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
Stamfoâ—… saith to this Point ' This Prerogative of the King quoth he to have the Custody of an Idiot begun in the time of King E. 1. as it should seem to him because he finds none that wrote of it before Britton for Bracton speaks but little Competit exceptio peremptoria tenenti ex persona petentis si petens fuerit non sanae mentis quod discernere nesciat vel omnino nullam habeat discretionem Talis enim non multum distat a Bruto quod Ratione caret Sed discussio hujusmodi exceptionis discretioni judicis relinquatur Bracton lib. 5. tract 5. c. 20. nu 1. of Idiots in his Fifth Book in the Title of Exceptions against the Plaintiff where he saith It is a good Exception for the Person of him that complaineth or bringeth any Action to say He is a Fool Natural because such a one differeth not much from a Beast that wants Reason But the discussion of such a kind of Exception is left to the discretion of the Judge Howbeit Britton f. 167. b. saith That the King ought to have this Prerogative herein for these be his very words Et pur ceo que ascun foitz avient que ascun Heir est Sot â—…aistre par quoy il nest my able a heritage demaunder â—…arner volons que tielz Heires de qui qu'il unques teâ—…ent malles femelles demoergent en nostre garde ovesque â—…out autres services que a luy appendent de terre tenue de â—…uy issint remeynent en nostre garde taunt come ils â—…urent en lour sotise Upon these words of Britton by the by Stamford notes three things 1. That the King shall not have the Custody during their Lives but during their Idiocy 2. That notwithstanding the Land is in the King's Hands yet the Lords shall have their Seigniories which is by way of Petition 3. That the other Lord shall not have the Wardship of the Heir nor of his Lands but only the King which third thing says he by the Statute of Prerogative is not so plainly set forth IV. QUERY Whether the Ter-Tenant shall be allowed to traverse an Office of Idiocy upon a Scire Facias brought against him by the King SOLUTION It was found by an Inquest of Office returned into Chancery that W. N. was seized of certain Mannors and they were held of the King in Chief and died 50 Ass. Pl. 2. Br. Gr. Abridgement Tit. Idiots seized and the Tenements descended to R. a Fool Natural from his Nativity as Son and Heir and that N held the Tenements Whereupon the King sued a Scire Facias against N. to shew Cause why the King should not seize the Lands into his Hands for the Idiocy of R. who comes and says That R. such a Day released all his Right to the Possession to M. at the making of which Deed R. was of good Memory which M. infeoffed him without that R. was a Fool Natural from his Nativity and it was not denied but that the Ter-Tenant may traverse the Office in this Form V. QUERY Whether there be any Diversity in the Case of the King to Answer either to the Tenure or to the Possession SOLUTION An Office was found 1 H. 7. 18 19. 2 H. 7. 3. Broke's Grand Abridgment Tit. Idiots that I. S. died seized of such Lands by Gift in Tail made to him which descended to W. his Son and Heir who was an Idiot and N. comes and traverseth the Office making Title Absque hoc quod dict J. S. fuit seisie proâ—…t c. the Day he died and it was found against the King And by Hussey and Fairfax the Case of Idiocy is not like to the Case of the Ward of Land and Heir For there the King shall answer to the Tenure but in the Case of an Idiot the King shall answer only to the possession For if an Idiot has Title to Land either by Entry or by Action if he has it not in possession the King â—…hall not have it and so Judgment was given upon the Traverse for the Issue was upon the possession and it matters not whether the Idiot had Right or not if he had not the possession VI. QUERY Whether an Idiot or Fool Natural can be bound by the Sale of his Goods in Market Overt SOLUTION Regularly the Sale by a Stranger in Market Overt bindeth an Infant a Feme Covert that hath Right Coke in his Exposition of the Stat. of 31 El. c. 12. f. 713. either in her own Right or as Executor or Administrator Idiots Non Compos Mentis Men beyond Sea and â—…n Prison that right have to the same VII QUERY Whether a Stranger may tender Money in performance of a Condition to save the Estate of an Idiot SOLUTION If an Heir be an Idiot of what Age soever any Man make the Tender for him in respect of the absolute Coke in his Comment on Littleton § 334. f. 206. b. disability and the Law in this Case is grounded on Charity And so in like Cases But note It is otherwise in the Case of an Infant for it has been adjudged Trin. 27 El. That where one Cro. El. f. 134. Watkins v. Ashwick tendred Money upon a Mortgage for an Infant who was not Guardian nor was to have any Interest in the Land that it was adjudged a void Tender Vide Co. Litt. f. 206. b. VIII QUERY If an Idiot or Natural Fool should make his Testament wisely and reasonably to the shew whether this Testament of his be good or not SOLUTION If an Idiot or Natural Fool should make his Testament so well and wisely in Apparence that the same may seem rather to be made by a reasonable Man than by one void of Discretion â—… some have been of Opinion that such a Testament is good and available in Law * Ita fuisse decisum in Senatu Romano Commemorant Io. And. And. Barba cum aliis in c. ad nostram de consuetud extra because Almighty God doth sometimes so illuminate the Minds of the Foolish that for that present in that Case they are not much inferiour to the Wise. And to this purpose divers credible Writers do remember a merry Accident which if they say truly was no Fable but an undoubted Fact * Io. And. panor Barba alii in C. ad nostram Hyero Franc. in L. Furiosi de Reg. Iur. D. Boer decis 13. n. 58. and this it is At Paris one Morning a hungry poor Man begging his Alms from Door to Door did at the last espy very good Cheer at a Cook 's House whereat by and by his Teeth began to water and the Spur of his empty and eager Stomach pricking him forwards he made as much haste towards the place as his feeble Feet would give him leave where he was no sooner come but the pleasant Smell partly of the Meat and partly of the Sauce did catch such sure hold of the
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
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
Purchaser SOLUTION A Man of Non sane Memorie may without the Consent of any other purchase Lands but he himself cannot wave it But if he die in his Madness or after his Coke in his Comment on Littleton § 1. f. 2. b. Memory recovered without agreement thereunto his Heir may wave and disagree to the State without any Cause shewed and so of an Idiot But if a Man of Non sane Memorie recovers his Memory and agree unto it it is unavoidable So it is if a Mad-man makes a Gift or Grant and then recovering his Wits confirms it this Gift or Grant is unavoidable as appears by Bracton and Fleta The former speaks thus Convalescit Donatio facta a Furioso si sanae mentis effectus donum illud confirmaverit vel ratum habuerit Lib. 2. cap. 5. nu 4. f. 11. b. 12. a. The later saith in this wise Dare poterit Furiosus quandâ—…que fatuus dum tamen donum ex post facto confirmaverit cum recuperaverit sanitatem Lib. 3. cap. 3. nu 8. With which Authors does agree Dionysius Gothofredus's Note upon D. 24. 3. 22. 10. Furiosus ad suam mentem reversus ratam rem habere potest Ratamque habendo facit utilem XVI QUERY Whether the Will of one that afterwards becomes mad or distracted shall stand good in Law SOLUTION If a Man that is of good and perfect Memory makes his Will and afterwards by the Visitation of God he 4 Co f. 61. b. Forse and Hembling's Case becomes of unsound Memory this Act of God shall not be a Revocation of his Will which he made when he was of good and perfect Memory With this Resolution do concur our old Jurists Bracton and Fleta as also the Texts of the Civil Law 1. Bracton Furor superveniens nihil adimit non magis quam morbus incurabilis sicut Lepra Secundum Lib. 5. Tract 5. Cap. 20. nu 1. f. 420. b. quod dicitur quod multa impediunt contrahendo quae non dirimunt Contractum ita sunt multa quae impediunt promovendo quae non dejiciunt jam promotum 2. Fleta Furor alienationem prius factam non perimit sicut multa impediunt contrahenda quae non Lib. 6. Cap. 40. nu 1. dirimunt Contractum ita sunt multa quae impediunt promovendum quae non dejiciunt jam promotum 3. Civil Texts Neque Testamentum recte factum neque ullum aliud negotium recte gestum postea furor interveniens perimit Siquis Instit. 2. 12. in Fine post testamentum factum adversa valetudine aut Instit. 2. 12. 3. in Fine quolibet alio casu mutus aut surdus esse caeperit ratum nihilominus manet ejus Testamentum Vide D. 28. 1. 20. 