against Waste c. committed by the Committee 〈◊〉 Assignee of the King to be done in their Possessions 〈◊〉 well as in the Possessions of Wards but at this time â—…e Guardianship of Idiots c. was to the Lords and â—…thers according to the Course of the Common Law â—…nd Idiots from their Nativity were accounted alâ—…ays within Age and therefore the Custody of them â—…as perpetual so long as they lived for that their Imâ—…otency was perpetual And the Lord of whom the â—…and was holden had not a Tenant that was able to do â—…im Service and therefore within the Reason of a Custoâ—…y of a Minor or of an Heir within Age in Case of Wardship And this appeareth by Fleta who attesteth â—…hat anciently Idiots or Natural Fools were in the Cuâ—…tody of the Lords Solent says he Tutores terras Idioâ—…rum Stultorum cum Corporibus eorum Custodire suo perpetuo quod licitum 〈◊〉 Lib. 1. c. 11. nu 10. p. 6. Vide Bracton lib. 5. tract 5. c. 20. nu 1. f. 420. b. Cowell's Instit. lib. 1. tit 23. sect 1. de Curatoribus permissum eo quod sâ—… sos regere non noveruâ—… nam semper judicabaâ—… infra aetatem vel quâ—… verum quia plures per â—… jusmodi Custodiam Exhaeredationem compatiebantur â—… visum fuit communiter concessum quod Rex Corporâ—… Haereditatum hujusmodi Idiotarum Stultorumâ—… perpetuis Custodiam obtineret dum tamen a nativiâ—… fuerint Idiotae Stulti Secus autem si tarde a â—… cunque Domino tenuerunt ipsos maritaret ex oâ—… exhaeredatione salvaret hoc tamen adjecto quod Doâ—… nis Feodorum aliis quorum interfuerit ut in Serâ—… tiis Redditibus Custodiis usque ad legitimam aetaâ—… secundum Conditionem Feodorum releviis hujusmoâ—… nihil juris deperiret But then it is demanded When was this Prerogaâ—… given to the King Certain it is that the King had it â—… fore the Statute of 17 E. 2. de Praerogativa Regis â—… it appeareth in our Books that the King had this Preâ—… gative Anno 3 E 2. And before that it is maniâ—… that the King had it before Britton wrote in the Reigâ—… E. 1. as you may read in his Book Cap. 66. De Gardâ—… f. 167. b. And it is as clear that when Bracton wrote wâ—… wrote about the end of the Reign of H. 3. that the Kiâ—… had not then this Prerogative And therefore it folloâ—… eth that this Prerogative was given to King E. 1. befoâ—… that Britton wrote by some Act of Parliament which not now extant And it appeareth by the Mirror of Iâ—… stices agreeing with Fleta that this Prerogative wâ—… granted by Common Assent Vide Lib. 4. f. 125. Bevâ—… ley's Case Hitherto Coke And now let us see what
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
say of distracted Persons in Cases Criminal The former expresseth himself thus If a Man 〈◊〉 sanae memoriae kill another altho' he hath broken the Com. fol. 19. a. Reneger Fogassa f. 465. a. Eyston v. Studde words of the Law yet he hath not broken the Law for that he had no Memory nor Understanding but meâ—… Ignorance which came to him by the Hand of God and therefore it is said to be involuntary Ignorance to which the Law imputes the Act to be done because there was no default in him and for this he shall be excused hâ—… being ignorant by Compulsion The latter speaks in this wise When an Act of Parliament is made that whosoever Fol. 150. b. Tit. Equity doth such a thing shall be a Felon and shall suffer Death yet if a Mad-man or an Infant of young Years that hath no Discretion do the same they shall be no Felons nor suffer Death therefore Having given my Reader an Account of the Common Law relating to Non sane memories in the point of Criminal Matters I will present to his View Civil Law â—…exts concerning such distracted Persons as are guilty of Homicidium or killing other Men. Now the Civilians tell us That such as kill either Father or Mother or those Poena Parricidii more majorum haec instituta est ut Parricida virgis sanguineis verberatus deinde culleo insuatur cum Cane Gallo Gallinaceo vipera simia deinde in Mare profundum culleus jactetur D. 48. 9. 9. Instit 4. 18. 6. â—…at are in the place of Father or Mother or any â—…at are of next A-kin their â—…unishment is Death and 〈◊〉 the Case of the Father and Mother the Pain of Death the Parricide being 〈◊〉 well whipt so that the Blood do follow in good â—…enty he being sowed up into a Sack together with a â—…og a Cock a Viper an Ape is thrown into the Depth â—…f the Sea But if a Mad-man say they should kill his Father or Mother c. he shall be no way punished â—…eckoning that his own Furor or Madness is a sufficient â—…unishment to himself Sane si per furorem saith the Lawyer Modestinus â—…liquis parentem occiderit impunitus erit ut divi fratres â—…scripserunt super eo qui per furorem matrem necaverat Nam sufficere furore ipso eum puniri D. 48. 