THIRDLY, as money is the medium of commerce, it is the king's
prerogative, as the arbiter of domestic commerce, to give it authority
or make it current. Money is an universal medium, or common standard,
by comparison with which the value of all merchandize may be
ascertained: or it is a sign, which represents the respective values
of all commodities. Metals are well calculated for this sign, because
they are durable and are capable of many subdivisions: and a precious
metal is still better calculated for this purpose, because it is the
most portable. A metal is also the most proper for a common measure,
because it can easily be reduced to the same standard in all nations:
and every particular nation fixes on it it's own impression, that the
weight and standard (wherein consists the intrinsic value) may both
be known by inspection only.
AS the quantity of precious metals increases, that is, the more of
them there is extracted from the mine, this universal medium or common
sign will sink in value, and grow less precious. Above a thousand
millions of bullion are calculated to have been imported into Europe
from America within less than three centuries; and the quantity is
daily increasing. The consequence is, that more money must be given
now for the same commodity than was given an hundred years ago. And,
if any accident was to diminish the quantity of gold and silver, their
value would proportionably rise. A horse, that was formerly worth ten
pounds, is now perhaps worth twenty; and, by any failure of current
specie, the price may be reduced to what it was. Yet is the horse in
reality neither dearer nor cheaper at one time than another: for, if
the metal which constitutes the coin was formerly twice as scarce as
at present, the commodity was then as dear at half the price, as now
it is at the whole.
THE coining of money is in all states the act of the sovereign power;
for the reason just mentioned, that it's value may be known on
inspection. And with respect to coinage in general, there are three
things to be considered therein; the materials, the impression, and
the denomination.
WITH regard to the materials, sir Edward Coke lays it down[a], that
the money of England must either be of gold or silver; and none other
was ever issued by the royal authority till 1672, when copper
farthings and half-pence were coined by king Charles the second, and
ordered by proclamation to be current in all payments, under the value
of six-pence, and not otherwise. But this copper coin is not upon the
same footing with the other in many respects, particularly with regard
to the offence of counterfeiting it.
[Footnote a: 2 Inst. 577.]
AS to the impression, the stamping thereof is the unquestionable
prerogative of the crown: for, though divers bishops and monasteries
had formerly the privilege of coining money, yet, as sir Matthew Hale
observes[b], this was usually done by special grant from the king, or
by prescription which supposes one; and therefore was derived from,
and not in derogation of, the royal prerogative. Besides that they had
only the profit of the coinage, and not the power of instituting
either the impression or denomination; but had usually the stamp sent
them from the exchequer.
[Footnote b: 1 Hist. P.C. 191.]
THE denomination, or the value for which the coin is to pass current,
is likewise in the breast of the king; and, if any unusual pieces are
coined, that value must be ascertained by proclamation. In order to
fix the value, the weight, and the fineness of the metal are to be
taken into consideration together. When a given weight of gold or
silver is of a given fineness, it is then of the true standard, and
called sterling metal; a name for which there are various reasons
given[c], but none of them entirely satisfactory. And of this sterling
metal all the coin of the kingdom must be made by the statute 25 Edw.
III. c. 13. So that the king's prerogative seemeth not to extend to
the debasing or inhancing the value of the coin, below or above the
sterling value[d]: though sir Matthew Hale[e] appears to be of another
opinion. The king may also, by his proclamation, legitimate foreign
coin, and make it current here; declaring at what value it shall be
taken in payments[f]. But this, I apprehend, ought to be by comparison
with the standard of our own coin; otherwise the consent of parliament
will be necessary. There is at present no such legitimated money;
Portugal coin being only current by private consent, so that any one
who pleases may refuse to take it in payment. The king may also at any
time decry, or cry down, any coin of the kingdom, and make it no
longer current[g].
[Footnote c: Spelm. Gloss. 203.]
[Footnote d: 2 Inst. 577.]
[Footnote e: 1 H.P.C. 194.]
[Footnote f: _Ibid._ 197.]
[Footnote g: _Ibid._]
VI. THE king is, lastly, considered by the laws of England as the head
and supreme governor of the national church.
TO enter into the reasons upon which this prerogative is founded is
matter rather of divinity than of law. I shall therefore only observe
that by statute 26 Hen. VIII. c. 1. (reciting that the king's majesty
justly and rightfully is and ought to be the supreme head of the
church of England; and so had been recognized by the clergy of this
kingdom in their convocation) it is enacted, that the king shall be
reputed the only supreme head in earth of the church of England, and
shall have, annexed to the imperial crown of this realm, as well the
titles and stile thereof, as all jurisdictions, authorities, and
commodities, to the said dignity of supreme head of the church
appertaining. And another statute to the same purport was made, 1
Eliz. c. 1.
