XI.
the same reason, is that of shipwrecks; which are also declared
to be the king's property by the same prerogative statute 17 Edw. II.
c. 11. and were so, long before, at the common law. It is worthy
observation, how greatly the law of wrecks has been altered,
and the rigour of it gradually softened, in favour of the distressed
proprietors. Wreck, by the antient common law, was where
any ship was lost at sea, and the goods or cargo were thrown upon
the land; in which case these goods, so wrecked, were adjudged
to belong to the king: for it was held, that, by the loss of the
ship, all property was gone out of the original owner[z]. But this
was undoubtedly adding sorrow to sorrow, and was consonant
neither to reason nor humanity. Wherefore it was first ordained
by king Henry I, that if any person escaped alive out of the ship
it should be no wreck[a]; and afterwards king Henry II, by his
charter[b], declared, that if on the coasts of either England, Poictou,
Oleron, or Gascony, any ship should be distressed, and either
man or beast should escape or be found therein alive, the goods
should remain to the owners, if they claimed them within three
months; but otherwise should be esteemed a wreck, and should
belong to the king, or other lord of the franchise. This was again
confirmed with improvements by king Richard the first, who,
in the second year of his reign[c], not only established these concessions,
by ordaining that the owner, if he was shipwrecked and
escaped, "omnes res suas liberas et quietas haberet," but also, that,
if he perished, his children, or in default of them his brethren
and sisters, should retain the property; and, in default of brother
or sister, then the goods should remain to the king[d]. And the
law, so long after as the reign of Henry III, seems still to have
been guided by the same equitable provisions. For then if a dog
(for instance) escaped, by which the owner might be discovered,
or if any certain mark were set on the goods, by which they
might be known again, it was held to be no wreck[e]. And this
is certainly most agreeable to reason; the rational claim of the
king being only founded upon this, that the true owner cannot
be ascertained. But afterwards, in the statute of Westminster
the first[f], the law is laid down more agreeable to the charter of
king Henry the second: and upon that statute hath stood the legal
doctrine of wrecks to the present time. It enacts, that if any live
thing escape (a man, a cat, or a dog; which, as in Bracton, are
only put for examples[g],) in this case, and, as it seems, in this case
only, it is clearly not a legal wreck: but the sheriff of the county
is bound to keep the goods a year and a day (as in France for one
year, agreeably to the maritime laws of Oleron[h], and in Holland
for a year and an half) that if any man can prove a property in
them, either in his own right or by right of representation[i], they
shall be restored to him without delay; but, if no such property
be proved within that time, they then shall be the king's. If the
goods are of a perishable nature, the sheriff may sell them, and
the money shall be liable in their stead[k]. This revenue of wrecks
is frequently granted out to lords of manors, as a royal franchise;
and if any one be thus entitled to wrecks in his own land,
and the king's goods are wrecked thereon, the king may claim
them at any time, even after the year and day[l].
the goods must come to land. If they continue at sea, the law
distinguishes them by the barbarous and uncouth appellations of
jetsam, flotsam, and ligan. Jetsam is where goods are cast into
the sea, and there sink and remain under water: flotsam is where
they continue swimming on the surface of the waves: ligan is
where they are sunk in the sea, but tied to a cork or buoy, in
order to be found again[m]. These are also the king's, if no owner
appears to claim them; but, if any owner appears, he is entitled
to recover the possession. For even if they be cast overboard,
without any mark or buoy, in order to lighten the ship, the
owner is not by this act of necessity construed to have renounced
his property[n]: much less can things ligan be supposed to be
abandoned, since the owner has done all in his power, to assert
and retain his property. These three are therefore accounted so
far a distinct thing from the former, that by the king's grant to
a man of wrecks, things jetsam, flotsam, and ligan will not
pass[o].
frequent: it rarely happening that every living creature on board
perishes; and if any should survive, it is a very great chance,
since the improvement of commerce, navigation, and correspondence,
but the owner will be able to assert his property within
the year and day limited by law. And in order to preserve this
property entire for him, and if possible to prevent wrecks at all,
our laws have made many very humane regulations; in a spirit
quite opposite to those savage laws, which formerly prevailed in
all the northern regions of Europe, and a few years ago were
still laid to subsist on the coasts of the Baltic sea, permitting the
inhabitants to seize on whatever they could get as lawful prize;
or, as an author of their own expresses it, "in naufragorum miseria
et calamitate tanquam vultures ad praedam currere[p]." For by
the statute 2 Edw. III. c. 13. if any ship be lost on the shore,
and the goods come to land (so as it be not legal wreck) they
shall be presently delivered to the merchants, they paying only a
reasonable reward to those that saved and preserved them, which
is intitled salvage. Also by the common law, if any persons
(other than the sheriff) take any goods so cast on shore, which
are not legal wreck, the owners might have a commission to enquire
and find them out, and compel them to make restitution[q].
