CHAPTER THE TWENTY-SEVENTH. OF TITLE BY PREROGATIVE, AND FORFEITURE. A second method of acquiring property in personal chattels is by the king's prerogative: whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by grant or by prescription.9 9 Such in the first place are all tributes, taxes, and customs; whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis or antient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former volume. In these the king acquires and the subject loses a property the instant they become due: if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his antient prerogative, or by particular modern statutes: which revenues created by statute do always assimilate, or take the same nature, with the antient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it. [409] In these several 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 such a one as is not capable of division or separation; but where the titles of the king 9 Ninth edition inserts," the king's." 9 Ninth edition inserts, "which supposes an antient grant." b and a subject concur, the king shall have the whole : in like manner as the king can, neither by grant nor contract, become a joint tenant of a chattel real with another person; but by such grant or contract shall become entitled to the whole in severalty. Thus, if a horse be given to the king and a private person, the king shall have the sole property: if a bond be made to the king and a subject, the king shall have the whole penalty; the debt or duty being one single chattel; and, so, if two persons have the property of a horse between them, or have a joint debt owing them on bond, and one of them assigns his part to the king, or is attainted, whereby his moiety is forfeited to the crown; the king shall have the entire horse, and entire debt. For, as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever lose his right in any instance; but, where they interfere, his is always preferred to that of another person: from which two principles it is a necessary consequence, that the innocent, though unfortunate, partner must lose his share in both the debt and the horse, or in any other chattel in the same circumstances. d 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 vested are originally and solely vested in the crown, without any transfer or derivative assignment either by deed or law from any former proprietor. Such is the acquisition of property in wreck, in treasure-trove, in waifs, in estrays, in royal fish, in swans and the [410] like; which are not transferred to the sovereign from any former owner, but are originally inherent in him by the rules of law, and are derived to particular subjects, as a See pag. 184. b Fitzh. Abr. t. dette. 38. Plowd. 243. c Cro. Eliz. 263. Plowd. 323. Finch. Law. 178. 10 Mod. 245. d Co. Litt. 30. 8 Previously spelt, "intitled." royal franchises, by his bounty. These are ascribed to him, partly upon the particular reasons 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 preserve the peace of the public, as in trust to employ them for the safety and ornament of the commonwealth. 8 There is also a kind of prerogative copyright subsisting in certain books, which is held to be vested 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 exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council. 2. As supreme head of the church, he hath a right to the publication of all liturgies and books of divine service. 3. He is also said to have a right by purchase to the copies of such law books, grammars, and other compositions, as were compiled or translated at the expence of the crown. And upon these two last principles, combined, the exclusive right of printing the translation of the bible is founded. There still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals feræ naturæ, as are known by the denomination of game, with the right of pursuing, taking, and destroying them: which is vested in the king alone, and from him derived to such of his subjects as have 8 Previously, "With regard to the prerogative copyrights, which were mentioned in the preceding chapter, they are.' 8 Previously, "hath." 8 Prior editions have here, "4. Almanacks have been said to be prerogative-copies, either as things derelict, or else as being substantially nothing more than the calendar prefixed to our liturgy.c And indeed the regulation of time has been often considered as a matter of state. The Roman fasti were under the care of the pontifical college: and Romulus, Núma, and Julius Cæsar, successively regulated the Roman calendar." [c 1 Mod. 257.] received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an 'inquiry1 concerning the original of these franchises, or royalties, on which we touched a little in a former chapter;' [411] the right itself being an incorporeal hereditament, though the fruits and profits of it are of a personal nature. In the first place then we have already shewn, and indeed it cannot be denied, that by the law of nature every man from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are feræ naturæ, and therefore the property of nobody, but liable to be seized by the first occupant. And so it was held by the imperial law, even so late as Justinian's time: "feræ igitur bestiæ, et volucres, et omnia animalia quæ mari, cœlo, et terra nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt. Quod enim nullius est, id naturali ratione occupanti conceditur." But it follows from the very end and constitution of society, that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state, or for the supposed 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 subject of this right; or with respect to the persons allowed or forbidden to exercise it. And, in consequence of this authority, we find that the municipal laws of many nations have exerted such power of restraint; have in general forbidden the entering on another man's grounds, for any cause without the owner's leave; have extended their protection to such particular animals as are usually the f pag. 38, 39. g Inst. 2. 1. 12. 4 Previously spelt, "enquiry." *Cited, 97 Ill. 333. + Cited, 53 N. H. 411; 16 Am. Rep. 356; 59 N. H. 486. objects of pursuit; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall authorize." Many reasons have concurred for making these constitutions: as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclusive dominion over his own soil. 2. For preservation of the several species of these animals, which would soon be extirpated by a general liberty.* 3. For prevention of idleness and dissipation in husbandmen, artificers, and [412] others of lower rank; which would be the unavoidable consequence of universal licence. 4. For prevention of popular insurrections and resistance to the government, by disarming the bulk of the people: which last is a reason oftener meant, than avowed, by the makers of forest or game laws. Nor, certainly, in these prohibitions is there any natural injustice, as some have weakly enough supposed since, as Puffendorf observes, the law does not hereby take from any man his present property, or what was already his own, but barely abridges him of one means of acquiring a future property, that of occupancy; which indeed the law of nature would allow him, but of which the laws of society have in most instances very justly and reasonably deprived him. Yet, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must notwithstanding acknowlege that, in their present shape, they owe their immediate original to slavery. It is not till after the irruption of the northern nations into the Roman empire, that we read h Puff. L. N. 1. 4. c. 6. 5. i Warburton's alliance. 324. 4 Previously, "preventing." t-t Quoted, 14 Conn. 6; 35 Am. Dec. 99. Cited, 49 N. H. 576. |