IN virtue of this authority the king convenes, prorogues, restrains,
regulates, and dissolves all ecclesiastical synods or convocations.
This was an inherent prerogative of the crown, long before the time of
Henry VIII, as appears by the statute 8 Hen. VI. c. 1. and the many
authors, both lawyers and historians, vouched by sir Edward Coke[h].
So that the statute 25 Hen. VIII. c. 19. which restrains the
convocation from making or putting in execution any canons repugnant
to the king's prerogative, or the laws, customs, and statutes of the
realm, was merely declaratory of the old common law: that part of it
only being new, which makes the king's royal assent actually necessary
to the validity of every canon. The convocation or ecclesiastical
synod, in England, differs considerably in it's constitution from the
synods of other christian kingdoms: those consisting wholly of
bishops; whereas with us the convocation is the miniature of a
parliament, wherein the archbishop presides with regal state; the
upper house of bishops represents the house of lords; and the lower
house, composed of representatives of the several dioceses at large,
and of each particular chapter therein, resembles the house of
commons with it's knights of the shire and burgesses[i]. This
constitution is said to be owing to the policy of Edward I; who
thereby at one and the same time let in the inferior clergy to the
privilege of forming ecclesiastical canons, (which before they had
not) and also introduced a method of taxing ecclesiastical benefices,
by consent of convocation[k].
[Footnote h: 4 Inst. 322, 323.]
[Footnote i: In the diet of Sweden, where the ecclesiastics form one
of the branches of the legislature, the chamber of the clergy
resembles the convocation of England. It is composed of the bishops
and superintendants; and also of deputies, one of which is chosen by
every ten parishes or rural deanry. Mod. Un. Hist. xxxiii. 18.]
[Footnote k: Gilb. hist. of exch. c. 4.]
FROM this prerogative also of being the head of the church arises the
king's right of nomination to vacant bishopricks, and certain other
ecclesiastical preferments; which will better be considered when we
come to treat of the clergy. I shall only here observe, that this is
now done in consequence of the statute 25 Hen. VIII. c. 20.
AS head of the church, the king is likewise the _dernier resort_ in
all ecclesiastical causes; an appeal lying ultimately to him in
chancery from the sentence of every ecclesiastical judge: which right
was restored to the crown by statute 25 Hen. VIII. c. 19. as will more
fully be shewn hereafter.
CHAPTER THE EIGHTH.
OF THE KING'S REVENUE.
HAVING, in the preceding chapter, considered at large those branches
of the king's prerogative, which contribute to his royal dignity, and
constitute the executive power of the government, we proceed now to
examine the king's _fiscal_ prerogatives, or such as regard his
_revenue_; which the British constitution hath vested in the royal
person, in order to support his dignity and maintain his power: being
a portion which each subject contributes of his property, in order to
secure the remainder.
THIS revenue is either ordinary, or extraordinary. The king's ordinary
revenue is such, as has either subsisted time out of mind in the
crown; or else has been granted by parliament, by way of purchase or
exchange for such of the king's inherent hereditary revenues, as were
found inconvenient to the subject.
WHEN I say that it has subsisted time out of mind in the crown, I do
not mean that the king is at present in the actual possession of the
whole of this revenue. Much (nay, the greatest part) of it is at this
day in the hands of subjects; to whom it has been granted out from
time to time by the kings of England: which has rendered the crown in
some measure dependent on the people for it's ordinary support and
subsistence. So that I must be obliged to recount, as part of the
royal revenue, what lords of manors and other subjects frequently
look upon to be their own absolute rights, because they are and have
been vested in them and their ancestors for ages, though in reality
originally derived from the grants of our antient princes.
