if an Action upon this be sued against him he hath nothing to plead for himself or to help him but to say that he was not of Sane Memorie at the time of such Discent c. And he shall not be received to say this for that no Man of full Age shall be received in any Plea by the Law to disable his own Person IX QUERY What kind of Privies can disable him who was deprived of the use of Reason and Understanding Or By whom and what Acts done by a Mad-man or one out of his Wits can be avoided SOLUTION It is to be known That the Disability to disable one's self as to some Persons is personal and extendeth only 4 Co. f. 124. a. Beverley's Case of Non compos mentis to the Party himself and as to other Persons is not personal but shall bind them also And as to that it is to be observed that there are four manner of Privities sc. Privity in Blood as Heir 2. Privity in Representation as Executors or Administrators who as Mr. Littleton Sect. 337. Littleton saith represent the Person of the Testator or Intestate 2 Mar. Dyer 112. Acc. 3. Privity in Estate as Donee in Tail the Reversion or Remainder in Fee c. 4. Privity in Tenure as Lord by Escheat and two of which are Privies only may disable him who was Non compos mentis and avoid his Deeds Grants and Feoffments and two not For Privies in Blood may shew the disability of the Ancestor and Privies in Representation the Infirmity of the Testator or Intestate But neither Privy in Estate nor Privy in Tenure shall so do And therefore if Donee in Tail being Non compos mentis maketh a Feoffment in Fee and dieth without Issue he in the Reversion or Remainder shall not enter or take advantage of the Non sane Memorie of the Donee The same Law of Lord by Escheat if his Tenant being Non compos mentis maketh a Feoffment in Fee and dieth without Heir he shall not avoid it But there are some Acts done by a Man of Non compos mentis which none of them shall avoid and therefore if a Furor Man levieth a Fine suffereth a Recovery or acknowledgeth a Statute or Recognisance neither his Heirs nor his Executors shall avoid it for these are Matters of Record which shall not be avoided by a bare Averment of Non compos mentis for the Inconvenience which may ensue thereupon Also such Averment is against the Office and Dignity of the Judge 18 E. 2. Fines 120. 17 Ass. Pl. 17. For he ought not to take any Conusance of a Fine or Recognisance of him who is Non compos mentis X. QUERY Whether a Man distracted or out of his Wits be relievable in a Court of Equity to avoid a Deed made by himself SOLUTION A. bound himself in a Bond of 1000 l. to B. and this Bond being sued against him he exhibited a Bill in the Court of Requests to be relieved against the same and 4 Co. f. 124. a. Beverley's Case set forth in his Bill that aâ—… the time of the entring into the said Bond he was Noâ—… compos mentis and whether in this Case a Prohibition should be awarded was the Question And in this Case it was resolved That the same being against an express Maxim of the Common Law That the Party shall noâ—… disable himself that he shall not have Relief in any Court of Equity for that shall be in Subversion of a Principle and Ground in Law For the maintaining of this same Principle I will subjoin a Judgment given by the Judges of the King's Bench in the Case of an Action of Debt upon an Obligation and it was thus Debt upon an Obligation The Defendant pleads That at the time of the Obligation made he was Dâ—… Cro. El. f. 398. Pl. 4. Stroud v. Marshal non sane memorie And iâ—… was thereupon demurreâ—… and adjudged to be no Plea For he cannot save himself by such a Plea and the Opinion of Fitzherbert held to be no Law Wherefore it was adjudged for the Plaintiff XI QUERY Whether this Maxim That the Party cannot disable himself shall hold good in Criminal Causes as Felony Murder and Petit Treason SOLUTION The Judges in Beverley's Case do affirm That a Man who is deprived of the use of Reason and Understanding shall not lose his Life for Felony or Murder because the Punishment of a Felon is so grievous sc. 1. To lose his Life 2. To lose his Life in such odious manner sc. By Hanging for he shall be hanged between Heaven and Earth as unworthy of both 3. He shall lose his Blood as to his Ancestry For he is a Son of the Earth without any Ancestor and as to his Posterity also for his Blood is corrupt and he hath neither Heir nor Posterity 4. His Lands 5. His Goods And in such Case the King shall have Annum diem vastum to the intent his Wife and Children shall be cast out his Houses pulled down his Trees eradicated and overthrown his Meadows ploughed up and all that he hath for Comfort Delight or Sustenance wasted and destroyed because that he in such felonious manner offended against the Law and all that was Ut poena ad paucos metus ad omnes perveniat But the Punishment of a Man who is deprived of Reason and Understanding cannot be an Example to others Secondly No Felony or Murder can be committed without a Felonious Intent or Purpose * 21 H. 7. 31. 26 Ass. 27 F. N. B. 202. Stamford's Plea of the Crown 16. 8. c. 9. But Furiosus non intelligit quid agit animo Ratione caret non multum distat a Brutis as †Bracton lib. 5. Tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 6. c. 40. nu 1. Bracton saith and therefore he cannot have a Felonious Intent Also for the same Reason Non compos mentis cannot commit Petit Treason As if a Woman Non compos mentis kill her Husband as appeareth 12 H. 3. Forfeiture 33. Vide Stamford f. 45. Kitchin 56. Tit. Forfeiture Edit 1651. Sir Edward Coke tells us That this Maxim That the Party shall not disable himself holdeth only in Civil Comment on Littleton § 405. f. 247. b. Causes but not in Criminal Causes as Felony c. Foâ—… in such the Act and Wrong of a Mad-man shall not be imputed to him because in those Causes Actus non facâ—… Reum nisi mens sit rea and Note The Mirror of Iustices says That King Alfred hanged Cole for giving Sentence of Death on one Ive when he was mad and distracted in his Wits c. 5. § 1. p. 297. Edit 1642. he is Amens i. e. 〈◊〉 mente without his Mind 〈◊〉 Discretion and Furiosus solâ—… furore punitur a Mad-man 〈◊〉 only punishd by his Madness Add hereunto what Plouden and the Author in his Exposition of the Terms of Law
