Commentaries on the Laws of England Part 24

IT is to be observed, that in order to const.i.tute a legal _wreck_, 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 ent.i.tled 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 a.s.sert 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 pa.s.s[o].

[Footnote m: 5 Rep. 106.]

[Footnote n: _Quae enim res in tempestate, levandae navis causa, ejiciuntur, hac dominorum permanent. Quia palam est, eas non eo animo ejici, quod quis habere nolit._ _Inst._ 2. 1. --. 48.]

[Footnote o: 5 Rep. 108.]

WRECKS, in their legal acceptation, are at present not very 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 a.s.sert 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 sh.o.r.e, 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 int.i.tled _salvage_. Also by the common law, if any persons (other than the sheriff) take any goods so cast on sh.o.r.e, which are not legal wreck, the owners might have a commission to enquire and find them out, and compel them to make rest.i.tution[q]. And by statute 12 Ann.

st. 2. c. 18. confirmed by 4 Geo. I. c. 12. in order to a.s.sist 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 100_l._ and, in case of a.s.sistance given, salvage shall be paid by the owners, to be a.s.sessed 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 200_l._ Moreover, by the statute of George II, pilfering any goods cast ash.o.r.e 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].

[Footnote p: Stiernh. _de jure Sueon._ _l._ 3. _c._ 5.]

[Footnote q: F.N.B. 112.]

[Footnote r: By the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. And to steal even a plank from a vessel in distress, or wrecked, makes the party liable to answer for the whole ship and cargo. (_Ff._ 47. 9. 3.) The laws also of the Wisigoths, and the most early Neapolitan const.i.tutions, punished with the utmost severity all those who neglected to a.s.sist any ship in distress, or plundered any goods cast on sh.o.r.e.

(Lindenbrog. _Cod. LL. antiq._ 146. 715.)]

XII. A TWELFTH branch of the royal revenue, the right 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 ent.i.tled 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 quant.i.ty of gold or silver was of greater value than the quant.i.ty 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 quant.i.ties: 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 ent.i.tled.

[Footnote s: 2 Inst. 577.]

[Footnote t: Plowd. 566.]

XIII. TO the same original may in part be referred the revenue 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 ent.i.tled 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 a.s.sert his right, which then proves that the loss was by accident, and not with an intent to renounce his property.

[Footnote u: 3 Inst. 132. Dalt. Sheriffs. c. 16.]

[Footnote w: Britt. c. 17. Finch. L. 177.]

[Footnote x: _l._ 3. _c._ 3. --. 4.]

FORMERLY all treasure-trove belonged to the finder[y]; as was 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 a.s.signed 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 ent.i.tled 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 const.i.tution 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].

[Footnote y: Bracton. _l._ 3. _c._ 3. 3 Inst. 133.]

[Footnote z: _Ff._ 41. 1. 31.]

[Footnote a: _de jur. b. & p._ _l._ 2. _c._ 8. --. 7.]

[Footnote b: Glanv. _l._ 1. _c._ 2. Crag. 1. 16. 40.]

[Footnote c: 3 Inst. 133.]

XIV. WAIFS, _bona waviata_, are goods stolen, and waived 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.

[Footnote d: Cro. Eliz. 694.]

[Footnote e: Finch. L. 212.]

[Footnote f: _Ibid._]

[Footnote g: 5 Rep. 109.]

[Footnote h: Fitzh. _Abr. t.i.t. Estray._ 1. 3 Bulstr. 19.]

XV. ESTRAYS are such valuable animals as are found wandering 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 pa.s.sed, they belong to the king or his subst.i.tute 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 const.i.tution, 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 s.p.a.ce 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 pa.s.sed: 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 pet.i.t, 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].

[Footnote i: Mirr. c. 3. --. 19.]

[Footnote k: 5 Rep. 108. Bro. _Abr. t.i.t. Estray._ Cro. Eliz. 716.]

[Footnote l: Stiernh. _de jur. Gothor._ _l._ 3. _c._ 5.]

[Footnote m: Dalt. Sh. 79.]

[Footnote n: Finch. L. 177.]

[Footnote o: _l._ 1. _c._ 43.]

[Footnote p: 7 Rep. 17.]

[Footnote q: 1 Roll. Abr. 889.]

[Footnote r: Cro. Jac. 147.]

[Footnote s: Cro. Jac. 148. Noy. 119.]

BESIDES the particular reasons before given why the king 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 const.i.tutions of most of the governments in Europe, it was thought proper (to prevent that strife and contention, which the mere t.i.tle 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 pa.s.s 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_.

[Footnote t: _l._ 1. _c._ 12.]

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 a.s.sociation, by transgressing the munic.i.p.al 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 a.s.signed 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_.

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[u]; though formerly destined to a more superst.i.tious purpose.

It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were s.n.a.t.c.hed 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 ma.s.ses 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 want of discretion, is presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory ma.s.ses: but every adult, who dies in actual sin, stood in need of such atonement, according to the humane superst.i.tion of the founders of the English law.

[Footnote u: 1 Hal. P.C. 419. Fleta. _l._ 1. _c._ 25.]

[Footnote w: Fitzh. _Abr. t.i.t. Enditement._ _pl._ 27. Staunf. P.C. 20, 21.]

[Footnote x: 3 Inst. 57. 1 Hal. P.C. 422.]