4. XVII QUERY Whether a Fine before a Iudge of Non sane Memorie or a Grant of an Office made by him be good in Law SOLUTION There is a Diversity taken between a Fine levied before a Judge of Non sane Memorie and a Grant of an Office made by him For Si Iudge ou Iustice soit de non sane Memorie uncore les Fines Iudgements auters Records que sont devant luy serra bon Mes e contra del done d'Office vel hujusmodi per luy car ceo est matter en fait l'auters sont matters de Record Car matters en fait poient estre avoid per non sane Memorie Contra de matter de Record If a Judge or Justice be distracted yet the Fines Judgments and other Records that are before him shall be good But otherwise it is of the Grant of an Office or the like by him made For this is Matter in Fact and the others are Matters of Record for Matters in Fact may be avoided by Non sane Memorie otherwise it is in the Case of Matter of Record Br. Dum non fuit Compos mentis 7. XVIII QUERY A Mad-man makes an Exchange of his Land with J. S. for other Land and the Exchange is accordingly executed the Non sane Man dies whether his Heir can avrid this Exchange having first entred into the Land taken in Exchange SOLUTION If a Man of unsound Memory being seized of Land in Fee exchangeth the same Land with a Stranger for another Acre of Land in Fee and the Exchange is executed and he of unsound Memory dieth and his Heir enters into the Land taken in Exchange by his Father he shall not avoid this Exchange Perkin Sect. 298. Tit. Exchanges XIX QUERY Whether and in what Cases Lachesse can prejudice an Idiot Mad-man or other Non compos mentis SOLUTION There are some who have made a Difference between Bar of Non compos mentis's Right and Bar of his Entry 4 Co. fol. 125. a. b. Beverley's Case of Non compos mentis for in Case of Bar of his Right his Lachesse or Negligence shall not be prejudicial to him but in such special Case if he become of unsound Memory he shall shew that he was not Compos mentis As if a Man Non compos mentis be disseised and the Disseizor levieth a Fiâ—… in this Case at the Common Law altho' the Year 〈◊〉 Day be past yet he who was Non compos mentis shall not be bound thereby but he may well enter and that they say is proved by the Statute De modo levandi Fines made 18 E. 1. which is but a Declaration of the Common Law scil That a Fine is so high a Bar and of so great force and of so high nature in it self that it barreth not only those who are Parties and Privies to the Fine and their Heirs but all other of the World who are of full Age. out of Prison and of good Memory and within the four Seas the Day of the Fine levied if they put not in their Claim by their Action or Entry in the County within the Year and the Day by which it appeareth that no Lachesse * Excusatur ille saith Flet a cujus interfuerit quod Clamium infra annum diem non apposuerit multis modis ut si fuerit infra aetatem tempore quo finis fuit levatus vel furiosus vel mente captus non sanae mentis vel Idiotus vel surdus vel mutus vel si detentus fuerit in Prisona c. Lib. 6. c. 54. nu 1. de Excusationibus of a Man Non compos mentis shall bar him of his Right Also it appeareth by the Statute of 4 H. 7. c. 24. That in such Case if a Man levieth a Fine with Proclamations and at the time of the Fine levied he who hath Right is Non compos mentis and afterward he recovers his Memory that in this Case he ought to sue his Action or Entry within five Years after he becometh of sound Memory and in such Case in Pleading he shall shew that at the time of the Fine levied he was Non compos mentis and all the special Matter But if
and Lunatick Persons Dr. Godolphin in his Tract entituled The Orphan's Legacy Part 1. c. 8. nu 2. Instit. 2. 12. 1. c. 6. 22. 9. II. QUERY Whether a Testament can be made by a Lunatick Person betwixt his Fits SOLUTION If a Lunatick Person hath clear or calm Intermissions then during the time of Swinburn Part 2. § 3. Orphan's Legacy Part 1. Chapter 8. such their Quietness and Freedom of Mind he may make his Testament appointing an Executor and disposing of his Goods at his pleasure So that neither the Furor or Madness going before nor following the making of the Testament doth hinder the same Testament begun and finished in the mean time The Lawyer Caius saith thus Hi qui furiosi id est mente insani fuerint non possunt facere testamenta Lib. 2. tit 2. de Testamentis Sed hii qui insani sunt Si intervalla ipsius insaniae habent per intervalla quibus sani sunt possunt facere testamenta The Emperor Iustinian speaks in this manner both in his Institutes and in his Code Furiosi si per id tempus fecerint testamentum quo furor eorum intermissus est jure testati esse videntur Instit. 2. 12. 1. Sancimus tale Testamentum hominis qui in ipso actu Testamenti adversa valetudine tentus est pro nihilo esse Si vero voluerit in dilucidis intervallis aliquod condere Testamentum vel ultimam voluntatem hoc sana mente inceperit facere consummaverit nullo tali morbo interveniente stare Testamentum sive quamcunque ultimam voluntatem censemus c. c. 6. 22. 9. III. QUERY If a Testament be made by a Lunatick Person and the time of the making unknown whether this Testament be good or no SOLUTION If a Lunatick Person or one that is besides himself at some times but not continually make his Testament and it is not known whether the same were made whilst he was of sound Mind and Memory or no then in case the Testament be so conceived as thereby no Argument of Frenzy or Folly can be gathered it is to be presum'd that the same was made Vasq. de Success progress lib. 1. § 9. n. 90. during the time of his Calm and clear Intermissions and so the Testament shall be adjudged for a good Testament Yea altho' it cannot be proved that the Testator useth to have any clear and quiet Intermissions at all yet nevertheless 't is supposed that if the Testament be wisely and orderly framed the same ought to be accepted for a lawful Testament But if in the Testament there be a mixture of Wisdom and Folly 't is presumed that the same was made Angel in L. Furiosum c. qui Testa fac poss during the Testator's Frenzy insomuch that if there be one word sounding to Folly it is presum'd that the Testator was not of sound Mind and Memory when he made the same And therefore Idem Angel in eadem L. Furiosum in this Case is the Testament void unless it may be proved that there was Intermission of Furor the same time Swinburn in his Treatise of Testaments and Last Wills Part 2. Sect. 3. f. 38. b. 39. a. Edit 1590. IV. QUERY Whether the Dying seised of a Bastard Eigne without Interruption shall bar the Right of a Mulier Puisne that is a Mad-man or a Lunatick SOLUTION According to some If a Man be seized of Land and hath Issue two Sons Bastard 8 Co. f. 101. Lechford's Case Eigne and Mulier Puisne and the Father dieth seised the Mulier being beyond Sea or within Age or Imprisoned or Non sanae Memoriae and the Bastard Eigne entreth and continueth in peaceable possession of the Lands and hath Issue and dieth and the Lands descend to his Issue the Right of the Mulier in all the said Cases is bound for ever And others hold the contrary V. QUERY Whether a Lunatick can be prejudiced by Laches of suing Livery SOLUTION Sir Ralph Burcher being seised of divers Mannors in the County of York holden in Hobart's Rep. f. 137. Burchers Case Chief died seised Anno 40 Eliz. and the same descended to William Burcher presently after his Death it Lunatick sueth not Livery no mean Rates run against him was found by Office before Commissioners in the County of Middlesex that the said William Burcher was a Lunatick and so had been long before the Death of his Father and that he was seised of the said Mannors and the Queen granted the Custody of him and his Lands to Sir Francis Barrington After which 42 Eliz. there was an Office found in the County of York of the Seisin of Sir Ralph his Death and Heir ut supra and that he was of full Age And it was resolved That the King And Livery was due to him and the Law presumes that he would have sued it being for his Benefit if he had been Compos mentis was not to have any mean Rates in this Case for default of Livery sued or tendred because no Lachess could be imputed unto the Heir being Lunatick before and ever since the Death of his Ancestors and the Lachess of his Friends shall not hurt him otherwise it were if at any time he had been Sanae Memoriae since the Death of his Ancestors And there was shewed unto the Judges the like Decree made Mich. 10 Iac. in the Cause of one Vaughan which the Attorney of the Court of Wards said was made as a Decree of Equity but they resolved also it was a good Decree in Law upon the Reason aforesaid not because the King had seised and committed by force of the Lunacy for that would have changed with the King 's better Estate for it is better for the King to hold for default of Livery than for Lunacy VI. QUERY Whether a Lunatick be punishable for hurting a Man SOLUTION If a Lunatick kill a Man this is no Felony because Felony must be done Animo Hobart's Reports f. 134. Weaver v. Ward Felonico yet in Trespass which tends only to give Damages according to Hurt or Loss it is not so And therefore if a Lunatick hurt a Man he shall be answerable in Trespass and therefore no Man shall be excused in Trespass for this is the Nature of an Excuse and not of a Justification prout ei bene licuit except it may be judged utterly without his fault VII QUERY Whether a Devise by a Lunatick be aided by the Statute of 43 Eliz. Of charitable Uses SOLUTION Collison 15 H. 8. devised Hobart's Rep. 136. Collison's Case an House in Eltham in Kent to Lettice his Wife for Life and after her Death made one Iohn Bricket and others Feoffees as he called them in the said House to keep it in Reparations and to bestow the rest of the Profits upon the Reparation of certain High-ways there Collison and his Wife are dead and the House is descended to one Oliver Rolt an
