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gative in question was not obtained by some previous non-existing statute (a). It is clear that antiently the custody of idiots and their lands was vested in the lord of the fee (b); (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders (c);) but by reason of manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the King, as the general conservator of his people; in order to prevent the idiot from wasting his estate; and reducing himself and his heirs to poverty and distress (d).
This prerogative is generally, but not necessarily, exercised by the person who has the custody of the great seal. It may be delegated to any other person (e); and even when granted to the Chancellor, as it almost universally has been, to special authority, under the royal sign manual, seems necessary; for such authority does not appear to form a part of the Chancellor's general jurisdiction (f). This warrant confers no jurisdiction, but merely a power of administration; and if that power be abused, or any erroneous order to be made under it, the appeal is not to the House of Lords, but to the King in Council (g).
Where the persons of idiots or lunatics are amenable to the Chancellor's jurisdiction, the circumstance of their property being out of the jurisdiction is not material (A); nor is the jurisdiction lost merely by their being abroad (i), for the jury may be satisfied of the party's state of mind without an inspection; and a person found a lunatic by a competent jurisdiction abroad, may be considered a lunatic here (k). As an idiot's recovery is, in legal contemplation, as well as in point of fact, improbable, the guardian under the King's authority is more than a bailee (0, and may make grants from time to time of the idiot's property (m). And, though the point has been
(a) See 2 Inst. 14. Fleta, page 6, (g) Ibid. 2 Ves. Jun. 7,72. 3 Atk.
sect. 10. Bac. Ab. title Idiots, C. 635. 6 Bro. P. C. 329. 1 Fonbl. Tr.
(A) Fleta, l. 1. c. 11. s. 10. Eq. 55, note, 3d ed.
(c) Dyer, 302. Eott IT. Noy. 27. (A)Ambl.80.
(rf) F. N. H. 232. 1 Bla. Com. 303. (i) Ibid. 139.
(*) 1 Bla. Com. 303, and next note. (*) Ex parte Gillam, 2 Ves. Jun. 588.
(/) 3 P. Wms. 108. 2 Atk. 553. 2 (J) 1 Fonbl. Tr. Eq. 3rd. ed. 56, 57.
Fonbl. Tr. Eq. 228, note, 3d ed. Bac. (m) 3 Atk. 635. 1 Fonbl. 55,
i doubted, doubted (a), it seems that the grant of the custody of an idiot and his lands, may be made to extend to the representatives of such grantee (b). SECT. II.
3. The King is also guardian of lunatics; and his Majesty's authority in this respect generally is and may be delegated to the Lord Chancellor or other person, in the same manner as that relative to idiots is delegated. An important distinction between the case of a lunatic and that of an idiot, grounded on the consideration that a lunatic's disorder is supposed to be temporary only, should be remarked. Under the expectation that the disorder of the lunatic's mind may be removed, the law constitutes the Crown merely a trustee tor the unfortunate persons; to protect their property, and to account to them for all profits received, if they recover, or after their decease to their representatives (c). It is therefore declared by the stat. 17 Edw. 2. c. 10. (which is said not to be introductive of any new right of the Crown(ri)), that the King shall provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them for their use, when they come to their right mind; and the King shall take nothing to his own use. And if the parties die in such estate, the residue shall be distributed for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the law of administration) shall now go to their executors or administrators. On the same principle it has been decided that the King cannot grant the custody of the body and lands of a lunatic to a person to take the profits to his own use (e).
The custody of lunatics in private mad-houses is regulated by legislative provisions (f), which do not however in any way affect the royal prerogative. Though the King has in general the sole management and superintendence of persons of unsound mind, yet any one may confine or otherwise restrain any madman where it may be necessary (g). Where the royal authority for the custody of a lunatic is required, or where the production of a person suspected to be non-compos is enforced
(o) 1 Vera. 9. (rf) 2 Ves. Jun. 71. Bac. Ab. title
(A) 3 Mod. 43,4. Skio. 177. pl. 7, 5. Idiot, C.
2 Ibid. 171. 3 Bac . Ab. 530, title (c) Moor, 4, pl. 12.
Idiots, C. 1 Fonbl. Tr. Eq. 55, note. (/) 14 Ceo. 3. c. 49. 26 Geo. 3. c.
by the authority of the Court of Chancery (a), the Lord Chancellor, to whom this prerogative is generally entrusted, by special authority from the Crown (6), on petition or information, grants a commission in nature of the writ de id iota inquirendo, to inquire into the party's state of mind. If he be found non-compos, his Lordship appoints (c) some friend or relation, not being the next heir of the non-compos, to take care of him (d). An allowance suitable to the circumstances of the unfortunate individual will be granted; and if necessary, the Court will even allow the whole of the yearly value of his property (e). The greatest care is to be taken of the property; and generally speaking, the Court will order any measure conducive to its improvement (f). But the person to whom the care of the lunatic is confided, cannot in general, of his own authority, do any act affecting his property; as he possesses a mere authority without an interest, and is nothing more than a mere bailee (g); nor should any thing be gained by him from the appointment (h).