I. THE first of the king's ordinary revenues, which I shall take
notice of, is of an ecclesiastical kind; (as are also the three
succeeding ones) viz. the custody of the temporalties of bishops; by
which are meant all the lay revenues, lands, and tenements (in which
is included his barony) which belong to an archbishop's or bishop's
see. And these upon the vacancy of the bishoprick are immediately the
right of the king, as a consequence of his prerogative in church
matters; whereby he is considered as the founder of all
archbishopricks and bishopricks, to whom during the vacancy they
revert. And for the same reason, before the dissolution of abbeys, the
king had the custody of the temporalties of all such abbeys and
priories as were of royal foundation (but not of those founded by
subjects) on the death of the abbot or prior[a]. Another reason may
also be given, why the policy of the law hath vested this custody in
the king; because, as the successor is not known, the lands and
possessions of the see would be liable to spoil and devastation, if no
one had a property therein. Therefore the law has given the king, not
the temporalties themselves, but the _custody_ of the temporalties,
till such time as a successor is appointed; with power of taking to
himself all the intermediate profits, without any account to the
successor; and with the right of presenting (which the crown very
frequently exercises) to such benefices and other preferments as fall
within the time of vacation[b]. This revenue is of so high a nature,
that it could not be granted out to a subject, before, or even after,
it accrued: but now by the statute 14 Edw. III. st. 4. c. 4 & 5. the
king may, after the vacancy, lease the temporalties to the dean and
chapter; saving to himself all advowsons, escheats, and the like. Our
antient kings, and particularly William Rufus, were not only
remarkable for keeping the bishopricks a long time vacant, for the
sake of enjoying the temporalties, but also committed horrible waste
on the woods and other parts of the estate; and, to crown all, would
never, when the see was filled up, restore to the bishop his
temporalties again, unless he purchased them at an exorbitant price.
To remedy which, king Henry the first[c] granted a charter at the
beginning of his reign, promising neither to sell, nor let to farm,
nor take any thing from, the domains of the church, till the successor
was installed. And it was made one of the articles of the great
charter[d], that no waste should be committed in the temporalties of
bishopricks, neither should the custody of them be sold. The same is
ordained by the statute of Westminster the first[e]; and the statute
14 Edw. III. st. 4. c. 4. (which permits, as we have seen, a lease to
the dean and chapter) is still more explicit in prohibiting the other
exactions. It was also a frequent abuse, that the king would for
trifling, or no causes, seise the temporalties of bishops, even during
their lives, into his own hands: but this is guarded against by
statute 1 Edw. III. st. 2. c. 2.
[Footnote a: 2 Inst. 15.]
[Footnote b: Stat. 17 Edw. II. c. 14. F.N.B. 32.]
[Footnote c: Matth. Paris.]
[Footnote d: 9 Hen. III. c. 5.]
[Footnote e: 3 Edw. I. c. 21.]
THIS revenue of the king, which was formerly very considerable, is now
by a customary indulgence almost reduced to nothing: for, at present,
as soon as the new bishop is consecrated and confirmed, he usually
receives the restitution of his temporalties quite entire, and
untouched, from the king; and then, and not sooner, he has a fee
simple in his bishoprick, and may maintain an action for the same[f].
[Footnote f: Co. Litt. 67. 341.]
II. THE king is entitled to a corody, as the law calls it, out of
every bishoprick: that is, to send one of his chaplains to be
maintained by the bishop, or to have a pension allowed him till the
bishop promotes him to a benefice[g]. This is also in the nature of an
acknowlegement to the king, as founder of the see; since he had
formerly the same corody or pension from every abbey or priory of
royal foundation. It is, I apprehend, now fallen into total disuse;
though sir Matthew Hale says[h], that it is due of common right, and
that no prescription will discharge it.
[Footnote g: F.N.B. 230.]
[Footnote h: Notes on F.N.B. above cited.]
III. THE king also (as was formerly observed[i]) is entitled to all
the tithes arising in extraparochial places[k]: though perhaps it may
be doubted how far this article, as well as the last, can be properly
reckoned a part of the king's own royal revenue; since a corody
supports only his chaplains, and these extraparochial tithes are held
under an implied trust, that the king will distribute them for the
good of the clergy in general.
[Footnote i: page 110.]
[Footnote k: 2 Inst. 647.]
IV. THE next branch consists in the first-fruits, and tenths, of all
spiritual preferments in the kingdom; both of which I shall consider
together.
THESE were originally a part of the papal usurpations over the clergy
of this kingdom; first introduced by Pandulph the pope's legate,
during the reigns of king John and Henry the third, in the see of
Norwich; and afterwards attempted to be made universal by the popes
Clement V and John XXII, about the beginning of the fourteenth
century. The first-fruits, _primitiae_, or _annates_, were the first
year's whole profits of the spiritual preferment, according to a rate
or _valor_ made under the direction of pope Innocent IV by Walter
bishop of Norwich in 38 Hen. III, and afterwards advanced in value by
commission from pope Nicholas the third, _A.D._ 1292, 20 Edw. I[l];
which valuation of pope Nicholas is still preserved in the
exchequer[m]. The tenths, or _decimae_, were the tenth part of the
annual profit of each living by the same valuation; which was also
claimed by the holy see, under no better pretence than a strange
misapplication of that precept of the Levitical law, which directs[n],
"that the Levites should offer the tenth part of their tithe as a
heave-offering to the Lord, and give it to Aaron the _high_ priest."