say of distracted Persons in Cases Criminal The former expresseth himself thus If a Man 〈◊〉 sanae memoriae kill another altho' he hath broken the Com. fol. 19. a. Reneger Fogassa f. 465. a. Eyston v. Studde words of the Law yet he hath not broken the Law for that he had no Memory nor Understanding but meâ—… Ignorance which came to him by the Hand of God and therefore it is said to be involuntary Ignorance to which the Law imputes the Act to be done because there was no default in him and for this he shall be excused hâ—… being ignorant by Compulsion The latter speaks in this wise When an Act of Parliament is made that whosoever Fol. 150. b. Tit. Equity doth such a thing shall be a Felon and shall suffer Death yet if a Mad-man or an Infant of young Years that hath no Discretion do the same they shall be no Felons nor suffer Death therefore Having given my Reader an Account of the Common Law relating to Non sane memories in the point of Criminal Matters I will present to his View Civil Law â—…exts concerning such distracted Persons as are guilty of Homicidium or killing other Men. Now the Civilians tell us That such as kill either Father or Mother or those Poena Parricidii more majorum haec instituta est ut Parricida virgis sanguineis verberatus deinde culleo insuatur cum Cane Gallo Gallinaceo vipera simia deinde in Mare profundum culleus jactetur D. 48. 9. 9. Instit 4. 18. 6. â—…at are in the place of Father or Mother or any â—…at are of next A-kin their â—…unishment is Death and 〈◊〉 the Case of the Father and Mother the Pain of Death the Parricide being 〈◊〉 well whipt so that the Blood do follow in good â—…enty he being sowed up into a Sack together with a â—…og a Cock a Viper an Ape is thrown into the Depth â—…f the Sea But if a Mad-man say they should kill his Father or Mother c. he shall be no way punished â—…eckoning that his own Furor or Madness is a sufficient â—…unishment to himself Sane si per furorem saith the Lawyer Modestinus â—…liquis parentem occiderit impunitus erit ut divi fratres â—…scripserunt super eo qui per furorem matrem necaverat Nam sufficere furore ipso eum puniri D. 48. 9. 9. 2. D. â—… 18. 14. Infans vel Furiosus saith the same Lawyer si homiâ—…em occiderint lege Cornelia non tuentur Cum alterum â—…nocentia Consilii tuetur alterum fati infelicitas excuâ—…t D. 48. 8. 12. On which Text Gothofredus has this Note Furiosum fati infelicitas a poena excusat ideoque 〈◊〉 facere sed pati injuriam dicitur Citing for it the Lawyer Ulpian whose Words are as follow Sane sunt quidam qui facere non possunt utputa Furiosus impubes qui doli capax non est namque hi pati injuriam soâ—…ent non facere cum enim injuria ex affectu facientis â—…onsistat consequens erit dicere hos sive pulsent sive â—…onvicium dicunt injuriam fecisse non videri D. 47. 10. â—… 1. Vide what the Canon Law saith of a Furor Man that kills or wounds another Person Clement Lib. 5. Tit. 4. de Homicidio voluntario casuali XII QUERY If a Man while he is Non compos mentis destroys himself whether he can be said to be Felo de se SOLUTION If a Man lose his Memory by the Rage of Sickness or Infirmity or otherwise and Co. 3 Inst. f. 54. Stanford's Pleas of the Crown Lib. 1. c. 11. f. 19. b. 20. a. Edit 1567. kill himself while he is Non compos mentis he is not Felo de se For as he cannot commit Murther upon another so in that Case he cannot commit Murther upon himself If one during the time that he is Non compos mentis giveth himself a mortal Wound whereof he when he hath recovered his Memory dieth he is not Felo de se because the Stroke which was the Cause of his Death was given when he was not Compos mentis Et Actus non facit reus nisi mens sit rea So it is said in Shelly's Case If a Man who is not Compos mentis give unto himself a mortal Wound and before he dieth he becomes of Sane Memorie and afterwards dieth of the same Wound in this Case altho' that he dieth of Sane Memorie yet because the Original Cause of his Death viz. the Stroke was when he was Non compos mentis he shall not be Felo de se because the Death c. hath relation to the Original Act which was the Stroke or Wound 1 Co. f. 99. b. Shelly's Case Vide 4 Co. f. 42. a. Heydon's Case 22. E. 3. Corone 244. Plowden's Comm. f. 260 a. Now let us hear what Resolution Bracton and Fleta two old Authors give of this our Question The former speaks in this wise De Furioso quid dicetur qui rationem non habet Et de mente Capto frenetico vel si ille qui laborat in acuta infirmitate seipsum submerserit vel interfecerit quaeritur an talis feloniam faciat de se ipso Videtur quod non nec haereditatem forisfaciunt nec Catalla eo quod sensu carent ratione non magis quam Brutum animal injuriam facere possunt nec feloniam cum non multum distent a Brutis c. Lib. 3. Tract 2. de Corona c. 31. f. 150. 8. The later viz. Fleta does concur with Bracton and pronounceth thus Similiter Furiosi Frenetici Infantuli mente Capti in acuta febri laborantes quamvis seipsos interfecerint non tamen Feloniam committunt nec hoereditates foris faciunt nec Catalla eo quod sensu Carent Ratione Lib. 1. c. 36. de Infortuniis XIII QUERY Whether he that is Non compos mentis and totally deprived of all Compassings and Imaginations can commit High-Treason by Compassing or Imagining the Death of the King SOLUTION Tho' all Laws do exempt a Mad-man from Punishment because their Actions C. 9. 9. 20. Tolle voluntaiem erit omnis actus indifferenâ—… quia affectio tua nomen imponit operi tuo crimen non contrahitur nisi nocendi voluntas intercedat Bracton l. a. tract 1. De Prodictionebus c 2. nu 14. are not governed by their Will and the Will of Man being set apart all his Deeds are indifferent neither can the Body offend without a corrupt or erroueous Mind yet if a Mad-man kill or offer to kill the King it is High-Treason For the King Est Caput Salus Reipublicae a Capite 4 Co. f. 124. b. Beverley's Case bona valetudo transit in omnes And for this Cause their Persons are so sacred that none ought to do or offer them Violence but he is Reus Criminis laesae Majestatis pereat unus ne pereant omnes Thus say
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
by Compassing and Imagining the Death of the King 79 14. Whether a Mad-man be punishable in Trespass 83 15. Whether a Furor Man can be a Purchaser 84 16. Whether the Will of one that afterwards becomes Mad or Distracted shall stand good in Law 84 17. Whether a Fine before a Iudge of Non sane Memorie or a Grant of an Office made by him be good in Law 86 18. A Mad-man makes an Exchange of his Lands with J. S. for other Lands and the Exchange is accordingly executed the Non sane Man dies whether his Heir can avoid this Exchange 86 19. Whether and in what Cases Lachess can prejudice an Idiot Mad-man or other Non Compos Mentis 87 20. Whether he that is a Furor Man can be appointed Tutor 89 21. Whether a King or other Sovereign Prince during the time of his Insanity of Mind be capable of making Peace 90 22. Whether it be lawful to speak Untruth to Mad-men 90 Thirdly To LUNATICKS 1. WHether the Testament made by a Lunatick during his mad Fits be valid in Law when he is come to himself 103 2. Whether a Testament can be made by a Lunatick Person betwixt his Fits 103 3. If a Testament be made by a Lunatick Person and the time of the making unknown whether this Testament be good or not 104 4. Whether the Dying seised of a Bastard Eigne without Interruption shall bar the Right of a Mulier Puisne that is a Mad-man or a Lunatick 105 5. Whether a Lunatick can be prejudiced by Laches of suing Livery 106 6. Whether a Lunatick be punishable for hurting a Man 107 7. Whether a Devise by a Lunatick be aided by the Statute of 43 Eliz. Of charitable Uses 107 8. Actions touching a Lunatick's Lands whether they must be brought in his own Name 108 9. Whether the Lord of a Mannor can grant the Custody of a Copihold belonging to a Lunatick without a special Custom 109 10. Whether the Acts of a Lunatick during his Intermissions or lucid Intervals be binding 110 11. Whether the King who is to keep the Lunatick his Wife and Children with the Profits of the Lands can grant them over to the proper use of another Person 110 12. Whether the Committee of a Lunatick can grant Copyhold Estates 111 13. If a Dean of Paul's happen to be a Lunatick who shall have the Custody of him 112 14. If a Man in Criminal Cases be suspected to counterfeit Madness or Lunacy how shall it be discerned whether he be mad or not 113 15. A Bargain by a Lunatick before the Lunacy found whether avoidable by being found a Lunatick with a Retrospect of several Years 115 16. Whether the View of Land according to the Statute of Westm. 