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A29951
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Non compos mentis, or, The law relating to natural fools, mad-folks, and lunatick persons inquisited and explained for common benefit / by John Brydall, Esq.
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Brydall, John, b. 1635?
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1700
(1700)
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Wing B5265; ESTC R19885
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74,121
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154
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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
he who has such Right be an Idiot or Non compos mentis and never recovereth his Memory the Heir may have an Action or make his Entry when he will for he is excepted out of the Body of the Act and is not tied to make any Entry or bring his Action within any time but the Party himself if he recover his Memory The same Law of him who is beyond Sea at the time of the â—…e levied and dieth there his Heir may enter or bring 〈◊〉 Action when he will And in such Case the Lord by Escheat shall take Advantage of his Non sane Memorie Infancy Imprisonment or being beyond Sea of his Tenant For if Lord and Tenant be and the Tenant be disseized and the Disseizor levieth a Fine the Disseizee being within Age Non compos mentis or in Prison or beyond the Sea dieth without Heir the Lord by Escheat shall take advantage of every of them against the Disseizor So if a Collateral Warranty descend upon a Non compos mentis which he might have avoided by Entry but an Idiot or Non compos mentis by their Lachesse shall be barred of their Entry because if they be disseized and the Disseizor dieth seized it shall take away their Entry but after their Death their Heir can enter or take advantage of the Infirmity of their Ancestor and his Lachesse which shall not prejudice his Heir of his Entry and that appeareth by Littleton Sect. 405. For Littleton saith No Lachesse can be adjudged by the Law in him who hath not Discretion in such Case scil having regard to his Heir and so is the difference XX. QUERY Whether he that is a Furor Man can be appointed Tutor SOLUTION He that is not 21 Years old or is not of perfect Mind and Memory may be assigned Tutor But it is to be understood that he shall be Tutor when he is of full Age or when he doth return to Sanity of Mind Swinburn in his Treatise of Testaments and Last Wills Part 3. Sect. 10. Cowell's Institutes Lib. 1. Tit. 14. p. 29. Edit 1605. Furiosus vel minor viginti quinque annis Tutor testamento datus Tutor tunc Inst. 1. 14. 2. erit cum Compos mentis aut major viginti quinque annis fuerit factus saith the Emperor Iustinian Furiosus saith the Lawyer Paulus si tutor datus fuerit potest intelligi ita dari D. 26. 1. 11. cum suae mentis esse caeperit Ulpian Lib. 3. to Sabinus Si Furiosus testamento tutor detur si quidem cum furerere desierit Tutorem D. 26. 2. 10. 3. esse recte datum proculus existimat quod si datus sit pure negat proculus valere dationem Sed est verius quod pomponius ait recte videri datum tunc fore tutorem cum sapere caeperit XXI QUERY Whether a King during the time of his Furor or Insanity of Mind be capable of making Peace SOLUTION They that have Power to begin a War have also Power by Articles of Agreement to end it for every Man is the best Moderator of his own Affairs whence Suae quisque rei moderator atque Arbiter Cod. 4. 35. 21. it follows that in a War on both sides publick the Power of making Peace belongs to them who are intrusted with the Supreme Authority As in a Government truly Monarchical to the In regnis Regum est foedus fadus facere Grot. lib. 2. 1. 15. § 3. King so as he be no ways disabled to exercise that Authority For in Case a King be not at Years of Discretion or if he be not of sound Memory he is not capable of making Peace Grotius of the Rights of War and Peace Lib. 3. c. 20. sect 2 3. Vide Lib. 1. c. 3. sect 24. XXII QUERY Whether it be lawful to speak Untruth to Mad-men SOLUTION In Case saith Grotius we converse either with a Child or a Mad-man if what we say be false it cannot Lib. 3. c. 1. § 12. de Iure Belli pacis be imputed as a Lye because as Quintilian saith it is universally permitted as profitable to instruct Infants by Tales and Fables but the immediate Cause is because not having a Freedom of Judgment Infants and Mad-men cannot be injured about that Liberty which they have not Having given the Reader an Account of the Law of England relating to Mad-men as also here and there made mention of the Civil Law of the Romans I shall conclude this Second Part of my Tract with a Synopsis of the Mad-man's Law framed by a very Learned Civilian Vere furiosi non tempore intervalli non simulati non tenentur Parricidii D. 48. 9. 9. 2. Homicidii D. 48. Dionysius Gothofredus ad D. 1. 18. 13. 1. 8. 12. Tutelae male administratae D. 26. 7. 61. Injuriae D. 47. 10. 3. 1. Etiam erga principem c. 9. 7. Lex unic nec possunt facere Testamentum c. 6. 22. 9. Etiam ad pias Causas Bartolus in l. 1. c. de Sacrosanct Eccles. nec Codicillos D. 29. 7. 3. nec sponsalia D. 23. 1. 8. Nec Matrimonium D. 23. 2. 16. 2. Nec Stipulationem Instit. 3. 20. 8. D. 44. 7. 1. 12. D. 46. 1. 70. 4. c. 4. 38. 2. Nec quid aliud contrahere D. 50. 17. 40. Vel agere cum nec velle possint D. 29. 7. 2. 3. D. 50. 17. 40. Cum absentium quiescentium loco habeantur D. 50. 17. 167. nisi ubi eorum negotia gesta sunt D. 3. 5. 3. 5. Et Curator eis detur D. 27. 10. 1. Praeterea furiosi testes esse non possunt D. 28. 1. 20. 4. nec Iudices D. 42. 1. 9. nec Tutores D. 26. 1. 11. Retinent tamen statum Dignitatem Magistratum potestatum Dominium rei suae D. 1. 5. 20. Uxorem Matrimonium Ius Patriae potestatis D. 1. 6. 8. Quanquam sine eorum consensu Liberi contrahere nuptias possunt Cod. 5. 4. 25. Et dotari moderate a Parentum Curatoribus C. 1. 4. 28. Observandum tamen Leonem Novel 111 112. Hitherto of the Description Remarks and Questions with their Resolutions appertaining to such as are wholly deprived of the use of their Reason let us now come to treat of the Law belonging to Lunaticks or Moon-sick Persons PART the Third Of the Lunatick having sometime his Reason and sometimes not SECT I. The Description of a Lunatick and the Word whence derived AS for the Origination of the word Lunaticus Lunatick we are told it comes from Luna the Moon and so the Party is said to be Moon-sick In Italian he is called Lunatico in Spanish Alunado in the Greek Language 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. Luna in the Teutonick he is termed Mohn-Suchtig a Moh i. Luna Suchtig i. aegrotus aeger ut illi qui certis Lunae temporibus insania vexantur Dr. Hammond that learned Divine concerning the word Lunatick saith