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[The method of proving a person non compos is very similar to that of proving him an idiot. The lord chancellor, to whom, by special authority from the king, the custody of both idiots and lunatics is intrusted (9), upon petition or information, grants a commission in the nature of the old writ de lunatico inquirendo, (which is analogous to that de idiotâ inquirendo before mentioned,) to inquire into the party's state of mind ;] and the proceedings on such commission are now regulated by the Lunacy Act, 1890, which repeals, but in substance reenacts, the three earlier Lunacy Acts of 1853, 1862, and 1882 (1). Under this Act, as amended by the Lunacy Act, 1891, and the orders and rules made thereunder (1), the commission is general, and is directed to certain judicial officers called Masters in Lunacy (i); but the inquiry into the state of mind of the party, as authorized by such commission, usually takes place before a jury (i) on an issue directed by the lord chancellor to be determined in that manner (k). The verdict on such inquisition must be upon the oath of twelve men at the least (1); and, except in special cases, the verdict is to be given after the due examination of the alleged lunatic, both before the taking person, with

(9) 3 P. Wms. 107; 2 Atk. 553 ; 3 Atk. 635.

(h) The orders and rules under the Lunacy Act, 1890, were, first, the Rules of 1890 (dated the first July, 1890), now repealed; and secondly, the Rules of 1892 (dated the 6th Feb. 1892), which latter are still in force, but have been added to by the Order of 11th Aug. 1892, and the Rules of 15th June, 1893, and various later dates.

(i) Lunacy Act, 1890, s. 112.

(j) On the other hand, where the alleged lunatic does not demand an inquiry before a jury, or where the lord chancellor is satisfied (by personal examination), that the

lunatic is incompetent to form and express a wish in that behalf, the masters in lunacy may, without a jury, inquire into the party's state of mind, and certify their finding thereon. (Sects. 91, 92.)

(k) Lunacy Act, 1890, S. 94. Unless the judge trying such issue shall otherwise direct, no evidence as to anything said or done at any time more than tiro years before the inquiry, is receivable in proof of the insanity. (Sect. 98.)

(l) As to such jury and as to the trial of the issue, see Lunacy Act, 1890, ss. 97, 99, 100; and as to a new trial, or a fresh inquiry, see sect. 103.

of the evidence, and also at the close of the proceedings, before they consult as to their verdict (m), the examination being either in open court or in private, as the judge trying the issue shall direct (n). And if by the verdict the party be found non compos, the care of his a suitable allowance for his maintenance (0) in some private or public asylum where an asylum is requisite, is usually committed to some friend, who is then called his committee (p). [In order to prevent sinister practices, the next heir is seldom permitted to be the committee of the person, because it is his interest that the party should die. But it has been said that the same objection does not lie against his next-of-kin, provided he be not also his heir ; for it is supposed to be his interest to preserve the lunatic's life, in order to increase the personal estate, by the savings which he or his family may hereafter be entitled to enjoy (9). The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition ; but he is accountable to the court, and to the non compos himself, if he recovers, and otherwise, to his administrators (r).]

(m) Sect. 94.

(n) Ibid. ; In re Scott (1884), 27 Ch. D. 116.

(0) In re French (1868), L. R. 3 Ch. 317.

(p) See Lunacy Act, 1890, ss. 108, 116. The civil law agreed with ours in assigning to persons of unsound mind curators to manage their persons and estates; but, in one respect, the Roman law went much beyond the English. For if a man, by notorious prodigality, was in danger of wasting his estate, he, too, was committed to the of curator (Dig. 27, 10, 1); but with us, when a man is an unthrift, no proceedings are taken

(Bro. Abr. Idiot, 4), and yet the property may be protected by the appointment of a committee of the estate, although there is no such lunacy as necessitates a committee also of the person.

(9) Ex parte Ludlow (1731), 2 P. Wms. 638. A portion of the lunatic's estate will sometimes be directed to be applied towards the maintenance of the next of kin if in needly circumstances. (In re Frost (1870), L. R. 5 Ch. 699; In re Erans (1882), 21 Ch. D. 297; In re Wearer, ib. 615.)

(r) The committee is empowered in many cases to represent or act for the lunatic (Lunacy Act, 1890, ss. 116, 120, 125, 126, 128, and



Moreover, every person found by inquisition to be lunatic is to be personally visited, seen, and reported upon, by official visitors, four times at the least in every year, and at such other times as the lord chancellor may direct (s) ; and the statute law contains, also, a variety of other provisions for the protection and management of persons who are lunatic. But the consideration of these provisions shall be reserved for a subsequent division of this work (t).