NON COMPOS MENTIS OR THE LAW RELATING TO NATURAL FOOLS MAD-FOLKS and LUNATICK PERSONS Inquisited and Explained for Common Benefit By IOHN BRYDALL Esq of LINCOLN'S-INN SENECA Lib. XIV Epistolarum Epist. 94. Siquis furioso praecepta det quomodo loqui debeat quomodo procedere quomodo in publico se gerere quomodo in privatoâ—…â—…it ipso quem monebit insanior LONDON Printed by the Assigns of Richard and Edward Atkins Esquires for Isaac Cleave at the Star next Serjeants-Inn in Chancery-Lane 1700. THE AUTHOR TO THE READER SEeing there have been exposed to Publick View a couple of Tracts the one entituled The Woman's Lawyer and the other stiled The Infant 's Lawyer I have been induced to 〈◊〉 a Publication of this perexiguous â—…iece and have named it The Law of Non Compos Mentis It being no other than a Collection methodically digested of such Laws with the Cases Opinions and Resolutions of our common Law Sages as do properly concern the Rights of all such as are wholly destitute of Reason Some whereof are become so by a perpetual Infirmity as Idiots or Fools Natural Some who were once of good and sound Memory but by the Visitation of God are deprived of it as Persons in a high Degree Distracted Some that have their lucid Intervals sometimes in their Wits sometimes out as Lunatick Persons And some who are made so by their own Default as Persons overcome with Drink who during the time of their Drunkenness are compared to Mad-Folks All which Sorts of Non Compos Mentis are the Subject Matter of the ensuing Sheets I shall no longer detain the Reader from the perusal of them than by tendering him the good Advice given by an ingenious Author touching Witless Persons which is as follows Take no Pleasure in the Folly of an Idiot nor in the Fancy of a Lunatick nor in the Frenzy of a Drunkard make them the Object of thy Pity not of thy Pastime When thou beholdest them behold how thou art beholding to Him that suffered thee not to be like them This wholsome Counsel of his to embrace will be look'd on as an Act of Prudence But to reject it will be such a piece of Folly as will undoubtedly bring him that shall be guilty of it under the hard Sentence of our old English Proverb Let him be begg'd for a Fool. A TABLE OF THE QUERIES RELATING First To IDIOTS 1. IF the King commit the Body or Estate of an Idiot to J. S. to do with him as he pleases whether this Grant be good 26 2. Whether the King shall have the Mean Profits from the time of the first Seisure of the Idiot or from the time of the Office found 27 3. At what time was the Prerogative in the Custody of Idiots Lands conferred on the Crown during the Life of an Idiot or Natural Fool 29 4. Whether the Ter-Tenant shall be allowed to Traverse an Office of Idiocy upon a Scire Facias brought against him by the King 32 5. Whether there be any Diversity in the Case of the King to answer either to the Tenure or the Possession 32 6. Whether an Idiot or Fool Natural can be bound by the Sale of his Goods in Market Overt 33 7. Whether a Stranger may tender Money in Performance of a Condition to save the Estate of an Idiot 33 8. If an Idiot should make his Testament wisely and reasonably to the Shew whether this Testament of his be good or not 34 9. If an Idiot above the Age of 21 Years makes a Feoffment in Fee of his Inheritance how and in what manner that Feoffment may be avoided during his Life 39 10. A Fine levied by an Idiot what it operates 40 11. A Fine levied by J. S. Uncle of an Idiot who was seised of an Inheritance the said J. S. dying in the Life of H. the Idiot whether this Fine so levied can bar the Grand-Child of J. S. 42 12. Whether the Custody of an Idiot holding by Copy of Court-Roll belongs to the King by his Prerogative or to the Lord of the Copyhold Mannor 44 13. Whether there be any Difference between an Estate made in Person or by Attorney as to an Idiot or any other Non Compos Mentis 45 14. A Man dies seised of Land his Heir being an Idiot and before Office he levies a Fine whether the King shall have the Custody of the Lands or not 47 15. Idiots in the Custody of the Prince whether such Custody can be devised by the Testator 47 16. Idiocy whether in any Case triable in the Ecclesiastical Court 48 17. An Executor having obtained Iudgment in an Accompt and having the Defendant in Execution for Arrearages and the Testament being afterwards annulled for Idiocy in the Testator whether the Testament being disapproved an Audita Querela will lie for the Defendant 49 18. Whether an Attornment made to a Grant by an Idiot or other Non Compos Mentis can be good in Law 50 19. Whether an Inquisition shall bind an Idiot without an Examination by the Council 51 20. No Possessions in Lands descending to an Idiot but only a Right whether the King can enter and have the Custody of it 51 Secondly To Persons Furious or Distracted 1. WHether Madness or Insanity of Mind ought to be proved by him that objecteth the same 66 2. Madness before the making of a Testament whether it can be presumed to continue 67 3. Furor or Madness whether hard to be proved 68 4. Madness whether it may be proved by singular Witness 69 5. Whether the Grant of a Copyhold Estate made by the Lord of the Copyhold Mannor that is a Mad-man can be good in Law 69 6. A Mad-man being seised of Land and granting a Rent-Charge out of this same Land dies his Heir entring and the Grantee distraining for Rent-Arrears whether the Heir may bring an Action of Trespass 70 7. A Man of Sane Memorie seised of Land makes a Feoffment and after when he is besides himself or distracted makes a Letter of Attorney for Livery of Seisin which is executed accordingly the Feoffor dies whether the Heir may lawfully enter upon the Feoffee 71 8. Whether the Entry of the Heir of a Furor Man be lawful maugre a Descent had in the Life of his Ancestors 71 9. What kind of Privies can disable him who was deprived of the Use of Reason and Understanding Or by whom and what Acts done by a Mad-man can â—…e avoided 72 10. Whether a Man Distracted or out of his Wits be relievable in a Court of Equity to avoid a Deed made by himself 73 11. Whether this Maxim That the Party cannot disable himself shall hold good in Criminal Causes as Felony Murther and Petit Treason 74 12. If a Man while he is Non Compos Mentis destroys himself whether he can be said to be Felo de se 78 13. Whether he that is Non Compos Mentis and totally deprived of all Compassings and Imaginations can commit High-Treason
and it shall be a good Plea or Exception to the Demandant or Plaintiff's Suit or Action Fleta lib. 2. cap. 54. numb 3. p. 116. and lib. 6. cap. 38. numb 1. p. 431. and cap. 40. numb 1. p. 434. Bracton lib. 5. tract 5. cap. 20. numb numb 1. f. 420. b. Mirror des Iustices cap. 2. sect 3. s. 117. XIII REMARK There is required in them who contract Matrimony a sound and whole Mind to consent for he that is either an Ideot or Madman without intermission of Fury cannot Marry The Womans Lawyer lib. 2. sect 10. p. 57. Edit 1632. This Consent saith Amesius must be voluntary and free else it 's not esteemed a humane consent and hence the consent of such as have not the use of Reason is no force to such a Contract Lib. 5. cap. 35. Qu. 4. XIV REMARK A Man that is Deaf and Dumb and yet hath Understanding may Attorn by signs but one that is Non compos mentis as an Idiot cannot attorn for that he hath no understanding cannot agree to the Grant Co. Lit. f. 315. a. 26 E 3. 63. 18 E. 3. 53. 6 Co. f. 69. a. Sir Moyle Finch's Case XV. REMARK Minoribus acquiruntur possessiones naturaliter fatuis furiosis per Tutores inde aliter vero minime eo quod intellectum recipiendi non habent nec retinendi Curatores autem sanum intellectum oportet habere quia si minorem fatuum a Nativitate vel furiosum miseris ut possideas nequaquam videris per eos possessionem apprehendisse quia intellectum non habent Fleta lib. 3. c. 15. nu 1 4. p. 203. VdeBracton lib. 2. c. 18. nu 6. f. 43. b. XVI REMARK It appears in the old Books of Law that it was expedient that Ideots should have a Curator or Tutor or one that should take the charge of their Persons Lands and Goods which Office since Bracton lib. 5. tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 1. c. 11. nu 10. Cowel's Institutes lib. 1. tit 23. sect 1. de Curatoribus is devolved to the King and made parcel of his Prerogative 17 E. 2. cap. 9. As Fitzherbert very well saith in his Natura Brevium The King is the Protector of all his Subjects their Goods Lands and Tenements and therefore of such as cannot govern themselves Stamford Sur Praerog Regis cap. 9. Britton c. 66. f. 167. b. Sir Thomas Smith's Common-weath lib. 2. c. 4. p. 98. Eng. Edit 1640. XVII REMARK The King having the custody of the Persons and Estates of Idiots can let to Farm rendring Rent all the Possessions of a Fool natural but not that which he hath Title unto or Action And therefore upon an Office finding that the Idiot's Ancestors died seized of an Estate Tail it is sufficient to Traverse the dying seized for that only entituleth the King 31 E. 3. Saver de Fault 37. 1 H. 7. 24. Finch's Law lib. 2. c. 2. XVIII REMARK By the Common Law the King shall have as great protection of the Goods and Chattels of an Idiot as of his Lands and that as well the scattering of his Goods 4 Co. f. 128. Beverly's Case and Chattels as the Alienation of his Lands is to be remedied and redressed by the King to whom the Law hath given the Protection and Custody of him XIX REMARK As after Office found an Idiot cannot Alien Give c. So Alienations Gifts c. made before Office found shall be avoided after Office thereof found for no Latches shall be found in the King nor any prejudice thereby shall accrue to the Idiot for not suing the Office before the Feoffment of Gift 4 Co. f. 428. Beverley's Case XX. REMARK If the Idiot dies before Office found after his Death no Office can be found for the words of the Writ are Et ipsum viis modis quibus super statu suo melius poteritis informari circumspecte examinaretis c. which cannot be done when he is dead and without Office the King cannot be entituled 16 E. 3. Livery 30. 