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].
[Footnote i: Mirr. c. 3. Sec. 19.]
[Footnote k: 5 Rep. 108. Bro. _Abr. tit. 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 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_.
[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 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_.
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 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 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.
[Footnote u: 1 Hal. P.C. 419. Fleta. _l._ 1. _c._ 25.]
[Footnote w: Fitzh. _Abr. tit. Enditement._ _pl._ 27. Staunf. P.C. 20,
21.]
[Footnote x: 3 Inst. 57. 1 Hal. P.C. 422.]
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 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].
[Footnote y: _Omnia, quae movent ad mortem, sunt Deo danda._ Bracton.
_l._ 3. _c._ 5.]
[Footnote z: Exod. 21. 28.]
[Footnote a: Aeschin. _contr. Ctesiph._]
[Footnote b: 1 Hal. P.C. 422.]
[Footnote c: 1 Hawk. P.C. c. 26.]
[Footnote d: A similar rule obtained among the antient Goths. _Si
quis, me nesciente, quocunque meo telo vel instrumento in perniciem
suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum,
quantumvis tectum et munitum, vel in cataractam, et sub molendino meo
confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis
meae numeretur, habuisse vel aedificasse aliquod quo homo periret._
Stiernhook _de jure Goth._ _l._ 3. _c._ 4.]
[Footnote e: Dr & St. d. 2. c. 51.]
[Footnote f: 3 Inst. 57.]
[Footnote g: 3 Inst. 58. 1 Hal. P.C. 423. Molloy _de jur. maritim._ 2.
225.]
DEODANDS, and forfeitures in general, as well as wrecks, 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.
XVII. ANOTHER branch of the king's ordinary revenue arises from
escheats of lands, which happen upon the defect of heirs to succeed to
the inheritance; whereupon they in general revert to and vest in the
king, who is esteemed, in the eye of the law, the original proprietor
of all the lands in the kingdom. But the discussion of this topic more
properly belongs to the second book of these commentaries, wherein we
shall particularly consider the manner in which lands may be acquired
or lost by escheat.
XVIII. I PROCEED therefore to the eighteenth and last branch of the
king's ordinary revenue; which consists in the custody of idiots, from
whence we shall be naturally led to consider also the custody of
lunatics.
AN idiot, or natural fool, is one that hath had no understanding from
his nativity; and therefore is by law presumed never likely to attain
any. For which reason the custody of him and of his lands was formerly
vested in the lord of the fee[h]; (and therefore still, by special
custom, in some manors the lord shall have the ordering of idiot and
lunatic copyholders[i]) but, by reason of the manifold abuses of this
power by subjects, it was at last provided by common consent, that it
should be given to the king, as the general conservator of his people,
in order to prevent the idiot from wasting his estate, and reducing
himself and his heirs to poverty and distress[k]: This fiscal
prerogative of the king is declared in parliament by statute 17 Edw.
II. c. 9. which directs (in affirmance of the common law[l],) that the
king shall have ward of the lands of natural fools, taking the profits
without waste or destruction, and shall find them necessaries; and
after the death of such idiots he shall render the estate to the
heirs; in order to prevent such idiots from aliening their lands, and
their heirs from being disherited.
[Footnote h: Flet. _l._ 1. _c._ 11. Sec. 10.]
[Footnote i: Dyer. 302. Hutt. 17. Noy 27.]
[Footnote k: F.N.B. 232.]
[Footnote l: 4 Rep. 126.]
BY the old common law there is a writ _de idiota inquirendo_, to
enquire whether a man be an idiot or not[m]: which must be tried by a
jury of twelve men; and if they find him _purus idiota_, the profits
of his lands, and the custody of his person may be granted by the king
to some subject, who has interest enough to obtain them[n]. This
branch of the revenue hath been long considered as a hardship upon
private families; and so long ago as in the 8 Jac. I. it was under the
consideration of parliament, to vest this custody in the relations of
the party, and to settle an equivalent on the crown in lieu of it; it
being then proposed to share the same fate with the slavery of the
feodal tenures, which has been since abolished[o]. Yet few instances
can be given of the oppressive exertion of it, since it seldom happens
that a jury finds a man an idiot _a nativitate_, but only _non compos
mentis_ from some particular time; which has an operation very
different in point of law.
[Footnote m: F.N.B. 232.]
[Footnote n: This power, though of late very rarely exerted, is still
alluded to in common speech, by that usual expression of _begging_ a
man for a fool.]
[Footnote o: 4. Inst. 203. Com. Journ. 1610.]
A MAN is not an idiot[p], if he hath any glimmering of reason, so that
he can tell his parents, his age, or the like common matters. But a
man who is born deaf, dumb, and blind, is looked upon by the law as in
the same state with an idiot[q]; he being supposed incapable of
understanding, as wanting those senses which furnish the human mind
with ideas.
