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And indeed, any of the forementioned faculties, if wanting, or out of order, produce suitable effects in men's understandings and knowledge.

"In fine, the defect in naturals seems to proceed from want of quickness, activity, and motion in the intellectual faculties, whereby they are deprived of reason: whereas madmen, on the other side, seem to suffer by the other extreme, for they do not appear to have lost the faculty of reasoning: but having joined together some ideas very wrongly, they mistake them for truths, and they err as men do that argue right from wrong principles. For, by the violence of their imaginations, having taken their fancies for realities, they make right deductions from them.

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"In confirmation of this doctrine it is found, that different faculties fail in different persons. For example--the memory is sometimes perfect where higher powers of the understanding are greatly defective; when imbecility is original, or, as medical authorities express it, connate, the memory is often perfect, especially of trifling and simple circumstances, though the other mental powers remain infantine; or, as the same authorities suppose and express it, the brain has never developed itself.' In such an individual the understanding has made little progress with years—it has not matured and ripened in the usual manner: yet, even in such individuals, unless the imbecility be extreme, some improvement will have taken place-some progress in knowledge beyond mere infancy will have been made by the help of memory, by imitation, by habit; such an individual will acquire many ideas, will recollect facts and circumstances and places, and hacknied quotations from books, will conduct himself orderly and mannerly, will make a few rational remarks on familiar and trite subjects, may retain self-dominion, and spend his own little income in providing for his wants, as a boy spends his pocket money, and yet may labour under great infirmity of mind and be very liable to fraud and imposition. The principal marks and features of imbecility are the same which belong to childhood, of course varying in degree in different individuals: frivolous pursuits, fondness for and stress upon trifles, inertness of

mind, paucity of ideas, shyness, timidity, submission to control, acquiescence under influence, and the like. Hence these infantine qualities have acquired for this species of deficiency of understanding the name of 'childishness.' The effect is, that where imbecility exists at all, and in proportion to its degree, it becomes necessary, especially in a case exposed to other adverse presumptions, to ascertain its extent with some accuracy; to see how far the individual was liable to be controlled by influence, to submit to ascendancy, to acquiesce from inertness and confidence in those acts, upon the validity of which the Court has to decide (a)."

(2) See post, ch, iii. vii.

CHAPTER II.

OF THE JURISDICTION RESPECTING IDIOTS, LUNATICS, AND PERSONS OF UNSOUND MIND.

SECTION I.

Of the Prerogative of the Crown.

THE King, as the political father and guardian of his kingdom, has the protection of all his subjects, and of their lands and goods; and he is bound, in a more peculiar manner, to take care of all those who, by reason of their imbecility and want of understanding, are incapable of taking care of themselves; this, in some books, is called a prerogative in the Crown, and in others a regium munus, or duty, which the King owes his subjects in return for their subjection and obedience (a). It seems more properly a royal trust, committed to the Crown by act of Parliament, for the benefit of the subject.

The prerogatives of the King with respect to the custody of idiots and lunatics are not mentioned by Bracton; but we are informed by Fleta (b), that certain persons, called tutores, used to have the custody of the lands idiotarum et stultorum. It is thought that these tutors, as was natural, were the lords of whom the lands were holden; such unhappy persons being in a sort of perpetual infancy. But this sort of trust, according to Fleta, had been much abused;

(a) Staundf. de Pr. Reg. 33; 2 Inst. 14; 4 Rep. 126; Bacon's Abr. tit. Idiots and Lunatics (C); Dyer 25;

1 Bl. Comm. 303.

(b) Fleta, p. 6. See Reeves's Hist. of English Law, 2 Vol. 307.

on which account an act had been made in the reign of Edward 1, which is now lost, giving to the King the custody of the persons and inheritances idiotarum et stultorum, being such a nativitate; with a reservation to the lord of all his lawful claims for wards, reliefs, and the like (c).

In confirmation of the statute before mentioned, it was declared by the statute de prærogativá regis (d), that the King shall have the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries, of whose fee soever the lands be holden. And after the death of such idiots, he shall render them to the right heirs: so that by such idiots no alienation shall be made, nor shall their heirs be disinherited.

By the statute 32 Hen. 8, c. 46, which established the Court of Wards, it was declared, that the King's wards and their lands should be under the survey and governance of that Court; and, by the 26th section of the same statute, the persons and lands of idiots and natural fools were placed under the management of the Master of the Court of Wards. Upon the abolition of the Court of Wards (e), the care and custody of such persons and their estates reverted to the Crown.

The King, after a person has been found idiot by office, is entitled to the custody of the body of such idiot, and of his lands and goods, during his life, and as well of those lands and other hereditaments which he takes by purchase, as by descent; but the freehold of them remains in the idiot, notwithstanding the right of the Crown to their custody (ƒ). But if an idiot has not the possession of lands or goods, but only a title of entry, or right of action, the King cannot enter nor have the custody of them (g). The King may take the profits of an idiot's estate to his own use, allowing necessaries to him and his family, and making reparations, and may also demise the lands of an idiot, rendering rent ().

(c) See 2 Inst. 14; 4 Rep. 125 b. (d) 17 Edw. 2, st. 2, c. 9.

(e) 12 Car. 2, c. 24.

(g) Staundf. de Pr. Reg. 35; Vin. Abr. tit. Lunatics, (B. 2.) pl. 1.

(h) Staundf. de Pr. Reg. 35, Moore,

(ƒ) 4 Rep. 126; Staundf. de Pr. 4; Dyer, 26 a. Reg. 34, 36.

So the King may grant the custody of an idiot, his lands a nd goods to another (i); and such grant may be made witho ut security to account (k), and extend, as it seems, to the representatives of the grantee (). The executors of an idiot are not entitled to have an account against the grantee for the profits incurred during the grant from the Crown (m).

It is said, however, that since the Revolution, the Crown has always granted the surplus profits of the estate of an idiot to some of his own family (n).

Though the King may by scire facias, or by information, avoid all acts of an idiot done during his incapacity, yet his right to the mesne profits of his lands has relation only to the time of the finding of the office, although, to avoid incumbrances created by an idiot, it shall have relation to the time of his birth (0).

From the manner in which Fleta expresses himself, it should seem, that, in his time, there was no provision for the protection of the persons and estates of lunatics similar to that provided for idiots. But by the statute de prærogativá regis (p), it is enacted, that the King shall provide, when any (that before time hath had his wit and memory) happen to fail of his wit, as there are many having lucid intervals, that their lands and tenements shall be safely kept without waste and destruction, and that they and their household shall live and be maintained competently from the profits of the same; and the residue beyond their reasonable sustentation shall be kept to their use, to be delivered unto them when they recover their right mind: so that such lands and tenements shall in nowise within the time aforesaid be aliened; nor shall the King take any thing to his own use. And if the party die in such estate, then such residue shall be distributed for his soul by the advice of the ordinary.

It must be observed, that the words of the statute de

(i) 2 Ch. Cas. 70; And. 23.

(k) 3 Mod. 23.

(n) 1 Ridg. Parl. Cas. 520.
(0) Tourson's case, 8 Rep. 170;

(1) Prodgers v. Lady Frazier, 2 F. N. B. 202.

Ch. Cas. 70; 1 Vern. 9, 137.

(m) In re Roberts, 3 Atk. 312.

(p) 17 Edw. 2, st. 2, c. 10.

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