4 Co. f. 128. Beverley's Case XXI REMARK When the King is informed that one who hath Lands and Tenements and is a natural Fool from his Birth the King may award his Writ called Idiota inquirendo vel examinando which directed to the Escheator or Sheriff of any County where the King hath information or understanding that there is an Idiot naturally so Born so weak of Understanding that he cannot govern or manage his Inheritance to call before him the Party suspected of Idiocy and examine him and also to inquire by the Oaths of twelve Men whether he be sufficiently witted to disposâ—… 〈◊〉 his own Lands with discretion or not and to certifie accordingly into the Chancery for the King as hath been said before hath the Protection of his Subjects and by his Prerogative the Government of their Lands and Substance that are naturally defective in their own discretion Doctor Cowel's Interpreter Brevia de inquirendo de Idiota tit Idiota inquirendo c. Minshew's Guide to the Tongues 373. Note The several Forms of the Writs in Latine directed either to the Escheator or the Sheriff are to be seen in the Register Orig. f. 266. a. b. XXII REMARK When a Man is found an Idiot from his Birth by Office he who is so found Idiot falsely as he supposeth may come personally into The manner how he that is falsely found to be an Idiot shall avoid the Office Chancery before the Chancellor and pray that before him and the Justices and Sages of the Law which he shall call to him and are called the King's Council he may be examined if he be an Idiot or not or by his Friends he may sue forth a a The Writ De Idiota coram consilio ducendo ad examinandum Reg. Orig. f. 267. Writ out of the Chancery returnable in the Chancery ibidem coram nobis consilio nostro examinand And if he be found upon examination that he is no Idiot the Offic found thereof and all the Examinations which hath been made by force of the Writ or the King's Commission is utterly void without any Traverse or Monstrans de droit or other Suit as appeareth by the Register Orig. f. 267. and F. N. B. 233. vide 15 E. 3. in Fitz. Tit. Livery 306. 9 Co. f. 31. The Case of the Abbot of Strâ—…ta Marcella Stamford super Praerog c. 9. f. 34. a. 36â—… Edit 1567. XXIII REMARK If a Scire Facias be awarded against the Feoffee of an Idiot and the Feoffee appearing upon the Scire Facias may traverse the Idiocy as appears he did in the Book of 18 E. 3. XXIV REMARK The Law gave the King but the Custody of the Lands of-the Idiot and altho' the same continued during the Life of the Idiot yet having but the Custody the King hath not the Freehold or Fee but the Freehold is in the Idiot For the
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
poor Man's Nose that as if he had been fast holden with a Pair of Pincers he had no power to pass from thence until he had to stay the Fury of his raging Appetite eaten a piece of Bread which he had of Charity gotten in another place In the eating whereof his Sense was so delighted with the fresh Smell of the Cook 's Cates that albeit he did not lay his Lips to any Morsel thereof yet in the end his Stomach was so well satisfied with only the Smell thereof that he plainly acknowledged himself thereby to have gotten as good a Breakfast as if he had indeed eaten his Belly-full of the best Cheer Which when the Cook had heard being an egregious Wrangler and an impudent Companion what doth he but all hastily steps forth to the poor Fellow lays fast Hand upon him and in a hot Cholerick Mood bids him pay for his Breakfast The honest poor Man half amazed at this strange Demand wist not well what to say But the Cook was so much the more fierce and earnest by how much he perceived the good Man to be abashed at his Boldness and did so cunningly cloak the Matter that in the end the poor Man was contented to refer the deciding of the Controversie to whatsoever Person should next pass by that way and without any more ado to abide his Judgment which thing was no sooner concluded but by and by cometh unto the place a very Natural Fool and such a notorious Idiot as in all Paris his like was not to be found All the better for me thought the Cook for more he doubted the Sentence of a wise Man than of a Fool. Well Sir to this foresaid Judge they rehearsed the whole Fact the Cook cruelly complaining and the other patiently confessing as before A great multitude of People were gathered about them no less desirous to know what would follow than wondering at that which had gone before To conclude this Natural perceiving what Money the Cook exacted caused the poor Man to put so much Money betwixt two Basons and to shake it up and down in the Cook 's hearing Which done he did arbitrate and award That as the poor Man was satisfied with only the Smell of the Cook 's Meat so the Cook should be recompensed only with the Noise of the poor Man's Money Which Judgment was so commended that who so heard the same thought if Cato or Solomon had been there to decide the Controversie they could not have given a more indifferent or just Sentence The like Case is reported to have hapned at Bononia * And. Barba in c. ad nostram de consuetud extr n. 8. There a certain covetous Man lost his Purse with 21 Ducats in it which when he could not recover with diligent Search he raved like a Mad-man and in the end was ready to have hanged himself for Sorrow Another honest Man having found such a Purse moved with Compassion came and delivered the same to this covetous Person who never thanking the Bringer fell forthwith to telling of the Money and finding but 20 Ducats therein with great Greediness he exacted the odd Ducat which because the Finder denied he is brought before the Magistrate a Man of very great Wealth but of very little Wit but such Magistrates are many times elected where the Matter lieth in the Mouths of the Multitude The one Party sweareth That there were 21 Ducats in the Purse which he lost The other Party sweareth That there were but 20 Ducats in the Purse which he found The Magistrate altho' a Fool gives no foolish Sentence for he pronounced ' That the Purse which was found was not that Purse which was lost and therefore condemned the covetous Person to restore the 20 Ducats to the other Party I may add hereunto a third Story of one that being a Natural Fool discovered a Daniel's History p. 29 30. in vita W. 1. Edit 1634. Sir Iohn Heyward's History of W. 1. p. 14 15. Edit 1613. Conspiracy and it is thus Guy Earl of Burgogne who had taken to Wife Alix Daughter to Duke Richard the Second and Aunt to William Duke of Normandy conspired with Nicellus President of Constantine Ranulph Viscount of Bayon Raimond and divers others suddenly to surprize the Duke and slay him in the Night A certain Fool nothing regarded for his want of Wit observing their Preparations secretly got away and in the Dead of the Night came to Valogne where the Duke then lay no less slenderly guarded with Men than the Place it self was slight for Defence Here he continued rapping at the Gate and crying out until it was opened and he brought to the Presence of the Duke to whom he declared the Conspiracy with Circumstances of such Moment that the Duke forthwith took his Horse and posted alone towards Falais an especial Place of Strength for Defence Presently after his Departure the Conspirators came to Valogne they beset the House they enter by force they search every Corner for the Duke and finding that the Game was start and on foot in hot haste they pursued the Chase. By these Reasons and Examples therefore it may be reasonably inferred that if a Fool do make a wise and reasonable Testament the same ought to be allowed as lawful Nevertheless this is the truer Opinion that such a Testament is not good the Reason is because a Testament is an Act to be performed with Discretion and Judgment Swinburn in his Treatise of Testaments and Last Wills Second Part Sect. 4. p. 41. b. Edit 1590. But a Natural Fool by the general Presumption of Law doth not understand what he speaketh tho' he seem to speak reasonably no more than did Balaam's Ass when he reasoned with his Master or doth a Parrot speaking to the Passengers And altho' Almighty God does sometimes so illuminate the Minds of very Natural Fools and Idiots that they do well perceive and understand what they speak yet because this thing hapneth but very seldom the Law doth not presume the same by occasion of Words only And therefore unless further Proof made thereof by other Circumstances the Law doth not approve such Testaments Indeed if it may appear by sufficient Conjectures that they had the Use of Reason or Understanding at such time as they did make their Testaments then doth the former Opinion take place Decius in L. Furiosi C. qui Testa fac poss in L. in negotiis Reg. Iur. F. IX QUERY If an Idiot above the Age of 21 Years makes a Feoffment in Fee of his Inheritance how and in what manner this Feoffment may be avoided during his Life SOLUTION If it be found by Office at the King's Suit that he was Idiot a Nativitate and that he aliened his Lands Co. lib. 4. f. 124. a. 127. Beverley's Case then upon a Scire facias against the Alienee the Land â—…hall be seized into the King's Hands and thereby the Inheritance shall be re-vested in the
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.