2. c. 48. be grantable in all Cases to Infants to Men in Prison to Lunaticks or such-like 117 Fourthly To DRUNKARDS 1. WHether a Man's Drunkenness can be any good Plea in the Courts at Westminster either in Criminal or Civil Acts 122 2. A Drunken Person whether he may make a Testament 123 3. Such as violate the good Name of others with opprobrious Words through Weakness of their Brain either by Frenzy Drink or other Lightness how are they to be dealt withal 125 The Reader is desired to Correct these Faults before he begins Other minuter Faults of literal Errors and Pointings it is expected his Candor will pass over INstead of Doth the Law read Doth not the Law p. 2. l. 22. Instead of Br 4. r. Br. Idiot 4. p. 23. Instead of an Act r. a Tract p. 26. Instead of Thompson's Case r. Tourson's Case p. 27. Instead of any Man make r. any Man may make p. 34. Instead of a Man seised r. a Man died seised p. 47. Instead of being seised of a Carve of Land in Fee r. being seised of a Carve of Land grant a Rent issuing out of the same Land in Fee p. 70. Instead of tuentur r. tenentur p. 77. Instead of de prodictionibus r. de actionibus p 72. Instead of detus r. vetus p. 94. THE LAW OF NON COMPOS MENTIS Inquisited and Explained BEFORE I come to Treat of the Law relating to persons of Non Sane Memorie I shall by way of Introduction shew the Reader upon what Right the Dominion of Infants Idiots and Mad-men is grounded In performance whereof I must be beholding to Hugo Grotius that Prodigy of Learning whose Words are these following If we respect saith he the Laws of Nature only no Right of Propriety can be admitted to those who have not the Use of Reason But Ius Gentium Lib. 2. Cap. 3. Sect. 6. De jure belli pacis the Law of Nations for the Common Good doth indulge this Favour unto Infants Idiots and Mad-Men that they may lawfully receive and retain the propriety of things All Mankind in the mean time sustaining their Persons For Humane Laws may constitute many things that were Preternatural but not any thing that is against Humana jura multa constituere possunt praeter naturam contra naturam nihil Nature And therefore that right of Dominioâ—… that in favour to such is by the unanimous consent of all Civiliz'd Natioâ—… thus introduced may haply consist with the first Acâ—… of Dominion which is a power to have and to holâ—… things in Propriety but not with the second Act which is freely and voluntarily to dispose of them with out a Guardian it being but Equal 〈◊〉 those that caâ—… not govern themselves should be govern'd by 〈◊〉 Aequum est ut qui se regere non potest regatur aliunde thers For as to the righâ—… of Alienation and thâ—… like because in their own Nature they imply the Act 〈◊〉 a Will guided with a Alienatio rerum solidum desiderat habere judicium Cassiodorus 11 11. Reason which Infants Idâ—… ots and Madmen havâ—… not Therefore 〈◊〉 〈◊〉 Law permit these 〈◊〉 unto them as to the 〈◊〉 and free Exercise of their Rights But here may be started a Question or two Quest. One whereof is this If there be found a Peâ—…ple that have no use of Natural Reason at all Whethâ—… all Right and Dominion may be taken from them Sol. It is not sufficient saith Grotius to justifie War to pretend that we were the first Discoverers 〈◊〉 any place in case it be possest tho' by Pagans and Inâ—…dels or by Men of dull Apprehension for to entitle our selves to be the first Founders 't is necessary that the Inventio est eorum quae nullius sunt Land so found should belong to none Neither is it necessary to Propriety or Dominion that a Man should be endued with Virtues Moral or a A true Maxim in Divinity Dominion is not founded in Grace Bishop Brownrig 1 Vol. of Sermons p. 50. And Amesius in his Cases of Conscience Lib. 5. Cap. 41. Qu. 1. Numb 7. Theological or to be of a quick Understanding yet may this seem to be justifiable That in case there
can be found a People that have no use of natural Reason at all there all Right and Dominion may be taken from them Yet ought we in Charity to to make them such an Allowance as is necessary for their support and maintainance as well as to other Ideots and Madmen For as to what has been already said concerning the Care which the Law of Nations take to preserve the Property of Infants and Lunaticks it appertains to such People with whom we have any commerce or make any contract with which we cannot have with such a People as are wholly and altogether destitute of Reason and therefore of these it may be very well doubted whether they have any Property at all Grotius De jure Belli Pacis Lib. 2. Cap. 22. Sect. 9 10. Quest. The other Question may be this If a King or Sovereign Prince be a Minor or if he be not of sound Memory whether such a one has Right to Govern Sol. For the Solution of this Question we must distinguish as in private Dominion so in Empire between the Right it self and the exercise of that Right or Grotius De jure belli pacis Lib. 1. Cah 3. Sect. 24. between the first act and the second for as a King though an Infant hath a Right to Govern but is not permitted to exercise that Right so he that is Furiosus aut captivus Mad or a Prisoner or that so lives in a Foreign Country that he is not permitted freely to act in such matters as concern the Good of that Empire that is remote from him for in all such cases they have their Lieutenants or Vice-Roys to act for them Wherefore Demetrius living under restraint with Seleucus did forbid any Credit to be given to his Letters or unto his Plutarch in Demetrius and Peter de la Primadaie in his French Academy cap. 50. Seal but commanded that all things should be so governed as if he were dead Note Girard affirmeth that it hath been the Custom of the French to honour their Kings whatsoever they are whether wise or foolish valiant or weak esteeming the De L'Estate de France Lib. 1. Sir John Hayward in the Life of King William II. p. 151. Edit 1613. Name of King to be Sacred by whomsoever it be born And therefore they obeyed not only Charles the Simple but Charles the sixth also who reigned many years in plain distraction of his Mind So when Alexandrides King of Sparta left two Sons Cleomenes the Eldest distracted in his VVits and Doricus the youngest both able and enclined to all Actions of Honour the Spartans acknowledged Cleomenes for their King Having given the READER an Account upon what Right the Dominion or Propriety of Infants Ideots and Mad-men is founded I shall now proceed to treat of the Law of England as also to mention Sparsim here and there the Roman and Canon Law relating to such as are deprived of the Use of their Reason Wits and Understanding A Man of Non sane Memorie is termed among the â—…atines Insanus Fatuus Amens Demens Mente Captus