9. 9. 2. D. â—… 18. 14. Infans vel Furiosus saith the same Lawyer si homiâ—…em occiderint lege Cornelia non tuentur Cum alterum â—…nocentia Consilii tuetur alterum fati infelicitas excuâ—…t D. 48. 8. 12. On which Text Gothofredus has this Note Furiosum fati infelicitas a poena excusat ideoque 〈◊〉 facere sed pati injuriam dicitur Citing for it the Lawyer Ulpian whose Words are as follow Sane sunt quidam qui facere non possunt utputa Furiosus impubes qui doli capax non est namque hi pati injuriam soâ—…ent non facere cum enim injuria ex affectu facientis â—…onsistat consequens erit dicere hos sive pulsent sive â—…onvicium dicunt injuriam fecisse non videri D. 47. 10. â—… 1. Vide what the Canon Law saith of a Furor Man that kills or wounds another Person Clement Lib. 5. Tit. 4. de Homicidio voluntario casuali XII QUERY If a Man while he is Non compos mentis destroys himself whether he can be said to be Felo de se SOLUTION If a Man lose his Memory by the Rage of Sickness or Infirmity or otherwise and Co. 3 Inst. f. 54. Stanford's Pleas of the Crown Lib. 1. c. 11. f. 19. b. 20. a. Edit 1567. kill himself while he is Non compos mentis he is not Felo de se For as he cannot commit Murther upon another so in that Case he cannot commit Murther upon himself If one during the time that he is Non compos mentis giveth himself a mortal Wound whereof he when he hath recovered his Memory dieth he is not Felo de se because the Stroke which was the Cause of his Death was given when he was not Compos mentis Et Actus non facit reus nisi mens sit rea So it is said in Shelly's Case If a Man who is not Compos mentis give unto himself a mortal Wound and before he dieth he becomes of Sane Memorie and afterwards dieth of the same Wound in this Case altho' that he dieth of Sane Memorie yet because the Original Cause of his Death viz. the Stroke was when he was Non compos mentis he shall not be Felo de se because the Death c. hath relation to the Original Act which was the Stroke or Wound 1 Co. f. 99. b. Shelly's Case Vide 4 Co. f. 42. a. Heydon's Case 22. E. 3. Corone 244. Plowden's Comm. f. 260 a. Now let us hear what Resolution Bracton and Fleta two old Authors give of this our Question The former speaks in this wise De Furioso quid dicetur qui rationem non habet Et de mente Capto frenetico vel si ille qui laborat in acuta infirmitate seipsum submerserit vel interfecerit quaeritur an talis feloniam faciat de se ipso Videtur quod non nec haereditatem forisfaciunt nec Catalla eo quod sensu carent ratione non magis quam Brutum animal injuriam facere possunt nec feloniam cum non multum distent a Brutis c. Lib. 3. Tract 2. de Corona c. 31. f. 150. 8. The later viz. Fleta does concur with Bracton and pronounceth thus Similiter Furiosi Frenetici Infantuli mente Capti in acuta febri laborantes quamvis seipsos interfecerint non tamen Feloniam committunt nec hoereditates foris faciunt nec Catalla eo quod sensu Carent Ratione Lib. 1. c. 36. de Infortuniis XIII QUERY Whether he that is Non compos mentis and totally deprived of all Compassings and Imaginations can commit High-Treason by Compassing or Imagining the Death of the King SOLUTION Tho' all Laws do exempt a Mad-man from Punishment because their Actions C. 9. 9. 20. Tolle voluntaiem erit omnis actus indifferenâ—… quia affectio tua nomen imponit operi tuo crimen non contrahitur nisi nocendi voluntas intercedat Bracton l. a. tract 1. De Prodictionebus c 2. nu 14. are not governed by their Will and the Will of Man being set apart all his Deeds are indifferent neither can the Body offend without a corrupt or erroueous Mind yet if a Mad-man kill or offer to kill the King it is High-Treason For the King Est Caput Salus Reipublicae a Capite 4 Co. f. 124. b. Beverley's Case bona valetudo transit in omnes And for this Cause their Persons are so sacred that none ought to do or offer them Violence but he is Reus Criminis laesae Majestatis pereat unus ne pereant omnes Thus say
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.
