Chap. 8.] that, as Bracton expresses it, (t) hæc quæ nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium. (11) XVI. The next branch of the king's ordinary revenue consists in forfeitures of lands and goods for offences; bona confiscata, as they are called by the civilians, because they belong to the fiscus or imperial treasury; or, as our lawyers term them, forisfacta; that is, such whereof the property is gone away or The true reason and only substantial ground of any departed from the owner. forfeiture for crimes consist in this: that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom which every man must sacrifice when he If therefore a member of any national comenters into social communities. munity violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the movables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immovables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. The particulars of these forfeitures will be more properly recited when we treat of crimes and misdemeanors. I therefore only mention them here, for the sake of regularity, as a part of the census regalis; and shall postpone for the [*300] present the farther consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a deodand. (12) By this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature: which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner; (v) though formerly destined to a more superstitious purpose. It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church: (w) in the same manner as the apparel of a stranger, who was found dead, was applied to purchase masses for the good of his soul. And this may account for that rule of law, that no deodand is due where an infant under the age of discretion is killed by a fall from a cart, or horse, or the like, not being in motion; (x) whereas, if an adult person falls from (v) 1 Hal. P. C. 419. Fleta, l. 1, c. 25. (t) L. 1, c. 12. (x) 3 Inst. 57. 1 Hal. P. C. 422. (11) [This passage has been thought inconsistent with the doctrine stated supra p. 295, viz. : that all things found in the sea or upon the earth belong not to the king, but to the finder, which is undoubtedly the general rule. But in the particular cases enumerated in the text, the positive law has, for certain special reasons, given the enumerated articles to the crown; and in this passage Blackstone is merely assigning as an additional reason why the crown should have them, this circumstance, that the operation of the general rule would confer them on the first finder, as being bona vacantia.] (12) [The statute of 54 Geo. III, c. 145, greatly relaxed the law of forfeiture, so far as landed and 4 Wm. IV, c. 106, s. 10, is still more liberal. property is concerned; and the statute of No attainder of felony now extends to the disinheriting of any heir, or to the prejudice of the right or title of any other person than the offender, except during his natural life only. And with respect to forfeitures of personal property, the crown exercises its rights very leniently; in cases where indulgence to the families of offenders can reasonably be asked, a proper representation rarely (I believe never) fails to meet attention. Homicide, not felonious, now entails no forfeiture, by virtue of the stat. 9 Geo. IV, c. 31, s. 10.] By the constitution of the United States "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." Forfeitures of estate and corruption of blood for offenses against the United States were abolished by statute in 1790: 1 Stat. at Large, 117; and although during the late civil war statutes were passed for the confiscation of property of persons convicted of treason, but few proceedings were had under them, and the property seized was for the most part relieved from them under the president's power to reprieve and pardon. 189 thence and is killed, the thing is certainly forfeited. For the reason given by Sir Mathew Hale seems to be very inadequate, viz.: because an infant is not able to take care of himself; for why should the owner save his forfeiture, on account of the imbecility of the child, which ought rather to have made him more cautious to prevent any accident of mischief? The true ground of this rule seems rather to have been, that the child, by reason of its want of discretion, was presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses; but every adult, who died in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the English law. Thus stands the law if a person be killed by a fall from a thing standing still. But if a horse, or ox, or other animal, *of his own motion, kill as well [*301] an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands; (y) which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. A like punishment is in like cases inflicted by the Mosaical law: (2) "if an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten." And, among the Athenians, (a) whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. (13) Where