his Ancestor was Non compos mentis shall avoid it by Entry Plea or Writ And therewith the greatest Authorities of the Law-Books agree and so it was resolved with Master Littleton in Beverley's Case where it is said That it is 4 Co. f. 126 127. a Maxim of the Common Law That the Party shall not disable himself XXI REMARK If a Furor Man or a Man of Non sane Memorie make a Feoffment c. he himself cannot enter nor have a Writ Dum non fuit compos mentis but after his Death his Heir may well enter or have the said Writ of Dum non fuit compos mentis at his Choice Littleton sect 406. Exposition of Terms of the Law f. 138. a. b. tit Dum non fuit compos mentis Natura Brevium f. 128. a. b. Edit 1551. XXII REMARK Mad-folks during the time of their Furor or Insanity of Mind cannot make a Furiosi testamentum facere non possunt quia mente carent In adversa corporis valetudine mente captus tempore testamentum facere non potest Senium aetatis vel aegritudinem corporis sinceritatem mentis tenentibus testamenti factionem certum est non auferre Testament nor dispose any thing by Will no not ad pias Causas the Reason is most forceable because they know not what they do For in making of Testaments the Integrity and Perfectness of Mind and not Health of the Body is requisite and thereupon arose that common Clause used in every Testament almost Sick in Body but of perfect Mind and Memory Swinburn in his Treatise of Testaments and Last Wills 2d Part sect 3. f. 34. b. Edit 1590. Inst. 2. 12. 1. Cod. 6. 22. 9. Cod. 6. 36. 5. Cod. 6. 22. 3. Caius lib. 2. tit 2. de Testamentis Ulpianns tit 20. de Testamentis 6 Co. 23. Marquess of Winchester's Case XXIII REMARK The Impediment of Furor or Madness is so strong that if the Testator make his Testament after this Furor or Madness have overtaken him and whiles as yet it doth possess his Mind albeit the Furor afterwards departing or ceasing the Testator recover his former Understanding yet doth not the Testament made during his former Fit recover any force * Quod initio vitiosum est non potest tractu temporis convalescere D. 50. 17. 29. l 178. l. 201. l. 210. 1. 80. D. 34. 7. 1. D. 44. 7. 27. non firmatur 18 de Reg. in 6. D. 49. 1. 16. nisi duo quae sequuntur concurrunt vitii sc. Cessatio novissimus Actus i. e. nisi principium ipsius rei utile sequatur verbis vel actibus extrinsecus declaratis veluti Ratihabitione aliqua or strength thereby Cod. 6. 22. 9. Instit. 2. 12. 1. Swinburn in his Tract of Wills Part 2. sect 3. nu 3. p. 36. b. 37. a. Edit 1590. Godolphin's Tract entituled The Orphan's Legacy Part 1. cap. 8. nu 2. XXIV REMARK If a Man whilst he is mad or in a distracted Condition be admitted by a Judge to levy a Fine his Declaration Note He that is enabled to the Principal that is the Fine shall not be disabled to do the Accessory that is the declaring the uses of the Uses shall bind him and his Heirs as long as the Fine remaineth in force 2 Co. f. 58. b. Co. lib. 12. f. 123. Mansfield's Case 10 Co. f. 42. b. Mary Portington's Case XXV REMARK If a Furor Man grant a Rent-Charge out of Land his Heir may avoid it and hold it discharged Sheppard in his Abridgment Tit. Idiots XXVI REMARK He that is not a good Grantor cannot make a good Grant or Surrender of Copyhold-Land without a special Custom to enable him thereunto And hence it is that a Surrender made by a Mad man is not good but void in Law Sheppard of Copyholds c. 12. p. 117 118. XXVII REMARK A Surrender or Grant of Copyhold-Land may be made to a Lunatick and to one that was of good and sound Memory and by the Visitation hath lost it Sheppard's Court-Keeper's Guide c. 19. p. 118 119. XXVIII REMARK If a Man of None sane M. 1. Mar. 1. Br. Dum non fuit compos mentis 7. memorie be a Judge all Acts done by and before him shall stand good in Law XXIX REMARK If a Woman being in a Frenzy and of unsound Memory kill her Husband or another Man or Woman she shall not forfeit her Dower 12 H. 3. Dower 183. Perkins sect 365. Tit. Dower XXX REMARK A Descent during Minority Marriage Imprisonment Non sanae mentis or being out of the Realm do not take away an Entry Noy in his Grounds of the Laws c. 16. Of Descents XXXI REMARK A Man becoming Non compos mentis by Accident is disseised and suffers a Descent albeit he recover his Memory and Understanding again yet he shall never avoid the Descent Coke in his Comment on Littleton sect 405. f. 247. a. XXXII REMARK Albeit the Eldest Son of a Sovereign Prince be unfit to bear Rule albeit he be unable to Govern either others or himself as if he be in a high degree furious or foolish or otherwise defective in Body or in Mind unless he degenerate from Humane Condition yet he cannot therefore be excluded from Succession because it is due unto him not in respect of Ability but by reason of his Priority of Birth Sir Iohn Heyward in the Life of William II. p. 147 148. Edit 1613. From the Remarks come we to the Queries concerning Mad-men SECT III. The Queries with their Solutions relating to Furor Men. I. QUERY Whether Madness or Insanity of Mind ought to be proved by him that objecteth the same SOLUTION EVery Person is presumed to be of perfect Mind and Memory unless the contrary be proved And therefore if any Person go about Swinburn in his Treatise of Wills Part 2. Sect. 3. n. 5. p. 37. a. b. Edit 1590. to impugn or overthrow a Testament by reason of Madness Insanity of Mind or want of Memory he must prove that Impediment And if it be demanded Wherefore then is that usual Clause Of perfect Mind and Memory so duly observed in every Testament if he that doth prefer the Will be not charged with the Proof thereof It may be answered That that which is notorious is to be alledged not proved And so this Notorium probatione non indiget Zouch's Elements Pars 5. § 6. de Evidentia Causae being accounted notorious because where the contrary appeareth not the Law presumeth it it need not be proved And therefore 't is supposed that that Clause is more usual than necessary and yet not hurtful II. QUERY Madness before the making of a Testament whether it can be presumed to continue SOLUTION It may be delivered for a Rule That it is sufficient for the Party which pleadeth the Insanity of a Testator's Swinburn Part 2. Sect. 3. p. 37. b. 38. a. Edit 1590. Mind to prove that the Testator was besides
thus The word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Annotation on Ver. 15. of Matthew c. 17. coming from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Moon is directly parallel to the English Lunatick from Luna the Moon also the English word Lunacy and Lunatick is vulgarly taken to signifie a Mad-man and nothing else viz. That Species of Madness which comes on Ment at such a Set-time toward the Full of the Moon as ordinary it is observable in those that have any Intervals This Lunatick according to the Law of England is one that hath sometime his Intervalla haec furoris confinia furoris sanitatis dicuntur c. 5. 70. 6. c. 6. 22. 9. Understanding and sometime not Aliquando gaudâ—… lucidis intervallis and therefore he is called Non compos mentis so long as he hath not Understanding Coke in his Comment on Littleton sect 405. f. 247. a. The Judges in their Resolution in the Case of Beverley give this Description of a Lunatick Lunaticus qui 4 Co. f. 124. b. Case of Non compos mentis gaudet lucidis intervallis and sometimes is of sound Memory and sometimes is Non compos mentis Thus much for the Etymology and Description of a Lunatick Now for some Remarks relating to him SECT II. The Remarks concerning Lunaticks I. REMARK ILLI qui quarta Luna seu interlunio nascuntur huic morbo sunt obnoxii nam ex opinione Astrologorum si luna fuerit male collocata Interlunium dicitur id spatium temporis in quo nec amplius detus Luna apparet nec adhuc nova videtur aut spasticos aut Lunaticos aut Caducos facit Those that are born during the Interlune or Conjunction of the Sun and Moon are liable to the Disease of Lunacy For according to the Opinion of Star-Gazers if the Moon be ill set or placed it causeth Men to be subject either to Convulsions to Lunacy or to the Falling-sickness And concerning the last of these Physicians have a Rule viz. They who are Qui Comitialem morbum habent ne quidem diebus quibus motbo vacant sani dicuntur troubled with the Falling-sickness upon their good Days are not accounted whole II. REMARK The Roman Lawyers do distinguish every where betwixt him that is Furiosus and him who is Demens C. 5. 