in the owner. The 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 to 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. [ *296] Formerly all treasure-trove belonged to the finder; (y) as was also the rule of the civil law. (2) 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 deserts. 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. Waifs, bona waviata are goods stolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. (9) 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 [ *297] 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 seized by somebody for his use; for if the party robbed can seize 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. 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 (y) Bracton, l. 3, c. 3, 3 Inst. 133. (2) Ff. 41, 1. 31. (c) 3 Inst. 133. (b) Glanv. l. 1, c. 2. Crag. 1, 16, 46. (h) Fitz. Abr. tit. (a) De jur. b. & p. l. 2, c. 8, § 7. (9) [And this though left by him at a common inn. 2 Rol. 809, c. 15. If so left to ease him in his flight. For if he leave a stolen horse at a common inn for his meal, it is no waif. Id. c. 10.] This doctrine does not obtain in America. Goods waived may be reclaimed by the real owner. 2 Kent, 358. 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 [*298] of a year was allowed for the owner to reclaim his property. (1) If the owner claims them within the year and day he must pay the charges of finding, keeping and proclaiming them. (m) (10) 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 beasts may be estrays that are 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 them, pecus vagans, quod nullus petit, sequitur vel advocat. For animals upon which the law sets no value, as a dog or cat, and animals feræ naturæ, 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 preserve it from damage; (7) 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) 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 belong to the first occupant or finder; and so continued under the *imperial law. But, in settling the modern con[*299] stitutions 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 (i) Mirr. c. 3, § 19. (k) 5 Rep. 108. Bro. Abr. tit. Estray. Cro. Eliz. 716. (m) Dalt. Sh. 79. (g) 1 Roll. Abr. 889. (n) Finch. L. 177. (1) Stiernh. de jur. Gothor. l. 3, c. 5. (10) [But if any other person finds and takes care of another's property, not being entitled to it as an estray (nor being saved at sea, or in other cases where the law of salvage applies,) the owner may recover it or its value, without being obliged to pay the expenses of keeping. 2 Bl. Rep. 1117; 2 Hen. Bl. 254.] By statutes in the several states of the Union, provision is made for taking charge of estrays, either by a township officer designated for the purpose, or by the person taking them; and after a reasonable period, and duly advertising the same, if the owner does not reclaim the estray, it is sold to satisfy charges. Any surplus that may remain is retained for the owner, or devoted to some charitable purpose. These statutes must be followed strictly, or the title of the owner will not be divested by them. Newsom v. Hart, 14 Mich. 233; Hyde v. Pryor, 13 Ill. 64; Smith v. Ewers, 21 Ala. 38. that, as Bracton expresses it, (t) hæc quæ nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium. (11) 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 belong 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 movables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immovables 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 misdemeanors. I therefore only mention them here, for *the sake of regularity, as a part of the census regalis; and shall postpone for the [*300] 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. (12) 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; (v) 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 age 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 (t) L. 1, c. 12. (v) 1 Hal. P. C. 419. Fleta, l. 1, c. 25. (x) 3 Inst. 57. 1 Hal. P. C. 422. (11) [This passage has been thought inconsistent with the doctrine stated supra p. 295, viz. : that all things found in the sea or upon the earth belong not to the king, but to the finder, which is undoubtedly the general rule. But in the particular cases enumerated in the text, the positive law has, for certain special reasons, given the enumerated articles to the crown; and in this passage Blackstone is merely assigning as an additional reason why the crown should have them, this circumstance, that the operation of the general rule would confer them on the first finder, as being bona vacantia.] (12) [The statute of 54 Geo. III, c. 145, greatly relaxed the law of forfeiture, so far as landed property is concerned; and the statute of 3 and 4 Wm. IV, c. 106, s. 10, is still more liberal. No attainder of felony now extends to the disinheriting of any heir, or to the prejudice of the right or title of any other person than the offender, except during his natural life only. And with respect to forfeitures of personal property, the crown exercises its rights very leniently; in cases where indulgence to the families of offenders can reasonably be asked, a proper representation rarely (I believe never) fails to meet attention. Homicide, not felonious, now entails no forfeiture, by virtue of the stat. 9 Geo. IV, c. 31, s. 10.] By the constitution of the United