a thing not in motion, is the occasion of a man's death, that part only which is the imme diate cause is forfeited; as, if a man be climbing up the wheel of a cart, and is killed by falling from it, the wheel alone is a deodand: (b) but, wherever the thing is in motion, not only that part which immediately gives the wound, (as the wheel, which runs over his body,) but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel,) are forfeited. (c) It matters not whether the owner were concerned in the killing or not; for, if a man kills another with my sword, the sword is forfeited (d) as an accursed thing. (e) And therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury, (as, that the stroke was given by a certain penknife, value sixpence,) that the king or his grantee may claim the deodand; for it is no deodand unless it be presented as such by a jury of twelve men. (f) No deodands are due for accidents happening upon the high sea, that being out of the [*302] jurisdiction of the common law: but if a *man falls from a boat or ship in fresh water, and is drowned, it hath been said, that the vessel and cargo are in strictness of law a deodand. (g) But juries have of late very frequently taken upon themselves to mitigate these forfeitures, by finding only some. trifling thing, or part of an entire thing, to have been the occasion of the death. And in such cases, although the finding by the jury be hardly warrantable by law, the court of king's bench hath generally refused to interfere on behalf of the lord of the franchise, to assist so unequitable a claim. (h) (14) (y) Omnia, quæ movent ad mortem, sunt Deo danda. Bracton, l. 3, c. 5. (*) Exod. xxi. 28. (a) Eschin, cont. Ctesiph. Thus, too, by our ancient law, a well in which a person was drowned was ordered to be filled up, under the inspection of the coroner. Flet. l. 1, c. 25, § 10. Fitzh. Abr. t. corone 416. (b) 1 Hal. P. C. 422. (c) 1 Hawk. P. C. c. 26. (d) A similar rule obtained among the ancient Goths. Si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur ; vel ex ædibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis, mea numeratur, habuisse vel ædificasse aliquod quo homo periret. Stiernhook, de juré Goth. 1. 3. c. 4. (e) Dr. and St. d. 2. c. 51. (f) 3 Inst. 57. (g) 3 Inst. 58. 1 Hal. P. C. 423. Molloy, de Jur. Maritim. 2, 225. (h) Foster, of Homicide, 266. (13) [This was one of Draco's laws; and perhaps we may think the judgment, that a statue should be thrown into the sea for having fallen upon a man, less absurd, when we reflect that there may be sound policy in teaching the mind to contemplate with horror the privation of human life, and that our familiarity even with an insensible object which has been the occasion of death, may lessen that sentiment. Though there may be wisdom in withdrawing such a thing from public view, yet there can be none in treating it as if it was capable of understanding the ends of punishment.] (14) [Deodands were abolished by stat. 9 and 10 Vic. c. 62, which enacts that "there shall be no Deodands, and forfeitures in general, as well as wrecks, treasure trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties: to the perversion of their original design. XVII. Another branch of the king's ordinary revenue arises from escheats of lands, which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. But the discussion of this tropic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat. (15) XVIII. I proceed therefore to the eighteenth and last branch of the king's ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics. An idiot, or natural fool, is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any. For which reason the custody of *him and of his lands was formerly vested in the lord of the fee: (h) (and therefore still, by special custom, in some [*303] manors the lord shall have the ordering of idiot and lunatic copyholders,) (i) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people; in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress. (k) This fiscal prerogative of the king is declared in parliament by statute, 17 Edw. II, c. 9, which directs (in affirmance of the common law,) (7) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs: in order to prevent such idiots from aliening their lands, and their heirs from being disinherited. (16) By the old common law there is a writ de idiota inquirendo, to inquire whether a man be an idiot or not: (m) which must be tried by a jury of twelve men: and, if they find him purus idota, the profits of his lands, and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them. (n) This branch of the revenue hath been long considered as a hardship upon private families: and so long ago as in the 8 Jac. I, it was under the consideration of parliament, to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery of the feudal tenures, which has been since abolished. (0) Yet few instances can be given of the oppressive exertion of it, since it seldom happens that a jury finds a man an idiot a nativitate, (i) Dyer. 302. Hutt. 17. Nov. 27. (k) F. N. B, 232. (h) Flet. l. 1. c. 11, § 10. (1) 4 Rep. 126. Memorand. Scacc. 