CHAPTER THE TWENTY-SEVENTH.

OF TITLE BY PREROGATIVE,

AND

FORFEITURE.

A

SECOND method of acquiring property in perfonal chattels is by the king's prerogative: whereby a right may accrue either to the crown itself, or to fuch as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an antient grant.

SUCH in the firft place are all tributes, taxes, and cuftoms, whether conftitutionally inherent in the crown, as flowers of the prerogative and branches of the cenfus regalis or antient royal revenue, or whether they be occafionally created by authority of parliament; of both which fpecies of revenue we treated largely in the former volume. In these the king acquires and the fubject lofes a property, the inftant they become due: if paid, they are a chofe in poffeffion; if unpaid, a chofe in action. Hither alfo may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his antient prerogative, or by particular modera ftatutes which revenues created by ftatute do always affimilate, or take the fame nature, with the antient revenues; and may therefore be looked upon as arifing from a kind of artificial or fecondary prerogative. And, in either cafe, the owner of the thing forfeited, and the perfon fined or amerced, lofe and part with the property of the forfeiture, fine, or amercement, the inftant the king or his grantee acquires it.

409 In these feveral methods of acquiring property by prerogative there is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or fuch a one as is not capable of divifion or feparation; but where the titles of the king and a fubject concur, the king fhall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another perfon; but by such grant or contract shall become entitled to the whole in feveralty. Thus, if a horfe be given to the king and a private person, the king shall have the fole property: if a bond be made to the king and a subject, the king fhall have the whole penalty; the debt or duty being one fingle chattel; and fo, if two perfons have the property of a horfe between them, or have a joint debt owing them on bond, and one of them afligns his part to the king, or is attainted, whereby his moiety is forfeited to the crown; the king fhall have the entire horse, and entire debt. For, as it is not confiftent with the dignity of the crown to be partner with a subject, so neither does the king ever lose his right in any inftance; but where they interfere, his is always preferred to that of another perfon: from which two principles it is a neceffary confequence, that the innocent though unfortunate partner muft lofe his fhare in both the debt and the horfe, or in any other chattel in the fame circumstances (1).

a See pag. 184.

b Fitzh. Abr. t. dette. 38. Plowd. 243.

Cro. Eliz. 263. Plowd. 323. Finch, Law. 178. 10 Mod. 245.

J Co. Litt. 30.

This was

(1) If a joint-tenant of any chattel interest commits fuicide, the right to the whole chattel becomes vefted in the king. decided after much folemn and fubtle argument in 3 Eliz. The cafe is reported by Plowd. 262. Eng. ed. Sir James Hales, a judge of the common pleas, and his wife were joint-tenants of a term for years; fir James drowned himself, and was found felo de fe; and it was held that the term did not furvive to the wife, but that fir James's intereft was forfeited to the king by the felony, and that it confequently drew the wife's intereft along with it. The argu

ment

THIS doctrine has no opportunity to take place in certain other instances of title by prerogative, that remain to be mentioned; as the chattels thereby vefted are originally and folely vested in the crown, without any transfer or derivative affignment either by deed or law from any former proprietor. Such is the acquifition of property in wreck, in treasuretrove, in waifs, in eftrays, in royal fish, in fwans, and the [410] like; which are not transferred to the fovereign from any

former owner, but are originally inherent in him by the rules of law, and are derived to particular fubjects, as royal franchifes, by his bounty. These are afcribed to him, partly upon the particular reafons mentioned in the eighth chapter of the former book; and partly upon the general principle of their being bona vacantia, and therefore vested in the king, as well to preferve the peace of the public, as in trust to employ them for the fafety and ornament of the common, wealth.

ment of lord Chief Juflice Dyer is remarkably curious: "The felony (fays he) is attributed to the act; which act is always done "by a living man, and in his lifetime, as my brother Brown faid; "for he faid fir James Hales was dead; and how came he to his "death? It may be answered by drowning; and who drowned him? "fir James Hales; and when did he drown him? in his lifetime. "So that fir James Hales being alive, caufed fir James Hales to “ die; and the act of the living man was the death of the dead And then for this offence it is reasonable to punish the living man who committed the offence, and not the dead man. "But how can he be faid to be punished alive, when the punish"ment comes after his death? Sir, this can be done no other way "but by divesting out of him, from the time of the act done in his

* man.