by Compassing and Imagining the Death of the King 79 14. Whether a Mad-man be punishable in Trespass 83 15. Whether a Furor Man can be a Purchaser 84 16. Whether the Will of one that afterwards becomes Mad or Distracted shall stand good in Law 84 17. Whether a Fine before a Iudge of Non sane Memorie or a Grant of an Office made by him be good in Law 86 18. A Mad-man makes an Exchange of his Lands with J. S. for other Lands and the Exchange is accordingly executed the Non sane Man dies whether his Heir can avoid this Exchange 86 19. Whether and in what Cases Lachess can prejudice an Idiot Mad-man or other Non Compos Mentis 87 20. Whether he that is a Furor Man can be appointed Tutor 89 21. Whether a King or other Sovereign Prince during the time of his Insanity of Mind be capable of making Peace 90 22. Whether it be lawful to speak Untruth to Mad-men 90 Thirdly To LUNATICKS 1. WHether the Testament made by a Lunatick during his mad Fits be valid in Law when he is come to himself 103 2. Whether a Testament can be made by a Lunatick Person betwixt his Fits 103 3. If a Testament be made by a Lunatick Person and the time of the making unknown whether this Testament be good or not 104 4. 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 105 5. Whether a Lunatick can be prejudiced by Laches of suing Livery 106 6. Whether a Lunatick be punishable for hurting a Man 107 7. Whether a Devise by a Lunatick be aided by the Statute of 43 Eliz. Of charitable Uses 107 8. Actions touching a Lunatick's Lands whether they must be brought in his own Name 108 9. Whether the Lord of a Mannor can grant the Custody of a Copihold belonging to a Lunatick without a special Custom 109 10. Whether the Acts of a Lunatick during his Intermissions or lucid Intervals be binding 110 11. Whether the King who is to keep the Lunatick his Wife and Children with the Profits of the Lands can grant them over to the proper use of another Person 110 12. Whether the Committee of a Lunatick can grant Copyhold Estates 111 13. If a Dean of Paul's happen to be a Lunatick who shall have the Custody of him 112 14. If a Man in Criminal Cases be suspected to counterfeit Madness or Lunacy how shall it be discerned whether he be mad or not 113 15. A Bargain by a Lunatick before the Lunacy found whether avoidable by being found a Lunatick with a Retrospect of several Years 115 16. Whether the View of Land according to the Statute of Westm. 2. c. 48. be grantable in all Cases to Infants to Men in Prison to Lunaticks or such-like 117 Fourthly To DRUNKARDS 1. WHether a Man's Drunkenness can be any good Plea in the Courts at Westminster either in Criminal or Civil Acts 122 2. A Drunken Person whether he may make a Testament 123 3. Such as violate the good Name of others with opprobrious Words through Weakness of their Brain either by Frenzy Drink or other Lightness how are they to be dealt withal 125 The Reader is desired to Correct these Faults before he begins Other minuter Faults of literal Errors and Pointings it is expected his Candor will pass over INstead of Doth the Law read Doth not the Law p. 2. l. 22. Instead of Br 4. r. Br. Idiot 4. p. 23. Instead of an Act r. a Tract p. 26. Instead of Thompson's Case r. Tourson's Case p. 27. Instead of any Man make r. any Man may make p. 34. Instead of a Man seised r. a Man died seised p. 47. Instead of being seised of a Carve of Land in Fee r. being seised of a Carve of Land grant a Rent issuing out of the same Land in Fee p. 70. Instead of tuentur r. tenentur p. 77. Instead of de prodictionibus r. de actionibus p 72. Instead of detus r. vetus p. 94. THE LAW OF NON COMPOS MENTIS Inquisited and Explained BEFORE I come to Treat of the Law relating to persons of Non Sane Memorie I shall by way of Introduction shew the Reader upon what Right the Dominion of Infants Idiots and Mad-men is grounded In performance whereof I must be beholding to Hugo Grotius that Prodigy of Learning whose Words are these following If we respect saith he the Laws of Nature only no Right of Propriety can be admitted to those who have not the Use of Reason But Ius Gentium Lib. 2. Cap. 3. Sect. 6. De jure belli pacis the Law of Nations for the Common Good doth indulge this Favour unto Infants Idiots and Mad-Men that they may lawfully receive and retain the propriety of things All Mankind in the mean time sustaining their Persons For Humane Laws may constitute many things that were Preternatural but not any thing that is against Humana jura multa constituere possunt praeter naturam contra naturam nihil Nature And therefore that right of Dominioâ—… that in favour to such is by the unanimous consent of all Civiliz'd Natioâ—… thus introduced may haply consist with the first Acâ—… of Dominion which is a power to have and to holâ—… things in Propriety but not with the second Act which is freely and voluntarily to dispose of them with out a Guardian it being but Equal 〈◊〉 those that caâ—… not govern themselves should be govern'd by 〈◊〉 Aequum est ut qui se regere non potest regatur aliunde thers For as to the righâ—… of Alienation and thâ—… like because in their own Nature they imply the Act 〈◊〉 a Will guided with a Alienatio rerum solidum desiderat habere judicium Cassiodorus 11 11. Reason which Infants Idâ—… ots and Madmen havâ—… not Therefore 〈◊〉 〈◊〉 Law permit these 〈◊〉 unto them as to the 〈◊〉 and free Exercise of their Rights But here may be started a Question or two Quest. One whereof is this If there be found a Peâ—…ple that have no use of Natural Reason at all Whethâ—… all Right and Dominion may be taken from them Sol. It is not sufficient saith Grotius to justifie War to pretend that we were the first Discoverers 〈◊〉 any place in case it be possest tho' by Pagans and Inâ—…dels or by Men of dull Apprehension for to entitle our selves to be the first Founders 't is necessary that the Inventio est eorum quae nullius sunt Land so found should belong to none Neither is it necessary to Propriety or Dominion that a Man should be endued with Virtues Moral or a A true Maxim in Divinity Dominion is not founded in Grace Bishop Brownrig 1 Vol. of Sermons p. 50. And Amesius in his Cases of Conscience Lib. 5. Cap. 41. Qu. 1. Numb 7. Theological or to be of a quick Understanding yet may this seem to be justifiable That in case there
