ference 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.

Formerly all treasure-trove belonged to the finder :(y) as was also the rule of the civil law. (2) 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 deposite 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)

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 [297] 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 seized by somebody for his use; for if the party robbed can seize them first, though at the distance of twenty years, the king shall never have them. (ƒ) If the goods are hid by the thief, or left any where by him, so that he had not them 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.

XV. Estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them, in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompense for the damage which they have done therein: and they now most commonly belong to the lord of the manor by special grant from the crown. But, in order to vest an absolute property in the king, or his grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption; (i) even though the owner were a minor, or under any other legal incapacity. (k) A provision similar to which obtained in the old Gothic constitution, with regard to all things that were found, which were to be thrice proclaimed; primum coram co- [298] mitibus et viatoribus obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel judicio: and the space of a year was allowed for the owner to reclaim his property.(1) If the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them. (m)1o The king or lord has no property till the year and day passed: for if a lord keepeth an estray three quarters of a year, and within the year, it strayeth again, and another lord getteth it, the first lord cannot take it again.(n) Any beasts may be estrays that are by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call cattle; and so Fleta (o) defines them, pecus vagans, quod nullus petit, sequitur, vel advocat. For animals upon which the law sets no value, as a dog or cat, and animals ferue naturae, as a bear or wolf, cannot be considered as estrays. So swans may be estrays, but not any other fowl;(p) whence they are said to be royal fowl. The reason of which distinction seems to be, that cattle and swans being of a reclaimed nature, the owner's property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and a day. For he that takes an estray is bound, so long at he keeps it, to find it in provisions, and preserve it from damage; (q) and may not use it by way of labour, but is liable to an action for so doing. (r) Yet he may milk a cow, or the like; for that tends to the preservation, and is for the benefit of the animal. (s)

Besides the particular reasons before given why the king should have

(8) Com. Dig. Waife, A. 1. 2. F. Bac. Ab. Prerogative, B. 9. 2 Saund. 47. b. c.

(9) This reason is not very satisfactory; for the king being the ultimus hæres, of all the land in the kingdom, they must do the same injury to his interest, whether they are grazing in one place or another out of the king's domains. But the law is probably founded upon general policy; for by giving the estray to the king or his grantee, and not to the finder, the owner has the best chance of having his property restored to him; and it lessens the temptation to commit thefts, as it prevents a man from pretending that he had found, as an estray, what he had actually stolen or according to the vulgar phrase, that he had found what was never lost.

Christian.

(10) But if any other person finds and takes care of another's property, not being entitled to it as an estray (nor being saved at sea, or in other cases where the law of salvage applies), the owner may recover it or its value, without being obliged to pay the expenses of keeping. 2 B'. Rep. 1117. 2 Hen. Bl. 254.

the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all: and that is, because they are bona vacantia, or goods in which no one else can claim a property. And therefore by the law of nature they belonged to

the first occupant or finder; and so continued under the imperial [299] law. But, in settling the modern constitutions of most of the go

vernments of Europe, it was thought proper (to prevent that strife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the support of public authority in a manner the least burthensome to individuals) that these rights should be annexed to the supreme power by the positive laws of the state. And so it came to pass that, as Bracton expresses it, (t) haec quae nullius in bonis sunt, et olim fuerunt inventoris de jure naturali, iam efficiuntur principis de jure genti

um.

11

XVI. The next branch of the king's ordinary revenue consists in forfeitures of lands and goods for offences; 12 bona confiscata, as they are called by the civilians, because they belonged to the fiscus or imperial treasury; or, as our lawyers term them, forisfacta; that is, such whereof the property is gone away, or departed from the owner. The true reason and only substantial ground of any forfeiture for crimes consists in this; that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the moveables or personal estate; and in many cases a perpetual, in others only a temporary, loss of the offender's immoveables or landed property; and have vested them both in the king, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. The particulars of these forfeitures will be more properly

recited when we treat of crimes and misdemesnors. I therefore [300] only mention them here, for the sake of regularity, as a part of the census regalis; and shall postpone for the present the farther consideration of all forfeitures, excepting one species only, which arises from the misfortune rather than the crime of the owner, and is called a deodand.

t L. 1. c. 12.

(11) It has been observed by Mr. Christian, that this position cannot be reconciled with what the learned judge has advanced in p. 295., viz. that "if any thing be found in the sea or upon the earth, it doth not belong to the king but to the finder, if no owner appears." And the case of Armory v, Delamere, 1 Strange, 505. is cited, where a chimney-sweeper's boy recovered from a goldsmith, who detained from him a diamond which he had, the value of the finest diamond which would fit the socket from which it was taken. And it was held, that the boy had a right to it against all the world, except the owner, who did not appear. However Mr. Rowe, in his vindication of the Commentaries, says, it is not meant in the passage above objected to, that the king is entitled to them because they are bona vacantia, but that their being bona vacantia is a reason why he should have them. And that if it had been said, that the king could claim a title to them on the ground of their being bona vacantia, surely every one must have understood this to have been declared with respect to treasure-trove of treasure found hidden in the earth only, and not of treasure found in the sea or upon the earth, according to the distinction which the learned commentator himself had before taken Chitty.

(12) Com. Dig. Prerogative, D. 60.

