Chapter 91: Whether a soldier who goes out of his mind should be imprisoned

Let us now consider another question on a case which might also happen in time of war.  Suppose a duke or a count sets out from England with a great company of Englishmen, and comes into the Duchy of Guienne to make war on the lands of the King of France.  But, having arrived in this duchy, he becomes raging mad, leaves his soldiers, and then goes off like a madman alone, by woods and hedges, and is found by a soldier of the French King, who takes him and puts him in a strong prison, and says that before he goes free he will have two thousand francs in exchange for him.  Let us consider whether the duke's parents and friends should pay this ransom to have him back.

It will be thought that they should, for when he came over the sea he came as an enemy of the King, and with the intention of making war on him and molesting him, and he has remained in this duchy without making peace with him. Hence we may freely say that he is still the King's enemy, although out of his mind; for a law says that we may presume that once a man has been received into a service he remains in it - and for this reason the presumption exists that a person still belongs - to the Church if he continues in the condition of a clerk. Now the man in question has come as an Englishman, and has remained in such estate all his life. Taking this into account, why should not a Frenchman imprison him as the King's enemy?

But, notwithstanding all arguments, I think the contrary, and for these reasons. We find, by written law, and good reason agrees with this, that during his madness, a man out of his senses cannot be considered as an enemy by anyone whatsoever.  The reason is that he would as soon work ill to himself, or to his father, as to another, for he knows not whether he does well or ill and seeing that he has no knowledge of what he does, we say that he cannot commit an injury, for an injury cannot be committed without will, and free judgment. But all that he does proceeds from him by force of madness and fury, so that if he killed a thousand he would never be punished for it. So if he cannot be considered an enemy by any man whatsoever, I cannot see on what grounds he can be made prisoner.  Again, suppose I have promised by the faith of my body, and sworn on Corpus Christi, to a healthy and sane man, that I will give him my sword when he asks for it.  If he goes out of his mind, and, in that state, asks for the sword, should I be forsworn if I refused it? The laws say clearly that I should not. And since I am not required to keep faith with him who is in such state how can he pledge his faith?  For he cannot undertake any obligation whatsoever, seeing that all he does while in that state is considered by the laws as if done by a dumb animal, or by a stone or tile which falls from a roof by force of the wind, and kills a man.

Further, consider well what nobility there would be in showing one's courage against a madman, or what gentility in making captive a man sick with so terrible a sickness, which should rouse all gentlemen to have pity and give help towards his cure. For in such a case every good Christian, so that no harm should be done, and so that no harm should come to the madman, is under obligation to bind him and place him where he can recover good health.

And in the whole matter I conclude that he cannot be made a prisoner or pay ransom, nor can other pay it for him; and the King; of France should compel those who hold him to return him to his friends.

Chapter 92: If a man sick and out of his mind is cured in prison can his captor imprison him again?

Let us, suppose that this, same Englishman is cured while in prison, and that his captor wishes to imprison him again.  I ask whether he could do so lawfully.  It would appear that he could, for according to the law such a man could not make a will, nor enter into religion - not being able to live as a religious - nor could he consent to marriage, for that sacrament requires obligation and will.  And just as little could he accept baptism or give it, for he has no will and baptism is not taken or given by a man without will when at age of discretion.  But supposing his sickness leaves him, cannot he do all these things aforesaid?  In truth he can, according to written law, and on this argument he can very well pledge his faith.

Let us look now at the other side.  We have a rule to the effect that the thing which in the beginning is worthless cannot achieve value by passage of time.  But I have above proved that he could not be a prisoner in the first place, and if that was true how can he be so now?  A stronger reason is that, according to strict gentility, all gentlemen are under obligation to this noble lord, for he is in such great poverty of body and senses that his case cries for pity. Hence, if gentlemen are thus bound to him, and the law demands it, what gentility would there be in selling him his cure?

Any man who wishes to examine this question to the bottom ill find, on both sides of the argument, so many laws and decretals as to give work for a long day.  But I wish to deal with the matter briefly, so I decide that when the Englishman has recovered his senses and is in his right mind, if he wishes to return to his own people and make war as before, he may very well be kept prisoner, but if he promises to return immediately to his own land and never to arm against the King again, unless constrained by his lord, then, in my opinion, he should be allowed to go.