here, for the ſake of regularity, as a part of the cenſus regalis; and ſhall poſtpone for the preſent the farther conſideration of all forfeitures, excepting one ſpecies only, which ariſes from the misfortune rather than the crime of the owner, and is called a deodand.
By this is meant whatever perſonal chattel is the immediate occaſion of the death of any reaſonable creature; which is forfeited to the king, to be applied to pious uſes, and diſtributed in alms by his high almoner[1]; though formerly deſtined to a more ſuperſtitious purpoſe. It ſeems to have been originally deſigned, in the blind days of popery, as an expiation for the ſouls of ſuch as were ſnatched away by ſudden death; and for that purpoſe ought properly to have been given to holy church[2]; in the ſame manner, as the apparel of a ſtranger who was found dead was applied to purchaſe maſſes for the good of his ſoul. And this may account for that rule of law, that no deodand is due where an infant under the years of diſcretion is killed by a fall from a cart, or horſe, or the like, not being in motion[3]; whereas, if an adult perſon falls from thence and is killed, the thing is certainly forfeited. For the reaſon given by ſir Matthew Hale ſeems to be very inadequate, viz. becauſe an infant is not able to take care of himſelf: for why ſhould the owner ſave his forfeiture, on account of the imbecillity of the child, which ought rather to have made him more cautious to prevent any accident of miſchief? The true ground of this rule ſeems rather to be, that the child, by reaſon of it's want of diſcretion, is preſumed incapable of actual ſin, and therefore needed no deodand to purchaſe propitiatory maſſes: but every adult, who dies in actual ſin, ſtood in need of ſuch atonement, according to the humane ſuperſtition of the founders of the Engliſh law.
Thus ſtands the law, if a perſon be killed by a fall from a thing ſtanding ſtill. But if a horſe, or ox, or other animal, of