But this claim of the pope met with vigorous resistance from the
English parliament; and a variety of acts were passed to prevent and
restrain it, particularly the statute 6 Hen. IV. c. 1. which calls it
a horrible mischief and damnable custom. But the popish clergy,
blindly devoted to the will of a foreign master, still kept it on
foot; sometimes more secretly, sometimes more openly and avowedly: so
that, in the reign of Henry VIII, it was computed, that in the compass
of fifty years 800000 ducats had been sent to Rome for first-fruits
only. And, as the clergy expressed this willingness to contribute so
much of their income to the head of the church, it was thought proper
(when in the same reign the papal power was abolished, and the king
was declared the head of the church of England) to annex this revenue
to the crown; which was done by statute 26 Hen. VIII. c. 3. (confirmed
by statute 1 Eliz. c. 4.) and a new _valor beneficiorum_ was then
made, by which the clergy are at present rated.
[Footnote l: F.N.B. 176.]
[Footnote m: 3 Inst. 154.]
[Footnote n: Numb. 18. 26.]
BY these lastmentioned statutes all vicarages under ten pounds a year,
and all rectories under ten marks, are discharged from the payment of
first-fruits: and if, in such livings as continue chargeable with this
payment, the incumbent lives but half a year, he shall pay only one
quarter of his first-fruits; if but one whole year, then half of them;
if a year and half, three quarters; and if two years, then the whole;
and not otherwise. Likewise by the statute 27 Hen. VIII. c. 8. no
tenths are to be paid for the first year, for then the first-fruits
are due: and by other statutes of queen Anne, in the fifth and sixth
years of her reign, if a benefice be under fifty pounds _per annum_
clear yearly value, it shall be discharged of the payment of
first-fruits and tenths.
THUS the richer clergy, being, by the criminal bigotry of their popish
predecessors, subjected at first to a foreign exaction, were
afterwards, when that yoke was shaken off, liable to a like
misapplication of their revenues, through the rapacious disposition of
the then reigning monarch: till at length the piety of queen Anne
restored to the church what had been thus indirectly taken from it.
This she did, not by remitting the tenths and first-fruits entirely;
but, in a spirit of the truest equity, by applying these superfluities
of the larger benefices to make up the deficiences of the smaller. And
to this end she granted her royal charter, which was confirmed by the
statute 2 Ann. c. 11. whereby all the revenue of first-fruits and
tenths is vested in trustees for ever, to form a perpetual fund for
the augmentation of poor livings. This is usually called queen Anne's
bounty; which has been still farther regulated by subsequent statutes,
too numerous here to recite.
V. THE next branch of the king's ordinary revenue (which, as well as
the subsequent branches, is of a lay or temporal nature) consists in
the rents and profits of the demesne lands of the crown. These demesne
lands, _terrae dominicales regis_, being either the share reserved to
the crown at the original distribution of landed property, or such as
came to it afterwards by forfeitures or other means, were antiently
very large and extensive; comprizing divers manors, honors, and
lordships; the tenants of which had very peculiar privileges, as will
be shewn in the second book of these commentaries, when we speak of
the tenure in antient demesne. At present they are contracted within a
very narrow compass, having been almost entirely granted away to
private subjects. This has occasioned the parliament frequently to
interpose; and, particularly, after king William III had greatly
impoverished the crown, an act passed[o], whereby all future grants or
leases from the crown for any longer term than thirty one years or
three lives are declared to be void; except with regard to houses,
which may be granted for fifty years. And no reversionary lease can be
made, so as to exceed, together with the estate in being, the same
term of three lives or thirty one years: that is, where there is a
subsisting lease, of which there are twenty years still to come, the
king cannot grant a future interest, to commence after the expiration
of the former, for any longer term than eleven years. The tenant must
also be made liable to be punished for committing waste; and the
usual rent must be reserved, or, where there has usually been no rent,
one third of the clear yearly value[p]. The misfortune is, that this
act was made too late, after almost every valuable possession of the
crown had been granted away for ever, or else upon very long leases;
but may be of benefit to posterity, when those leases come to expire.
[Footnote o: 1 Ann. st. 1. c. 7.]
[Footnote p: In like manner, by the civil law, the inheritances or
_fundi patrimoniales_ of the imperial crown could not be alienated,
but only let to farm. _Cod._ _l._ 11. _t._ 61.]