can be found a People that have no use of natural Reason at all there all Right and Dominion may be taken from them Yet ought we in Charity to to make them such an Allowance as is necessary for their support and maintainance as well as to other Ideots and Madmen For as to what has been already said concerning the Care which the Law of Nations take to preserve the Property of Infants and Lunaticks it appertains to such People with whom we have any commerce or make any contract with which we cannot have with such a People as are wholly and altogether destitute of Reason and therefore of these it may be very well doubted whether they have any Property at all Grotius De jure Belli Pacis Lib. 2. Cap. 22. Sect. 9 10. Quest. The other Question may be this If a King or Sovereign Prince be a Minor or if he be not of sound Memory whether such a one has Right to Govern Sol. For the Solution of this Question we must distinguish as in private Dominion so in Empire between the Right it self and the exercise of that Right or Grotius De jure belli pacis Lib. 1. Cah 3. Sect. 24. between the first act and the second for as a King though an Infant hath a Right to Govern but is not permitted to exercise that Right so he that is Furiosus aut captivus Mad or a Prisoner or that so lives in a Foreign Country that he is not permitted freely to act in such matters as concern the Good of that Empire that is remote from him for in all such cases they have their Lieutenants or Vice-Roys to act for them Wherefore Demetrius living under restraint with Seleucus did forbid any Credit to be given to his Letters or unto his Plutarch in Demetrius and Peter de la Primadaie in his French Academy cap. 50. Seal but commanded that all things should be so governed as if he were dead Note Girard affirmeth that it hath been the Custom of the French to honour their Kings whatsoever they are whether wise or foolish valiant or weak esteeming the De L'Estate de France Lib. 1. Sir John Hayward in the Life of King William II. p. 151. Edit 1613. Name of King to be Sacred by whomsoever it be born And therefore they obeyed not only Charles the Simple but Charles the sixth also who reigned many years in plain distraction of his Mind So when Alexandrides King of Sparta left two Sons Cleomenes the Eldest distracted in his VVits and Doricus the youngest both able and enclined to all Actions of Honour the Spartans acknowledged Cleomenes for their King Having given the READER an Account upon what Right the Dominion or Propriety of Infants Ideots and Mad-men is founded I shall now proceed to treat of the Law of England as also to mention Sparsim here and there the Roman and Canon Law relating to such as are deprived of the Use of their Reason Wits and Understanding A Man of Non sane Memorie is termed among the â—…atines Insanus Fatuus Amens Demens Mente Captus Maniacus Furiosus Stultus Errore Mentis Affectus a Rationis usu Destitutus Lunaticus and Non Compos Mentis Of which several Terms the last of all is most â—…re and legal and according to our English Leguâ—…ians The several sorts of Non Com pos Mentis in the Common Law or Lawyers Non Compos Mentis is of four â—…orts First He that is an Idiot Born Next He that â—…y Accident afterwards loseth his Wits Thirdly A Luâ—…atick that hath sometimes his Understanding and â—…ometimes not Lastly He Co. Lit. 246. b. 247. a. Co. L. 4. Beverley's Case Cowell's Interpreter Tit. Non Compos Mentis and Minshew's Guide into the Tongues 495. which by his own act depriâ—…eth himself of his right â—…ind for a time as a Drunâ—…ard Of these four sorts in their Order and that by way of Description by way of Remark and by way of Query PART the FIRST Of him that is an Idiot Born SECT I. An Idiot or Natural Fool who BEfore a Description be given of an Idiot that from his Nativity by a perpetual Infirmity is Non Compos Mentis it will not be much amiss to give some Account of the first Original of the Word Idiot Idiota or Idiotes is a Greek Word and properly signifies a private Man who is not employed in any Publick Office Amongst the Latines it is taken for illiterate or foolish and hence in Cicero and other good Authors Idiota signisies commonly an unlearned and illiterate person In Herodian he is said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui rei alicujus est imperitus ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But among the English Jurists Idiot is a Term of Law and taken for one that is wholly deprived of his Reason and Understanding from his Birth and with us in our common Speech is called a Fool Natural of whom there has been given a Description by several of our Law-Authors Master Fitzherbert describes an Idiot thus He who shall he said to be an Idiot from his Birth is such a Person who cannot account or number twenty pence or cannot tell who is his Father or Mother or how old he is Nat. Brev. 579. B. de Idiota Inquirendo c. So that it may appear that he hath no understanding of Reason what shall be for his Profit or what shall be for his Loss The Author of the Exposition of the Terms of the Law gives this Description of him Idiot is he that is a Fool Natural from his Birth and knoweth not how to account or number twenty pence or cannot name his Father or Mother nor of what Age Tit. Ideot f. 201. a. b. himself is or such like easy and common Matters so that it appeareth he hath no manner of understanding of reason or government of himself what is for his profit or disprofit c. An Idiot by the Civilian Swinbourn is thus described An Idiot or a natural Fool is he who notwithstanding he be of lawful Age yet he is so witless that he cannot number to Twenty nor can tell what Age he is of nor knoweth b Quid Estne statim fatuus quisquis non potest demonstrare patrem Absit Nam ut concedam filium illum merito sagacem dici suum qui novit patrem certe si concluderem reliquos omnes esse fatuos vereor ne excluderem paucos Notum est quod cecinit de Telemacho insignis Homerus Ex illo natum mater me dicit At ipse nescio Nam certum quis possit scire parentem Quod igitur scriptum reliquit Fitzhorbert Que tiel person serra dit Sot Idiote que ne scier dire qui fuit son pere ou mere c. ita exaudiendum est si nesciat respondere quis appellatur ipsius Pater who is his Father or Mother nor is able to answer to any such easie Question
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.