66

lifetime, which was the caufe of his death, the title and pro

perty of those things which he had in his lifetime."

This must have been a cafe of notoriety in the time of Shakefpeare; and it is not improbable that he intended to ridicule this legal logic by the reafoning of the grave-digger in Hamlet upon the drowning of Ophelia. See Sir J. Hawkins's note in Stephens's edition.

THERE

THERE is also a kind of prerogative copyright subsisting in certain books, which is held to be vefted in the crown upon different reasons. Thus, 1. The king, as the executive magistrate, has the right of promulging to the people all acts of state and government. This gives him the exclufive privilege of printing, at his own prefs, or that of his grantees, all acts of parliament, proclamations, and orders of council. 2. As fupreme head of the church, he hath a right to the publication of all liturgies and books of divine fervice. 3. He is alfo faid to have a right by purchase to the copies of fuch law books, grammars, and other compofitions, as were compiled or tranflated at the expence of the crown. And upon these two last principles, combined, the exclusive right of printing the tranflation of the bible is founded.

THERE ftill remains another fpecies of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of fuch animals ferae naturae, as are known by the denomination of game, with the right of pursuing, taking, and destroying them: which is vefted in the king alone, and from him derived to [411] fuch of his fubjects as have received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an inquiry concerning the original of thefe franchises, or royalties, on which we touched a little in a former chapter f: the right itself being an incorporeal hereditament, though the fruits and profits of it are of a perfonal nature.

In the first place then we have already fhewn, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peafant, has an equal right of pursuing, and taking to his own use, all fuch creatures as are ferae naturae, and therefore the property of nobody, but liable to be seised by the first occupant. And so it was held by the imperial law, even fo late as Juftinian's time: "ferae " igitur beftiae, et volucres, et omnia animalia quae mari, cœlo, "et terra nafcantur, fimul atque ab aliquo capta fuerint, jure

[412]

gentium fatim illius effe incipiant. Quod enim nullius eft, ið « naturali ratione occupanti conceditur &." But it follows from the very end and conftitution of society, that this natural right, as well as many others belonging to man as an individual, may be reftrained by pofitive laws enacted for reasons of ftate, or for the fuppofed benefit of the community. This restriction may be either with respect to the place in which this right may, or may not, be exercised; with respect to the animals that are the fubject of this right; or with refpect to the perfons allowed or forbidden to exercife it. And, in confequence of this authority, we find that the municipal laws of many nations have exerted fuch power of restraint; have in general forbidden the entering on another man's grounds, for any caufe, without the owner's leave; have extended their protection to fuch particular animals as are usually the objects of purfuit; and have invefted the prerogative of hunting and taking fuch animals in the fovereign of the state only, and fuch as he fhall authorife. Many reafons have concurred for making these conftitutions: as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclufive dominion over his own foil. 2. For preservation of the feveral fpecies of these animals, which would foon be extirpated by a general liberty. 3. For prevention of idleness and diffipation in hufbandmen, artificers, and others of lower rank; which would be the unavoidable confequence of univerfal licence. 4. For prevention of popular infurrections and resistance to the government, by difarming the bulk of the people: which laft is a reafon oftner meant, than avowed, by the makers of foreft or game laws (2). Nor, i Warburton's alliance. 324.

.& Inft. 2. 1. 12.

h Puff. L. N. 1. 4. c. 6. § 5.

་

(2) I am inclined to think that this reafon did not operate upon the minds of thofe who framed the game laws of this country; for in feveral ancient ftatutes the avowed object is to encourage the ufe of the long bow, the most effective armour then in ufe: and even fince the modern practice of killing game with a gun has prevailed,