OF TITLE BY PREROGATIVE AND FORFEITURE. 409 ble of division; he is entitled to veralty. not have a joint property with any person in one entire property with a subject in 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. (b) Fitzh. Abr. t. Dette, 38; Plowd. 243. (c) Cro. Eliz. 263; Plowd. 323; (2) See Vol. I. p. 299. Mr. Christian observes, that "if a joint-tenant of any chattel interest commits suicide, the right to the whole chattel becomes vested in the king. This was decided after much solemn and subtle argument in 3 Eliz. The case is reported by Plowd. 262, Eng. ed. Sir James Hales, a judge of the Common Pleas, and his wife, were jointtenants of a term for years: Sir James drowned himself, and was found felo de se; and it was held that the term did not survive to the wife, but that Sir James's interest was forfeited to the king by the felony, and that it Wreek, treasuretrove, waifs, estrays, &c. 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 (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 ornament 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 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 expense of the ' death of the dead man. And then, 'for this offence, it is reasonable to "This must have been a case of notoriety in the time of Shakspeare; and it is not improbable that he intended to ridicule this legal logic by the reasoning of the grave-digger in Hamlet upon the drowning of Ophelia. See Sir J. Hawkins's note in Stephens's edition." (3) See Vol. I. p. 295. (4) See ante, pp. 37, 40, with the notes thereto. (5) See Vol. I. p. 298. (6) See ante, p. 407, with the note thereto. 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 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 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. the taking of 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 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, "cælo, et terra nascuntur, simul atque ab aliquo capta fue"rint, 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 autho ́rity, we find that the municipal laws of many nations have exerted such power of restraint; have in general forbidden (g) Inst. 2, 1. 12. (f) Pag. 38, 39. (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 probi (h) Puff. L. N. l. 4, c. 6, s. 5. (8) See ante, pp. 15, 39, 403. The reasons assigned in the text are of very questionable validity. The destruction of agricultural produce in the neighbourhood of close preserves, is matter of notoriety. That game would soon be extirpated in our country, if the game laws were done away with, is a position which is incapable of proof à priori; game is no where more abundant than in many of those countries (some of them thickly inhabited, throughout the greater part of Asia for instance,) where game laws are, with the exception of the edict stated in the note to p. 414, unknown. Every day affords me lancholy proofs, that idleness and dissipation amongst the lower ranks are not prevented by the existence of the game laws; but, that perpetual breaches of those laws lead, by a seldom failing progression, to every description of profligacy and hardened crime: and it is by no means clear, that, if the stimulus of prohibition were taken away, the passion for (i) Warburton's Alliance, 324. the pursuit of game might not be lessened. The fourth reason suggested by our author in support of the principle of the game laws, is answered by Mr. Christian, in the note of his which is retained below. And Blackstone, in the next page, candidly admits, that the game laws are relics of feudal slavery. Since this note was first published, the statute of 1 & 2 Gul. IV. c. 32, has been enacted for the purpose of amending the laws in England relative to game; whereby the sale of game is licensed, and every person who takes out a certificate is authorised to kill game, subject to the law of trespass. (9) Mr. Christian, in his note upon the passage in the text, says, "I am inclined to think that this reason did not operate upon the minds of those who framed the game laws of this country; for, in several ancient statutes, the avowed object is to encourage the use of the long bow, the 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). law, no man By the Roman was permitted to hunt on ano Yet, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we 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, ve"nandi 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 (7) interdicts "venationes, et 66 was interdicted sylvaticas vagationes cum canibus et accipitribus," to all clergymen without distinction; grounded on *a saying of St. [ *413 ] (k) Inst. 2. 1. s. 12. (10) Mr. Christian says, "I can by no means accede even to the combined authority of Puffendorf and the learned Judge, that there is not any natural injustice in abridging a person of the means of acquiring a future property. The right of acquiring future property may be more valuable than the right of retaining the present (1) Decretal, 1. 5, tit. 24, c. 2. possession of property. A right of |