Idiot 18 E. 3. Scire Facias 10. 32 E. 3. Scire Facias 106. 50. Ass. Pl. 2. For the Statute of Proerogativa Regis saith Quod post mortem eorum reddat eam rectis Haeredibus which the King cannot do nor can the King have the possession of the Land to his own use if not that by the Office and Seizure such Conveyance made by the Idiot be destroyed and that doth not impugn the Maxim at the Common Law * It is a Maxim of the Common Law of England That the Party shall not disable himself Co. Lit. 247. b. 10 Lib. 4. f. 123. b. Beverley's Case Cro El. f. 398. Stroud v. Marshal Co. 3. Inst. 215. Littleton sect 405. For in this Case the Idiot in no Plea that he can plead shall disable or stultifie himself but all is found by Office by the Inquisition and Verdict of twelve Men at the King's Suit who are not concluded to speak the Truth and such Office when it is found shall have relation a tempore Nativitatis to avoid all mean Acts made by the Idiot as Feoffments Releases c. And therewith agreeth 23 E. 3. Scire Facias 106. Stamford's Praerogative 34. F. N. B. 202. C. But notwithstanding the Words of the Statute of Praerog Regis are general and emphatical Nullatenus alienantur yet if he Alien by Fine or Recovery it shall bind him or acknowledge 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 follow thereupon Also such Averment is against the Office and Dignity of the Judge for he ought not to take any Conusance of a Fine or Recognisance of him who is Non Compos Mentis 18 E. 2. Fines 120. 17 Ass. Pl. 17. 17 E. 3. X. QUERY A Fine levied by an Idiot or Natural Fool what it operates SOLUTION Anno 23 Eliz. In the Court of Wards the Case was this That Henry Bushley seized in Fee of certain Mich. 12 Iac. Regis Mansfield's Case Co. Lib. 12. f. 123 124. Lands in North-Mins in the County of Hertford by his Will in Writing demised the said Lands to Henry Bushley his Son in Tail the Remainder to one William Bushley And for this that his Son was within Age he demised the Education of him to Thomas Harrison whom he made his Executor And afterwards it hapned that Henry the Son became a monstrous and deformed Cripple and proved an Idiot a Nativitate The which Idiot by the Practice of one Nichols and others was ravished and taken out of the Custody of his Guardian and was carried upon Mens Shoulders to a Place unknown and there kept in secret until he had acknowledged a Fine of his Lands to one Botham before Justice Southcot Anno 9 Eliz. And by Indenture between them the use of the said Fine was declared to the use of the Cognizee and his Heirs which Botham conveyed Anno 12 Eliz. the said Land to one Henry Mansfield And Anno 12 Eliz. the said Henry Bushley the Son by Inquisition was found an Idiot a Nativitate and upon this in Anno 33. the Court of Wards took Order for the Possession of the said Lands And it was moved as a Doubt in the said Court of Wards Whether the said Fine should be to the Use of the said Idiot and his Heirs For notwithstanding that the Fine which is of Record binds the Idiot for the Causes aforesaid yet the Indentures are not sufficient to direct the Uses But it was resolved that forasmuch as he was enabled by the Fine Vide Co. Lib. 2. f 58. Beckwith's Case Co. lib. 10. Portington's Case as to the Principal he shall not be disabled to limit the Uses which are but as accessory And the same is the Law of an Infant and Feme Covert And the said Mansfield brought an Action of Trespass in the Common Pleas against one Trot the Farmer of the said Lands and the Issue was to be tried at the Bar And the said deformed Idiot was sent out of the Court of Wards to be shewn to the Judges of the Common Pleas and to the Jurors there tried and sworn and being brought upon a Man's Shoulders the Judges hearing that the Title of Mansfield was under the said Fine levied by that Idiot the Lord Dyer and the Court by Consent of Parties caused a Juror to be withdrawn and the Lord Dyer said That the Judge who took the Fine was never worthy to take another But notwithstanding this and altho' the monstrous Deformity and Idiocy of Bushley was apparent and visible yet the Fine stood good XI QUERY A Fine levied by J. S. Uncle of an Idiot who was seized of the 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. SOLUTION Trespass upon Not Guilty and a special Verdict the Case was Tenant for Life Reversion to William Rogers Cro. Car. f. 525 543. Edwards v. Rogers an Idiot in Fee Andrew Rogers his Uncle levies a Fine Come Ceo c. with Proclamation to Robert Crompton and had Issue Iohn who had Issue William the Defendant and died William the Idiot died without Issue William the Defendant enters as Heir unto him viz. Son and Heir of Iohn Son and Heir of the said Andrew And whether he may claim against this Fine of his Grand-father not claiming by the Grandfather but deriving only his Pedigree from him was the Question And it was argued by Rolls for the Plaintiff That forasmuch as William Rogers is Heir to Andrew his Grand-father Uncle to the said William the Idiot he is estopped to claim against this Fine or to say Quod partes ad finem nihil habuerunt And for Proof thereof he relied upon the Statute of 27 E. 1. of Fines Co. lib. 3. f. 89. 