It is the prerogative of the Crown to avoid, by scire facias or information, the engagements and acts of idiots and lunatics, during their incapacities (i). However, the King's right to the mesne profits has relation only to the time when the party was found to be of nonsane mind (k). Any abuse of idiots or lunatics, as, for instance, by taking them out of the custody of the persons appointed to take care of them, or marrying them, is considered a contempt of the Court of Chancery (I).
In general, the Chancellor's guardianship is determined by the death of the idiot or lunatic (m), though his Lordship may, it is held, make an order in their affairs after their deaths (n).
As to Charities.
Sir William Blackstone (a) observes, "that the King, as parens patrice, has the general superintendence of all charities, which he now exercises by the keeper of his conscience, the Chancellor. And, therefore, whenever it is necessary, the Attorney-General, at the relation of some informant, (who is usually called the relator,) files, ex-qfficio, an information in the Court of Chancery, to have the charity properly established." On this proposition, Mr. Fonblanque (b) remarks, that it is too general, for though it be true, that where a charity is established, and there is no charter to regulate it, as there must be somewhere a power to regulate, the King has, in such case, a general jurisdiction; yet, if there be a charter with proper powers, the charity must be regulated in the manner prescribed by the charter, and there is no ground for the controlling interposition of the Court of Chancery (c). The interposition of the Court, therefore, in those instances in which the charities were founded on charters, or by Act of Parliament, and a visitor, or governor, or trustees, appointed, must be referred to the general jurisdiction of the Court, in all cases in which it trust conferred appears to have been abused, and not to an original right to direct the management of the charity, or the conduct of the governors or trustees. A distinction manifested by those cases in which the Court has refused to interpose its opinion against that of the governors of a charity, having a right, by the terms of its foundation, to exercise their discretion in certain particulars (d). It is, however, the general right of the Court of Chancery, derived from the King, to appoint to what charity any gift shall be applied, where the donor does not name any particular charity (e). And, as already mentioned, by statute 1 Edw. 6. c. U., gifts to certain
(a) 3 Com. 427. 2 Ves. Jun. 42. Attorney-General v.
(A) 2 Fonbl. Tr. Eq. 206. n. a. Middleton. 2 Ves. 327. But we
(c) Attorney-General c. Middleton. Gower o. Mainwariog. 2 Ves. 89.
« Ves. 328. («) 1 Vera. 224. 2 Freem. 261. 1
(d) See Attorney-General c. Found- Bro. Ch. K. 15. Ambl. 712. ling Hospital. 4 Bro. Ch. Rep. 165.
superstitious uses therein enumerated, are declared to vest in the Crown; but other gifts, not included within that enumeration, neither vest in the Crown nor in the heir, but shall be appointed to such uses as the King shall order (a).
Qf the Prerogative as to Commerce.
Sect. I.—Foreign Commerce; Freedom of, and how far under royal Controid.—Consuls.—Dispensations by Licences, and Orders in Council, from the Effect of War on Commerce, fyc. —Prohibitions.—Embargoes.—Declarations of Contraband, 8fc.—Sovereignty over the seas.- Ports and Havens.—Beacons and Light-houses.
The protection of foreign and .domestic commerce was, even in the most antient times, a favorite object of the English laws; as is strongly instanced by the provisions in Magna Charta, c. 30., and subsequent enactments, respecting the freedom of alien merchants. And in the time of King Athelstan we find a very remarkable law, which says, that any merchant who has made three voyages upon his own account,' beyond the British channel, or narrow seas, shall be entitled to the privilege of a thane (b): "et si mercator tamen sit, qui per trans altum mare per facultates proprias abeat, Me postea jure thani sit dignus."
It would of course be irrelevant to enter into a detail or explanation of the lex mercatoria. Its objects, and the principles and policy on which it is founded, are of a complicated nature; and the numerous regulations respecting trade to be found in our statute books would fill volumes (c).
Our foreign commerce is principally regulated by a variety of statutes; and chiefly by the Navigation Act 12 Car. 2. c. 18.;
(a) 1 Salk. 162. (r) See Pope's work; and Chitty, tm
(A) Wilkins, Angl. Sax. Leg. .Indi<ia "Commerce" and " Law of Nations." Curtate. Loud. p. 'Jl.