And by statute 12 Ann. st. 2. c. 18. confirmed by 4 Geo. I. c. 12.
in order to assist the distressed, and prevent the scandalous illegal
practices on some of our sea coasts, (too similar to those on the
Baltic) it is enacted, that all head-officers and others of towns
near the sea shall, upon application made to them, summon as
many hands as are necessary, and send them to the relief of any
ship in distress, on forfeiture of 100l. and, in case of assistance
given, salvage shall be paid by the owners, to be assessed by three
neighbouring justices. All persons that secrete any goods shall
forfeit their treble value: and if they wilfully do any act whereby
the ship is lost or destroyed, by making holes in her, stealing her
pumps, or otherwise, they are guilty of felony, without benefit
of clergy. Lastly, by the statute 26 Geo. II. c. 19. plundering
any vessel either in distress, or wrecked, and whether any living
creature be on board or not, (for, whether wreck or otherwise,
it is clearly not the property of the populace) such plundering, I
say, or preventing the escape of any person that endeavors to save
his life, or wounding him with intent to destroy him, or putting
out false lights in order to bring any vessel into danger, are all
declared to be capital felonies; in like manner as the destroying
trees, steeples, or other stated seamarks, is punished by the statute
8 Eliz. c. 13. with a forfeiture of 200l. Moreover by the
statute of George II, pilfering any goods cast ashore is declared
to be petty larceny; and many other salutary regulations are
made, for the more effectually preserving ships of any nation in
distress[r].
XII.
to mines, has it's original from the king's prerogative of coinage,
in order to supply him with materials: and therefore those mines,
which are properly royal, and to which the king is entitled when
found, are only those of silver and gold[s]. By the old common
law, if gold or silver be found in mines of base metal, according
to the opinion of some the whole was a royal mine, and belonged
to the king; though others held that it only did so, if the quantity
of gold or silver was of greater value than the quantity of
base metal[t]. But now by the statutes 1 W. & M. st. 1. c. 30.
and 5 W. & M. c.6. this difference is made immaterial; it being
enacted, that no mines of copper, tin, iron, or lead, shall be
looked upon as royal mines, notwithstanding gold or silver may
be extracted from them in any quantities: but that the king, or
persons claiming royal mines under his authority, may have the
ore, (other than tin-ore in the counties of Devon and Cornwall)
paying for the same a price stated in the act. This was an extremely
reasonable law: for now private owners are not discouraged
from working mines, through a fear that they may be
claimed as royal ones; neither does the king depart from the just
rights of his revenue, since he may have all the precious metal
contained in the ore, paying no more for it than the value of the
base metal which it is supposed to be; to which base metal the
land-owner is by reason and law entitled.
XIII.
of treasure-trove (derived from the French word, trover,
to find) called in Latin thesaurus inventus, which is where any
money or coin, gold, silver, plate, or bullion, is found hidden in
the earth, or other private place, the owner thereof being unknown;
in which case the treasure belongs to the king: but if
he that hid it be known, or afterwards found out, the owner
and not the king is entitled to it[u]. Also if it be found in the
sea, or upon the earth, it doth not belong to the king, but the
finder, if no owner appears[w]. So that it seems it is the hiding,
not the abandoning of it, that gives the king a property: Bracton[x]
defining it, in the words of the civilians, to be "vetus depositio
pecuniae." This difference clearly arises from the different intentions,
which the law implies in the owner. A man, that hides
his treasure in a secret place, evidently does not mean to relinquish
his property; but reserves a right of claiming it again,
when he sees occasion; and, if he dies and the secret also dies
with him, the law gives it the king, in part of his royal revenue.