10 Car. Scovel Brastock's Case Co lib. 3. f. 30. Sir George Brown's Case Saule Clerk's Case But it was argued by Farrer for the Defendant that this Fine shall not bar because he claims not any Interest by or from Andrew nor as Heir unto him but only makes â—…ention of him in the Pedigree Co. Litt. f. 8. 2 E. 3. 6. 〈◊〉 lib. 8. 53. Symms Case c. And that here he is 〈◊〉 Quasi of another Title and Puisny to the Fine â—…erkly and Croke delivered their Opinions That this â—…ne by Andrew the Uncle of William the Idiot who â—…as seized of the Inheritance he dying in the Life of â—…illiam so as nothing ever attached upon him shall â—…ver bar William the Defendant who was Grand-child 〈◊〉 the said Andrew because he claims nothing by or â—…om him but only from William the Nephew of Anâ—…rew who survived the said Andrew And he makes â—…s Title as Heir to the said William the Nephew who â—…as last seized not making therein any mention of
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.
to cold and sedate Reasoning and then Reason being thus laid aside Fancy gets the Ascendent and Phaeton-like drives on furiously and inconsistently This Combustion of the Spirits happens sometimes by over-great Intention of the Mind in long and constant Study sometimes by a Fever which inflaming the Blood that communicates the Incendium to the Spirits which take the Original from it But most usually by the Rage and Violence of some of the Passions whether Irascible or Concupiscible as they are wont to be distinguished a Man setting his Heart vehemently upon some * Mad-men have always before their Eyes those Idea's and Shapes which work the Apprehension of their Fury and hold them in the Vision and inward View of that which most troubleth their diseased Brain French Academy c. 18. Of Intemperance Object or other the Spirits are set on fire by the Violence of their own Motion and in that Rage are not to be governed by Reason This we have sad Examples of in Love in Grief in Jealousie in Wrath and Vexation and indeed saith my Author Bethlehem is filled with the Instances II. REMARK By the Statute of Praerogativa Regis the King of England is to provide that 17 E. 2. e. 10. the Lands of the Furor Men be safely kept without waste and that they and their Families if they have any shall be maintained with the Profits thereof and that the Residue be kept for their use and delivered unto them when they come to be of right Mind So as their Land shall not be aliened neither shall the King have any Profit thereof to his own use But if they die in such Estate the Residue shall be distributed for their Souls by the Advice of the Ordinary III. REMARK The words of F. N. B. 232. That the King is bound of Right by his Laws to defend his Subjects and 4 Co. 128. Beverley's Case of Non compos mentis their Goods and Chattels Lands and Tenements extend as well to one Non compos Mentis as a Mad-man as to an Idiot a Nativitate but in Case of Non compos mentis the King shall not have Interest in a Mad-man that is wholly deprived of his Understanding as he hath in the Idiot because that a distracted Man may recover his Memory that he hath lost and therefore in the Case of the Idiot or Fool Natural the Law saith Rex habebit Custodiam but in the Case of a Mad-man or Non compos mentis Rex providebit And as to Alienation made by a Man distracted the words are all one as they are in the Case of the Idiot and therefore after Office found thereof the Alienation Gift c. of him who is by Accident deprived of his Wits are in equal Case with the Alienation or Gift of an Idiot a Nativitate And the said words of the Writ in the Register Quia accepimus quod J. de B. fatuus Idiota existit c. extend Register of Original and Judicial Writs f. 266. a. as well to another Non compos mentis as Idiota a nativitate a Fool Natural For afterwards in the same Writ it is said Diligenter inquiras si Idem fatuus Idiota sit necne si sit tum utrum a nativitate sua Register f. 2668. an ab alio tempore tunc a quo tempore qualiter quomodo si lucidis gaudeat intervallis si Idem J. in eodem statu existens terras aut Tenementa aliqua alienavit