Non compos mentis, or, The law relating to natural fools, mad-folks, and lunatick persons inquisited and explained for common benefit / by John Brydall, Esq.

SOLUTION.

The Judges in Beverley's Case do affirm, That a Man who is deprived of the use of Reason and Understanding, shall not lose his Life for Felony or Murder, because the Punishment of a Felon is so grievous, sc. 1. To lose his Life. 2. To lose his Life in such odious manner, sc. By Hanging; for he shall be hanged between Heaven and Earth, as unworthy of both. 3. He shall lose his Blood, as to his Ancestry: For he is a Son of the Earth, without any Ancestor; and as to his Posterity also, for his Blood is corrupt, and he hath neither Heir, nor Posterity. 4. His Lands. 5. His Goods. And in such Case the King shall have, Annum, & diem, & vastum; to the intent his Wife and Children shall be cast out, his Houses pulled down, his Trees eradicated and overthrown, his Meadows ploughed up, and all that he hath for Comfort, Delight, or Sustenance, wasted and destroyed; because that he in such felonious manner of∣fended against the Law; and all that was, Ut poena ad paucos, metus ad omnes perveniat. But the Punishment of a Man, who is deprived of Reason and Understand∣ing, cannot be an Example to others. Secondly, No Fe∣lony, or Murder, can be committed without a Felonious Intent, or Purpose * 1.1: But Furiosus non intelligit quid agit & animo, & Ratione caret, & non multum distat a Brutis, as † 1.2 Bracton saith, and therefore he cannot have a Felonious Intent. Also for the same Reason, Non compos mentis cannot commit Petit Treason: As if a Woman Non compos mentis, kill her Husband, as appear∣eth, 12 H. 3. Forfeiture 33. Vide Stamford, f. 45. Kitchin 56. Tit. Forfeiture, Edit. 1651.

Sir Edward Coke tells us, That this Maxim, That the Party shall not disable him∣self; holdeth only in Civil* 1.3 Causes, but not in Criminal Causes, as Felony, &c. Fo•…•… in such the Act and Wrong of a Mad-man shall not be im∣puted to him; because in those Causes, Actus non fac•…•… Reum, nisi mens sit rea, and* 1.4 he is Amens (i. e.) 〈◊〉〈◊〉 mente, without his Mind 〈◊〉〈◊〉 Discretion, and Furiosus sol•…•… furore punitur; a Mad-man 〈◊〉〈◊〉 only punishd by his Madness▪

Add hereunto what Plouden, and the Author in his Exposition of the Terms of Law, say of distracted Per∣sons in Cases Criminal.

The former expresseth himself thus: If a Man 〈◊〉〈◊〉 sanae memoriae, kill another altho' he hath broken the* 1.5 words of the Law, yet he hath not broken the Law▪ for that he had no Memory, nor Understanding, but me•…•… Ignorance, which came to him by the Hand of God; and therefore it is said to be involuntary Ignorance, to which the Law imputes the Act to be done, because there was no default in him; and for this he shall be excused, h•…•… being ignorant by Compulsion.

The latter speaks in this wise: When an Act of Parlia∣ment is made, that whoso∣ever* 1.6 doth such a thing shall be a Felon, and shall suffer Death; yet if a Mad-man, or an Infant of young Years, that hath no Discretion, do the same, they shall be no Felons, nor suffer Death therefore.

Having given my Reader an Account of the Common Law, relating to Non sane memories, in the point of Cri∣minal Matters, I will present to his View, Civil Law

•…•…exts, concerning such distracted Persons as are guilty of Homicidium, or killing other Men.

Now the Civilians tell us, That such as kill, either Fa∣ther, or Mother, or those* 1.7 •…•…at are in the place of Fa∣ther, or Mother, or any •…•…at are of next A-kin, their •…•…unishment is Death; and 〈◊〉〈◊〉 the Case of the Father and▪ Mother, the Pain of Death, the Parricide being 〈◊〉〈◊〉 well whipt, so that the Blood do follow in good •…•…enty, he being sowed up into a Sack, together with a •…•…og, a Cock, a Viper, an Ape, is thrown into the Depth •…•…f the Sea. But if a Mad-man (say they) should kill his Father, or Mother, &c. he shall be no way punished, •…•…eckoning that his own Furor, or Madness, is a sufficient •…•…unishment to himself.

Sane si per furorem, (saith the Lawyer Modestinus) •…•…liquis parentem occiderit, impunitus erit, ut divi fratres •…•…scripserunt super eo, qui per furorem matrem necaverat. Nam sufficere, furore ipso eum puniri, D. 48. 9. 9. 2. D. •…•…. 18. 14.

Infans, vel Furiosus (saith the same Lawyer) si homi∣•…•…em occiderint, lege Cornelia non tuentur: Cum alterum •…•…nocentia Consilii tuetur, alterum fati infelicitas excu∣•…•…t. D. 48. 8. 12. On which Text Gothofredus has this Note: Furiosum fati infelicitas a poena excusat, ideoque 〈◊〉〈◊〉 facere sed pati injuriam dicitur: Citing for it the Lawyer Ulpian, whose Words are as follow: Sane sunt quidam qui facere non possunt, utputa Furiosus, & im∣pubes, qui doli capax non est; namque hi pati injuriam so∣•…•…ent, non facere; cum enim injuria ex affectu facientis •…•…onsistat, consequens erit dicere, hos sive pulsent, sive •…•…onvicium dicunt injuriam fecisse non videri. D. 47. 10. •…•…. 1. Vide what the Canon Law saith of a Furor Man,

that kills or wounds another Person. Clement. Lib. 5. Tit. 4. de Homicidio voluntario, & casuali.

Notes

• * 1.1

  21 H. 7. 31. 26 Ass. 27 F. N. B. 202. Stamford's Plea: of the Crown, 16. 8. c. 9.
• † 1.2

  Bracton, lib. 5. Tract. 5. c. 20. nu. 1. f. 420. b. & Fleta lib. 6. c. 40. nu. 1.
• * 1.3

  Comment on Littleton, § 405. f. 247. b.
• * 1.4

  Note, The Mirror of Iustices says▪ That King Alfred hanged Cole, for giving Sentence of Death on one Ive, when he was mad and distracted in his Wits, c. 5. § 1. p. 297. Edit. 1642.
• * 1.5

  Com. fol. 19. a. Reneger & Fo∣gassa, & f. 465. a. Eyston v. Studde.
• * 1.6

  Fol. 150. b. Tit. Equity.
• * 1.7

  Poena Parricidii more majo∣rum haec instituta est, ut Parri∣cida virgis sanguineis verberatus, deinde culleo insuatur cum Cane, Gallo Gallinaceo, & vipera, & simia; deinde in Mare profundum culleus jactetur, D. 48. 9. 9. In∣stit. 4. 18. 6.