arise to the king from the profits of his military tenures, to which
most lands in the kingdom were subject, till the statute 12 Car. II.
c. 24. which in great measure abolished them all: the explication of
the nature of which tenures, must be referred to the second book of
these commentaries. Hither also might have been referred the
profitable prerogative of purveyance and pre-emption: which was a
right enjoyed by the crown of buying up provisions and other
necessaries, by the intervention of the king's purveyors, for the use
of his royal houshold, at an appraised valuation, in preference to all
others, and even without consent of the owner; and also of forcibly
impressing the carriages and horses of the subject, to do the king's
business on the publick roads, in the conveyance of timber, baggage,
and the like, however inconvenient to the proprietor, upon paying him
a settled price. A prerogative, which prevailed pretty generally
throughout Europe, during the scarcity of gold and silver, and the
high valuation of money consequential thereupon. In those early times
the king's houshold (as well as those of inferior lords) were
supported by specific renders of corn, and other victuals, from the
tenants of the respective demesnes; and there was also a continual
market kept at the palace gate to furnish viands for the royal use[q].
And this answered all purposes, in those ages of simplicity, so long
as the king's court continued in any certain place. But when it
removed from one part of the kingdom to another (as was formerly very
frequently done) it was found necessary to send purveyors beforehand,
to get together a sufficient quantity of provisions and other
necessaries for the houshold: and, lest the unusual demand should
raise them to an exorbitant price, the powers beforementioned were
vested in these purveyors; who in process of time very greatly abused
their authority, and became a great oppression to the subject though
of little advantage to the crown; ready money in open market (when the
royal residence was more permanent, and specie began to be plenty)
being found upon experience to be the best proveditor of any.
Wherefore by degrees the powers of purveyance have declined, in
foreign countries as well as our own; and particularly were abolished
in Sweden by Gustavus Adolphus, toward the beginning of the last
century[r]. And, with us in England, having fallen into disuse during
the suspension of monarchy, king Charles at his restoration consented,
by the same statute, to resign intirely these branches of his revenue
and power, for the ease and convenience of his subjects: and the
parliament, in part of recompense, settled on him, his heirs, and
successors, for ever, the hereditary excise of fifteen pence _per_
barrel on all beer and ale sold in the kingdom, and a proportionable
sum for certain other liquors. So that this hereditary excise, the
nature of which shall be farther explained in the subsequent part of
this chapter, now forms the sixth branch of his majesty's ordinary
revenue.
[Footnote q: 4 Inst. 273.]
[Footnote r: Mod. Un. Hist. xxxiii. 220.]
VII. A SEVENTH branch might also be computed to have arisen from wine
licences; or the rents payable to the crown by such persons as are
licensed to sell wine by retale throughout England, except in a few
privileged places. These were first settled on the crown by the
statute 12 Car. II. c. 25. and, together with the hereditary excise,
made up the equivalent in value for the loss sustained by the
prerogative in the abolition of the military tenures, and the right of
pre-emption and purveyance: but this revenue was abolished by the
statute 30 Geo. II. c. 19. and an annual sum of upwards of L7000 _per
annum_, issuing out of the new stamp duties imposed on wine licences,
was settled on the crown in it's stead.
VIII. AN eighth branch of the king's ordinary revenue is usually
reckoned to consist in the profits arising from his forests. Forests
are waste grounds belonging to the king, replenished with all manner
of beasts of chase or venary; which are under the king's protection,
for the sake of his royal recreation and delight: and, to that end,
and for preservation of the king's game, there are particular laws,
privileges, courts and officers belonging to the king's forests; all
which will be, in their turns, explained in the subsequent books of
these commentaries. What we are now to consider are only the profits
arising to the king from hence; which consist principally in
amercements or fines levied for offences against the forest-laws. But
as few, if any courts of this kind for levying amercements have been
held since 1632, 8 Car. I. and as, from the accounts given of the
proceedings in that court by our histories and law books[s], nobody
would now wish to see them again revived, it is needless (at least in
this place) to pursue this enquiry any farther.
