A consequence of the particular prerogative now under consideration [is the legal ubiquity of the sovereign. In the eye of the law he is always present in all his courts, though he cannot personally distribute justice (≈). His judges are the mirror by which his image is reflected. It is the regal office, and not the royal person, that is always present in court, always ready to undertake prosecutions, or pronounce judgment, for the benefit and protection of the subject.] And this ubiquity is illustrated by certain technical distinctions applicable to proceedings where the crown is party. Thus [the king can never be nonsuited (a); for a nonsuit is the desertion of the suit or action, by the non-appearance of the plaintiff in court (b). For the same reason, also, in the forms of legal proceedings, the king is not said to appear by his attorney, as other men do; for in contemplation of the law, he is always present in court (c). From the same original, of the sovereign's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in him alone. These proclamations have then a binding force, when (as Sir Edward Coke observes (d)) they are grounded upon and enforce the laws of the realm. For though the making of laws is entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution, must frequently be left to the discretion of the executive magistrate. And therefore his constitutions or edicts concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws or tend to establish new ones,-but only enforce the execution of such laws as are already in being, in such manner as the sovereign shall judge necessary. Thus the established law (z) Fortesc. c. 8; 2 Inst. 186. (a) Co. Litt. 139. As to a nonsuit, vide post, bk. v. c. x. But the attor (b) Co. Litt. 139. ney-general may enter a non vult prosequi, which has the effect of a [is, that the sovereign may prohibit any of his subjects from leaving the realm: a proclamation therefore forbidding this in general, for three weeks, by laying an embargo upon all shipping in time of war, will be equally binding as an act of parliament, because founded upon a prior law. But a proclamation to lay an embargo in time of peace, upon all vessels laden with wheat (though in a time of a public scarcity), being contrary to law, and particularly to the statute 22 Car. II. c. 13, the advisers of such a proclamation, and all persons acting under it, found it necessary to be indemnified by a special act of parliament, 7 Geo. III. c. 7. Indeed, by the statute 31 Henry VIII. c. 8, it was enacted, that the king's proclamations should have the force of acts of parliament; a statute which was calculated to introduce the most despotic tyranny, and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed in the minority of his successor, about five years after (e).] 9. The sovereign is also, as parens patriæ, invested with a kind of guardianship over various classes of persons, who from their legal disability stand in need of protection (ƒ). This branch of the prerogative in regard to infants has been already noticed (g). It extends besides to idiots and lunatics (h). First,-[An idiot or natural fool,] as he is also legally described, [is one that hath had no understanding from his nativity; and therefore is by law presumed never likely to attain any.] A man, however, [is not an idiot if he hath any glimmering of reason (i), so that he can tell his parents his age, or the like common matters (j).] The custody of an idiot and of his lands [was formerly vested in the lord of the fee (k); but by reason of the 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 (1). This prerogative is declared in parliament by the statute De Prærogativȧ Regis, 17 Edw. II. st. 1, which directs, in affirmance of the common law (m), that the King shall have ward of the lands of natural fools (n), taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs; -in order to prevent such idiots from aliening their lands, and their heirs from being disinherited. By the old common law there is a writ de idiotâ inquirendo, to inquire whether a man be an idiot or not (o): which must be tried by a jury of twelve men: and if they find him purus idiota, the profits of his lands and the custody of his person may be granted by the sovereign to some subject who has interest enough to obtain them (p).] Such 66 state with an idiot, he being sup posed incapable of any understand"ing, as wanting all those senses "which furnish the human mind "with ideas." And he cites Co. Litt. 42 (b); Fleta, 1. 