[Footnote p: F.N.B. 233.]
[Footnote q: Co. Litt. 42. Fleta. _l._ 6. _c._ 40.]
A LUNATIC, or _non compos mentis_, is one who hath had understanding,
but by disease, grief, or other accident hath lost the use of his
reason. A lunatic is indeed properly one that hath lucid intervals;
sometimes enjoying his senses, and sometimes not, and that frequently
depending upon the change of the moon. But under the general name of
_non compos mentis_ (which sir Edward Coke says is the most legal
name[r]) are comprized not only lunatics, but persons under frenzies;
or who lose their intellects by disease; those that _grow_ deaf, dumb,
and blind, not being _born_ so; or such, in short, as are by any means
rendered incapable of conducting their own affairs. To these also, as
well as idiots, the king is guardian, but to a very different purpose.
For the law always imagines, that these accidental misfortunes may be
removed; and therefore only constitutes the crown a trustee for the
unfortunate persons, to protect their property, and to account to them
for all profits received, if they recover, or after their decease to
their representatives. And therefore it is declared by the statute 17
Edw. II. c. 10. that the king shall provide for the custody and
sustentation of lunatics, and preserve their lands and the profits of
them, for their use, when they come to their right mind: and the king
shall take nothing to his own use; and if the parties die in such
estate, the residue shall be distributed for their souls by the advice
of the ordinary, and of course (by the subsequent amendments of the
law of administrations) shall now go to their executors or
administrators.
[Footnote r: 1 Inst. 246.]
THE method of proving a person _non compos_ is very similar to that of
proving him an idiot. The lord chancellor, to whom, by special
authority from the king, the custody of idiots and lunatics is
intrusted[s], upon petition or information, grants a commission in
nature of the writ _de idiota inquirendo_, to enquire into the party's
state of mind; and if he be found _non compos_, he usually commits the
care of his person, with a suitable allowance for his maintenance, to
some friend, who is then called his committee. However, to prevent
sinister practices, the next heir is never permitted to be this
committee of the person; because it is his interest that the party
should die. But, it hath been said, there lies not the same objection
against his next of kin, provided he be not his heir; for it is his
interest to preserve the lunatic's life, in order to increase the
personal estate by savings, which he or his family may hereafter be
entitled to enjoy[t]. The heir is generally made the manager or
committee of the estate, it being clearly his interest by good
management to keep it in condition; accountable however to the court
of chancery, and to the _non compos_ himself, if he recovers; or
otherwise, to his administrators.
[Footnote s: 3 P. Wms. 108.]
[Footnote t: 2 P. Wms. 638.]
IN this care of idiots and lunatics the civil law agrees with ours; by
assigning them tutors to protect their persons, and curators to manage
their estates. But in another instance the Roman law goes much beyond
the English. For, if a man by notorious prodigality was in danger of
wasting his estate, he was looked upon as _non compos_ and committed
to the care of curators or tutors by the praetor[u]. And by the laws
of Solon such prodigals were branded with perpetual infamy[w]. But
with us, when a man on an inquest of idiocy hath been returned an
_unthrift_ and not an _idiot_[x], no farther proceedings have been
had. And the propriety of the practice itself seems to be very
questionable. It was doubtless an excellent method of benefiting the
individual and of preserving estates in families; but it hardly seems
calculated for the genius of a free nation, who claim and exercise the
liberty of using their own property as they please. "_Sic utere tuo,
ut alienum non laedas_," is the only restriction our laws have given
with regard to oeconomical prudence. And the frequent circulation and
transfer of lands and other property, which cannot be effected
without extravagance somewhere, are perhaps not a little conducive
towards keeping our mixed constitution in it's due health and vigour.
[Footnote u: _Solent praetores, si talem hominem invenerint, qui neque
tempus neque finem expensarum habet, sed bona sua dilacerando et
dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu
erunt ambo in curatione, quamdiu vel furiosus sanitatem, vel ille
bonos mores, receperit._ _Ff._ 27. 10. 1.]
[Footnote w: Potter. Antiqu. b. 1. c. 26.]
[Footnote x: Bro. _Abr. tit. Ideot._ 4.]
