genuine "red spot Melvill" found its way into the royal golf bag by forfeiture or escheat. And as James and his son Henry were regular players at Blackheath, this regal experiment in tariff reform was of considerable advantage to both of them.

But the value of the story to us is that it raises doubt in the legal mind whether an Englishman has any rights at all as against a Scotsman in the matter of golf balls. Clearly in James I's day-and let us remember that as Defender of the Faith whatever he did or said is worthy of all regard—an Englishman could not make a golf ball or have any property in one unless it was one of Melvill's. The point at once occurs-to one who is bound to admit that he has never opened an international law book since he endeavoured to pass an examination on the subject— is the theft of a golf ball to be decided by the domicil of the golf ball or the lex loci of the links? Supposing for instance, A. in 1620 lost a four-bob Melvill at Blackheath and a caddie was found in possession of it, what law should Justice Shallow apply the Scots law of "theft" or the English law of "larceny"? Because if the lex loci, or the law of the links, is to prevail in each place where golf is played, we may have to study the Code Napoléon at Le Touquet, the statutes of the Jurats at Grouville, and the ancient laws of Hywel Dda when we venture on the Morfa within the jurisdiction of Harlech.

I mention these difficulties, not to solve them, but to show you how stupendous are the legal problems raised by the lost golf ball. In this country it will, I expect, be decided either that the royal and ancient game carries

with it—as it seems to have done in James I's time—all the incidents and privileges of Scots Law, or else perhaps modern doctrines will be followed and the felonious taking of a lost golf ball will be dealt with under English

statutes.

We may leave it at this until the Court of Criminal Appeal gets seisin of the subject, thankful that there are but few minor distinctions between Scots theft and English larceny. The practical question, I take it, that is burdening the mind of the golfer who loses his ball in the rough, and the loafer who prowls round the links in company of a trained lurcher with a gutty nose, is what are the sporting chances of seven days without the option?

Now, in the Jacobean days of golf it seems to have been clear law in the Criminal Courts that finding was keeping. Sir Edward Coke's view-and he was James I's Chief Justice-was that "if one lose his own goods and another find them, though he convert them animo furandi to his own use, yet it is no larceny, for the first taking is lawful. So if one find Treasure Trove or waife or straie and convert them ut supra, it is no larceny both in respect of the finding and also for that Dominus non apparet."

I like to study these old lav yers, they put their case with such subtle common sense. Dominus in 1620 slices into the rough from the third tee at Blackheath and after prolonged search abandons his four-shilling Melvill. Two days afterwards Bardolph on his way to Gadshill, crossing the heath, picks up the Melvill and keeps it. This is no larceny, for Dominus has gone back to Whitehall and non apparet. If, however, our friend Bardolf had seen

Dominus slice into the rough and had marked the ball down and gone for it at the moment when the back of Dominus was turned, that would have been a very different matter, I presume. The law, however, was not eager to extend the incidents of larceny, since on conviction for the theft of a Melvill, if the jury found it to be of the value of over one shilling, that was grand larceny and the penalty was death.

And Sir Matthew Hale points out a very sensible exception to the old rule of law that "finding is keeping." For he tells us that "where a man's goods are in such a place where ordinarily they are or may be placed, and a person takes them animo furandi, it is felony, and the pretence of finding must not excuse." For instance, I know a certain under-sheriff of whom at the third hole it might fairly be recorded that his drives, in the words of Hale, “ordinarily are or may be placed ” in the zariba. A zariba with us is gorse and trees surrounded by a thin ditch and out of bounds. I refer to my friend as a certain under-sheriff not to identify him, but because he is certain or nearly certain to drive into the zariba. If, then, a ball be found in that particular zariba it would, I think, come within the rule" where a man's goods are in such a place where ordinarily they are or may be placed," and it would be larceny for anyone to take them animo furandi. And let the layman remember that without the animus and intent to steal mere asportation is no crime whatsoever. And that the Scots Law is in no way different from the English Law as laid down in Sir Matthew Hale's Historia Placitorum Corona may be seen by the study of the works of the famous Baron Hume, a

noted writer of commentaries on Scots Criminal Law. As late as 1797 the learned Baron tells us that for a cabman to appropriate a parcel in his cab was not theft. There is no doubt that the principle of "finding is keeping" had the sanction of the old lawyers.

It seems clear, therefore, that up to the beginning of the nineteenth century if you found a derelict golf ball you might pocket it and play with it without fear of the police; the only remedy of the owner, if it came to his ears that you had found his ball, being an action in Trover and Conversion, with a remote hope of recovering damages. But as the penalty for theft became less severe, so the standard of honesty set by the law of larceny has been gradually raised, and to-day the old rule" finding is keeping" is no longer a part of the common law of England or even of Scotland, where we know they keep the Sabbath and everything else they can lay their hands on. The rule to-day, and a very sensible and practical rule it is, seems to be this: "If a man finds goods that have been actually lost or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny; but if he takes them with the like intent though lost, or reasonably believing that the owner can be found, it is larceny."

Thus if my caddie, knowing that I have lost a ball in the hedgerow at the tenth, goes back in the evening and finds it, well knowing by the gaping wound at the base of it-this was caused by the low tee he gave me at the seventh, and he cannot have forgotten the shot-if,

I say, he takes the ball with intent to exercise entire dominion over it, as, for instance, to exchange it for cigarettes or sell it, that is larceny. But if, say, with full intent to return it to me the next morning, he plays a round with it himself in the dusk of the evening and loses it in the pond, he is not guilty of larceny, and my only remedy is an action for damages. For it is no answer when I sue the caddie in detinue for him to say that he has abandoned possession of my golf ball; on the contrary, it is all the worse for him, for the Judge would remember the maxim omnia praesumunter contra spoliatorem, and he would refer the jury to the famous case of the chimney-sweep who found a jewel and gave it to a jeweller to value, who refused to return it, whereon it was laid down that "unless the Defendant did produce the jewel and show it not to be of the finest water they should presume the the strongest against him and make the value of the best jewels the measure of their damage." And the law of golf balls is the same as the law of jewels, since, as Thomas Spens the Younger of Lathallan used to say in the days of the feather ball, "A guid ba' is a jewel."

But you are to observe that if you prosecute your caddie for larceny, it is up to you-if the boy be under fourteen-to prove that he was a lad of guile with sufficient intelligence to appreciate that the old law of "finding is keeping" has been improved off the face of the bench, and that other considerations prevail. For the humane and sensible common law of this country, as Hale tells us, is that "an infant under the age of discretion regularly cannot be guilty of larceny, viz. under