found by the jury, which inquisition they sign, seal, and return to the Lord Chancellor.

They are entitled to receive no salaries or other emoluments beyond the fees mentioned in the Appendix (y), which appeared by the report of the Commissioners to have been received for twenty years and upwards (z).

The Clerk of the custody of papers in matters of idiots and lunatics in Ireland, is an officer in the nomination of the Lord Chancellor of Ireland, and has usually been the same person who filled the situation of his Lordship's Secretary.

The duties of this office are few, consisting of the custody and preservation of all petitions, affidavits, reports, and accounts, in matters of idiots and lunatics, and the making out and attesting copies of those documents, and of the orders which may have been made on the petitions lodged with him (a).

With respect to the jurisdiction in the English colonies, it appears that the several Governors of Dominica (b), Antigua (c), Nevis (d), St. Christopher (e), Jamaica (ƒ), and the Bahamas (g), have express authority given to them by their respective commissions, to make orders and directions for preparing grants for the custody or commitment of lunatics within their jurisdiction.

In Barbadoes (4), Tobago (¿), Grenada (k), and Tortola (1),

(y) See Appendix.

(z) See last-mentioned Report, pp. 136, 137.

(a) First Report of Commissioners to inquire into duties, &c. of the officers of Justice in the Courts in Ireland; ordered by the House of Commons to be printed, 6th February, 1817, pp. 99, 324.

(b) See Second Report of the Commissioner of inquiry into the administration of Justice in the West Indies; ordered by the House of Commons to be printed, 18th April, 1826, p. 34.

(c) Id. p. 68. (d) Ibid.

(e) Id. p. 69.

(f) First Report of Commissioners of inquiry into the administration of justice in the West Indies; ordered by the House of Commons to be printed, 29th June, 1827, pp. 61, 204.

(g) Third Report, &c.; ordered to be printed, 12th June, 1829, pp. 65, 131.

(h) First Report of Commissioners of inquiry, &c., p. 20.

(i) Id. p. 128.

(k) Ibid.

(1) Second Report of Commissioners, &c., p. 69.

no special authority in lunacy is delegated to the respective Governors, but the jurisdiction is exercised by the Court of Chancery in those places.

In the united colony of Demerara and Essequibo, and colony of Berbice, where the Dutch law prevails, the superior Court has authority to appoint curators over the person and property of idiots, prodigals, and lunatics (m).

SECTION III.

Of the Jurisdiction in Scotland.

BY the 18th article of the union of England and Scotland, which was effected in the reign of Queen Anne (n), it is ordained, that all the then existing Scotch laws should remain in force, alterable, however, by the united Parliament of Great Britain; so that the municipal or common laws of England are, generally speaking, of no force or validity in Scotland, though, since the union, general statutes passed in England bind and extend to Scotland, even if that country be not particularly mentioned; the usual method when it is intended not to include Scotland, is to add a proviso to that effect (o).

The law of Scotland provides curators, not only for minors, but for every person who, either from a total defect of judgment, or, secondly, from a disordered brain, or, thirdly, from the wrong texture or disposition of the organs, is naturally incapable of managing his affairs with discretion.

Of the first class, are fatuous persons, called also idiots in the law of Scotland, who are entirely deprived of the faculty of reason, and have an uniform stupidity and inatten(m) Second Report of Commission- by the House of Commons to be ers of inquiry into the administration printed, 25th July, 1828; p. 68. of justice in the West Indies and (n) 5 & 6 Anne, ch. 8. South American colonies; ordered (0) See 2 Burrow's Rep. 853.

tion in their manner, and childishness in their speech, which generally distinguish them from other men; and this distemper of mind is commonly from birth, and incurable, Furious persons, who may may be ranked in the second class, cannot be said to be deprived of judgment, for they are frequently known to reason with acuteness; but an excess of spirits, and an overheated imagination, obstruct the application of their reason to the ordinary purposes of life; and their infirmity is generally brought on by sickness, disappointment, or other external accidents, and frequently interrupted by lucid intervals. Under these may be included madmen, though their madness should not discover itself by acts of fury, but by a certain wildness of behaviour flowing from a disturbed fancy, Lunatics are those who are seized with periodical fits of frenzy. Some doctors distinguish between fatuity and a certain degree of imbecility, which nearly approaches to it (p).