THIS may suffice for a short view of the king's _ordinary_ revenue, or
the proper patrimony of the crown; which was very large formerly, and
capable of being increased to a magnitude truly formidable: for there
are very few estates in the kingdom, that have not, at some period or
other since the Norman conquest, been vested in the hands of the king
by forfeiture, escheat, or otherwise. But, fortunately for the liberty
of the subject, this hereditary landed revenue, by a series of
improvident management, is sunk almost to nothing; and the casual
profits, arising from the other branches of the _census regalis_, are
likewise almost all of them alienated from the crown. In order to
supply the deficiences of which, we are now obliged to have recourse
to new methods of raising money, unknown to our early ancestors; which
methods constitute the king's _extraordinary_ revenue. For, the
publick patrimony being got into the hands of private subjects, it is
but reasonable that private contributions should supply the public
service. Which, though it may perhaps fall harder upon some
individuals, whose ancestors have had no share in the general plunder,
than upon others, yet, taking the nation throughout, it amounts to
nearly the same; provided the gain by the extraordinary, should appear
to be no greater than the loss by the ordinary, revenue. And perhaps,
if every gentleman in the kingdom was to be stripped of such of his
lands as were formerly the property of the crown; was to be again
subject to the inconveniences of purveyance and pre-emption, the
oppression of forest laws, and the slavery of feodal tenures; and was
to resign into the king's hands all his royal franchises of waifs,
wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the
like; he would find himself a greater loser, than by paying his
_quota_ to such taxes, as are necessary to the support of government.
The thing therefore to be wished and aimed at in a land of liberty, is
by no means the total abolition of taxes, which would draw after it
very pernicious consequences, and the very supposition of which is the
height of political absurdity. For as the true idea of government and
magistracy will be found to consist in this, that some few men are
deputed by many others to preside over public affairs, so that
individuals may the better be enabled to attend to their private
concerns; it is necessary that those individuals should be bound to
contribute a portion of their private gains, in order to support that
government, and reward that magistracy, which protects them in the
enjoyment of their respective properties. But the things to be aimed
at are wisdom and moderation, not only in granting, but also in the
method of raising, the necessary supplies; by contriving to do both in
such a manner as may be most conducive to the national welfare and at
the same time most consistent with oeconomy and the liberty of the
subject; who, when properly taxed, contributes only, as was before
observed[y], some part of his property, in order to enjoy the rest.
[Footnote y: pag. 271.]
THESE extraordinary grants are usually called by the synonymous names
of aids, subsidies, and supplies; and are granted, we have formerly
seen[z], by the commons of Great Britain, in parliament assembled:
who, when they have voted a supply to his majesty, and settled the
_quantum_ of that supply, usually resolve themselves into what is
called a committee of ways and means, to consider of the ways and
means of raising the supply so voted. And in this committee every
member (though it is looked upon as the peculiar province of the
chancellor of the exchequer) may propose such scheme of taxation as he
thinks will be least detrimental to the public. The resolutions of
this committee (when approved by a vote of the house) are in general
esteemed to be (as it were) final and conclusive. For, through
[Transcriber's Note: though] the supply cannot be actually raised upon
the subject till directed by an act of the whole parliament, yet no
monied man will scruple to advance to the government any quantity of
ready cash, on the credit of a bare vote of the house of commons,
though no law be yet passed to establish it.
[Footnote z: pag. 163.]
THE taxes, which are raised upon the subject, are either annual or
perpetual. The usual annual taxes are those upon land and malt.
I. THE land tax, in it's modern shape, has superseded all the former
methods of rating either property, or persons in respect of their
property, whether by tenths or fifteenths, subsidies on land, hydages,
scutages, or talliages; a short explication of which will greatly
assist us in understanding our antient laws and history.
TENTHS, and fifteenths[a], were temporary aids issuing out of personal
property, and granted to the king by parliament. They were formerly
the real tenth or fifteenth part of all the moveables belonging to the
subject; when such moveables, or personal estates, were a very
different and a much less considerable thing than what they usually
are at this day. Tenths are said to have been first granted under
Henry the second, who took advantage of the fashionable zeal for
croisades to introduce this new taxation, in order to defray the
expense of a pious expedition to Palestine, which he really or
seemingly had projected against Saladine emperor of the Saracens;
whence it was originally denominated the Saladine tenth[b]. But
afterwards fifteenths were more usually granted than tenths.
Originally the amount of these taxes was uncertain, being levied by
assessments new made at every fresh grant of the commons, a commission
for which is preserved by Matthew Paris[c]: but it was at length
reduced to a certainty in the eighth of Edw. III. when, by virtue of
the king's commission, new taxations were made of every township,
borough, and city in the kingdom, and recorded in the exchequer; which
rate was, at the time, the fifteenth part of the value of every
township, the whole amounting to about 29000_l._ and therefore it
still kept up the name of a fifteenth, when, by the alteration of the
value of money and the encrease of personal property, things came to
be in a very different situation. So that when, of later years, the
commons granted the king a fifteenth, every parish in England
immediately knew their proportion of it; that is, the same identical
sum that was assessed by the same aid in the eighth of Edw. III; and
then raised it by a rate among themselves, and returned it into the
royal exchequer.
[Footnote a: 2 Inst. 77. 4 Inst. 34.]
[Footnote b: Hoved. _A.D._ 1188. Carte. 1. 719. Hume. 1. 329.]
[Footnote c: _A.D._ 1232.]