If therefore a member of any national community violates the fundamental contract of his affociation, by tranfgreffing the municipal law, he forfeits his right to fuch privileges as he claims by that contract; and the ftate may very juftly refume that portion of property, or any part of it, which the laws have before affigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the moveables or personal estate; and in many cafes a perpetual, in others only a temporary, lofs of the offender's immoveables or landed property; and have vested them both in the king, who is the perfon fuppofed to be offended, being the one visible magistrate in whom the majefty of the public refides. The particulars of these forfeitures will be more properly recited when we treat of crimes and misdemefnors. I therefore only mention them here, for the fake of regularity, as a part of the cenfus regalis; and fhall poftpone for the prefent the farther confideration of all forfeitures, excepting one fpecies only, which arifes from the misfortune rather than the crime of the owner, and is called a deodand. By this is meant whatever personal chattel is the immediate occafion of the death of any reasonable creature: which is forfeited to the king, to be applied to pious uses, and diftributed in alms by his high almoner"; though formerly deftined to a more fuperftitious purpose. It seems to have been originally defigned, in the blind days of popery, as an expiation for the fouls of such as were snatched away by fudden death; and for that purpose ought properly to have been given to holy church": in the fame manner as the apparel of a stranger, who was found dead, was applied to purchase maffes for the good of his foul. And this may account for that rule of law, that no deodand is due where an infant under the age of difcretion is killed by a fall from a cart, or horfe, or the like, not being in motion *; whereas, if an adult perfon falls from thence and is killed, 1 Hal. P. C. 419. Fleta. /. 1. c. 25. w Fitzh. Abr. tit. Enditement. pl. 27. Staunf. P. C. 20, 21. the thing is certainly forfeited. For the reafon given by fir Matthew Hale feems to be very inadequate, viz. because an infant is not able to take care of himself; for why should the owner fave 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 feems rather to have been, that the child, by reafon of it's want of difcretion, was prefumed incapable of actual fin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who died in actual fin, ftood in need of fuch atonement, according to the humane fuperftition of the founders of the English law. THUS ftands the law if a perfon be killed by a fall from a thing standing ftill. But if a horfe, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they fhall in either cafe be forfeited as deodands; which is grounded upon this additional reason, that fuch misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by fuch forfeiture. A like punishment is in like cafes inflicted by the Mofaical law: "if an ox gore a man that he die, the ox "shall be stoned, and his flesh fhall not be eaten." And, among the Athenians, whatever was the caufe of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. Where a thing, not in motion, is the occafion of a man's death, that part only which is the immediate caufe 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; 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 pref Omnia, quae movent ad mortem, funt Deo danda. Bracton. l. 3. c. 5. Exod. xxi. 28. a Aefchin. cont. Ctefiph. Thus too by our antient law, a well in which a perfon was drowned, was ordered to be filled up, under the infpection of the coroner. Flet. /. 1. c. 25. §. 10. Fitzh. Abr. t. corone. 416. bi Hal. P. C. 422. fure fure of the wheel) are forfeited. It matters not whether the owner were concerned in the killing or not; for, if a man kills another with my fword, the fword is forfeited as an accursed thing. And therefore, in all indictments for homicide, the inftrument of death and the value are prefented and found by the grand jury (as, that the ftroke was given by a certain penknife, value fixpence) that the king or his grantee may claim the deodand: for it is no deodand, unless it be prefented as fuch by a jury of twelve men f. No deodands are due for accidents happening upon the high sea, that being out of the jurifdiction of the common law: but if a man falls from a boat or fhip in fresh water, and is drowned, it hath been faid, that the veffel and cargo are in ftrictness of law a deodand. But juries have of late very frequently taken upon themselves to mitigate thefe forfeitures, by finding only fome trifling thing, or part of an entire thing, to have been the occafion of the death. And in fuch cafes, 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 franchife, to affift fo unequitable a claim ". DEODANDS, and forfeitures in general, as well as wrecks, treasure-trove, royal fish, mines, waifs, and eftrays, may be granted by the king to particular subjects, as a royal franchife and indeed they are for the most part granted out to the lords of manors, or other liberties: to the perversion of their original defign. XVII. ANOTHER branch of the king's ordinary revenue arifes from efcheats of lands, which happen upon the defect of heirs to fucceed to the inheritance; whereupon they in general revert to and veft in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. But the difcuffion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly confider the manner in which lands may be acquired or loft by escheat. XVIII. I PROCEED therefore to the eighteenth and laft branch of the king's ordinary revenue; which confifts in the custody of idiots, from whence we shall be naturally led to confider 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 prefumed never likely to attain any. For which reafon the cuftody of him and of his lands was formerly vested in the lord of the fee; (and therefore ftill, by special cuftom, in fome manors the lord fhall have the ordering of idiot and lunatic copyholders) but, by reafon of the manifold abufes of this power by subjects, it was at last provided by common confent, that it should be given to the king, as the general confervator of his people; in order to prevent the idiot from wasting his eftate, and reducing himfelf and his heirs to poverty and diftrefs. This fifcal prerogative of the king is declared in parliament by ftatute 17 Edw. II. c. 9. which directs (in affirmance of the common law ') that the king fhall have ward of the lands of natural fools, taking the profits without waste or destruction, and fhall find them neceffaries; and after the death of fuch idiots he fhall render the estate to the heirs in order to prevent fuch idiots from aliening their lands, and their heirs from being difinherited. By the old common law there is a writ de idiota inquirendo, to inquire whether a man be an idiot or not: which must be tried by a jury of twelve men: and, if they find him purus Book 1. idiota, the profits of his lands, and the custody of his person may be granted by the king to fome fubject, who has interest enough to obtain them ". This branch of the revenue hath been long confidered as a hardship upon private families: and fo long ago as in the 8 Jac. I. it was under the confideration of parliament, to veft this cuftody in the relations of the party, and to fettle an equivalent on the crown in lieu of it; it being then proposed to share the same fate with the flavery of the feodal tenures, which has been fince abolished . Yet few inftances can be given of the oppreflive exertion of it, fince it seldom happens that a jury finds a man an idiot a nativitate, but only non compos mentis from fome 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. But a man who is born deaf, dumb, and blind, is looked upon by the law as in the fame state with an idiot; he being fuppofed incapable of any understanding, as wanting all thofe fenfes which furnish the human mind with ideas. A LUNATIC, or non compos mentis, is one who hath had understanding, but by difeafe, grief, or other accident hath loft the use of his reafon. A lunatic is indeed properly one that hath lucid intervals; fometimes enjoying his fenfes, and fometimes not, and that frequently depending upon the change of the moon. But under the general name of non compos mentis (which fir Edward Coke fays is the most legal names) are comprized not only lunatics, but perfons under -frenzies; or who lofe their intelle&ts by difeafe; those that grow deaf, dumb, and blind, not being born fo; or fuch, in fhort, as are judged by the court of chancery incapable of conducting their own affairs. To thefe alfo, as well as idiots, the king is guardian, but to a very different purpose. For the law always imagines, that thefe accidental misfor n This power, though of late very rarely exerted, is ftill alluded to in common speech, by that usual expreffion of begging a man for a fool... 4 Inf. 203. Com. journ. 1610. 4 Co. Litt. 42. Fleta. 7. 6. c. 40. Idiota a cafu et infirmitate. (Mem. Scatch. 20 Edw. I. in Maynard's yearbook of Edw. II. 20.) • Ink: 246. tunes |