necne c. So that it appeareth that in Judgment of Law Fatuus Idiota include as well Non compos mentis as Idiota a Nativitate and therefore they are in the same Case as to the Alienation of their Lands and Tenements Goods and Chattels IV. REMARK A Furor Man cannot appoint an Attorney as appears by Britton for he tells us Chescun ne puit mye faire attorne Car enfant dedens Cap. 126. f. 285. b. Age ne muet ne surd ne fol naistre ne homme arrage ou auterment sans discretion ne puit mye faire attornes V. REMARK There is required in them who contract Matrimony a sound and whole Mind to consent and therefore he that is mad or distracted without Furor says the Lawyer Gaius sponsalibus impedimento sit plus quam manifestum est D. 23. 1. 8. Furor contrahi Matrimonium non sinit quia consensu opus est says Paulus D. 23. 2. 16. 2. Furiosus Matrimonium contrahere non potest Decret Greg. l. 4. tit 1. c. 24. Innocentius 3. Versil Episcopa dilectus filius R. proposuit quod filiam suam cuidam Matrimonaliter copulavit Cum autem eadem mulier cum ipso viro qui continuo furore laborat morari non possit propter alienationem mentis non potuerit intervenire consensus man damus quatenus si rem noveris ita esse praefatas personas cures ab invicem separare Intermission of Fury cannot enter into the Bonds of Wedlock So says the Author of the Treatises entituled The Woman's Lawyer l. 2. sect 10. p. 57. And with him concurs Amesius in his Cases of Conscience The Consent of Wedlock saith he musâ—… be voluntary and free else it is not esteemed a Human Consent And hence the Consent of such as have not use of Reason as Mad-men is of no force to such a Contract Lib. 5. c. 35. Question 4. nu 24 25. p. 201. Engl. Edit 1643. Such one may not consent to Marriage and his Issue will not be legitimate Trin. 3 Iac. B. Regis Stiles VI. REMARK Tho' Furor or Madness hinders the contracting of Matrimony yet it shall not Furor impedit Matrimonium contrahendum sed non dirimit contractum take away that Marriage that is already contracted as appears by the Civil and Canon Laws D. 23. 1. 8. D. 23. 2. 16. 2. Instit. Iuris Canonici Lib. 2. Tit. 12. Arnoldus Corvinus in his Ius Canonicum Lib. 2. Tit. 13. de Nuptiis VII REMARK A Furor Man ought not to be a Witness in any Cause be it either Civil or Criminal Decret 2. a. Pars Furiosus aut mente Captus non potest esse Testis caus 3. Qu. 19. c. 14. Decret Greg. Lib. 3. Tit. 27. c. 3. de Successionibus ab intestato Corvinus in his Ius Canonicum lib. 3. tit 27. de Testibus Ulpianus tit 20. de Testamentis D. 28. 1. 20. 4. Swinburn in his Treatise of Wills Part 4. Sect. 21. f. 186. a. Edit 1590. VIII REMARK Children and Mad-men * Lex duodecïm Tabularum furiosum in curatione jubet esse Agnatorum Ulpian tit 12. de Curatoribus altho' they have not the next actual power of using things yet they have a radical power because they are Men Amesius in his Cases of Conscience lib. 5. c. 41. qu. 1. sect 6. And by the Law of Nations Children are then capable of inheriting †Plutarch de Fort. Alex. l. 2.
speaking of Children saith That Children have a Right to the Inheritance but not to the use of it an Estate tho' they be justly restrained from managing of it by reason of their immature Judgment Grotius de jure belli pacis Lib. 2. Cap. 5. Sect. 2. IX REMARK Bracton in his Treatise of the Laws and Customs of England shewing by what Persons possession of things may be acquired says thus of the furious Man Furiosus Furiosus sine tutoris auctoritate non potest incipere possidere Quia affectionem tenendi non habet licet maxime corpore suo rem contingat Sicuti si quis dormienti aliquid in manu ponat D. 41. 2. 1. 3. affectum retinendi habere non poterit sine Curatore quia non est aliud de eo nisi ad similitudinem ejus qui dormienti pluviam ip manum projecerit Et qui accipere debet retinere oportet quod habeat affectionem intellectum percipiendi retinendi Item qui curare debet Custodiam habere oportet eodem modo quod habeat Intellectus quia si furiosum miseris ut possideas nequaquam per eos videris possessionem apprehendisse quia intellectum non habet X. REMARK He that is a Mad-man is uncapable to be a Judge or an Arbitrator for want of Non omnes Iudices dari possunt qui Iudicis dandi jus habent Quidam enim Lege impediuntur ne Iudices sint quidam natura quidam moribus natura ut surdus mutus perpetuo furiosus impubes quia judicio carent D. 5. 1. 12. 2. Understanding and Discretion Mirror of Iustices c. 2. sect 2. p. 116. West Symb. part 2. sect 23 26 27. Neither can be an Essoiner or Excusator Mirror c. 2. sect 30. p. 175. XI REMARK One that is a Mad-man cannot Attorn for that he that hath no Understanding cannot agree to the Grant 18 E. 3. 