VI. HITHER might have been referred the advantages which were used to
arise to the king from the profits of his military tenures, to which
most lands in the kingdom were subject, till the statute 12 Car. II.
c. 24. which in great measure abolished them all: the explication of
the nature of which tenures, must be referred to the second book of
these commentaries. Hither also might have been referred the
profitable prerogative of purveyance and pre-emption: which was a
right enjoyed by the crown of buying up provisions and other
necessaries, by the intervention of the king's purveyors, for the use
of his royal houshold, at an appraised valuation, in preference to all
others, and even without consent of the owner; and also of forcibly
impressing the carriages and horses of the subject, to do the king's
business on the publick roads, in the conveyance of timber, baggage,
and the like, however inconvenient to the proprietor, upon paying him
a settled price. A prerogative, which prevailed pretty generally
throughout Europe, during the scarcity of gold and silver, and the
high valuation of money consequential thereupon. In those early times
the king's houshold (as well as those of inferior lords) were
supported by specific renders of corn, and other victuals, from the
tenants of the respective demesnes; and there was also a continual
market kept at the palace gate to furnish viands for the royal use[q].
And this answered all purposes, in those ages of simplicity, so long
as the king's court continued in any certain place. But when it
removed from one part of the kingdom to another (as was formerly very
frequently done) it was found necessary to send purveyors beforehand,
to get together a sufficient quantity of provisions and other
necessaries for the houshold: and, lest the unusual demand should
raise them to an exorbitant price, the powers beforementioned were
vested in these purveyors; who in process of time very greatly abused
their authority, and became a great oppression to the subject though
of little advantage to the crown; ready money in open market (when the
royal residence was more permanent, and specie began to be plenty)
being found upon experience to be the best proveditor of any.
Wherefore by degrees the powers of purveyance have declined, in
foreign countries as well as our own; and particularly were abolished
in Sweden by Gustavus Adolphus, toward the beginning of the last
century[r]. And, with us in England, having fallen into disuse during
the suspension of monarchy, king Charles at his restoration consented,
by the same statute, to resign intirely these branches of his revenue
and power, for the ease and convenience of his subjects: and the
parliament, in part of recompense, settled on him, his heirs, and
successors, for ever, the hereditary excise of fifteen pence _per_
barrel on all beer and ale sold in the kingdom, and a proportionable
sum for certain other liquors. So that this hereditary excise, the
nature of which shall be farther explained in the subsequent part of
this chapter, now forms the sixth branch of his majesty's ordinary
revenue.
[Footnote q: 4 Inst. 273.]
[Footnote r: Mod. Un. Hist. xxxiii. 220.]
VII. A SEVENTH branch might also be computed to have arisen from wine
licences; or the rents payable to the crown by such persons as are
licensed to sell wine by retale throughout England, except in a few
privileged places. These were first settled on the crown by the
statute 12 Car. II. c. 25. and, together with the hereditary excise,
made up the equivalent in value for the loss sustained by the
prerogative in the abolition of the military tenures, and the right of
pre-emption and purveyance: but this revenue was abolished by the
statute 30 Geo. II. c. 19. and an annual sum of upwards of ￡7000 _per
annum_, issuing out of the new stamp duties imposed on wine licences,
was settled on the crown in it's stead.
VIII. AN eighth branch of the king's ordinary revenue is usually
reckoned to consist in the profits arising from his forests. Forests
are waste grounds belonging to the king, replenished with all manner
of beasts of chase or venary; which are under the king's protection,
for the sake of his royal recreation and delight: and, to that end,
and for preservation of the king's game, there are particular laws,
privileges, courts and officers belonging to the king's forests; all
which will be, in their turns, explained in the subsequent books of
these commentaries. What we are now to consider are only the profits
arising to the king from hence; which consist principally in
amercements or fines levied for offences against the forest-laws. But
as few, if any courts of this kind for levying amercements have been
held since 1632, 8 Car. I. and as, from the accounts given of the
proceedings in that court by our histories and law books[s], nobody
would now wish to see them again revived, it is needless (at least in
this place) to pursue this enquiry any farther.
[Footnote s: 1 Jones. 267-298.]