Maniacus Furiosus Stultus Errore Mentis Affectus a Rationis usu Destitutus Lunaticus and Non Compos Mentis Of which several Terms the last of all is most â—…re and legal and according to our English Leguâ—…ians The several sorts of Non Com pos Mentis in the Common Law or Lawyers Non Compos Mentis is of four â—…orts First He that is an Idiot Born Next He that â—…y Accident afterwards loseth his Wits Thirdly A Luâ—…atick that hath sometimes his Understanding and â—…ometimes not Lastly He Co. Lit. 246. b. 247. a. Co. L. 4. Beverley's Case Cowell's Interpreter Tit. Non Compos Mentis and Minshew's Guide into the Tongues 495. which by his own act depriâ—…eth himself of his right â—…ind for a time as a Drunâ—…ard Of these four sorts in their Order and that by way of Description by way of Remark and by way of Query PART the FIRST Of him that is an Idiot Born SECT I. An Idiot or Natural Fool who BEfore a Description be given of an Idiot that from his Nativity by a perpetual Infirmity is Non Compos Mentis it will not be much amiss to give some Account of the first Original of the Word Idiot Idiota or Idiotes is a Greek Word and properly signifies a private Man who is not employed in any Publick Office Amongst the Latines it is taken for illiterate or foolish and hence in Cicero and other good Authors Idiota signisies commonly an unlearned and illiterate person In Herodian he is said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 qui rei alicujus est imperitus ut 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But among the English Jurists Idiot is a Term of Law and taken for one that is wholly deprived of his Reason and Understanding from his Birth and with us in our common Speech is called a Fool Natural of whom there has been given a Description by several of our Law-Authors Master Fitzherbert describes an Idiot thus He who shall he said to be an Idiot from his Birth is such a Person who cannot account or number twenty pence or cannot tell who is his Father or Mother or how old he is Nat. Brev. 579. B. de Idiota Inquirendo c. So that it may appear that he hath no understanding of Reason what shall be for his Profit or what shall be for his Loss The Author of the Exposition of the Terms of the Law gives this Description of him Idiot is he that is a Fool Natural from his Birth and knoweth not how to account or number twenty pence or cannot name his Father or Mother nor of what Age Tit. Ideot f. 201. a. b. himself is or such like easy and common Matters so that it appeareth he hath no manner of understanding of reason or government of himself what is for his profit or disprofit c. An Idiot by the Civilian Swinbourn is thus described An Idiot or a natural Fool is he who notwithstanding he be of lawful Age yet he is so witless that he cannot number to Twenty nor can tell what Age he is of nor knoweth b Quid Estne statim fatuus quisquis non potest demonstrare patrem Absit Nam ut concedam filium illum merito sagacem dici suum qui novit patrem certe si concluderem reliquos omnes esse fatuos vereor ne excluderem paucos Notum est quod cecinit de Telemacho insignis Homerus Ex illo natum mater me dicit At ipse nescio Nam certum quis possit scire parentem Quod igitur scriptum reliquit Fitzhorbert Que tiel person serra dit Sot Idiote que ne scier dire qui fuit son pere ou mere c. ita exaudiendum est si nesciat respondere quis appellatur ipsius Pater who is his Father or Mother nor is able to answer to any such easie Question
and it shall be a good Plea or Exception to the Demandant or Plaintiff's Suit or Action Fleta lib. 2. cap. 54. numb 3. p. 116. and lib. 6. cap. 38. numb 1. p. 431. and cap. 40. numb 1. p. 434. Bracton lib. 5. tract 5. cap. 20. numb numb 1. f. 420. b. Mirror des Iustices cap. 2. sect 3. s. 117. XIII REMARK There is required in them who contract Matrimony a sound and whole Mind to consent for he that is either an Ideot or Madman without intermission of Fury cannot Marry The Womans Lawyer lib. 2. sect 10. p. 57. Edit 1632. This Consent saith Amesius must be voluntary and free else it 's not esteemed a humane consent and hence the consent of such as have not the use of Reason is no force to such a Contract Lib. 5. cap. 35. Qu. 4. XIV REMARK A Man that is Deaf and Dumb and yet hath Understanding may Attorn by signs but one that is Non compos mentis as an Idiot cannot attorn for that he hath no understanding cannot agree to the Grant Co. Lit. f. 315. a. 26 E 3. 63. 18 E. 3. 53. 6 Co. f. 69. a. Sir Moyle Finch's Case XV. REMARK Minoribus acquiruntur possessiones naturaliter fatuis furiosis per Tutores inde aliter vero minime eo quod intellectum recipiendi non habent nec retinendi Curatores autem sanum intellectum oportet habere quia si minorem fatuum a Nativitate vel furiosum miseris ut possideas nequaquam videris per eos possessionem apprehendisse quia intellectum non habent Fleta lib. 3. c. 15. nu 1 4. p. 203. VdeBracton lib. 2. c. 18. nu 6. f. 43. b. XVI REMARK It appears in the old Books of Law that it was expedient that Ideots should have a Curator or Tutor or one that should take the charge of their Persons Lands and Goods which Office since Bracton lib. 5. tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 1. c. 11. nu 10. Cowel's Institutes lib. 1. tit 23. sect 1. de Curatoribus is devolved to the King and made parcel of his Prerogative 17 E. 2. cap. 9. As Fitzherbert very well saith in his Natura Brevium The King is the Protector of all his Subjects their Goods Lands and Tenements and therefore of such as cannot govern themselves Stamford Sur Praerog Regis cap. 9. Britton c. 66. f. 167. b. Sir Thomas Smith's Common-weath lib. 2. c. 4. p. 98. Eng. Edit 1640. XVII REMARK The King having the custody of the Persons and Estates of Idiots can let to Farm rendring Rent all the Possessions of a Fool natural but not that which he hath Title unto or Action And therefore upon an Office finding that the Idiot's Ancestors died seized of an Estate Tail it is sufficient to Traverse the dying seized for that only entituleth the King 31 E. 3. Saver de Fault 37. 1 H. 7. 24. Finch's Law lib. 2. c. 2. XVIII REMARK By the Common Law the King shall have as great protection of the Goods and Chattels of an Idiot as of his Lands and that as well the scattering of his Goods 4 Co. f. 128. Beverly's Case and Chattels as the Alienation of his Lands is to be remedied and redressed by the King to whom the Law hath given the Protection and Custody of him XIX REMARK As after Office found an Idiot cannot Alien Give c. So Alienations Gifts c. made before Office found shall be avoided after Office thereof found for no Latches shall be found in the King nor any prejudice thereby shall accrue to the Idiot for not suing the Office before the Feoffment of Gift 4 Co. f. 428. Beverley's Case XX. REMARK If the Idiot dies before Office found after his Death no Office can be found for the words of the Writ are Et ipsum viis modis quibus super statu suo melius poteritis informari circumspecte examinaretis c. which cannot be done when he is dead and without Office the King cannot be entituled 16 E. 3. Livery 30. 