V 
IDIOCY. 
kin; the ruling principle In the management of a lunatic’s 
eftate, being confidered to be the doing of that which is 
moft beneficial to the lunatic. And it is upon this prin¬ 
ciple, that the court will order part of the lunatic’s perlb- 
nal eltate to be laid out in repairs,-or even upon improve¬ 
ments of his real eftate, if the intereft of the lunatic re¬ 
quires it, and the next of kin cannot fhow good cattle againlt 
jt. Amb. 81, 702. 2 Aik. 416. 
An idiot, or perl'on non compos, may inherits becaufe 
the law, in companion to their natural infirmities, pre- 
fumes them capable of property. Co. Lit. 2, 8. 
It was formerly adjudged, that the iflue of an idiot was 
legitimate, and confequently that his marriage was valid. 
A ftrange determination ! fince confer.t is abfolutely re- 
quifite to matrimony, and neither idiots nor lunatics are 
capable of conl’enting to any thing; and therefore the ci¬ 
vil law judged more fenfibly when it made i'uch depriva¬ 
tions of reafori a previous impediment; though not a 
caufe of divorce if they happened after marriage. And 
modern refolutions have adhered to the reafon of the civil 
law, by determining that the marriage of a lunatic, not 
being in a lucid interval, was abfolutely void. But, as it 
might be difficult to prove the exact ftate of the party’s 
mind at the actual celebration of the nuptials, the flat. 15 
Geo. II. c. 30, has therefore provided, that the marriage 
of lunatics and perfons under phrenzies, (if found luna¬ 
tics under a commiffion, or committed to the care of truf- 
tees by any a< 5 t of parliament,) before they are declared 
of found mind by the lord chancellor, or majority of I'uch 
truftees, fhall be totally void. 1 Comm. 438. A perfon non 
compos, being lord of a copyhold manor, may make grants 
of copyhold eftates, for I'uch eitates do not take their per¬ 
fection from any power or intereft in the lord, but from 
the cultom of the manor, by which they have been de¬ 
mited and demilable time out of mind. 4 Co. 23. b, Co. Co¬ 
pyholder, ly, 107. 
Idiots and lunatics are, both by the civil law and like- 
wife by the common law, incapable of being executors or 
adminiftrators; for thefe difabilities render them not only 
incapable of executing the trult repof'ed in them, but alio 
by their infinity, and want of underftanding, they are in¬ 
capable of determining whether they will take upon them 
the execution of the trull or not.' Godolph. Orph. Leg. 86. 
Therefore it hath been agreed, that, if an executor be¬ 
come non compos, the fpiritual court may (on account of 
this natural dilability) commit administration to another. 
1 'Salk. 36. 
An idiot can have no executor; for, being non compos ci 
nativitate, he could at no time make a will; but a lunatic 
may have an executor, for lunacy is not a revocation of a 
will made when compos. 4 Co. 61. b. 
Courts of equity will not only fuftain contracts com¬ 
pleted by a lunatic while lane; but, under certain cir- 
cumftances, will enforce performance of fuch as were en¬ 
tered into before, but were not completed at the time of 
the lunacy, for the change of the condition of a perfon 
entering into an agreement, by becoming lunatic, will not 
alter the rights of the parties, which will be, the fame as 
before, provided they can come at the remedy ; as, if the 
legal eltate be veiled in trullees, a court of equity ought 
to decree a performance ; but, if the legal eftate be veiled 
in the lunatic liimlelf, that may prevent the remedy in 
equity, and leave it at law. 1 Vez. 82. 
As to the effeCl of a defendant becoming infane after 
an arreli at law, it feems to be now fettled, that fuch cir- 
cumftance is not a reafon for difcliarging him out of cuf- 
tody, on filing common bail. 2 Term Rep. 390. Nor will 
a court of law interpofe, though the party be infane at 
the time of arreli. 4 Term Rep. 121. 
Both idiocy and lunacy excufe from the guilt of crimes; 
for the rule of law as to lunatics, which alio may beeafily 
adapted to idiots, is, .that furiofis furore folum punitur. 