IX. THE profits arising from the king's ordinary courts of justice
make a ninth branch of his revenue. And these consist not only in
fines imposed upon offenders, forfeitures of recognizances, and
amercements levied upon defaulters; but also in certain fees due to
the crown in a variety of legal matters, as, for setting the great
seal to charters, original writs, and other legal proceedings, and for
permitting fines to be levied of lands in order to bar entails, or
otherwise to insure their title. As none of these can be done without
the immediate intervention of the king, by himself or his officers,
the law allows him certain perquisites and profits, as a recompense
for the trouble he undertakes for the public. These, in process of
time, have been almost all granted out to private persons, or else
appropriated to certain particular uses: so that, though our
law-proceedings are still loaded with their payment, very little of
them is now returned into the king's exchequer; for a part of whose
royal maintenance they were originally intended. All future grants of
them however, by the statute 1 Ann. st. 2. c. 7. are to endure for no
longer time than the prince's life who grants them.
X. A TENTH branch of the king's ordinary revenue, said to be grounded
on the consideration of his guarding and protecting the seas from
pirates and robbers, is the right to _royal fish_, which are whale and
sturgeon: and these, when either thrown ashore, or caught near the
coasts, are the property of the king, on account[t] of their superior
excellence. Indeed our ancestors seem to have entertained a very high
notion of the importance of this right; it being the prerogative of
the kings of Denmark and the dukes of Normandy[u]; and from one of
these it was probably derived to our princes. It is expressly claimed
and allowed in the statute _de praerogativa regis_[w]: and the most
antient treatises of law now extant make mention of it[x]; though they
seem to have made a distinction between whale and sturgeon, as was
incidentally observed in a former chapter[y].
[Footnote t: Plowd. 315.]
[Footnote u: Stiernh. _de jure Sueonum._ _l._ 2. _c._ 8. _Gr.
Coustum._ _cap._ 17.]
[Footnote w: 17 Edw. II. c. 11.]
[Footnote x: Bracton. _l._ 3. _c._ 3. Britton. _c._ 17. Fleta. _l._ 1.
_c._ 45 & 46.]
[Footnote y: ch. 4. pag. 216.]
XI. ANOTHER maritime revenue, and founded partly upon the same reason,
is that of shipwrecks; which are also declared to be the king's
property by the same prerogative statute 17 Edw. II. c. 11. and were
so, long before, at the common law. It is worthy observation, how
greatly the law of wrecks has been altered, and the rigour of it
gradually softened, in favour of the distressed proprietors. Wreck, by
the antient common law, was where any ship was lost at sea, and the
goods or cargo were thrown upon the land; in which case these goods,
so wrecked, were adjudged to belong to the king: for it was held,
that, by the loss of the ship, all property was gone out of the
original owner[z]. But this was undoubtedly adding sorrow to sorrow,
and was consonant neither to reason nor humanity. Wherefore it was
first ordained by king Henry I, that if any person escaped alive out
of the ship it should be no wreck[a]; and afterwards king Henry II, by
his charter[b], declared, that if on the coasts of either England,
Poictou, Oleron, or Gascony, any ship should be distressed, and either
man or beast should escape or be found therein alive, the goods should
remain to the owners, if they claimed them within three months; but
otherwise should be esteemed a wreck, and should belong to the king,
or other lord of the franchise. This was again confirmed with
improvements by king Richard the first, who, in the second year of his
reign[c], not only established these concessions, by ordaining that
the owner, if he was shipwrecked and escaped, "_omnes res suas liberas
et quietas haberet_," but also, that, if he perished, his children, or
in default of them his brethren and sisters, should retain the
property; and, in default of brother or sister, then the goods should
remain to the king[d]. And the law, so long after as the reign of
Henry III, seems still to have been guided by the same equitable
provisions. For then if a dog (for instance) escaped, by which the
owner might be discovered, or if any certain mark were set on the
goods, by which they might be known again, it was held to be no
wreck[e]. And this is certainly most agreeable to reason; the rational
claim of the king being only founded upon this, that the true owner
cannot be ascertained. But afterwards, in the statute of Westminster
the first[f], the law is laid down more agreeable to the charter of
king Henry the second: and upon that statute hath stood the legal
doctrine of wrecks to the present time. It enacts, that if any live
thing escape (a man, a cat, or a dog; which, as in Bracton, are only
put for examples[g],) in this case, and, as it seems, in this case
only, it is clearly not a legal wreck: but the sheriff of the county
is bound to keep the goods a year and a day (as in France for one
year, agreeably to the maritime laws of Oleron[h], and in Holland for
a year and an half) that if any man can prove a property in them,
either in his own right or by right of representation[i], they shall
be restored to him without delay; but, if no such property be proved
within that time, they then shall be the king's. If the goods are of a
perishable nature, the sheriff may sell them, and the money shall be
liable in their stead[k]. This revenue of wrecks is frequently granted
out to lords of manors, as a royal franchise; and if any one be thus
entitled to wrecks in his own land, and the king's goods are wrecked
thereon, the king may claim them at any time, even after the year and
day[l].