20 Edw. I. (prefixed to Maynard's Year Book of Edw. II.) fol. 20, 24. (m) F. N. B. 232. (p) This power, though of late very rarely exerted, is still alluded to in common speech, by that usual expression of begging a man for a fool. (o) 4 Inst. 203. Com. Journ. 1610. forfeiture of any chattel for or in respect of the same having moved to or caused the death of man." (15) Within the states of the American Union, escheats for defect of heirs are to the state in which the property is situate, and not to the United States. (16) [The jurisdiction which the chancellor has generally, or perhaps always, exercised over the persons and estates of lunatics and idiots, is not necessarily annexed to the custody of the great seal; for it has been declared by the house of lords, "that the custody of idiots and lunatics was in the power of the king, who might delegate the same to such person as he should think fit." And upon every change of the great seal, a special authority under his majesty's royal sign manual is granted to the new chancellor for that purpose. Hence no appeal lies from the chancellor's orders upon this subject to the house of lords, but to the king in council. Dom. Proc. 14 Feb. 1726, 3 P. Wms. 108.] but only non compos mentis from some particular time; which has an operation very different in point of law. *A man is not an idiot, (p) if he hath any glimmering of reason, so [*304] that he can tell his parents, his age, or the like common matters. But a man who is born deaf, dumb and blind, is looked upon by the law as in the same state with an idiot; (g) he being supposed incapable of any understanding, as wanting all those senses which furnish the human mind with ideas. (17) A lunatic, or non compos mentis, is one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason. (r) A lunatic is indeed properly one that hath lucid intervals; sometimes enjoying his senses, and sometimes not, and that frequently depending upon the changes of the moon. (18) But under the general name of non compos mentis (which, Sir Edward Coke says, is the most legal name,) (s) are comprised not only lunatics, but persons under frenzies; or who lose their intellects by disease; those that grow deaf, dumb, and blind, not being born so; or such, in short, as are judged by the court of chancery incapable of conducting their own affairs. To these, also, as well as idiots, the king is guardian, but to a very different purpose. For the law always imagines, that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives. And therefore it is declared by the statute 17 Edw. II, c. 10, that the king shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them for their use, when they come to their right mind; and the king shall take nothing to his own use; and, if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administration,) shall now go to their executors or administrators. *On the first attack of lunacy, or other occasional insanity, while there [*305] may be hope of a speedy restitution of reason, it is usual to confine the unhappy objects in private custody under the direction of their nearest friends and relations; and the legislature, to prevent all abuses incident to such private custody, hath thought proper to interpose its authority by statute 14 Geo. III, c. 49, (continued by 19 Geo. III, c. 15,) for regulating private madhouses. But, when the disorder is grown permanent, and the circumstances of the party will bear such additional expense, it is proper to apply to the royal authority to warrant a lasting confinement. (19) The method of proving a person non compos is very similiar to that of proving him an idiot. The lord chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted, (f) upon petition or information, grants a commission in nature of the writ de idiota inquirendo, (20) to (p) F. N. B. 233. (q) Co. Litt. 42. Fleta, l. 6, c. 40 (r) Idiota a casu et infirmitate. (Mem. Scacch. 20 Edw. I. in Maynard's Year Book of Edw. II. 20.) (s) 1 Inst. 246. (t) 3 P. Wms. 108. (17) This, however, is a mere presumption, and may be rebutted by evidence of capacity. Rex v. Dyson, 7 C. and P. 305; Rex v. Pritchard, Ibid. 303; Commonwealth v. Hill, 14 Mass. 207; Brower v. Fisher, 4 Johns, Ch. 441; Christmas v. Mitchell, 3 Ired. Ch. 535. Persons only deaf and dumb, it has been declared, are to be considered idiots; but this idea may be said to be obsolete. See Rushton's case, 1 Leach, C. C. 455; Morrison v. Leonard, 3 C. and P. 127. Indeed the presumption of idiocy in the case of persons born deaf, dumb and blind is a very faint one since the capacity of this class of unfortunate persons for instruction has been so thoroughly demonstrated of late years. See Weir v. Fitzgerald, 2 Bradf. Sur. R. 42. (18) [The