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, 1. 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. 1. 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 in. felicitatis meæ numeratur, habuisse vel ædificasse aliquod quo homo periret. Stiernhook, de jure 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, inines, 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.

For

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. 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,

(h) Flet. l. 1. c. 11, § 10.

(i) Dyer. 302. Hutt. 17. Nov. 27.

(k) F. N. B. 232.

(7) 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. Wins. 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; (q) 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 strict ness 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 ladas," 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.

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subjects, it is but reasonable that private contributions should supply the public service. Which, though it may perhaps fall harder upon some individuals, whose ancestors have had no share in the general plunder, than upon others; yet, taking the nation throughout, it amounts to nearly the same, provided the gain by the extraordinary should appear to be no greater than the loss by the [*307] ordinary revenue. And, perhaps, if every *gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws, and the slavery of feudal tenures; and was to resign into the king's hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the like; he would find himself a greater loser than by paying his quota to such taxes as are necessary to the support of government. The thing therefore to be wished and aimed at in a land of liberty is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. For as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend their private concerns; it is necessary that those individuals should be bound to contribute a portion of their private gains, in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. But the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare, and at the same time most consistent with economy and the liberty of the subject; who, when properly taxed, contributes only, as was before observed, (y) some part of his property, in order to enjoy the rest.

These extraordinary grants are usually called by the synonymous names of aids, subsidies, and supplies; and are granted, we have formerly seen, (2) by the commons of Great Britain in parliament assembled: who, when they have voted a supply to his majesty, and settled the quantum of that supply, usually resolve themselves into what is called a committee of ways and means, to consider the ways and means of raising the supply so voted. And in this committee every

[ *308] *member, (though it is looked upon as the peculiar province of the chancellor of the exchequer,) may propose such scheme of taxation as he thinks will be least detrimental to the public. The resolutions of this committee, when approved by a vote of the house, are in general esteemed to be, as it were, final and conclusive. For, though the supply cannot be actually raised upon the subject till directed by an act of the whole parliament, yet no monied man will scruple to advance to the government any quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet passed to establish it.

The taxes, which are raised upon the subject, are either annual or perpetual The usual annual taxes are those upon land and malt.

1. The land-tax, in its modern shape, has superseded all the former methods of rating either property, or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages, scutages or talliages; a short explication of which will, however, greatly assist us in understanding our ancient laws and history.

Tenths, and fifteenths, (a) were temporary aids issuing out of personal property, and granted to the king by parliament. They were formerly the real tenth or fifteeth part of all the movables belonging to the subject; when such movables, or personal estates, were a very different and a much less considerable thing than what they usually are at this day. Tenths are said to have been first granted under Henry the Second, who took advantage of the fashionable zeal for croisades, to introduce this new taxation, in order to defray the expense of a (y) Page 282. (a) 2 Inst. 77. 4 Inst. 34.

(z) Page 169.