[Footnote z: Dr & St. d. 2. c. 51.]
[Footnote a: Spelm. _Cod. apud_ Wilkins. 305.]
[Footnote b: 26 May, _A.D._ 1174. 1 Rym. _Foed._ 36.]
[Footnote c: Rog. Hoved. _in Ric. I_.]
[Footnote d: In like manner Constantine the great, finding that by the
imperial law the revenue of wrecks was given to the prince's treasury
or _fiscus_, restrained it by an edict (_Cod._ 11. 5. 1.) and ordered
them to remain to the owners; adding this humane expostulation, "_Quod
enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa
compendium sectetur?_"]
[Footnote e: Bract. _l._ 3. _c._ 3.]
[Footnote f: 3 Edw. I. c. 4.]
[Footnote g: Flet. 1. _c._ 44. 2 Inst. 167.]
[Footnote h: §. 28.]
[Footnote i: 2 Inst. 168.]
[Footnote k: Plowd. 166.]
[Footnote l: 2 Inst. 168. Bro. Abr. _tit. Wreck_.]
IT is to be observed, that in order to constitute a legal _wreck_, the
goods must come to land. If they continue at sea, the law
distinguishes them by the barbarous and uncouth appellations of
_jetsam_, _flotsam_, and _ligan_. Jetsam is where goods are cast into
the sea, and there sink and remain under water: flotsam is where they
continue swimming on the surface of the waves: ligan is where they are
sunk in the sea, but tied to a cork or buoy, in order to be found
again[m]. These are also the king's, if no owner appears to claim
them; but, if any owner appears, he is entitled to recover the
possession. For even if they be cast overboard, without any mark or
buoy, in order to lighten the ship, the owner is not by this act of
necessity construed to have renounced his property[n]: much less can
things ligan be supposed to be abandoned, since the owner has done all
in his power, to assert and retain his property. These three are
therefore accounted so far a distinct thing from the former, that by
the king's grant to a man of wrecks, things jetsam, flotsam, and ligan
will not pass[o].
[Footnote m: 5 Rep. 106.]
[Footnote n: _Quae enim res in tempestate, levandae navis causa,
ejiciuntur, hac dominorum permanent. Quia palam est, eas non eo animo
ejici, quod quis habere nolit._ _Inst._ 2. 1. §. 48.]
[Footnote o: 5 Rep. 108.]
WRECKS, in their legal acceptation, are at present not very frequent:
it rarely happening that every living creature on board perishes; and
if any should survive, it is a very great chance, since the
improvement of commerce, navigation, and correspondence, but the owner
will be able to assert his property within the year and day limited by
law. And in order to preserve this property entire for him, and if
possible to prevent wrecks at all, our laws have made many very humane
regulations; in a spirit quite opposite to those savage laws, which
formerly prevailed in all the northern regions of Europe, and a few
years ago were still laid to subsist on the coasts of the Baltic sea,
permitting the inhabitants to seize on whatever they could get as
lawful prize; or, as an author of their own expresses it, "_in
naufragorum miseria et calamitate tanquam vultures ad praedam
currere_[p]." For by the statute 2 Edw. III. c. 13. if any ship be
lost on the shore, and the goods come to land (so as it be not legal
wreck) they shall be presently delivered to the merchants, they paying
only a reasonable reward to those that saved and preserved them, which
is intitled _salvage_. Also by the common law, if any persons (other
than the sheriff) take any goods so cast on shore, which are not legal
wreck, the owners might have a commission to enquire and find them
out, and compel them to make restitution[q]. And by statute 12 Ann.
st. 2. c. 18. confirmed by 4 Geo. I. c. 12. in order to assist the
distressed, and prevent the scandalous illegal practices on some of
our sea coasts, (too similar to those on the Baltic) it is enacted,
that all head-officers and others of towns near the sea shall, upon
application made to them, summon as many hands as are necessary, and
send them to the relief of any ship in distress, on forfeiture of
100_l._ and, in case of assistance given, salvage shall be paid by the
owners, to be assessed by three neighbouring justices. All persons
that secrete any goods shall forfeit their treble value: and if they
wilfully do any act whereby the ship is lost or destroyed, by making
holes in her, stealing her pumps, or otherwise, they are guilty of
felony, without benefit of clergy. Lastly, by the statute 26 Geo. II.