4. 25. C. 1. 4. 28. C. 5. 37. 28. For Furiosus est qui omni intellectu caret And therefore D. 50. 17. 5. Nihil utiliter agit nisi tempore dilucidi intervalli C. 5. 70. 6. Nam aliis hominibus continuum furoris infortunium accidit alios furoris morbus non sine laxamento aggreditur sed in quibusdam temporibus quaedam iis intermissio pervenit But with them Demens is he Qui est mentis Errore ductus ea Captus non usquequaque not continually D 2. Zouch's Elementa Iurisprud Pars 2. sect 4. de Valetudine Hominis III. REMARK The King of England by his Prerogative is Summus Regni Custos and hath the Cicero l. Tuseul 3. says Eum qui errore mentis affectus est vetari XII Tabulis rerum suarum Esse Dominum Custody of the Persons and Estates of such as for want of Reason and Understanding cannot govern themselves or manage their Estates so that the Persons and Estates of Lunaticks are as well in the Custody of the King as of Idiots but with this difference That of Idiots to his own use and that of Lunaticks to the use of the next Heir Statute of Praerogativa Regis c. 10. 4 Co. f. 128. Beverley's Case of Non compos mentis Stamford Super Praerog Regis c. 10. Cowell's Institutes Lib. 1. Tit. 23. n. 2. p. 43 44. Edit 1605. IV. REMARK Such as by Office are untruly found Lunaticks may have their Traverse to the same as appears by the Statute of 2 E. 6. c. 8. V. REMARK Those that are Parties to a Fine ought to be of good Memory as appears by the Statute de Finibus 18 E. 1. Vide 1 R. 3. c. 7. 4 H. 7. c. 24. Stat. 4. And therefore Lunaticks and such as are not of Sane Memorie may not be received to levy a Fine but if they be the Fine will be good and unavoidable Fieri non debet sed factum valet 4 Co. 124. Beverley's Case Sheppard's Practical Counsellor c. 2. VI. REMARK If the Parties to whom a Right or Title comes after a Fine levied be not of Sane Memorie a Lunatick being such he or his Heirs have time to pursue his or their Right or Title within five Years after such Imperfection removed So also has he in Case he had a Right of Title at the time of the Fine levied 1 R. 3. c. 7. 4 H. 7. c. 24. VII REMARK If Tenant in Tail levy a Fine the Issue in Tail tho'a Lunatick at the time of the Fine levied is barred for ever by the Fine so levied by the Tenant in Tail forasmuch as he is a Privy and out of all the Savings of 4 H. 7. c. 24. 3 Co. f. 91. The Case of Fines VIII REMARK It is enacted by the Statute of 34 35 H. 8. That the Will or Testament made of any Mannors Lands 34 35 H. 8. c. 5. Tenements or other Hereditaments by any Person De non sane Memorie shall not be taken to be good or Furiosus testamentum facere non potest quoniam mentem non habet ut testari de ea re possit Ulpian tit 20. de Testamentis effectual in the Law But a Lunatick in his Fits is a Person of Insanity of Mind and therefore his Will or Testament is not valid in Law IX REMARK If a Person that becomes of Non sane memorie by Accident be disseised and suffer a Discent altho' he return to his former right Understanding again yet he shall never avoid the Discent and so it is a Fortiori of one that hath Lucida Intervalla Co. Litt. 247. a. X. REMARK The Act of 23 El. c. 3. does not bar a Lunatick oâ—… other Non compos mentis of his Writ of Error for reversing a Fine so that he or his Heirs pursue such Writ within seven Years after such Imperfection removed and if it happen that he dies hanging the Suit his Heir may undertake it within one Year after the seven Years XI REMARK If a Man during his Lunacy make a Feoffment in Fee tho' he shall in Pleading never avoid it by saying that Co. Litt. 247. a. he was a Lunatick at the time of his Feoffment yet twelve Men upon their Oaths may find the Truth of the Matter and so the Feoffment may be avoided by the King for the Benefit of the Lunatick XII REMARK All Acts which a Man doth during his Lunacy are equivalent to Acts done by an Idiot or he who is utterly 4 Co. Beverley's Case Non compos mentis but Acts done by himself Inter lucida intervalla when he is of sound
Memory shall bind him And this is agreeable to what Bracton hath pronounced in the Case of Lib. 5. tract 5. c. 20. nu 1. such as enjoy their lucid Intervals his Words are Furiosi non multum distant a Brutis quae ratione carent nec valere debet quod cum talibus agitur durante furore possunt enim quidam dilucidis gaudere intervallis quidam habent furorem perpetuum Quod autem actum fuerit cum talibus tempore quo dilucidis gaudent intervallis ratum erit ac si cum aliis ageretur sive furorem simulaverint sive non With Bracton concurs Fleta as you may see in Lib. 6. cap. 40. nu 1. XIII REMARK If a Lunatick levy a Fine and declares the Uses of it thereupon by his Deed he shall be bound as being a part of the Operation of the Fine Hobart's Reports 224. Needler v. Bishop of Winchester 10 Co. 42. Mary Portington's Case and 2 Co. f. 58. Beckwith's Case XIV REMARK A Copyholder that is a Lunatick cannot forfeit his Copyhold Estate Sheppard c. 22. p. 172. 4 Edit XV. REMARK A Lunatick who is Lord of a Copyhold Mannor may grant Copyhold Estates for any time according to the Custom of the Mannor as any other Person may do and the Estates made by him are unavoidable Sheppard p. 109. 4 Co. Clerk Pennifather's Case XVI REMARK If a Lunatick be Steward of a Mannor all Acts that he doth according to his Office are good in Law Sheppard's Court-Keeper's Guide p. 115. cap. 19. XVII REMARK A Surrender or Grant of Copyhold Land may be made to a Lunatick Sheppard's Court-Keepers Guide c. 19. p. 118 119. XVIII REMARK A Lunatick in his mad Fits cannot Attorn to a Grant for that he who hath no Understanding cannot make an Agreement to the Grant Co. Lit. f. 315. a. 18 E. 3. 53. 6 Co. 69. a. Sir Moil Finch's Case But a Man that is deaf and dumb tho' he hath no Understanding may Attorn by Signs 26 E. 3. 63. Co. Lit. 315. a. XIX REMARK If a Lunatick Man during the time of his Furor or Insanity of Mind make a Feoffment c. he cannot enter nor have a Writ called Dum non fuit compos mentis but after his Death his Heir may well enter or have thè said Writ at his choice The same Law is where an Infant within Age makes a Feoffment and dies his Heir may enter or have a Writ of Dum fuit infra aetatem But with this difference that the Writ of Dum fuit non compos mentis lieth for the Heir of him that was Non compos mentis and not for himself but a Dum fuit infra aetatem lieth as well for the Ancestor himself after his full Age as for his Heirs Lit. sect 406. Co. Lit. f. 247. b. Wingate in his Body of the Common Law of England c. 25. n. 20 21 22 23. XX. REMARK A Mad-man or a Lunatick may be imprisoned by another to prevent killing 22 E. 4. 45. of him or burning his House and justifiable The Lord Hobart says That the necessity of avoiding greater Moor v. Hussey f. 96. Inconvenience is a good Plea in Law as where one kills a Thief or a Burglar in defence of his Person or House so also is the binding and beating of a Person Mad or Lunatick To prevent Mad-men from doing Mischief to themselves or others hear what the old Roman Law says concerning them Furiosi si non possint per necessarios contineri eo Remedio per praesidem obviam eundum est scilicet ut Ulpianus Carcere contineantur ita divus pius rescripsit D. 1. 18. 13. 1. Cum autem ex literis tuis cognoverimus tali eum loco atque ordine esse ut A Rescript sent to Scapula Tertyllus from the Emperors Marcus and Commodus occasioned by a Parricide committed by one supposed mad a suis vel etiam in propria villa custodiatur Recte facturus nobis videris si eos a quibus illo tempore observatuus esset vocaveris Causam tantae negligentiae excusseris in unumquemque eorum prout tibi levari vel onerari culpa ejus videbitur constitueris Nam Custodes furiosis non ad hoc solum adhibentur nequid perniciosius ipsi in se moliantur sed ne aliis quoque exitio sint Quod si committatur non immerito culpae eorum adscribendum est qui negligentiores in officio suo fuerint D. 1. 18. 