The guardianship of all unprotected persons, by reason of weakness of understanding, by extreme youth, natural infirmity of talent, by nature or disease, was formerly vested in the Crown. The King, as pater patriæ, was clothed with authority to do this; and, as a matter of course, where persons, within the age of pupilarity, have neither testamentary tutors appointed to them, nor a tutor at law, served to the office, his Majesty, through his Exchequer, still bestows a gift of tutory on some one to protect the pupil. It was his Majesty's privilege and right to name protectors at pleasure, to persons visited by furiosity or imbecility of intellect, till his right was limited by the statute 1585, c. 18, which enacted, "That the nearest agnates and kinsmen of natural fools, idiots, and furious persons, shall be served, received, and presented, according to the disposition of the common law, to their tutory and curatory" (g).

By the common law, in the above passage, is meant the civil law in force in Scotland.

The Barons of the Exchequer in Scotland exercise the

(p) Erskine Inst. by Ivory, 198, 199; see principles of Law of Scotland, by Wallace, Vol. 1, book 6, tit.

(q) See Craig, lib. 2, Dieg. 20, sect. 9; and 6 Shaw & Dunlop, pp. 433-4. 1 Stair's Inst. 52.

but that part of it which relates to his past state must, of necessity, rest on the testimony of witnesses.

As fatuous and furious persons are, by their very state, incapable of consent, and consequently of obligation, all deeds granted by them may be declared void, by an action before the Court of Session, at the suit even of their heirs, upon proper evidence by witnesses of their fatuity or furiosity at the time of signing, though they should never have been cognosced idiots, during their lives, by an inquest (b).

Some few instances occur of the Sovereign's giving curators to idiots, where the next agnate has not claimed the office; but such gifts are a deviation from the law, since they pass without any inquiry into the state of the person to whom the curator is appointed; and they are admitted only from necessity, that the affairs of the idiot may not suffer. Hence, the curator of law to an idiot, though he should not serve till after the year in which he might have served, is preferred to the tutor dative as soon as he offers himself (c).

In a late case, the appointment of a curator was resisted, in the name of the party said to be imbecile; and it was argued, that he could not be deprived of his right to conduct his own affairs, unless regularly cognosced by a Jury. The Court, however, having remitted to the Sheriff to receive evidence, and being satisfied, on his report, and after a hearing in presence, of the necessity of a curator, sustained their appointment. On appeal to the House of Lords, the case was remitted to the Court of Session in Scotland, for the opinion of the fifteen Judges, to reconsider the case, particularly as to the power of the Court to proceed without a cognition (d).

The majority of the Judges, held that the Court has power to appoint a curator bonis; whose appointment, although in its own nature temporary, must continue, either till evidence of convalescence be adduced, or a tutor at law has been served; and secondly, that the Court has no power to

(b) Erskine's Inst. by Ivory, 202. (c) Ibid.

(d) Bryce v. Graham, 2 Wilson & Shaw, 481.

compel any party to sue out a brief of cognition, and therefore they cannot limit the appointment to any definite period, And the Court refused to recall the nomination of the curator (e); which judgment, on appeal to the House of Lords, was affirmed without costs (f).

Persons, let them be ever so profuse, or liable to be imposed upon, if they have the exercise of reason, can by the law of Scotland effectually oblige themselves, till they be fettered by the methods of law. This is done by interdiction; which may be defined, a legal restraint laid upon those who, either through their profuseness, or the extreme facility of their tempers, are too easily induced to make hurtful conveyances, by which they are disabled from signing any deed without the consent of their curators, who are called interdictors. Interdiction is either voluntary or judicial. In voluntary interdiction, the person to be interdicted agrees to the restraint. This sort is generally executed by a writing in the form of an obligation, by which the grantor, sensible of his own unfitness for business, binds himself not to do any act with respect to his estates, without the consent of those persons whom, by the deed, he authorizes to superintend for him, or, in other words, without whose consent he binds himself not to act (g).

By the Roman law, there could be no interdiction, with out a previous inquiry into the condition of him who was to be laid under it; for it was deemed contrary to the nature of property, that any man should be subjected, even by his own consent, in the disposal of his estate, to the humour or caprice of another, without legal grounds.

Voluntary interdiction, after it is imposed, cannot be recalled at the pleasure of the party interdicted; but may, by process before the Court of Session at his suit, or by the mutual consent of the party and his interdictor (h).

Judicial interdiction is imposed by a sentence of the Judge, disabling persons of profuse or facile dispositions from grant

(e) Bryce v. Graham, 6 Shaw & Dunlop, Cases in the Court of Session, p. 425.

(g) Erskine's Inst. by Ivory, 203. See 3 Wilson & Shaw, 324.

(h) See Erskine's Inst. by Ivory,

(f) S. C. 3 Wilson & Shaw, 323. 203-4.

D