c. 19. plundering any vessel either in distress, or wrecked, and
whether any living creature be on board or not, (for, whether wreck or
otherwise, it is clearly not the property of the populace) such
plundering, I say, or preventing the escape of any person that
endeavors to save his life, or wounding him with intent to destroy
him, or putting out false lights in order to bring any vessel into
danger, are all declared to be capital felonies; in like manner as the
destroying trees, steeples, or other stated seamarks, is punished by
the statute 8 Eliz. c. 13. with a forfeiture of 200_l._ Moreover, by
the statute of George II, pilfering any goods cast ashore is declared
to be petty larceny; and many other salutary regulations are made, for
the more effectually preserving ships of any nation in distress[r].
[Footnote p: Stiernh. _de jure Sueon._ _l._ 3. _c._ 5.]
[Footnote q: F.N.B. 112.]
[Footnote r: By the civil law, to destroy persons shipwrecked, or
prevent their saving the ship, is capital. And to steal even a plank
from a vessel in distress, or wrecked, makes the party liable to
answer for the whole ship and cargo. (_Ff._ 47. 9. 3.) The laws also
of the Wisigoths, and the most early Neapolitan constitutions,
punished with the utmost severity all those who neglected to assist
any ship in distress, or plundered any goods cast on shore.
(Lindenbrog. _Cod. LL. antiq._ 146. 715.)]
XII. A TWELFTH branch of the royal revenue, the right to mines, has
it's original from the king's prerogative of coinage, in order to
supply him with materials: and therefore those mines, which are
properly royal, and to which the king is entitled when found, are only
those of silver and gold[s]. By the old common law, if gold or silver
be found in mines of base metal, according to the opinion of some the
whole was a royal mine, and belonged to the king; though others held
that it only did so, if the quantity of gold or silver was of greater
value than the quantity of base metal[t]. But now by the statutes 1 W.
& M. st. 1. c. 30. and 5 W. & M. c. 6. this difference is made
immaterial; it being enacted, that no mines of copper, tin, iron, or
lead, shall be looked upon as royal mines, notwithstanding gold or
silver may be extracted from them in any quantities: but that the
king, or persons claiming royal mines under his authority, may have
the ore, (other than tin-ore in the counties of Devon and Cornwall)
paying for the same a price stated in the act. This was an extremely
reasonable law: for now private owners are not discouraged from
working mines, through a fear that they may be claimed as royal ones;
neither does the king depart from the just rights of his revenue,
since he may have all the precious metal contained in the ore, paying
no more for it than the value of the base metal which it is supposed
to be; to which base metal the land-owner is by reason and law
entitled.
[Footnote s: 2 Inst. 577.]
[Footnote t: Plowd. 566.]
XIII. TO the same original may in part be referred the revenue of
treasure-trove (derived from the French word, _trover_, to find)
called in Latin _thesaurus inventus_, which is where any money or
coin, gold, silver, plate, or bullion, is found hidden _in_ the earth,
or other private place, the owner thereof being unknown; in which case
the treasure belongs to the king: but if he that hid it be known, or
afterwards found out, the owner and not the king is entitled to it[u].
Also if it be found in the sea, or _upon_ the earth, it doth not
belong to the king, but the finder, if no owner appears[w]. So that it
seems it is the _hiding_, not the _abandoning_ of it, that gives the
king a property: Bracton[x] defining it, in the words of the
civilians, to be "_vetus depositio pecuniae_." This difference clearly
arises from the different intentions, which the law implies in the
owner. A 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 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.
[Footnote u: 3 Inst. 132. Dalt. Sheriffs. c. 16.]
[Footnote w: Britt. c. 17. Finch. L. 177.]
[Footnote x: _l._ 3. _c._ 3. §. 4.]
FORMERLY all treasure-trove belonged to the finder[y]; as was also the
rule of the civil law[z]. 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 desarts. 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].
[Footnote y: Bracton. _l._ 3. _c._ 3. 3 Inst. 133.]
[Footnote z: _Ff._ 41. 1. 31.]
[Footnote a: _de jur. b. & p._ _l._ 2. _c._ 8. §. 7.]
[Footnote b: Glanv. _l._ 1. _c._ 2. Crag. 1. 16. 40.]
[Footnote c: 3 Inst. 133.]
XIV. WAIFS, _bona waviata_, are goods stolen, and waived or thrown
away by the thief in his flight, for fear of being apprehended. 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 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 seised by somebody for his use; for if the party robbed can
seise 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. |
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