a defect of understanding. Both idiocy and lunacy excuse from the guilt of crimes; (see CRIME, par. ult.) For the rule of law as to lunatics, which may also be easily adapted to idiots, is, that furore solum punitur. In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under their incapacities; no, not even for treason itself. Also, if a man in his sound memory commits a capital offence, and before arraignment for it he becomes mad, he ought not to be arraigned for it: because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. Indeed, in the bloody reign of Henry VIII, a statute was made, which enacted, that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & M. c. 10. For, as is observed by Sir Edward Coke, "the execution of an offender is for example, ut pena ad paucos, motus ad omnes perveniat; but so it is not when a madman is executed; but should be a miserable spectacle, both against 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 shall be tried by a jury. And if he be found, a total idiocy, or absolute insanity, excuses from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses; but if a lunatic hath lucid intervals of understanding, he shall answer for what he does in those intervals, as if he had no deficiency. Yet, in the case of absolute madmen, as they are not answerable for their actions, they should not be permitted the liberty of acting unless under proper control; and, in particular, they ought not to be suffered to go loose, to the terror of the king's subjects. It was the doctrine of our ancient law, that persons deprived of their reason might be confined till they recovered their senses, without waiting for the forms of a commission or other special authority from the crown; and now, by the vagrant acts, a method is chalked out for imprisoning, chaining, and sending them to their proper homes.

The matrimonial contract likewise cannot take place in a state of idiocy. It was formerly adjudged, that the issue of an idiot was legitimate, and his marriage valid. A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything. And therefore the civil law judged much more sensibly, when it made such deprivations of reason a previous impediment, though not a cause of divorce if they happened after marriage. And modern resolutions have adhered to the sense of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, was absolutely void. But as it might be difficult to prove the exact state of the party's mind at the actual celebration of the nuptials, upon this account (concurring with some private family reasons),* See Prin. the statute 15 Geo. II. c. 30. has provided, that the oate act, marriage of lunatics and persons under phrenies (if found lunatics under a commission, or committed to the care of trustees under any act of parliament) before they are declared of sound mind by the lord chancellor, or the majority of such trustees, shall be totally void.

Idiots and persons of non-sane memory, as well as infants and persons under dures, are not totally disabled either to convey or purchase, but sub modo only. For their conveyances and purchases are voidable, but not actually void. The king, indeed, on behalf of an idiot, may avoid his grants or other acts. But it hath been said, that a non compos himself, though he afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to avoid such grant: for that no man shall be allowed to stultify himself, or plead his own disability. The progress of this notion is somewhat curious. In the time of Edward I. non compos was a sufficient plea to void a man's own bond; and there is a writ in the register for the alienor himself to recover lands aliened by him during his insanity; dum fuit non compos mentis fuerat, ut dictum est. But under Edward III. a scruple began to arise, whether a man should be permitted to stultify himself, by pleading his own insanity; and, afterwards, a defendant in affize having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied (ore tenus, as the manner then was) that he was out of his mind when he gave it, the court adjourned the affize; doubting, whether as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked, how he came to remember to release, if out of his senses when he gave it? Under Henry VI. this way of reasoning (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation) was seriously adopted by the judges in argument; upon a question whether the heir was barred of his right of entry by the seisinment of his insane ancestor? And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason, the maxim that a man shall not stultify himself, hath been handed down as settled law: though later opinions, feeling the inconvenience of the rule, have in many points endeavoured to restrain it. And, clearly, the next heir or other person interested, may, after the death of the idiot or non compos, take advantage of his incapacity and avoid the grant. And so, too, if he purchases under this disability, and does not afterwards upon recovering his senses agree to the purchase, his heir may either waive or accept the estate at his option. In like manner, an infant may waive such purchase or conveyance, when he comes to full age; or, if he does not then actually agree to it, his heir may waive it after him. Persons, also, who purchase or convey under dures, may affirm or avoid such transaction, whenever the dures is ceased. For all these are under the protection of the law; which will not suffer them to be imposed upon through the imbecility of their present condition; so that their acts are only binding, in case they be afterwards agreed to when such imbecility ceases. Yet the guardians or committees of a lunatic, by the statute 11 Geo. III. c. 20, are empowered to renew in his right, under the directions of the court of chancery, any lease for lives or years, and apply the profits of such renewal for the benefit of such lunatic, his heirs, or executors. See Lunacy.