Sivut kuvina

he is entitled to


In these several methods of acquiring property by prero- The king cangative, there is also this peculiar quality, that the king can- not have a joint

property with a not have a joint property with any person in one entire subject in a

chattel not capachattel, or such a one as is not capable of division or sepa- ble of division; ration; but where the titles of the king and a subject con- but in such case

the king shall have the whole: in like manner as the the whole in seking cannot, either by grant or contract, become a joint- veralty. tenant 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 (6); 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 t.

(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.

+ Mr. Christian observes, that "if a Common Pleas, and his wife, were jointjoint-tenant of any chattel interest com. tenants of a term for years: Sir James mits suicide, the right to the whole drowned himself, and was found felo chattel becomes vested in the king. de se; and it was held that the term This was decided after much solemn did not survive to the wife, but that Sir and subtle argument in 3 Eliz. The James's interest was forfeited to the case is reported by Plowd. 262, Eng. king by the felony, and that it conseed. Sir James Hales, a judge of the quently drew the wife's interest along

trays, &c.

Wreck, treasure- This doctrine has no opportunity to take place in certain trove, waifs, es

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, [ *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 (1), 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 orna

ment of the commonwealth. Copyrights. There is also a kind of prerogative copyright (2) subsisting


(1) See ante, pp. 37, 40, with the notes thereto.

(2) See ante, p. 407, with note (7) to the last chapter.


with it. The argument of Lord Chief and not the dead man. But how can Justice Dyer is remarkably curious : * he be said to be punished alive, when • The felony (says he) is attributed to 'the punishment comes after his death?

the act; which act is always done by a Sir, this can be done no other way • living man, and in his life-time, as my but by divesting out of him, from the • brother Brown said; for he said Sir • time of the act done in his life-time, • James Hales was dead; and how ' which was the cause of his death, the

came he to bis death? It may be an- title and property of those things *swered, by drowning; and who drown- ' which he had in his life-time.'

ed him? Sir James Hales; and when “ This must have been a case of no• did he drown him? in his life-time. toriety in the time of Shakespeare; and * So that Sir James Hales, being alive, it is not improbable that he intended to 'caused Sir James Hales to die; and ridicule this legal logic by the reason* the act of the living man was the death ing of the grave-digger in Hamlet upon

of the dead man. And then, for this the drowning of Ophelia. See Sir J. < offence, it is reasonable to punish the Ilawkins's note in Stephens's edition." living man who committed the offence,




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 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 hereditament, [ *411 ] though the fruits and profits of it are of a personal nature.

In the first place, then, we have already shewn, and in- Restrictions on deed it cannot be denied, that by the law of nature every game.

the taking of 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: fere igitur bestiæ, et volucres, et omnia animalia

quæ mari, colo, et terra nascuntur, simul atque ab aliquo



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(f) Pag, 38, 39.

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 (3), 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 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 (h). Many reasons have concurred for making these constitutions (4): as, 1. For the encouragement of (8) Inst. 2. 1. 12.

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

(3) See ante, p. 8, with note (16) at pation amongst the lower ranks are not the foot thereof.

prevented by the existence of the game (4) The reasons assigned in the text laws; but, that perpetual breaches of are of very questionable validity. The those laws lead, by a seldom failing destruction of agricultural produce in progression, to every description of the neighbourhood of close preserves, profligacy and hardened crime: and it is matter of notoriety. That game is by no means clear, that, if the stimuwould soon be extirpated in our coun- lus of prohibition were taken away, the try, if the game laws were done away passion for the pursuit of game might with, is a position which is incapable not be lessened. The fourth reason of proof a priori; game is no where suggested by our author in support of more abundant than in many of those the principle of the game laws, is ancountries (some of them thickly inha- swered by Mr. Christian, in the note bited, throughout the greater part of of his which is retained below. And Asia for instance), where game laws Blackstone, in the next page, candidly are unknown. Every day affords me. admits, that the game laws are relics of lancholy proofs, that idleness and dissi- feudal slavery.

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 *others of lower rank; which would be the unavoidable con- ( *412 ] sequence of universal licence. 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 lawst. 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 By the Roman be, on the footing of reason, or justice, or civil policy, we law, no nian

was permitted to must, notwithstanding, acknowledge, that, in their present hunt on anoshape, they owe their immediate original to slavery. It is ther's land. not till after the irruption of the northern nations into the

(i) Warburton's alliance, 324.

+ Mr. Christian, in his note upon the justice in abridging a person of the passage in the text, says, “I am in- means of acquiring a future property. clined to think that this reason did not The right of acquiring future property operate upon the minds of those who may be more valuable than the right of framed the game laws of this country; retaining the present possession of profor, in several antient statutes, the avow- perty. A right of common, like all ed object is to encourage the use of the other rights, must bear a certain value; long bow, the most effective armour and it certainly is as great injustice to then in use."

deprive any one of the right of hunting, I Mr. Christian says, “I can by no fishing, or of digging in a public mine, means accede even to the combined au- as it is to take from him the value of thority of Puffendorf and the learned that right in money or any other speJudge, that there is not any natural in- cics of private property."

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