But a man that scatters his treasure into the sea, or upon the
public surface of the earth, is construed to have absolutely abandoned
his property, and returned it into the common stock, without
any intention of reclaiming it; and therefore it belongs, as
in a state of nature, to the first occupant, or finder; unless the
owner appear and assert his right, which then proves that the loss
was by accident, and not with an intent to renounce his property.
also the rule of the civil law[z]. Afterwards it was judged expedient
for the purposes of the state, and particularly for the coinage,
to allow part of what was so found to the king; which part was
assigned to be all hidden treasure; such as is casually lost and unclaimed,
and also such as is designedly abandoned, still remaining
the right of the fortunate finder. And that the prince shall be
entitled to this hidden treasure is now grown to be, according to
Grotius[a], "jus commune, et quasi gentium:" for it is not only observed,
he adds, in England, but in Germany, France, Spain,
and Denmark. The finding of deposited treasure was much more
frequent, and the treasures themselves more considerable, in the
infancy of our constitution than at present. When the Romans,
and other inhabitants of the respective countries which composed
their empire, were driven out by the northern nations, they concealed
their money under-ground; with a view of resorting to it
again when the heat of the irruption should be over, and the invaders
driven back to their desarts. But as this never happened,
the treasures were never claimed; and on the death of the owners
the secret also died along with them. The conquering generals,
being aware of the value of these hidden mines, made it highly
penal to secrete them from the public service. In England therefore,
as among the feudists[b], the punishment of such as concealed
from the king the finding of hidden treasure was formerly no less
than death; but now it is only fine and imprisonment[c].
XIV.
or thrown away by the thief in his flight, for fear of being apprehended.
These are given to the king by the law, as a punishment
upon the owner, for not himself pursuing the felon, and
taking away his goods from him[d]. And therefore if the party
robbed do his diligence immediately to follow and apprehend the
thief (which is called making fresh suit) or do convict him afterwards,
or procure evidence to convict him, he shall have his
goods again[e]. Waived goods do also not belong to the king, till
seised by somebody for his use; for if the party robbed can seise
them first, though at the distance of twenty years, the king shall
never have them[f]. If the goods are hid by the thief, or left any
where by him, so that he had them not about him when he fled,
and therefore did not throw them away in his flight; these also
are not bona waviata, but the owner may have them again when
he pleases[g]. The goods of a foreign merchant, though stolen
and thrown away in flight, shall never be waifs[h]: the reason
whereof may be, not only for the encouragement of trade, but
also because there is no wilful default in the foreign merchant's
not pursuing the thief, he being generally a stranger to our laws,
our usages, and our language.
XV.
in any manor or lordship, and no man knoweth the owner
of them; in which case the law gives them to the king as the general
owner and lord paramount of the soil, in recompence for the
damage which they may have done therein; and they now most
commonly belong to the lord of the manor, by special grant from
the crown. But in order to vest an absolute property in the king
or his grantees, they must be proclaimed in the church and two
market towns next adjoining to the place where they are found;
and then, if no man claims them, after proclamation and a year
and a day passed, they belong to the king or his substitute without
redemption[i]; even though the owner were a minor, or under
any other legal incapacity[k]. A provision similar to which obtained
in the old Gothic constitution, with regard to all things
that were found, which were to be thrice proclaimed, primum
coram comitibus et viatoribus obviis, deinde in proxima villa vel pago,
postremo coram ecclesia vel judicio: and the space of a year was allowed
for the owner to reclaim his property[l]. If the owner
claims them within the year and day, he must pay the charges of
finding, keeping, and proclaiming them[m]. The king or lord
has no property till the year and day passed: for if a lord keepeth
an estray three quarters of a year, and within the year it
strayeth again, and another lord getteth it, the first lord cannot
take it again[n]. Any beast may be an estray, that is by nature
tame or reclaimable, and in which there is a valuable property,
as sheep, oxen, swine, and horses, which we in general call
cattle; and so Fleta[o] defines it, pecus vagans, quod nullus petit,
sequitur, vel advocat. For animals upon which the law sets no
value, as a dog or cat, and animals ferae naturae, as a bear or
wolf, cannot be considered as estrays. So swans may be estrays,
but not any other fowl[p]; whence they are said to be royal fowl.