14. Which may be Englished thus Whereas we understand by your Letters that he is kept at his Country-House by Servants and Friends of his own you shall do well to call before you such as at that time attended him and to examine throughly how and by what negligence the Fact happen'd to be committed as you shall find any of them more or less faulty to censure them accordingly For Guards or Keepers are appointed for Mad-men not only to look that they do not Mischief to themselves but also that they be not destructive to others which if it be done it may be well imputed to their Fault who were more negligent than was fit in their Employment I cannot pass over here in Silence the Madness of Cleomedes the King of the Lacedemonians and how he was handled to prevent his playing mischievous Pranks Si opus sit saith the Physitian Iacobus Wickerus furiosi ligamentis constringendi In his Syntaxes Medicinae l. 2. Pars 2. p. 308. De Furoris Curatione sunt quemadmodum Cleomedi Lacedaemoniorum Regi contigit qui cum ad Insaniam redactus sceptrum unicuique obvio in faciem impingeret ligneis soleis constrictus est a propinquis in Carcerem conjectus Fit autem non solum ut ne aliis sed ut nec sibi ipsis vim inferant quam inferre aliis nequeant Perinde ac Cleomedes qui arrepto Custodis Ergastularii gladio ab ima Corporis parte ad verticem se dissecuit XXI REMARK In a Bill brought by the Attorney-General in the Nature of an Information on the behalf of a Lunatick it has been declared That it is as needful to make him a Party as an Infant where a Suit is on his behalf But in the Case of an Idiot it must be otherwise but a Lunatick may recover his Understanding and then he is to have his Estate in his own disposing Term Mich. 21. Car. 2. Woolrich a Lunatick v. in Cancellaria SECT III. The Queries with their Solutions relating to Lunaticks I. QUERY Whether the Testament made by a Lunatick during his mad Fits be valid in Law when he is come to himself SOLUTION SUch as are Lunaticks can make no Testament during the time of their Furor or Mad Fits no not so much as ad pios usus Nay the Testament made at such a time shall not stand good when the Madness is past Swinburn in his Treatise of Testaments and Last Wills Part 2. Sect. 3. Of Mad Folks
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.
the Mannor again or Account for the Mesne Profits And tho' it was stood upon at the Hearing that in Case of a Lunatick where the King hath no Interest in his Estate but as Pater Patriae commits him to another to manage it for him the Lunatick in case he recover his Senses and Wits shall have his Estate again and if not it will go to his Administrators the Lunatick himself as in the Case of an Infant ought to have been a Party Yet that Opinion was over-ruled by the Judges and by the Lord-Keeper on a Re-hearing But the Lord-Keeper did stay the passing that Decree and gave Liberty to the Defendant to traverse the Inquisition Out of this Decree may be collected these Notes 1. That the Party is admittable to traverse the Inquisition if he pleases 2. That generally a Lunatick ought to be made a Party 3. That the Reason why it was over-ruled in the Case aforesaid was because he might stultifie himself XVI QUERY 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 SOLUTION Upon these Words of the Statute of Westm. 2. c. 48 Sc. In omnibus brevibus per quae tenementa petuntur Ratione dimissionis c. Sir Edward Coke and that agreeable to the Books cited in his Margent commenteth thus Here as in many places Demise is applied to an Estate either in Fee-simple Fee tail or for Term of Life and so commonly taken in many Writs But this Act extendeth not to every kind of Demise or Conveyance for if the Demise or Conveyance be by Fine or other Matter of Record this Branch extends not to it for regularly Conveyances or other Acts of Record acknowledged or made by one that is Non compos mentis or by Duresse of Imprisonment are unavoidable by him or his Heirs by Law and such Conveyances or other Acts of Record acknowledged or made by an Infant are also unavoidable unless he doth avoid them by Writ of Error or Audita Querela during his Minority and therefore this Branch is to be understood of Alienations made in Pais and not by Matter of Record Co. 2. Inst. f. 483. Having given some Account of our Lunatick Person and that by way of Description Remark and Query I am now to speak of the Drunken and Cup-shot Man that is Non compos mentis by his own Folly PART the Fourth Of Him that is Drunken SECT I. A Drunken Man how described THE Fourth Sort of Non sane Memories according to the Law of England is he that is Drunk one that not by the Visitation of God but by his own vicious Act and Folly is so overcome with Drink that he is deprived for a time of the free Use and Exercise of his Reason and Understanding Coke in his Comment on Littleton sect 405. f. 247. a. SECT II. Remarks concerning Drunkenness and him that is Drunken WHere Drunkenness Reigns there Reason is an Exile Vertue a Stranger God an Enemy Blasphemy is Wit Oaths are Rhetorick and Secrets are Proclamations Noah discovered that in one Hour drunk which sober he kept secret Six hundred Years See Francis Quarles in his Enchiridion Cent. 3. cap. 14. II. REMARK Drunkenness is the Vice of Brutish Men and of no worth for it leads a Man to all unworthy Actions witness Alexander otherwise a great Prince being overcome with this Vice killed his dearest Friend Clitus and being come to himself would have killed himself for killing Clitus Charron in his Treatise of Wisdom Lib. 3. c. 39. Peter de la Primandaye in his French Academy cap. 20 III. REMARK That which we do being Evil is notwithstanding by so much the more pardonable by how much the Exigence of so doing or the Difficulty of doing otherwise is greater unless this Necessity or Difficulty have originally risen from our selves it is no Excuse therefore unto him who being Drunk committeth Incest and alledgeth that his Wits were not his own inasmuch as himself might have chosen whether his Wits should by that means have been taken from him Hooker in his Ecclesiastical Policy Lib. 1. sect 9. p. 69. IV. REMARK Lot's Daughters made their Father drunk and then they lay with him but he Inebriaverunt Loth filiae ejus se nescienti miscuerunt Quapropter culpandus est quidem non tamen quantum ille incestus sed quantum illa meretur Ebrietas Augustinus l. 22. contra Faustum c. 44. knew it not Whereupon St. Augustin passeth this Sentence on him That he deserved to be punished not for Incest but for his Drunkenness Decreti Secunda Pars Causa 15. Quaest. 1. c. 9. Grotius de jure belli pacis l. 2. c. 20. sect 19. in fine V. REMARK The Moralists in resolving the Quest. Whether Ebriety can excuse or extenuate a Fault Windelinus's Moral Philosophy l. 1. de Recta Vita c. 16. qu. 1. do make a Distinction betwixt Actual and Habitual Drunkenness The former is when any Man beside Intention being ignorant as well of the Weakness of his Brain as of the Strength of the Liquor is overcome with it The latter is when a Man is delighted with it and knowingly and willingly makes himself Drunk That of Actual Drunkenness does they say somewhat excuse and extenuate the Fault and consequently there is allowed some mitigation of the Punishment But that which is termed Habitual Drunkenness does not at all excuse the Fault committed nor mitigate the Punishment And this is that which Pittacus intended when he enacted a Law That such a Person as should commit a Fault in a drunken Fit should be liable to a double Punishment one for his Drunkenness and the other for his Ignorance For as in the Wine there is Poyson so in a voluntary Ignorance there is a heinous Offence VI. REMARK This kind of Non compos mentis according to our Law shall give no Priviledge or Benefit to him or his Heirs in Civil Matters And as for Criminal Matters a Drunkard who is Voluntarius Daemon hath no Priviledge thereby but what Hurt or Ill soever he doth his Drunkenness doth aggravate it Omne Crimen Ebrietas incendit detegit Coke in his Comment on Littleton sect 405. f. 247. a. SECT III. The Queries with their Solutions relating to him that is Drunken I. QUERY Whether a Man's Drunkenness can be any good Plea in in the Courts at Westminster either in Criminal or Civil Acts SOLUTION THE Judges in Beverley's Case tho' they have admitted a drunken Man to be for the time a Non compos mentis yet have pronounced that his 4 Co. 125. a. Beverley's Case of Non compos mentis Drunkenness shall not extenuate his Act or Offence nor turn to his Avail but it is a great Offence in it self and therefore doth aggravate his Offence and doth not derogate from the thing he doth in that time and that in Case as well
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.