[(10) The king is likewise the fountain of honour, of office, and of privilege. It is impossible for any government to be maintained without a due subordination of rank ; for how otherwise shall the people know and distinguish such as are set over them, so as to yield them due respect and obedience? And as the law supposes that no one can be so good a judge of merit as the king himself, it has, therefore, intrusted to him the sole power of conferring dignities and honours, in confidence that he will bestow them upon none but such as deserve them. Hence, all degrees of nobility and of knighthood, and all other titles and distinctions, are received by immediate grant from the Crown ; expressed either in writing, by writs or letters patent, as in the creation of peers and baronets, or by corporeal investiture, as in the creation of a simple knight.] And the law prohibits all subjects of the realm from accepting any title or decoration from a foreign prince, unless with the consent of their own monarch.

[From the same principle also arises the prerogative of erecting and disposing of offices ; for honours and offices are in their nature convertible and synonymous. All offices under the Crown carry, in the eye of the law, 133--143); and as to charging the amount (under 2007.), the county lunatic's property for his benefit, court judge may, under certain see ss. 117, and In re Plender

circumstances, make orders for its leith, [1893] 3 Ch. 332.

application for the lunatic's benefit In re Clarke, [1898) i Ch. 336. (Lunacy Act, 1890, s. 132).

(*) Where the real and personal (t) l'ide post, bk. iv. pt. III. property of the lunatic is of small


But cf.

[an honour with them, being supposed to be always filled with those that are most able to execute them ; and, conversely, all honours, in their original, had offices annexed to them, an earl (comes) having been the conservator or governor of a county, and a knight (miles) having been bound to attend the king in his wars. For the same reason, therefore, that honours are in the disposal of the king, offices ought to be so likewise. And as the king may create new titles, so he may create new offices, but with this restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to old offices (u); for this would be a tax upon the subject, which cannot be imposed but by Act of Parliament (r). Upon the same or the like reason, the king has also the prerogative of conferring privileges upon private persons, such as granting place or precedence to any of his subjects, as shall seem good to his royal wisdom (y)]; but he cannot, on the creation of a peer, give him precedence before others of the same rank, the power of the Crown in that respect being restrained by the 31 Hen. VIII. (1539), c. 10, which settles the place and precedence of all the nobility and great officers of state.

In connection with this branch of the prerogative, it may also be mentioned, that by the Civil List Act, 1837, Queen Victoria was empowered to grant pensions to the amount of 1,2001. per annum, chargeable on her civil list revenues, in order to make provision for the support of persons who either had just claims on the royal beneficence, or who might have merited the gratitude, while they needed the aid, of their country (:); and the provisions of the Act of 1838 are continued by the Civil List Act, 1901, during the present reign, except that the pensions are not to be granted as chargeable on the Civil List.

(u) Com. Dig. Prerog. D. 37. all the Acts authorizing the issue (x) 2 Inst. 533.

of secret service money for home (y) 4 Inst. 361.

service have now been repealed (z) Pensions granted by parlia- (Secret Service Money (Repeal) ment for distinguished services Act, 1886). As to issues for foreign are now subject to commutation service, see s. 25 of the Civil List (Pensions Comniutation Acts, and Secret Service Money Act 1871, 1876, and 1882); and 1782.

[(11) Another light in which the law of England considers the king, with regard to domestic concerns, is as the arbiter of commerce ; and the royal prerogative, so far as it relates to this subject, will fall principally under the following articles.

First, the establishment of public Marts, or places of buying and selling, such as markets and fairs, with the tolls thereunto belonging (a); all which can only be set up either by virtue of the royal grant, or by long and immemorial usage and prescription, which supposes such a grant to have been originally made (6), or else by Act of Parliament (c).

Secondly, the regulation of WEIGHTS AND MEASURES. These, for the advantage of the public, ought to be universally the same throughout the kingdom ; being the general criterions which reduce all things to the same equivalent value. But as weight and measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be reduced to some fixed rule or test. It is therefore necessary to have recourse to some visible, palpable, material standard, by forming a comparison with which, all weights and measures may be reduced to one uniform size. The prerogative of fixing such a standard our antient law vested in the Crown, as in Normandy it belonged to the duke (d); and this standard which was originally kept at Winchester, was, by the laws of King Edgar (e), near a century before the Conquest, directed to be observed throughout the realm.

Most nations have regarded the standard of measures of

or an


(a) Vide sup. vol. i. pp. 405–-7.

(6) 2 Inst. 406; and vide sup. vol. i. pp. 421-5.

(c) Manchester Corporation v. Lyons (1882), 22 Ch. D. 287 ;

Abergarenny Commissioners
Straker (1889), 42 Ch. D. 83.

(d) Gr. Coustum. ch. 16.
(e) Cap. 8.


2 L

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