Sivut kuvina

subject in a
ble of division;




not have a joint property with any person in one entire property with a chattel, or such a one as is not capable of division or sepa- chattel not caparation; but where the titles of the king and a subject con- but in such case cur, the king shall have the whole: in like manner as the the whole in seking cannot, either by grant or contract, become a jointtenant of a chattel real with another person (a), 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(b); 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 (c). 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(d): 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 (2).

(a) See pag. 184.

(c) Cro. Eliz. 263 ; Plowd. 323 ; (6) Fitzh. Abr. t. Dette, 38; Plowd. Finch, Law, 178; 10 Mod. 245. 243.

(d) Co. Litt. 30.

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(2) See Vol. I. p. 299. Mr. Chris- consequently drew the wife's interest tian observes, that “ if a joint-tenant along with it. The argument of Lord of any chattel interest commits sui. Chief Justice Dyer is remarkably cucide, the right to the whole chattel rious : • The felony (says he) is becomes vested in the king. This attributed to the act; which act is was decided after much solemn and always done by a living man, and in subtle argument in 3 Eliz. The case his lifetime, as my brother Brown is reported by Plowd. 262, Eng. ed. • said ; for he said Sir James Hales Sir James Hales, a judge of the Com. was dead; and how came he to his mon Pleas, and his wife, were joint- • death? It may be answered, by tenants of a term for years : Sir James • drowning; and who drowned him ? drowned himself, and was found felo • Sir James Hales; and when did he de se; and it was held that the term drown him ? in his lifetime. So did not survive to the wife, but that • that Sir James Hales, being alive, Sir James's interest was forfeited to caused Sir James Hales to die ; and the king by the felony, and that it 'the act of the living man was the

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Wreck, treasure- This doctrine has no opportunity to take place in certain trove, waifs, estrays, &c. 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(3), in waifs, in estrays, in royal fish, in swans, [ * 410 ) and the #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 royal franchises (4), 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(5), 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 orna

ment of the commonwealth. Copyrights. There is also a kind of prerogative copyright(6) 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 cts 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 expense of the



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· death of the dead man. And then, notoriety in the time of Shakspeare ;
• for this offence, it is reasonable to and it is not improbable that he in-
• punish the living man who com- tended to ridicule this legal logic by
• mitted the offence, and not the dead the reasoning of the grave-digger in

man. But how can he be said to be Hamlet upon the drowning of Ophelia.
punished alive, when the punish- See Sir J. Hawkins's note in Ste-
* ment comes after his death? Sir, phens's edition.”
• this can be done no other way but (3) See Vol. I. p. 295.

by divesting out of him, from the (4) See ante, pp. 37, 40, with the
• time of the act done in his lifetime, notes thereto.
· which was the cause of his death, (5) See Vol. I. p. 298.
- the title and property of those things (6) See ante, p. 407, with the note
• which he had in his lifetime.'

thereto. “ This must have been a case of

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the taking of

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 pro- Game. perty, founded upon a very different principle from any that have been mentioned before; the property of such animals fere nature, 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 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 these franchises, or royalties, on which we touched a little in a former chapter (f): *the right itself being an incorporeal heredi- [ *411 ] tament, though the fruits and profits of it are of a personal nature.

In the first place, then, we have already shown, and in- Restrictions on deed it cannot be denied, that by the law of nature every game. man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are fere nature, 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: fere igitur bestiæ, et volucres, et omnia animalia quæ mari, cælo, et terra nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt. Quod enim nullius est, id naturali ratione occupanti conceditur(g). 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(7), 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

(5) Pag. 38, 39.

(9) Inst. 2, 1. 12.

(7) See ante, p. 8, with the note at the foot thereof.

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 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 authorise(h). Many reasons have concurred for making these constitutions (8): 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 husband[ * 412 ) men, artificers, and *others of lower rank; which would be

the unavoidable consequence of universal license. 4. For prevention of popular insurrections and resistance to the government, by disarming the bulk of the people (i); which last is a reason oftener meant, than avowed, by the makers of forest or game laws(9). Nor, certainly, in these prohi

(h) Puff. L. N. 1. 4, c. 6, s. 5.

(i) Warburton's Alliance, 324.

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(8) See ante, pp. 15, 39, 403. The the pursuit of game might not be lesreasons assigned in the text are of sened. The fourth reason suggested by very questionable validity. The de

our author in support of the principle struction of agricultural produce in of the game laws, is answered by Mr. the neighbourhood of close preserves, Christian, in the note of his which is is matter of notoriety. That game retained below. And Blackstone, in would soon be extirpated in our coun- the next page, candidly admits, that try, if the game laws were done away the game laws are relics of feudal with, is a position which is incapable slavery. of proof à priori ; game is no where Since this note was first published, more abundant than in many of those the statute of 1 & 2 Gul. IV. c. 32, has countries (some of them thickly inha, been enacted for the purpose of amendbited, throughout the greater part of ing the laws in England relative to Asiaforinstance,) where game laws are, game ; whereby the sale of game is with the exception of the edict stated licensed, and every person who takes in the note to p.414, unknown. Every out a certificate is authorised to kill day affords me lancholy proofs, that game, subject to the law of trespass. idleness and dissipation amongst the (9) Mr. Christian, in his note upon lower ranks are not prevented by the the passage in the text, says, “ I am existence of the game laws; but, that inclined to think that this reason did perpetual breaches of those laws lead, not operate upon the minds of those by a seldom failing progression, to who framed the game laws of this every description of profligacy and country; for, in several ancient stahardened crime : and it is by no means tutes, the avowed object is to encouclear, that, if the stimulus of prohibi. rage the use of the long bow, the tion were taken away, the passion for most effective armour then in use."



bitions 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 (10).

Yet, however defensible these provisions in general may By the Roman be, on the footing of reason, or justice, or civil policy, we was permitted to must, notwithstanding, acknowledge, that, in their present ther's land. 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 of any other prohibitions, than that natural one of not sporting on any private grounds without the owner's leave; and another of a more spiritual nature, which was rather a rule of ecclesiastical discipline, than a branch of municipal law. The Roman or civil law, though it knew no restriction as to persons or animals, so far regarded the article of place, that it allowed no man to hunt or sport upon another's ground, but by consent of the owner of the soil. Qui alienum fundum ingreditur, venandi aut aucupandi gratia, potest a domino prohiberi ne ingrediatur(k). For, if there can, by the law of nature, be any inchoate imperfect property supposed in wild animals before they are taken, it seems most reasonable to fix it in him upon whose land they are found. And as to the And hunting other restriction, which relates to persons and not to place, to clergymen. the pontifical or. canon law (1) interdicts “venationes, et sylvaticas vagationes cum canibus et accipitribus," to all clergymen without distinction; grounded on *a saying of St. [ *413 ]


was interdicted

(k) Inst. 2. 1. s. 12.

(1) Decretal, 1. 5, tit. 24, c. 2.

(10) Mr. Christian says, “I can possession of property. A right of by no means accede even to the com- common, like all other rights, must bined authority of Puffendorf and the bear a certain value; and it certainly learned Judge, that there is not any is as great injustice to deprive any natural injustice in abridging a person one of the right of hunting, fishing, of the means of acquiring a future or of digging in a public mine, as it is property. The right of acquiring fu- to take from him the value of that ture property may be more valuable right in money or any other species of than the right of retaining the present private property."

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