[Footnote s: 1 Jones. 267-298.]
IX. THE profits arising from the king's ordinary courts of justice
make a ninth branch of his revenue. And these consist not only in
fines imposed upon offenders, forfeitures of recognizances, and
amercements levied upon defaulters; but also in certain fees due to
the crown in a variety of legal matters, as, for setting the great
seal to charters, original writs, and other legal proceedings, and for
permitting fines to be levied of lands in order to bar entails, or
otherwise to insure their title. As none of these can be done without
the immediate intervention of the king, by himself or his officers,
the law allows him certain perquisites and profits, as a recompense
for the trouble he undertakes for the public. These, in process of
time, have been almost all granted out to private persons, or else
appropriated to certain particular uses: so that, though our
law-proceedings are still loaded with their payment, very little of
them is now returned into the king's exchequer; for a part of whose
royal maintenance they were originally intended. All future grants of
them however, by the statute 1 Ann. st. 2. c. 7. are to endure for no
longer time than the prince's life who grants them.
X. A TENTH branch of the king's ordinary revenue, said to be grounded
on the consideration of his guarding and protecting the seas from
pirates and robbers, is the right to _royal fish_, which are whale and
sturgeon: and these, when either thrown ashore, or caught near the
coasts, are the property of the king, on account[t] of their superior
excellence. Indeed our ancestors seem to have entertained a very high
notion of the importance of this right; it being the prerogative of
the kings of Denmark and the dukes of Normandy[u]; and from one of
these it was probably derived to our princes. It is expressly claimed
and allowed in the statute _de praerogativa regis_[w]: and the most
antient treatises of law now extant make mention of it[x]; though they
seem to have made a distinction between whale and sturgeon, as was
incidentally observed in a former chapter[y].
[Footnote t: Plowd. 315.]
[Footnote u: Stiernh. _de jure Sueonum._ _l._ 2. _c._ 8. _Gr.
Coustum._ _cap._ 17.]
[Footnote w: 17 Edw. II. c. 11.]
[Footnote x: Bracton. _l._ 3. _c._ 3. Britton. _c._ 17. Fleta. _l._ 1.
_c._ 45 & 46.]
[Footnote y: ch. 4. pag. 216.]
XI. ANOTHER maritime revenue, and founded partly upon 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].
[Footnote z: Dr & St. d. 2. c. 51.]
[Footnote a: Spelm. _Cod. apud_ Wilkins. 305.]
[Footnote b: 26 May, _A.D._ 1174. 1 Rym. _Foed._ 36.]
[Footnote c: Rog. Hoved. _in Ric. I_.]
[Footnote d: In like manner Constantine the great, finding that by the
imperial law the revenue of wrecks was given to the prince's treasury
or _fiscus_, restrained it by an edict (_Cod._ 11. 5. 1.) and ordered
them to remain to the owners; adding this humane expostulation, "_Quod
enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa
compendium sectetur?_"]
[Footnote e: Bract. _l._ 3. _c._ 3.]
[Footnote f: 3 Edw. I. c. 4.]
[Footnote g: Flet. 1. _c._ 44. 2 Inst. 167.]
[Footnote h: Sec. 28.]
[Footnote i: 2 Inst. 168.]
[Footnote k: Plowd. 166.]
[Footnote l: 2 Inst. 168. Bro. Abr. _tit. Wreck_.]
IT is to be observed, that in order to constitute 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 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].
[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. Sec. 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 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
100_l._ 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 200_l._ 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].
[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 constitutions,
punished with the utmost severity all those who neglected to assist
any ship in distress, or plundered any goods cast on shore.
(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 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.
[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 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.
[Footnote u: 3 Inst. 132. Dalt. Sheriffs. c. 16.]
[Footnote w: Britt. c. 17. Finch. L. 177.]
[Footnote x: _l._ 3. _c._ 3. Sec. 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 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].
[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. Sec. 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. tit. Estray._ 1. 3 Bulstr. 19.]