influence of the moon upon the human mind, or rather the dependence of any state of the human mind upon the changes of the moon, is doubted or denied by the best practical writers upon mental disorders.] (19) See stat. 2 and 3 Wm. ÍV, c. 107, and 3 and 4 Wm. IV, c. 36, which are late statutes on this subject. (20) [Or a writ de lunatico inquirendo, which is the more common form. From the strictness with which the ancient writs, and the commissions framed thereon, were worded, they could not be sustained against any person who was not, in the most absolute import of the inquire into the party's state of mind; and if he be found non compos, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee. However, to prevent sinister practices, the next heir is seldom permitted to be this committee of the person; because it is his interest that the party should die. But, it hath been said, there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic's life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy.(u) The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition: accountable, however, to the court of chancery, and to the non compos himself, if he recovers; or otherwise to his administrators. (21) In this case of idiots and lunatics, the civil law agrees with ours, by assigning them tutors to protect their persons, and curators to manage their estates. But, in another instance, the Roman law goes much beyond the English. For, if a man, by notorious prodigality, was in danger of wasting his estate, he was looked upon as non compos, and committed to the care of curators or tutors by the prætor. (v) And, by the laws of Solon, such prodigals were branded with perpetual infamy. (w) But with us, when a man on an inquest of idiocy hath been returned an unthrift, and not an idiot, (x) no farther proceedings have been had. And the propriety of the practice itself seems to be [ *306 ] very questionable. It was doubtless an excellent method of benefiting the individual, and of preserving estates in families; but it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using their own property as they please. "Sic utere tuo, ut alienum non lædas," is the only restriction our laws have given with regard to economical prudence. And the frequent circulation and transfer of lands, and other property, which cannot be effected without extravagance somewhere, are perhaps not a little conducive towards keeping our mixed constitution in its due health and vigour. This may suffice for a short view of the king's ordinary revenue, or the proper patrimony of the crown; which was very large formerly, and capable of being increased to a magnitude truly formidable; for there are very few estates in the kingdom that have not, at some period or other since the Norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise. But, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of improvident management, is sunk almost to nothing; and the casual profits arising from the other branches of the census regalis are likewise almost all of them alienated from the crown: in order to supply the deficiencies of which we are now obliged to have recourse to new methods of raising money, unknown to our early ancestors; which methods constitute the king's extraordinary revenue. For, the public patrimony being got into the hands of private (u) 2 P. Wms. 638. (v) Solent prætores, si talem hominem invenerint, qui neque tempus neque finem expensarum habet,sed bona sua dilacerando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel furiosus sa nitatem, vel ille bonos mores, receperit. Ff. 27, 10. 1. (w) Potter, Antiq. b. 1, c. 36. (x) Bro. Abr. tit. Idiot, 4. terms, an idiot or a lunatic: but in order to include parties who, although they could not strictly be described as idiots or lunatics, were non compotes mentis, and exposed to every species of fraud and injustice, commissions were framed in the nature only of the writs formerly in use. The modern commissions are made out by letters patent, under the great seal, and are held to extend to all persons of unsound mind. Ex parte Southcote, Ambl. 111; Ridgeway v. Darwin, 8 Ves. 65. And by virtue of the statute of 3 and 4 Wm. IV, c. 36, such commissions may, if the lord chancellor thinks fit, be directed to one commissioner only, in order to save expense. Formerly, three commissioners were held to be necessary in all cases.] (21) The rule that the next of kin of a lunatic, if entitled to his estate upon his decease, must not be committee of the person, is no longer adhered to. See ex parte Cockayne, 7 Ves. 591; matter of Livingston, 1 Johns. Ch. 436. The manifest propriety of appointing near relatives is conceded: Lady Mary Cope's Case, 2 Ch. Cas. 239; ex parte Le Heup, 18 Ves. 227: and personal fitness will be principally regarded in the selection. See matter of Livingston, 1 Johns. Ch. 436, See also, as bearing on the point, matter of Taylor, 9 Paige, 611. 193 VOL I.-25 |