States "no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." Forfeitures of estate and corruption of blood for offenses against the United States were abolished by statute in 1790: 1 Stat. at Large, 117; and although during the late civil war statutes were passed for the confiscation of property of persons convicted of treason, but few proceedings were had under them, and the property seized was for the most part relieved from them under the president's power to reprieve and pardon. thence and is killed, the thing is certainly forfeited. For the reason given by Sir Mathew 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 imbecility 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 have been, that the child, by reason of its want of discretion, was presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses; but every adult, who died in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the English law. 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 [ *301] 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: (2) " 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. (13) Where a thing not in motion, is the occasion of a man's death, that part only which is the imme diate cause is forfeited; as, if a man be climbing up the wheel of a cart, 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 by 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 [*302] jurisdiction of the common law: but if a *man falls from a boat or ship in fresh water, and is drowned, it hath been said, that the vessel and cargo are in strictness of law a deodand. (g) But juries have of late very frequently taken upon themselves to mitigate these forfeitures, by finding only some trifling thing, or part of an entire thing, to have been the occasion of the death. And in such cases, although the finding by the jury be hardly warrantable by law, the court of king's bench hath generally refused to interfere on behalf of the lord of the franchise, to assist so unequitable a claim. (h) (14) (y) Omnia, quæ movent ad mortem, sunt Deo danda. Bracton, l. 3, c. 5. (≈) Exod. xxi. 28. (a) Eschin, cont. Ctesiph. Thus, too, by our ancient law, a well in which a person was drowned was ordered to be filled up, under the inspection of the coroner. Flet. l. 1, c. 25, § 10. Fitzh. Abr. t. corone. 416. (b) 1 Hal. P. C. 422. (c) 1 Hawk. P. C. c. 26. (d) A similar rule obtained among the ancient Goths. Si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex ædibus 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 mea numeratur, habuisse vel ædificasse aliquod quo homo periret. Stiernhook, de jurë Goth, 1. (f) 3 Inst. 57. 3. c. 4. (e) Dr. and St. d. 2. c. 51. (g) 3 Inst. 58. 1 Hal. P. C. 423. Molloy, de Jur. Maritim. 2, 225. (h) Foster, of Homicide, 266. (13) [This was one of Draco's laws; and perhaps we may think the judgment, that a statue should be thrown into the sea for having fallen upon a man, less absurd, when we reflect that there may be sound policy in teaching the mind to contemplate with horror the privation of human life, and that our familiarity even with an insensible object which has been the occasion of death, may lessen that sentiment. Though there may be wisdom in withdrawing such a thing from public view, yet there can be none in treating it as if it was capable of understanding the ends of punishment.] (14) [Deodands were abolished by stat. 9 and 10 Vic. c. 62, which enacts that "there shall be no 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. But 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. the discussion of this tropic 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. (15) 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 [*303] 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,) (7) 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 disinherited. (16) By the old common law there is a writ de idiota inquirendo, to inquire 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 idota, 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 feudal tenures, which has been since abolished. (0) 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, (h) Flet. l. 1. c. 11, § 10. (i) Dyer. 302. Hutt. 17. Nov. 27. (k) F. N. B, 232. (7) 4 Rep. 126. Memorand. Scacc. 20 Edw. I. (prefixed to Maynard's Year Book of Edw. II.) fol. 20, 24. (m) F. N. B. 232. (p) 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. (o) 4 Inst. 203. Com. Journ. 1610. forfeiture of any chattel for or in respect of the same having moved to or caused the death of man." (15) Within the states of the American Union, escheats for defect of heirs are to the state in which the property is situate, and not to the United States. (16) [The jurisdiction which the chancellor has generally, or perhaps always, exercised over the persons and estates of lunatics and idiots, is not necessarily annexed to the custody of the great seal; for it has been declared by the house of lords, "that the custody of idiots and lunatics was in the power of the king, who might delegate the same to such person as he should think fit." And upon every change of the great seal, a special authority under his majesty's royal sign manual is granted to the new chancellor for that purpose. Hence no appeal lies from the chancellor's orders upon this subject to the house of lords, but to the king in council. Dom. Proc. 14 Feb. 1726, 3 P. Wms. 108.] |