law)', that the king shall have the 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 their estates to their heirs, in order to prevent such idiots from alienating their lands, and their heirs from being disinherited.

"By the old common law there is a writ, De idiota inquirendo, to inquire whether a man be an idiot or not2, which must be tried by a jury of twelve men; and if they find him purus idiota, the profits of his lands and the custody of his person may be granted by the queen to some subject who has interest enough to obtain them. This branch of the revenue hath been long considered as a hardship upon private families; and so long ago as in the 8th James 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 feudal tenures, which has since been abolished. 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, 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 if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters.4 But a man who is born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot", he being supposed incapable of any understanding, as wanting all those senses which furnish the human mind with ideas.

"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. A lunatic is, indeed, properly one that hath lucid intervals, sometimes enjoying his senses, and sometimes not. But under the general name of non compos mentis (which Sir E. Coke says is the legal name) are comprised not only lunatics, but persons under frenzies, or who lose their intellects by disease; those who 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.8 To these also, as well as idiots, the crown is guardian, but for a very different purpose. For the law always imagines that these accidental

1 4 Rep. 126. Memorand. Scacc. 20 Ed. I. (prefixed to Maynard's Year-book of

Ed. II.), fol. 20, 24.

2 F. N. B. 2-32.

4 F. N. B. 233.

3 4 Inst. 203.

Com. Journ. 1610.

5 Co. Litt. 42. Fleta, 1. vi. c. xl.

6 Idiota a casu et infirmitate. Mem. Sacch. 20 Ed. I. (Maynard's Year-book of

Ed. II.) 20.

7 1 Inst. 246.

8 And see Blackst. Com. b. iii. ch. 27. p. 427; and note I. by Coleridge.

misfortunes may be recovered; 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 an ancient statute', 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. For by the old law the king was entitled to seize the goods of intestates, as parens patriæ and general trustee of the kingdom. Afterwards the crown invested the bishops with this branch of the prerogative; and they were entitled to dispose of the property as their consciences dictated, after deducting two-thirds for the wife and children of the deceased. But by several statutes, beginning with 13 Ed. I. c. xix., the estate of intestates is distributed (after the payment of just debts) among the relations of the deceased, under the direction of an administrator appointed by the ecclesiastical judge, whose duties are analogous to those of an executor appointed by will. The distribution of intestates' effects is chiefly regulated by the celebrated statute of distributions, 22 & 23 Car. II. c. x., explained by 29 Car. II. c. iii., and framed on the model of the 118th novel of Justinian.

"On the first attack of lunacy, or other occasional insanity, while there may be hopes 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. xlix. (continued by 19 Geo. III. c. xv., and made perpetual by 26 Geo. III. c. xci.), for regulating private mad-houses." But those statutes are now repealed; the care and treatment of idiots and lunatics are regulated by the statute 8 & 9 Vict. c. 100. The erection and regulation of county and borough lunatic asylums, and the maintenance of pauper lunatics, are provided for by statute 8 & 9 Vict. c. 126. When the disorder is grown permanent, and the circumstances of the party will bear the additional expense, it is proper to apply to the royal authority to warrant a lasting confinement.

"The method of proving a person non compos is very similar to that of proving him an idiot. The lord chancellor, to whom, by special

Stat. 17 Ed. II. c. x.

authority from the crown, the custody of lunatics is entrusted 1 " (though it may be granted to any officer the crown thinks fit, and has been held by the lord high treasurer2), "upon petition or information, grants a commission, in the nature of a writ de idiota inquirendo, to inquire into the party's state of mind." The investigation takes place before two or one of two persons (who must be serjeants at law or barristers of ten years' standing, and hold their offices during good behaviour) appointed by virtue of the stat. 5 and 6 Vict. c. lxxxiv., and who, by stat. 8 and 9 Vict. c. c. s. 2. are styled masters in lunacy, and a jury of not less than twelve men. The statute does not, however, prevent the lord chancellor from directing commissions to any fit and proper person or persons in addition to the two permanent commissioners. If the jury find that the party is non compos, the lord chancellor 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 has 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.3 The heir is generally made the committee or manager 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. In matters of lunacy, an appeal lies from the lord chancellor to the queen in council. Stat. 8 and 9 Vict. c. 100. empowers the lord chancellor to appoint visitors to superintend and report to him upon the care and treatment of idiots, lunatics, and persons of unsound mind, found so by inquisition, and makes divers regulations concerning them.