In criminal cafes, therefore, idiots and lunatics are not 
ir'hargcable for their own a els, if committed when under 
theft; incapacities 5 no, not even for treafon itfejf. Alio, 
if a mats'in his found memory commits a capital pffenee, 
and before arraignment for it.he becomes mad, lie ought 
not to be arraigned for it; becaufe he is not able to plead 
to it with that advice and caution that he ought. And if, 
after he has pleaded, the prifoner becomes mad, he fhall 
not be tried ; for how can he make his defence? If, after 
he be tried and found guilty, he loles his .fenfes before 
judgment, judgment lhail not be pronounced ; and if, af¬ 
ter judgment, he becomes'of non-lane memory, execution 
Hi all be Hayed; for; peradventure, fays the humanity of 
the Englifh law r , had the prifoner been, of found memory, 
lie might have alleged fomething in ftay of judgment or 
execution. Indeed, in the bloody reign of Henry VIII. 
a llatute was made, which enabled, that if a perfon, be¬ 
ing compos mentis, Ihould commit high treafon, and after 
fall into madnefs, he might be tried in his abfence, and 
Ihould fuffer death, as if he were of perfefl memory. But 
this favage and inhuman law was repealed by Hat. 1 Sc z 
Ph. & M. c. 10. For, as is obferved by fir Edward Coke, 
“the execution of an offender is for example, ut pcena ad, 
paucos, m'etus ad omnes perveniat: but fo it is not when a 
madman is executed; but fnould be amiferable fpeflaele, 
both againlt law, and of extreme inhumanity and cruelty, 
and can be no example to others." But, if there be any 
doubt whether the party be compos or not, this fhall be 
tried by a jury. And, if he be fo found, 1 a total idiocy, 
or abfolute infanity, excufes from the guilt, and of courfe 
from the punilliment, of any criminal aftion committed 
under lucli deprivation of the fenfes; but, if a lunatic 
hath lucid intervals of underftanding, he fhall anfwer for 
w liat he does in tliofe intervals, as if he had no deficiency. 
It is laid down as a general rule, that idiots and luna¬ 
tics being, by reafon of their natural difabilities, incapa¬ 
ble of judging between good and evil, are punifhable by 
no criminal profecution whatfoever. z Hazuk. P. C. 2. And 
therefore a perfon who lofes his memory by licknefs, in¬ 
firmity, or accident, and kills himfelf, is no fclo de fc. 
3 Injl. 54. So if a man give himfelf a mortal ftroke white 
he is non compos, and recovers his underftanding, and then 
dies, he is not fclo de fe\ for, though the death complete the 
homicide, the a£l muft be that which makes the offence. 
But it is not every melancholy or hypochondriacal dif- 
temper that denominates a man non compos, for there are 
few who commit this offence but are under fuch infirmi¬ 
ties ; but it muft be fuch an alienation of mipd as ren¬ 
ders them madmen, or frantic, or dellitute of the ufe of 
reafon. 1 Hal. P. C. 412. 
And as a perfon non compos cannot be a felo de fe by kill¬ 
ing himfelf; fo neither can he be guilty of homicide in 
killing another, nor of petit treafon. 1 Hazuk. P. C. 2. The 
great difficulty in thefe cafes is, to determine where a per¬ 
fon fhall be faid to be fo far deprived of his fenfe and me¬ 
mory, as not to have any of his aftions imputed to him; 
or where, notwithftanding fome defects of this kind, lie 
ftill appears to have fo much reafon and underftanding as 
will make him accountable for his aflions, which lord 
Hale diftinguilhes between, and calls by the name of to¬ 
tal and partial infanity ; and, though it be difficult to de¬ 
fine the indivifible line that feparates perfect and partial in¬ 
fanity, yet, fays he, it muft reft upon circumftances, duly 
to be weighed and confidered both by the judge and jury ; 
left on the one iide there be a kind of inhumanity towards 
the defefts of human nature, or, on the other fide, too 
great an indulgence given to great crimes; and the beft 
meafure he can think of is this : fuch a perfon as, labour¬ 
ing under melancholy diftempers, hath yet ordinarily as 
great underftanding as a child of fourteen years commonly 
hath, is fuch a perfon as may be guilty of treafon or fe¬ 
lony. 1 Hale Hift. P. C. 30. 
He w'ho incites a madman to do a murder, or other 
crime, is a principal offender, and as much punilhable as if 
he had done it himfelf. Kciliu. 53. Dalt. 95. 1 Hazuk. P. C. 
And here we muft obferve a difference the law makes be¬ 
tween civil furts, that are terminated in compenfationem damni 
Mate?, and criminal Suits or profecutions that are ad pa- 
nan ' 