The reason of which distinction seems to be, that, cattle and swans
being of a reclaimed nature, the owner's property in them is not
lost merely by their temporary escape; and they also, from their
intrinsic value, are a sufficient pledge for the expense of the lord
of the franchise in keeping them the year and day. For he that
takes an estray is bound, so long as he keeps it, to find it in provisions
and keep it from damage[q]; and may not use it by way of
labour, but is liable to an action for so doing[r]. Yet he may milk
a cow, or the like, for that tends to the preservation, and is for
the benefit, of the animal[s].
should have the several revenues of royal fish, shipwrecks, treasure-trove,
waifs, and estrays, there is also one general reason which
holds for them all; and that is, because they are bona vacantia,
or goods in which no one else can claim a property. And therefore
by the law of nature they belonged to the first occupant or
finder; and so continued under the imperial law. But, in settling
the modern constitutions of most of the governments in
Europe, it was thought proper (to prevent that strife and contention,
which the mere title of occupancy is apt to create and
continue, and to provide for the support of public authority in a
manner the least burthensome to individuals) that these rights
should be annexed to the supreme power by the positive laws of
the state. And so it came to pass that, as Bracton expresses it[t],
haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure
naturali, jam efficiuntur principis de jure gentium.
XVI. The next branch of the king's ordinary revenue consists
in forfeitures of lands and goods for offences; bona confiscata, as
they are called by the civilians, because they belonged to the fiscus
or imperial treasury; or, as our lawyers term them, forisfacta,
that is, such whereof the property is gone away or departed from
the owner. The true reason and only substantial ground of any
forfeiture for crimes consist in this; that all property is derived
from society, being one of those civil rights which are conferred
upon individuals, in exchange for that degree of natural freedom,
which every man must sacrifice when he enters into social communities.
If therefore a member of any national community
violates the fundamental contract of his association, by transgressing
the municipal law, he forfeits his right to such privileges
as he claims by that contract; and the state may very justly resume
that portion of property, or any part of it, which the laws
have before assigned him. Hence, in every offence of an atrocious
kind, the laws of England have exacted a total confiscation
of the moveables or personal estate; and in many cases a perpetual,
in others only a temporary, loss of the offender's immoveables
or landed property; and have vested them both in the king,
who is the person supposed to be offended, being the one visible
magistrate in whom the majesty of the public resides. The particulars
of these forfeitures will be more properly recited when we
treat of crimes and misdemesnors. I therefore only mention them
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.
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[u]; 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[w]; 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[x];
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 [**sic][**P2: cleared, see forum] 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.
thing standing still. But if a horse, or ox, or other animal, of
his own motion, kill as well an infant as an adult, or if a cart
run over him, they shall in either case be forfeited as deodands[y];
which is grounded upon this additional reason, that such misfortunes
are in part owing to the negligence of the owner, and therefore
he is properly punished by such forfeiture. A like punishment
is in like cases inflicted by the mosaical law[z]: "if an ox
gore a man that he die, the ox shall be stoned, and his flesh
shall not be eaten." And among the Athenians[a], whatever was
the cause of a man's death, by falling upon him, was exterminated
or cast out of the dominions of the republic. Where a
thing, not in motion, is the occasion of a man's death, that part
only which is the immediate cause is forfeited; as if a man be
climbing up a wheel, and is killed by falling from it, the wheel
alone is a deodand[b]: but, wherever the thing is in motion, not
only that part which immediately gives the wound, (as the wheel,
which runs over his body) but all things which move with it and
help to make the wound more dangerous (as the cart and loading,
which increase the pressure of the wheel) are forfeited[c]. It matters
not whether the owner were concerned in the killing or not;
for if a man kills another with my sword, the sword is forfeited[d]
as an accursed thing[e]. And therefore, in all indictments for homicide,
the instrument of death and the value are presented and
found by the grand jury (as, that the stroke was given with a
certain penknife, value sixpence) that the king or his grantee may
claim the deodand: for it is no deodand, unless it be presented
as such by a jury of twelve men[f]. No deodands are due for accidents
happening upon the high sea, that being out of the jurisdiction
of the common law: but if a man falls from a boat or
ship in fresh water, and is drowned, the vessel and cargo are in
strictness a deodand[g].
treasure trove, royal fish, mines, waifs, and estrays, may be granted
by the king to particular subjects, as a royal franchise: and indeed
they are for the most part granted out to the lords of manors,
or other liberties; to the perversion of their original design.
"End of Section 31"