touching his Life as his Goods Chattels or Lands or any other thing concerning him The Rule Necessitas inducit privilegium quoad Iura privata doth vouchsafe to The Lord Bacon in his Collection of Maxims Regula 5. p. 25. Edit 1639. admit an Exception when the Law doth intend some Fault or Wrong in the Party that hath brought himself into the necessity so that is Necessitas culpabilis as for Example If a Mad-man commit Felony he shall not lose his Life for it because his Infirmity came by Co. Litt f. 247. b. the Act of God But if a drunken Man commit a Felony 21 H. 7. 31. he shall not be excused because his Imperfection came by his own default For the Reason and Loss of Deprivation of Will and Election by Necessity and by Infirmity is all one for the lack of Arbitrium Solutum is the Matter And therefore as Infirmitas culpabilis excuseth not no more doth Necessitas culpabilis So that it appears that if one through his own fault becomes Non compos mentis or Mad and that if through the Violence of the same Madness he hurt another he hath therein committed a Crime and deserves to be punished II. QUERY A Drunken Person whether he may make a Testament SOLUTION He saith Swinburn that is overcome with Drink during the time of his Drunkenness is compared to a Treatise of Testaments and last Wills Part 2. Sect. 6. Mad-man and therefore if he make his Testament at that time it is void in Law Which is to be understood when he is so excessively drunk that he is utterly deprived of the use of Reason and Understanding Otherwise if he be not clean spent albeit his Understanding be obscured and his Memory troubled yet may he make his Testament being in that Case We will subjoyn to what Swinburn has said for the Solution of our Question the Words of Dr. Godolphin which are to the same effect Such as are drunk during the time of being drunk can make no Testament that shall be good in Law Orphan's Legacy Part 1. c. 8. § 5. p. 26. yet understand says he this is only when he is so excessively drunk that he is altogether deprived for the time of the use of Reason and Understanding being according to the Flagon-phrase as it were dead drunk For if he be but so drunk that his Understanding is but somewhat clouded and obscured and his Memory troubled he may in that Case make his Testament and it may be good in Law He therefore that is but exhilarated with Liquor and thereby doth but somewhat deviate from the Rule of right Reason is not the Person whom the Law renders at that time Intestable but he who by a continual Custom of Toping or by such an Excess of Drunkenness hath so exiled his Intellects that he hath as it were totally lost the Rational and reserved nothing to himself but the Animal Concerning the drunken Man's Will see more in Vasquez de Success Crea lib. 2. sect 13. Requis 7. n. 8. Simon de pratis de inter ult vol. lib. 2. dub 1. soluc 4. n. 22. III. QUERY 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 SOLUTION The Lawyers tell us That defamatory Words are uttered either upon some Rancour and Malice by Ridley's View of the Civil and Ecclesiastical Law Part 3. cap. 7. sect 1. some that envy another with intent to defame him and spread abroad a Matter of Disgrace upon him or in some scoffing and jesting manner so as facetious and merry Men use to do to make the Company merry wherein they are or they are spoken by some that have some Weakness or Distemperature in their Brain either by Frenzy Drink or other Lightness or by any Rashness in their Tongue 1. If the Cause of such Words be Rancour or Malice then are they altogether to be punish'd for that there can be no just Excuse made for them 2. If they be spoken in a jesting manner to make the Company merry if it be in a fine sort delivered it is by Aristotle held to be a Vertue* but if it be in homely In Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Latin Urbanitas and gross sort delivered then is it accounted to be a kind of Rudeness or Rusticity but whether way so ever they be uttered there is for the most part no advantage taken against them unless thereby there follow any Discredit to the Party upon whom such Jests are broken for then are they not without blame Neither can Lusus Noxius in Culpa est D. 1. 2. 10. D. 47. 2. 50. 4. that be called a Jest or Sport whereby a Man 's good Name is hurt or any Crime imposed upon him 3. The like may be pronounced of such as speak hardly of any by the Lubricity of their Tongue or Weakness of their Brain through Frenzy or Drink who for that they are not thought to speak such Words maliciously pass for the most part unpunished * Nam personam spectandum esse an potuerit facere an ante quid fecerit an cogitaverit an sanae mentis fuerit nec lubricum linguae ad poenam facile trahendum est Quamquam ii temerarii digni poena fint tamen ut insanis parcendum est D. 48. 4. 4. 3. no tho' a Man in this Case speak ill of the Prince himself And the Civil Law is so far from taking hold of such Words in these Cases that the Roman Emperors themselves viz. Theod. Arcad. and Honorius have in an ancient Constitution extant in the Code of Iustinian said of them thus Siquis Modestiae nescius pudoris ignarus improbo C. 9. 7. Lex unic Siquis Imperatori malediderit petulantique maledicto nomina nostra trediderit lacessenda ac temulentia †Drunkenness Temulentus Drunken Cup-shot of such see more D. 48. 3. 12. D. 48. 19. 11. 2. D. 49. 16. 6. 2. turbulentus obtrectator temporum nostrorum fuerit eum poenae nolumus subjugari neque durum aliquid nec asperum volumus sustinere Quoniam si ex levitate processerit contemnendum est Si ex insania miseratione dignissimum Si ab injuria remittendum* If any Man Note Queen Elizabeth after Sir John Perot was condemned to die was often heard to commend the Rescript of those Emperors p. 411. Engl. Edit 1635. speak ill of the Emperor if Cambden's Eliz. Anno 1593. of Lightness it is to be contemned if of Madness to be pitied if of Injury to be remitted I shall conclude the whole Tract with a remarkble Example that I have met withal and which I cannot here Peter de la Primauday in his French Academy c. 36. let go in Silence and 't is of the Prudence of Dionysius the Elder King of Syracuse in punishing evil Speakers This King being told That two young Men as they were drinking together had spoken many outrageous Words of his Majesty The King invited them both to Supper and perceiving that one of them after he had taken a little Wine into his Head uttered and committed much Folly and that contrariwise the other was very stayed and drunk but a little the King punished this Fellow as one that was malicious and had been his Enemy of set purpose but forgave the other as being drunken and moved by the Wine to speak ill of him FINIS Books printed for and sold by Isaac Cleave at the Star next Serjeants-Inn in Chancery-Lane THE. 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