4 Co. f. 128. Beverley's Case XXI REMARK When the King is informed that one who hath Lands and Tenements and is a natural Fool from his Birth the King may award his Writ called Idiota inquirendo vel examinando which directed to the Escheator or Sheriff of any County where the King hath information or understanding that there is an Idiot naturally so Born so weak of Understanding that he cannot govern or manage his Inheritance to call before him the Party suspected of Idiocy and examine him and also to inquire by the Oaths of twelve Men whether he be sufficiently witted to disposâ—… 〈◊〉 his own Lands with discretion or not and to certifie accordingly into the Chancery for the King as hath been said before hath the Protection of his Subjects and by his Prerogative the Government of their Lands and Substance that are naturally defective in their own discretion Doctor Cowel's Interpreter Brevia de inquirendo de Idiota tit Idiota inquirendo c. Minshew's Guide to the Tongues 373. Note The several Forms of the Writs in Latine directed either to the Escheator or the Sheriff are to be seen in the Register Orig. f. 266. a. b. XXII REMARK When a Man is found an Idiot from his Birth by Office he who is so found Idiot falsely as he supposeth may come personally into The manner how he that is falsely found to be an Idiot shall avoid the Office Chancery before the Chancellor and pray that before him and the Justices and Sages of the Law which he shall call to him and are called the King's Council he may be examined if he be an Idiot or not or by his Friends he may sue forth a a The Writ De Idiota coram consilio ducendo ad examinandum Reg. Orig. f. 267. Writ out of the Chancery returnable in the Chancery ibidem coram nobis consilio nostro examinand And if he be found upon examination that he is no Idiot the Offic found thereof and all the Examinations which hath been made by force of the Writ or the King's Commission is utterly void without any Traverse or Monstrans de droit or other Suit as appeareth by the Register Orig. f. 267. and F. N. B. 233. vide 15 E. 3. in Fitz. Tit. Livery 306. 9 Co. f. 31. The Case of the Abbot of Strâ—…ta Marcella Stamford super Praerog c. 9. f. 34. a. 36â—… Edit 1567. XXIII REMARK If a Scire Facias be awarded against the Feoffee of an Idiot and the Feoffee appearing upon the Scire Facias may traverse the Idiocy as appears he did in the Book of 18 E. 3. XXIV REMARK The Law gave the King but the Custody of the Lands of-the Idiot and altho' the same continued during the Life of the Idiot yet having but the Custody the King hath not the Freehold or Fee but the Freehold is in the Idiot For the
Statute of Praerogativa Regis c. 9. saith Quod post mortem eorum reddet ea rectis Haeredibus That after the Death of such Idiots he shall render it to the right Heirs 17 E. 3. 11. 13 E. 3. Saver Default 37. 4 Co. f. 126. b. Beverley's Case Stamford Super Praerog c. 9. is of the same Opinion Tho' the King saith he has the possession during the Idiot's Life yet the King hath 1 H. 7. 15. not the Freehold thereby but only a bare Custody for the Freehold remains in the Heir XXV REMARK The King ought not to seize an Idiot's Lands until such time as he is found an Idiot by Office Stamford Super Praerog Regis c. 9. XXVI REMARK The Office when a Person is found to be an Idiot shall have relation a Nativitate to avoid all mean Acts done by him that is to say Feoffments Releases or the like Fitzherbert and Stamford Super Praerog c. 9. XXVII REMARK Altho' the Statute of Praerogativa Regis c. 9. saith Custodiam Terrarum yet the King shall have as well the Custody of the Body and of the Goods and Chattels of Idiots as of their Consillo Opera Curatoris tueri debet non solum Patrimonium sed corpus salus furiosâ—…seu fatui D. 25. 10. 7. Lands and other Hereditaments as well those which they have by Purchase as those which they have as Heirs by the Common Law 4 Coke f. 127. a. Beverley's Case XXVIII REMARK The Person by the Statute ought to be an Idiot a Nativitate sc. Fatuus Naturalis and not by Accident or Infirmity For if he were once Wise and became a Fool by Misfortune the King shall not have the Custody of him 18 E. 3. Fitz. Tit. Scire Facias Pl. 10. Fitzherbert's Natura Brevium Stamford Super Praerog Regis c. 9. f. 34. b. 4 Co. Beverley's Case XXIX REMARK No Feoffment Gift Lease or Release that an Idiot can make of his Inheritance but it may be avoided during his Life which is apparented by these words of the Prerogative Statute Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum Hâ—…redes exhaeredentur So that such Idiots shall not alien nor their Heirs shall be disinherited 4 Co. 127. Beverley's Case Stamford Super Praerog Regis c. 9. f. 35. b. Edit 1567. XXX REMARK The King is to take the Profits belonging to the Idiot to his own use finding him Necessaries and this is evidenced by the words of our Statute Capiendo necessaria sua Stamford Super Praerog Regis c. 9. f. 34. b. The King says Wingate shall have to his own use all the Possessions of a Fool Natural during his Idiocy His Body of the Common Law of England c. 2. of Possessions Nu. 3. XXXI REMARK The King is bound to Reparations of the Idiot's Lands and Tenements for the words of the Statute are The King shall have the Custody of the Lands of Natural Fools taking the Profits of them without waste or destruction Stamford Super Praerog Regis cap. 9. f. 35. a. XXXII REMARK The King by the Statute of Praerogativa Regis is to be preferred in this Title of Idiocy before any other Lord which might claim the Idiot as his Ward and this is evidenced by the words of the said Statute De cujuscunque feodo Terrae illae fuerint Of whose Fee soever the Lands be holden Stamford Super Praerogativam Regis c. 9. f. 35. a. Edit 1567. XXXIII REMARK If one be found an Idiot by Office and before the King doth make a Seizure of the Lands the Idiot departs this Life yet the King shall seize the Lands because of these words of the Statute Post mortem eorum eam rectis Haeredibus After the Death of such Idiots he shall render it to the right Heirs Which the King cannot do but upon a Seizure Stamford Super Praerog Regis c. 9. f. 34 a b. XXXIV REMARK When an Idiot doth sue or defend he shall not appear by Guardian or Prochein Idiota a nativitate non recipitur vel ad agendum vel defendendum in aliqua causa per Custodem vel proximum propinquum sed requiritur ut ipse semper praesens sit in propria persona Cowell's Institutes lib. 1. tit 23. sect 6. de Curatoribus Amy or Attorney but he must be ever in Person and whosoever will plead best for him shall be admitted 33 H. 6. 18. 21. F. N. B. 27. G. Co. Lit. f. 135 b. Stampford c. 9. 35. b. 36. a. 4 Co. 124. b. Beverley's Case Saunders Rep. 2 Part f. 335. Dennis v. Dennis But an Infant or a Minor shall sue by Prochein Amy and defend by Guardian 27 H. 8. 11. 40 E. 3. 16. 20 E. 4. 