53. 6 Co. f. 69. a. Sir Moyle Finch's Case XII REMARK To a lawful Contract there are required Persons fit to contract Hence Mad-men Note That every Alienation of a Man's Right all Contracts betwixt Man and Man all Leagues c. betwixt Princes ought to be done with sound Iudgment therefore the Acts of the Will that are express'd with overt signs are to be understood the Acts of a Mind endued with Reason of which a Man distracted is wholly deprived and therefore uncapable of performing any profitable things which made King Achish say to his Servants Lo you see the Man is mad Wherefore then have ye brought him to me 1 Sam. 21. 13 14 15. â—…re not fit to make Conâ—…racts or Alienations and under that Title by the Civil Law of all Countries are deservedly accounted Nullities Amesius l. 5. c. 42. qu. 1. of Contracts D. 39. 5. 23. 1. Cowel's Institutes lib. 2. tit 8. n. 3. p. 108. F. N. B. f. 292. C. Fleta lib. 3. c. 3. n. 10. p. 178 lib. 2. c. 56. nu 19. p. 122. Bracton lib. 3. tract 1. c. 2. n. 8. f. 100. A. lib. 5. tract 5. c. 20. nu 1. de Exceptionibus Fleta lib. 6. c. 40. nu 1. p. 434. Cowel lib. 3. tit 20. nu 7. p. 161. Fleta lib. 2. c. 60. nu 26. Cowel lib. 2. tit 7. nu 4. de Donatibus Britton c. 28. f. 62. b. 63. a. c. 34. f. 90. a. Mirror de Iustices c. 2. sect 27. p. 161. XIII REMARK In all Conveyance or Purchase for Joynture unless it be by Fine or Common Recovery he which makes the Estate must be a Person able to convey c. at the time of the Joynture making or else it is not good He must not therefore be Attaint of Treason an Alien born under Age or Non compos mentis a Mad-man The Woman's Lawyer lib 3. c. 31. p. 188. XIV REMARK It is a good Exception for the Person of him that complaineth or bringeth any Action to say he is Furiosus a Mad-man because such a one differeth not much from a Beast that wants Reason Lib. 5. tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 6. cap. 38. nu 1. Stamford Super Praerogativam Regis cap. 10. fol. 36. b. Edit 1567. XV. REMARK He that promiseth should be endued with Reason which renders the Promises of Mad-men void and of no force Grotius de jure Promissio requirit usum Rationis in promittente ideo furiosi nulla est promissio bells pacis lib. 2. c. 11. sect 5. And it is the same Law in case of Oaths made by Men distracted For they that swear should be of sound Mind and should use great deliberation before Animus rationis compos deliberatus they take any Oaths Idem lib. 2. c. 13. sect 2. Sheppard in his Abridgment tit Idiots and Lunaticks tells us That a Mad-man cannot promise or contract for any thing to bind himself XVI REMARK A Copyholder of unsound Memory as a Furor Man cannot make a Forfeiture of his Estate Sheppard's Court-Keeper's Guide cap. 22. XVII REMARK Any Man may be a Steward of a Copyhold Mannor and therefore if an Infant Lunatick or Non compos mentis a Man distracted be made Steward all Acts that he doth according to his Office are good Sheppard's Court-Keeper's Guide cap. 19. p. 115. XVIII REMARK Every Deed Feeoffment or Grant which a Furorman makes is avoidable and yet shall never be avoided by himself because 't is a Maxim in Law That no Man of full Age shall by any Plea pleaded by him be received to disable his own Person or stultifie himself Besides another Reason is rendred sc. Because that when he recovers his Memory he cannot know what he did when he was Non compos mentis 4. Co. 124. b. Beverley's Case Littleton sect 405. Noy in his Treatise of the Grounds of the Laws of this Nation cap. 28. Of Conveyances XIX REMARK Altho' Mad-men themselves cannot be received to disable themselves yet twelve Men upon their Oaths may find the Truth of the Matter in the Case of a Feoffment or other Transact in Pais But if Mad-men alien by Fine or Recovery this shall not only bind themselves but their Heirs also Co. Litt. f. 247. a. 4. Co. 124. a. Beverley's Case of Non compos mentis Perkins sect 24. XX. REMARK There are in our Books of Law found four several Opinions concerning the Alienation or other Act of Coke in his Comment on Littleton § 405. f. 247. a. b. a Man Non compos mentis c. For First Some are of Opinion That he may avoid his own Act by Entry or Plea Secondly Others are of Opinion That he may avoid it by Writ and not by Plea Thirdly Others That he may avoid it either by Plea or Writ and of this Opinion is Fitzherbert in his Natura Brevium Fourthly Littleton sect 405. is of Opinion That neither by Plea nor by Writ nor otherwise he himself shall avoid it but his Heir in respect
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
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