6, c. 40. But these authorities do not bear him out in his statement, as they go merely to the point that such a person is (like one attainted, or a feme coverte, &c. an idiot, or a lunatic,) incapable of aliening his lands. At all events, if the antient law did take the view which Blackstone supposes of the intellectual condition of such a person, it is one which the philosophical researches of modern times upon the subject, strongly tend to discountenance. (k) Fleta, lib. 1, c. 11, s. 10. (m) 4 Rep. 126; Memorand. Scacc. 20 Edw. 1 (prefixed to Maynard's Year Book of Edward 2), fol. 20, 24; vide 2 Inst. 14. (n) This statute seems not to extend to the copyhold lands of idiots or lunatics, Bac. Ab. Idiots, &c. (C); but the crown's prerogative extends to their persons, goods and chattels, as well as freehold lands, Beverley's case, 4 Rep. 126 a; F. N. B. 232. (0) F. N. B. 232. (p) This power, though of late never exerted, long continued to be alluded to in common speech, by the usual expression of begging a man for a fool. a result must of course have been always considered as a hardship upon private families; and [in the eighth year of James the first, it was under the consideration of parliament to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then intended to share the same fate with the slavery of the feudal tenures, which has been since abolished (q).] But no grievance of this kind ever now occurs; for that part of the prerogative which relates to idiots has long been, in effect, dormant ;-being merged, as it were, in the part of it which relates to lunatics;-the proceeding to investigate the soundness of mind of a given party now always taking place, in point of fact, under the commission in the nature of a writ de lunatico inquirendo, to be presently mentioned, and the effect of his being found idiot under such commission being the same as if he were found lunatic (r),— an effect very different (as will soon appear) from a finding of purus idiota, under the writ de idiota inquirendo. Secondly,-A lunatic is one [who hath had understanding, but by disease, grief,] or any other cause, [hath lost the use of his reason (s),] or become non compos, [which Sir E. Coke says is the most legal term,] that is of mind so unsound as to be incapable of conducting himself or his affairs. For though the term lunatic is in its derivation applicable only to one that has lucid intervals, depending, as some formerly imagined, [upon the change of the moon,] yet it is now used technically, as well as popularly, in the more extended sense above attributed to it, of a person affected by any species of insanity supervening since his birth. [To (q) 4 Inst. 203; Com. Journ. 1610. (r) In the statute 16 & 17 Vict. c. 70, to be presently mentioned (which regulates the proceedings under a commission of lunacy), it is provided (sect. 2) that in that statute, the word "lunatic" "shall be "construed to mean any person "found by inquisition idiot, lunatic, "or of unsound mind, and incapable "of managing himself and his af"fairs." (s) "Idiota a casu et infirmitate.”— Mem. Scacc. 20 Edw. 1 (in Maynard's Year Book of Edward 2), 20; vide Ridgway v. Darwin, 8 Ves. 65; Re J. B., 1 Myl. & Cr. 538. [these also, as well as idiots, the sovereign is guardian, but to a very different purpose: for the law always imagines that these accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for 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 and therefore it is declared by the statute De Prærogativâ Regis before mentioned, 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 a state, 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 (t),) shall now go to their executors or administrators. On the first attack of lunacy, while there may be hopes of a speedy restitution of reason, it is usual to confine the unhappy objects in private custody, under the direction of their nearest friends and relations.] But it often becomes desirable and even necessary for the more effectual protection of the lunatic's person, and the regulation and administration of his property and affairs, to apply for the exercise of the royal prerogative in relation to this subject. The course taken for this purpose, is as follows. [The lord chancellor, to whom, by special authority from the sovereign, the custody of idiots and lunatics is intrusted (u), upon petition or information, grants a commission (v)] in the (t) Vide sup. p. 195. (u) 3 P. Wms. 107; 2 Atk. 553; 3 Atk. 635. The king himself used formerly to commit the custody of insane persons to proper committees in every particular case; but now, to avoid solicitations and the very shadow of undue partiality, a warrant is issued by the king, under his royal sign manual, to the chancellor or keeper of his seal to perform this office for him; and if he acts improperly in granting such custodies, the complaint must be made to the king himself in council. 3 Bl. Com. 427. (v) The commission may be either a special one applicable to the particular case, or that general com |