By this is meant whatever personal chattel is the immediate occasion of the death of any reasonable creature: which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner; (u) though formerly destined to a more superstitious purpose. It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church (w) in the same manner as the apparel of a stranger, who was found dead, was applied to purchase masses for the good of his soul. And this may account for that rule of law, that no deodand is due where an infant under the age of discretion is killed by a fall from a cart, or horse, or the like, not being in motion; (x) whereas, if an adult person falls from thence and is killed, the thing is certainly forfeited. For the reason given by sir Matthew Hale seems to be very inadequate, viz. because an infant is not able to take care of himself; for why should the owner save his forfeiture on account of the imbecility of the child, which ought rather to have made him more cautious to prevent any accident of mischief? The true ground of this rule seems rather to have been, that the child, by reason of its want of discretion, was presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses: but every adult, who died in actual sin stood in need of such atonement, according to the humane superstition of the founders of the English law.

Thus stands the law if a person be killed by a fall from a thing standing still. But if a horse, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall [301] in either case be forfeited as deodands; (y) which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. A like punishment is in like cases inflicted by the Mosaical law; (z) "if an ox gore a man that he die, the ox shall be stoned, and his flesh shall "no be eaten." And, among the Athenians, (a) whatever wast he cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. Where a thing not in motion is the occasion of a man's death, that part only which is the immediate cause is forfeited; as if a man be climbing up the wheel of a cart, and is killed by falling from it, the wheel alone is a deodand: (b) but, wherever the thing is in motion, not only that part which immediately gives the wound (as the wheel, which runs over his body), but all things which move with it, and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel), are forfeited. (c) It matters not whether the owner were concerned in the killing or not: for, if a man kills another with my sword, the sword is forfeited (d) as an accursed thing. (c) And therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury (as, that the stroke was given by a certain penknife, value sixpence), that the king or his grantee

u 1 Hal. P. C. 419. Fieta, 7. 1. c. 25.

w Fitzh. Abr. tit. Enditement. pl. 27. Stauní. P. C. 20, 21.

x 3 Inst. 57. 1 Hal. P. C. 422.

z Exod. xxi 28.

y Omnia, quae movent ad mortem, sunt Deo danda. Bracton. i. 3. c. 5. a Aeschia, con. Ctesiph. Thus too, by our ancient law, a well in which a person was drowned was ordered to be filled up, under the inspection of the coroner. Elet. l. 1. c. 25.10. Fitzh. Abr. t. corone. 416. ci Hawk. P. C. c. 26.

b 1 Hal. P. C. 422.

d A similar rule obtained among the ancient Goths. Si quis, me nesciente, quocunque meo telo vei instrumento in perniciem suam abutatur ; vel er aedibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractum, et sub molendino meo confringatur, ipse aliqua muleta plectar; ut in parte infelicitatis meae numeratur, habuisse vel aedificasse aliquod quo homo periret. Sternhook de jure Goth. l. S. e Dr. & St. d. 2. c. 51.

may claim the deodand: for it is no deodand, until it be presented as such by a jury of twelve men. (f) No deodands are due for accidents [302] happening upon the high sea, that being out of the jurisdiction of the

common law: but if a man falls from a boat or ship in fresh water, and is drowned, it hath been said, that the vessel and cargo are in strictness of law a deodand. (g) But juries have of late very frequently taken upon themselves to mitigate those forfeitures, by finding only some trifling thing, or part of an entire thing, to have been the occasion of the death. And in such cases, although the finding by the jury be hardly warrantable by law, the court of king's bench hath generally refused to interfere on behalf of the lord of the franchise, to assist so unequitable a claim. (h) 13

Deodands, and forfeitures in general, as well as wrecks, treasure-trove, royal fish, mines, waifs, and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they are for the most part granted out to the lords of manors, or other liberties: to the perversion of their original design.

XVII. Another branch of the king's ordinary revenue arises from escheats of lands, " which happen upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the kingdom. But the discussion of this topic more properly belongs to the second book of these commentaries, wherein we shall particularly consider the manner in which lands may be acquired or lost by escheat.

XVIII. I proceed therefore to the eighteenth and last branch of the king's ordinary revenue; which consists in the custody of idiots, from whence we shall be naturally led to consider also the custody of lunatics.t An idiot, or natural fool, is one that hath had no understanding from his

nativity; and therefore is by law presumed never likely to attain any, [303] For which reason the custody of him and of his lands was formerly

vested in the lord of the fee (i) (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders); (j) but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people; in order to prevent the idiot from wasting his estate; and reducing himself and his heirs to poverty and distress. (k) This fiscal prerogative of the king is declared in parliament by statute 17 Edw. II. c. 9. which directs (in affirmance of the common law) () that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs in order to prevent such idiots from aliening their lands, and their heirs from being disinherited. 16

fS Inst. 57.

g S Inst, 58. 1 Hal. P. C. 423. Molloy de jure maritim. 2. 225.

i Flet. l. 1. c. 11. 10.
k F. N. B. 252.

h Foster of homicide, 266. j Dyer, 302. Hutt. 17. Noy. 27. 14 Rep. 126. Memorand' Seace' 20 Edw. 1. (prefixed to Maynard's year-book of Edw. II.) fol. 20. 24.

(13) And thus the ancient law is gradually mitigated, though in the process some violence is done to the consciences of juries; and absurd distinctions are suggested or recognized, derogating from the dignity of our jurisprudence. It would be much wiser to abolish laws which are so decidedly repugnant to the spirit of the age. Chilty.

(14) Com. Dig. Escheat. Bac. Ab. Prerogative, B. 1.

(15) See Collinson on Lunacy, &c. Bac. Ab. Idiots and Lunatics. Com. Dig. Idiot. (16) If the person be declared an idiot a nativitate, the law is as stated in the text; but if the verdict of the jury pronounce him non compos mentis, the grantee, or, as he is technically called, the committee, takes nothing to his own use, but must give security to account to the lunatic, in