2. F. N. B. 27. H. Co. Litt. f. 135. b. Cro. Iac. f. 640 641. Simpson Simpson v. Iackson 4 Co. f. 124. b. Beverley's Case XXXV REMARK By the Statute of Westmin 2 c. 15. it is ordained That if an Infant be eloined he may sue by Prochein Amy but this same Statute extendeth not to an Idiot Co. Inst. f. 391. XXXVI REMARK A Descent shall not take away the Entry of an Idiot albeit the want of Understanding was perpetual for Cook in his Comment on Littleton sect 405. f. 247. a. Littleton sect 405. speaks generally of a Man of Non sane Memorie Vide Noy's Treatise of the Grounds of the Common Law Cap. 16. Of Descents XXXVII REMARK If an Idiot makes a Feoffment in Fee he shall in Pleading never avoid it by saying That he was an Idiot at the time of his Feoffment and so had been from his Nativity But upon an Office found for the King the King shall avoid the Feoffment for the benefit of the Idiot whose Custody the Law giveth to the King 39 H. 6. 42. b. F. N. B. 202. 5 E. 3. 70. Britton cap. 28. f. 66. a b. Coke in his Comment on Littleton sect 405. f. 247. a. Stamford in his Exposition of the Statute of 17 E. 2. cap. 9. XXXVIII REMARK A Copyholder of unsound Memory an Idiot or Lunatick cannot forfeit his Estate Sheppard in his Treatise entituled The Court-Keeper's Guide cap. 22. p. 172. Edit 1656. XXXIX REMARK A Grant or Surrender of Copyhold-Land made by an Idiot is not valid in the Laws of England Sheppard's Court-Keeper's Guide Cap. 19. Page 117 118. XL. REMARK A Surrender or Grant of Copyhold-Land may be made to an Idiot or any other Man of unsound Memory and good in Law Sheppard Cap. 19. p. 118 119. XLI REMARK By the Statute of 32 H. 8. c. 46. the Master of the Court of Wards and Liveries by the Advice of the Attorney Receiver-General Note This Act of 32 H. 8. for the Erecting of the Court of Wards is taken away by the Statute of 12 Car. 2. c. 24. and Auditors or three of them had Authority to survey govern and order all and singular Idiots and Natural Fools now being in the King's Hands or
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
Idiot 18 E. 3. Scire Facias 10. 32 E. 3. Scire Facias 106. 50. Ass. Pl. 2. For the Statute of Proerogativa Regis saith Quod post mortem eorum reddat eam rectis Haeredibus which the King cannot do nor can the King have the possession of the Land to his own use if not that by the Office and Seizure such Conveyance made by the Idiot be destroyed and that doth not impugn the Maxim at the Common Law * It is a Maxim of the Common Law of England That the Party shall not disable himself Co. Lit. 247. b. 10 Lib. 4. f. 123. b. Beverley's Case Cro El. f. 398. Stroud v. Marshal Co. 3. Inst. 215. Littleton sect 405. For in this Case the Idiot in no Plea that he can plead shall disable or stultifie himself but all is found by Office by the Inquisition and Verdict of twelve Men at the King's Suit who are not concluded to speak the Truth and such Office when it is found shall have relation a tempore Nativitatis to avoid all mean Acts made by the Idiot as Feoffments Releases c. And therewith agreeth 23 E. 3. Scire Facias 106. Stamford's Praerogative 34. F. N. B. 202. C. But notwithstanding the Words of the Statute of Praerog Regis are general and emphatical Nullatenus alienantur yet if he Alien by Fine or Recovery it shall bind him or acknowledge a Statute or Recognisance neither his Heirs nor his Executors shall avoid it for these are Matters of Record which shall not be avoided by a bare Averment of Non Compos Mentis for the Inconvenience which may follow thereupon Also such Averment is against the Office and Dignity of the Judge for he ought not to take any Conusance of a Fine or Recognisance of him who is Non Compos Mentis 18 E. 2. Fines 120. 17 Ass. Pl. 17. 17 E. 3. X. QUERY A Fine levied by an Idiot or Natural Fool what it operates SOLUTION Anno 23 Eliz. In the Court of Wards the Case was this That Henry Bushley seized in Fee of certain Mich. 12 Iac. Regis Mansfield's Case Co. Lib. 12. f. 123 124. Lands in North-Mins in the County of Hertford by his Will in Writing demised the said Lands to Henry Bushley his Son in Tail the Remainder to one William Bushley And for this that his Son was within Age he demised the Education of him to Thomas Harrison whom he made his Executor And afterwards it hapned that Henry the Son became a monstrous and deformed Cripple and proved an Idiot a Nativitate The which Idiot by the Practice of one Nichols and others was ravished and taken out of the Custody of his Guardian and was carried upon Mens Shoulders to a Place unknown and there kept in secret until he had acknowledged a Fine of his Lands to one Botham before Justice Southcot Anno 9 Eliz. And by Indenture between them the use of the said Fine was declared to the use of the Cognizee and his Heirs which Botham conveyed Anno 12 Eliz. the said Land to one Henry Mansfield And Anno 12 Eliz. the said Henry Bushley the Son by Inquisition was found an Idiot a Nativitate and upon this in Anno 33. the Court of Wards took Order for the Possession of the said Lands And it was moved as a Doubt in the said Court of Wards Whether the said Fine should be to the Use of the said Idiot and his Heirs For notwithstanding that the Fine which is of Record binds the Idiot for the Causes aforesaid yet the Indentures are not sufficient to direct the Uses But it was resolved that forasmuch as he was enabled by the Fine Vide Co. Lib. 2. f 58. Beckwith's Case Co. lib. 10. Portington's Case as to the Principal he shall not be disabled to limit the Uses which are but as accessory And the same is the Law of an Infant and Feme Covert And the said Mansfield brought an Action of Trespass in the Common Pleas against one Trot the Farmer of the said Lands and the Issue was to be tried at the Bar And the said deformed Idiot was sent out of the Court of Wards to be shewn to the Judges of the Common Pleas and to the Jurors there tried and sworn and being brought upon a Man's Shoulders the Judges hearing that the Title of Mansfield was under the said Fine levied by that Idiot the Lord Dyer and the Court by Consent of Parties caused a Juror to be withdrawn and the Lord Dyer said That the Judge who took the Fine was never worthy to take another But notwithstanding this and altho' the monstrous Deformity and Idiocy of Bushley was apparent and visible yet the Fine stood good XI QUERY A Fine levied by J. S. Uncle of an Idiot who was seized of the Inheritance the said J. S. dying in the Life of H. the Idiot whether this Fine so levied can bar the Grand-child of J. S. SOLUTION Trespass upon Not Guilty and a special Verdict the Case was Tenant for Life Reversion to William Rogers Cro. Car. f. 525 543. Edwards v. Rogers an Idiot in Fee Andrew Rogers his Uncle levies a Fine Come Ceo c. with Proclamation to Robert Crompton and had Issue Iohn who had Issue William the Defendant and died William the Idiot died without Issue William the Defendant enters as Heir unto him viz. Son and Heir of Iohn Son and Heir of the said Andrew And whether he may claim against this Fine of his Grand-father not claiming by the Grandfather but deriving only his Pedigree from him was the Question And it was argued by Rolls for the Plaintiff That forasmuch as William Rogers is Heir to Andrew his Grand-father Uncle to the said William the Idiot he is estopped to claim against this Fine or to say Quod partes ad finem nihil habuerunt And for Proof thereof he relied upon the Statute of 27 E. 1. of Fines Co. lib. 3. f. 89. 10 Car. Scovel Brastock's Case Co lib. 3. f. 30. Sir George Brown's Case Saule Clerk's Case But it was argued by Farrer for the Defendant that this Fine shall not bar because he claims not any Interest by or from Andrew nor as Heir unto him but only makes â—…ention of him in the Pedigree Co. Litt. f. 8. 2 E. 3. 6. 〈◊〉 lib. 8. 53. Symms Case c. And that here he is 〈◊〉 Quasi of another Title and Puisny to the Fine â—…erkly and Croke delivered their Opinions That this â—…ne by Andrew the Uncle of William the Idiot who â—…as seized of the Inheritance he dying in the Life of â—…illiam so as nothing ever attached upon him shall â—…ver bar William the Defendant who was Grand-child 〈◊〉 the said Andrew because he claims nothing by or â—…om him but only from William the Nephew of Anâ—…rew who survived the said Andrew And he makes â—…s Title as Heir to the said William the Nephew who â—…as last seized not making therein any mention of