"In this care 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 committed to the care of tutors and curators by the prætor; and by the laws of Solon such prodigals were branded with perpetual infamy; but with us, when a

13 P. Wiliams, 108.

1

2 Bro. C. c. ccxxxiii. 2 Shaw & W. 525. 2 Dick, 550.

3 P. Wms. 638.

5 Pand. lib. xvii. tit. x. de curat. furios.

matter respecting persons non compos.

4 Grosvenor v. Drax, 2 Knapp, 82.

The civil law contains much valuable

6 L. i. ff. de curat. furios.; 1. x. eod. tit.; 1. xiii.; 1. xv. ; l. xvi. § 3.

man, on an inquest of idiocy, was returned an unthrift, and not an idiot', no further proceedings have been had." Blackstone expresses a doubt whether this provision of the Roman law be consistent with the genius of a free nation, who claim and exercise the liberty of using their own property as they please. But the civil law on this matter is grounded on the principle (which, indeed, is laid down in the Institutes), that it is expedient for the commonwealth that no man should misuse his property; and the very same reason which justifies the law in restraining a lunatic from squandering his property, is also applicable to a prodigal. Such a method of benefiting the individual, and of preserving estates in families, is, perhaps, peculiarly well adapted to the principles of a constitution like ours, to which the maintenance of aristocracy is absolutely essential; and it cannot be doubted that many illustrious houses would have been preserved by such a salutary interference with individual liberty.

"This may suffice for a short view of the queen'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 queen's extraordinary revenue." This will be the subject of the ensuing chapter.

1 Bro. Abr. tit. Idiot. pl. 4.

203

CHAPTER XIV.

OF THE QUEEN'S EXTRAORDINARY REVENUE.

THERE is a manifest duty incumbent on all members of the commonwealth to contribute towards the support of those institutions whereby civil society (without which mankind could not live in a manner conformable to their honourable nature, and the objects for which they were created) is maintained and perpetuated, and they are secured in the enjoyment, not only of their lives and property, but of all the advantages belonging to civilization. No man can refuse to perform this duty without offending against natural law, and consequently against the obligations of a Christian; because the social state is a portion of secondary natural law', and that institution cannot be supported except by the contributions of the citizen. And here it may be well to remind the reader, that natural law is not the law which governs man in what is vulgarly called a state of nature, but that law which is agreeable to the nature of man, and the ends for which he was created.2

The trifling amount of the hereditary patrimony of the crown, when compared with the great and various exigencies of state in peace and war, render it necessary (as we have already seen) to have recourse to methods of raising money unknown to our early ancestors, which methods constitute the queen's extraordinary revenue. And this is a subject of very great constitutional importance, not only from the necessity of supplies for carrying on the government, but because the right of the commons to grant or refuse them, and the control of parliament over the revenue when granted, constitute the very keystone of the liberties of the realm.

"These extraordinary revenues are (as Blackstone informs us) 3 usually called by the synonymous names of aids, subsidies, and supplies; and are voted, as we have formerly seen, by the commons of Great Britain in parliament assembled. When they have voted a supply to her majesty, and settled the quantum of that supply, they

Hooker, Eccles. Polit. b. i. § 10. Pufendorf, Dev. de l'Homme et du Citoyen, 1. ii. c. v. vi. and 1. i. c. iii.

2 Hooker, ibid. Pufendorf, ibid.; especially l. i. c. iii.

3 Blackst. Com. b. i. c. viii. p. 308, and to end of chapter.