of this Land that they shall have the Custody of all the Lands of Natural Fools and may take the Profits Swinburn in his Treatise of Testaments and Last Wills 3. Part § 11. nu 13. p. 99. a. b. Edit 1590. thereof without waste oâ—… destruction of whose Fee soever the same be holden finding to them Necessaries and after the Death of such Idiots the Land must be restored to the right Heirs But in the mean time that is to say during the Life of the Idiot the Tuition of the Idiot or of his Lands cannot be devised by Testament to any other Person contrary to the Course of the Common Law in prejudice of him to whom the Wardship doth belong saving the Testator may commit the Custody of such Goods and Chattels as he doth bequeath to the Idiot to whom he will and during so long time as he will * Si quidem unusuisque potest rebus suis quam velit legem imponere Mautic l. 7. tit 1. nu 38. Et Testatoris voluntas habetur pro lege L. Servus de manumiss licet alias videatur per Fitzherbert's Nat. Br. de Idiots inquirendo quod bona quae Idiotae obvenirent suo Gardiano accrescunt Quaere tamen per Stamford super Praerogativam Regis c. Idiot C. XVI QUERY Idiocy whether in any Case triable in the Ecclesiastical Court SOLUTION If an Administrator sue for a Legacy due to the Deceased Mich. 15 Iac. B. R. Inter Percher Wheeble per Curiam Dr. Godolphin in his Repertorium Canonicum c. 11. p. 120. § 17. in the Ecclesiastical Court and the Defendant plead the Release of the Deceased and the Plaintiff avoid it for that the Deceased was an Idiot that Idiocy shall be tried there and no Prohibition shall be granted for that they have Jurisdiction of the Original Matter and that according to the old Rule to be found in the Register and in the Books of Law Non est consonum Rationi quod cognitio accessorii Cujus Juris i. e. Jurisdictionis est principale ejusdem Juris erit accessorium in Curia Christianitatis impediatur ubi cognitio causae principalis ad forum Ecclesiasticum noscitur pertinere Register Orig. f. 58. a. Co. 2 Inst. f. 493. Cro. Jac. f. 269. Roberts Case Cro. Car. Netter v. Bret. Cro. Jac. f. 348. Egerton v. Egerton 12 Co. f. 65. Tit. Court Ecclesiastical C. Bulâ—…rode's Reports Second Part f. 210 211. Egerton v. Egerton XVII QUERY An Executor having obtained Iudgment in an Accompt and having the Defendant in Execution for Arrerages and the Testament being afterwards annulled for Idiocy in the Testator whether the Testament being disapproved an Audita Querela will lie for the Defendant SOLUTION Anno 35 H. 8. in the Exchequer Chamber a Case was well debated by the Justices 3 4 Eliz. Dyer f. 203. b. 204. a Co. lib. 8. f. 144. Drury's Case of both Benches which was â—…uch One Moyer who was Executor of the Testament of Iohn Gisors sued a Writ of Account against one Carvanel as Receiver of the Money of the said Gisors the Defendant pleads Ne unques Receiver pur Accompt render And it was found for the Plaintiff and Judgment given that he should account and upon this a Capias ad Computandum was awarded Whereupon the Defendant came in and Accounts in Ward and he was found in Arrerages and his Body was committed to Prison for Execution And after the said Testament was annulled by Sentence in the Spiritual Court for that the said Iohn Gisors the Testator was an Idiot from his Birth and this Record Spiritual is certified into the Chancery by Writ and thence sent into the King's Bench where the Action of Accompt was brought And the said Carvanel sued forth an Audita Querela in the same Court containing this Matter in his Writ and a Venire Faciaâ—… against Moyer who demurred in Law upon the whole Matter And it was resolved that the Audita Querelâ—… did lie because the Will was disapproved and annulled XVIII QUERY Whether an Attornment made to a Grant by an Idiot 〈◊〉 other Non compos mentis can be good in Law SOLUTION A Man that is an Idiot or other Non compos mentiâ—… cannot Attorn For he who is Amens without Understanding cannot make an Attornment which is an Agreement And yet if a Man Non compos mentis be Lesse for Years rendring Rent and the Lessee ejecteth him and maketh a Feoffment and afterwards the Non compâ—… mentis re-entreth this Act of Re-entry doth subject himself to Distress and an Action of Waste altho' he cannâ—… make an express Attornment Coke in his Comment oâ—… Littleton sect 566. f. 315. a. 6 Co. 69. a. Sir Moyle Finchâ—… Case 32 E. 3. Age 80. 18 E 3. 35. XIX QUERY Whether an Inquisition shall bind an Idiot without an Examination by the Council SOLUTION It was said by Dyer in the Case of one Brent that the Law is Altho' a Man be found an Idiot by Inquisition Dallison's Rep. pl. 19. f. 95. yet he ought to be examined by the Counsel and affirmed by them to be an Idiot or otherwise he shall not be bound by the Inquisition And he said further That Brent was found an Idiot by Inquisition and after being examined by the Lords of the Star-Chamber he was adjudged to be no Idiot whereupon he was delivered from the Thraldom of Idiocy XX. QUERY No Possessions in Lands descending to an Idiot but only a Right whether the King can enter and have the Custody of it SOLUTION If there descend to an Idiot no Possession in Lands but only a Right be it Right of Entry or Title of Entry or Right of Action the King shall not enter and have the Custody of the same 1 H. 7. 15. Stamford Super Praerog Regis c. 9. f. 35. b. Edit 1567. Hitherto of the Description Remarks and Queries relating to an Idiot or Sot Natural I proceed now to speak of the Furor Man that is totally bereft of his Wits PART the Second Of him who is by Accident wholly deprived of his Wits SECT I. This sort of Non Compos Mentis how described HE is said to be one that was of good and sound Memory and by the Visitation of God through some Sickness Grief or other Accident utterly loseth Furor est continuata mentis Alienatio qua quis omni intellectu caret D. 1. 18. 14. Gothofredus ad Lor. his Memory and Understanding and so falls into some high or low degree of Fury or Madness Co. Litt. f. 247. a. 4 Co. f. 124. b. Beverley's Case of Non compos mentis SECT II. The Remarks concerning Mad or Distracted Persons I. REMARK THE true Account of the Cause of Distraction is this When the Animal Spirits by some Accident or other are so over-heated that they become unserviceable Dr Goodman's Treatise entituled The Penitent pardoned under the Parable of the Prodigal Part 1. c. 5. p. 123 124.
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
the Judges in Beverley's Case Sir Robert Holbourn in his Reading upon the Statute of 25 E. 3. c. 2. De Proditionibus Reading Printed Anno 1681. p. 17 18. says thus All Ages are within this Law as in Folks which have Knowledge or Men of Non Sanae Memoriae and a Mad-man is also within this Law as to that part of the Statute which concerns more immediately the Person of the King For if any of them aforementioned in this Division shall compass his Death it is Treason within the first Clause but not in the Clause of levying War But a Man that is Surdus coecus mutus is not within this Law for it is impossible for him to have Understanding And afterward he tells us That I. S. after he became mad kills the Queen this is Treason P. 31 32 33 34. within this Law First Because a Man may counterfeit himself to be mad and he may do it so cunningly as it cannot be discerned whether he be mad or no. The Second is in respect of the great Esteem that the Law gives to the Person of the King for he is the Fountain of Justice And for the Proof of this Point that it may be understood we ought to see what the Common Law was before the making of this Statute as to this Point and then ought to enquire and see how the Law is altered since the making of the Statute and by this means we shall find out the Law and the Reason thereof It is true that the Law without special words will not bind an Infant or a Mad-man as to the Punishment of their Bodies but yet it will extend to their Lands and Estates But this our Law is no new Law but only a declarative Law and in that Case general words will bind an Infant or a Mad-man without any special words That it was Treason at the Common Law is apparent Britton f. 16. a. c. 8. c 22. f. 39. a. b. Mirror c 2. § 11. c. 1. § 4. Vide Bracton fol. 118. b. in Britton and the Mirror of Iustice and this Statute doth not declare who shall be Traitors but what shall be Treason and therefore by this Act it is Treason in a Mad-man or whomsoever shall commit it for a Mad-man is not excepted out of this Law And to make this appear more fully you may be pleased to read the Case of Beverley That a Man that is Non compos mentis may commit High-Treason altho' he cannot commit Petty-Treason nâ—…r Felony And so it is also in Dalton's Iustice of Peace 206. That if a Man that is Non compos mentis shall kill the King this is High-Treason Nay Beverley's Case goes farther and says That if he shall offer only to kill the King this is High-Treason Thus much for the Opinions of the Judges in Beverley's Case and of Holbourn now let us see what Sir Edward Coke says concerning Mad-men as to the Point of committing High-Treason A Man saith he that is Non compos mentis or an Infant within the Age of Discretion is not un Home Coke in his Third Institutes fol. 4. within the Statute of 25 E. 3. c. 2. for the principal End of Punishment is That others by his Example may fear to offend * Ut unius poena metus possit esse multorum D. 16. 3. 31. D. 48. 3. 6. Cod. 9. 27. 1. D. 48. 19. 6. 1. Ut poena ad paucos metus ad omnes perveniat But such Punishment can be no Example to Mad-men or Infants that are not of the Age of Discretion And God forbid quoth he that in Cases so penal the Law should not be certain And if it be certain in Case of Murther and Felony a fortiori it ought to be certain in Case of Treason If a Man commit Treason or Felony and confesseth the same or be thereof Convict if afterward he Co. 3 Inst. f. 4. become De non sane Memorie qui patitur exilium mentis he shall not be called to answer Or if after Judgment he become De non sane Memorie he shall not be executed for it cannot be an Example to others Add to what he said before this which follows If a Mad-man had killed or offered to kill the King it was holden for Treason and so it appeareth by King Co. 3 Inst. f. 6. Alfred's Law before the Conquest But now by the Statute of 25 E. 3. c. 2. and by force of these words Fait compasser ou imaginer la mort he that is Non compos mentis and totally deprived of all Compassings and Imaginations cannot commit Treason by Compassing or Imagining the Death of the King For Furiosus solo furore punitur But it must be an absolute Madness and a total Deprivation of Memory And this appeareth by the Statute of 33 H. 8. for thereby it is provided That if a Man being Compos mentis Cap. 20. commit Treason and after Accusation c. fall to Madness that he might be tried in his Absence c. and suffer Death as if he were of perfect Memory For by this Statute of 25 E. 3. a Mad-man could not commit Treason It was further provided by the said Act of 33 H. 8. That if a Man attainted of Treason became mad that notwithstanding he should be executed which cruel and inhuman Law says he lived not long but was repealed For in that Point also it was against the Common Law because by Intendment of Law the Execution of the Offender is for Example but so it is not when a Mad-man is executed but should be a miserable Spectacle both against Law and of extreme Inhumanity and Cruelty and can be no Example to others XIV QUERY Whether a Mad-man be punishable in Trespass SOLUTION In Capital Causes in favorem vitae the Law will not punish in so high a degree Sir Francis Bacon in his Elements of the Common Laws of England Reg. 7. p. 31 32. except the Malice of the Will and Intention appear But in Civil Trespasses and Injuries that are of an inferiour Nature the Law doth rather consider the Damage of the Party wronged than the Malice of him that was the Wrong-doer And therefore if an Infant within Years of Discretion or a Mad-man kill another he shall not be impeached thereof but if they put out a Man's Eye or do him like corporal Hurt they shall be punished in Trespass Concerning a Mad-man's doing a corporal Hurt the Civil Law runs thus Quaerimus si Furiosus damnum dederit an Legis Aquiliae Actio sit Et pegasus negavit Quae enim in eo culpa sit cum suae mentis non sit Et Culpam non admittit qui suae mentis non est Gothofreda 1 hoc verissimum Cessabit igitur Aquilia Actio quemadmodum si quadrupes damnum dederit Aquilia cessat aut si tegula ceciderit D. 9. 2. 5. 2. XV. QUERY Whether a Furor Man can be a
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
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.
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. Reports of William Benloe Serjant at Law and Will. Dallison one of the Judges of the Court of King's-Bench Price 12 s. Sir Orl. Bridgman's Conveyances being select Precedents of Deeds and Instruments concerning the most considerable Estates in England drawn and approved by that Honourable Person in the time of his Practice 3d Edition with Addit Pr. 12 s. Cowell's Interpreter of the Law-Terms Price 10 s. Hobart's Reports 12 s. Bulstrode's Reports 30 s. Cases in Parliament upon Writs of Error 8 s. Coke's Institutes 2d 3d and 4th Parts Plowden's Reports 20 s. A Book of Entries of Declarations Pleas Replications Rejoinders Issues Demurrers and the other Parts of Pleading in Actions of Account against Bailiffs and Receivers on the Case upon Special Agreements Contracts and Promises or for Torts General and Special upon Breach of Statutes and Covenants in Debt against Sheriffs and other Officers or upon Awards Specialties c. in Ejectments Assaults Battery False Imprisonment Trespass or Trover Entry of Writs of Error with all the Proceedings in the same upon Judgment in the Courts superiour and inferiour in England and Ireland 3 s. 6 à . A Compleat Guide for Justices of Peace according to the best approved Authors In Two Parts The First containing the Common and Statute Laws relating to the Office of a Justice of the Peace The Second consisting of the most Authentick and Useful Precedents which do properly concern the same By I. Bond of Greys-Inn Esq The Second Edition much enlarged and continued down to this Time To which is added A Table referring to all the Statutes relating to a Justice of Peace By E. Bohun Esq 6 s. Ars Transferendi Dominium Or A Sure Guide to the Conveyancer Consisting of many Observations and various Questions with their Resolutions relating to Feoffments Grants Fines Common Recoveries Exchanges Releases Confirmations Attornments Surrenders Bargains and Sales and Devises By I. Brydall of Lincoln's-Inn Esq 3 s. 6 d. The New Atlas Or Travels and Voyages in Europe Asia Africa and America through the most renown'd Parts of the World viz. From England to the Dardanelles thence to Constantinople Egypt Palestine or the Holy Land Syria Mesopotamia Chaldea Persia East-India China Tartary Muscovy and by Poland the German Empire Flanders and Holland to Spain and the West-Indies With a brief Account of Aethiopia and the Pilgrimages to Mecha and Medina in Arabia c. By an English Gentleman c. 3 s.