CHAPTER THE TWENTY SEVENTH. OF TITLE BY PREROGATIVE AND FORFEITURE. A SECOND method of acquiring property in personal chattels is by the king's prerogative: whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an antient grant. SUCH in the first place are all tributes, taxes, and customs, whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis or antient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former volume. In these the king acquires and the subject loses a property, the instant they become due: if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his antient prerogative, or by particular modern statutes which revenues created by statute do always assimilate, or take the same nature, with the antient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it. In these several methods of acquiring property by preroga- [ 409 ] tive there is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another persona; 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; 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. 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 : 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 cir cumstances. 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, in waifs, in estrays, in royal fish, in swans, and the like; [410] 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, 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 See pag. 184. Fitz. Abr. 1. dette, 38. Plowd. Cro. Eliz. 263. Plowd. 323. Finch. Law. 178. 10 Mod. 245. 243. Co. Lit. 30. to preserve the peace of the public, as in trust to employ them for the safety and ornament of the commonwealth. THERE is also a kind of prerogative copyright 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 promulgating 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. (1) THERE still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals ferae naturae, 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 (1) It has been argued that copyright in the king and his subjects stands on the same foundation of property, and therefore that when it was determined, that no such right existed in the latter, it should have followed, that there was none in the former. See Evans' Coll. of Stat. vol.ii. p.15. But it should be remembered, that in the case of Donaldson v. Beckett, referred to at p. 407., a majority of judges, affirmed the existence of such a' right in the subject at common law, but held that it was restrained or taken away by the statute, which statute would have no operation on the same right in the king. Lord Camden, however, treated this foundation of copyright in the crown with great contempt, and specifically as applied to the translation of the Bible. It seems perhaps, therefore, safer to rest it on those grounds of public convenience, which are the best foundations of all prerogative rights; and at all events, the right itself has now been admitted for so many centuries, that even they who oppose it in theory, confess that it cannot in practice be attacked with any success. an inquiry concerning the original of these franchises, or royalties, on which we touched a little in a former chapter1: [411] the right itself being an incorporeal hereditament, though the fruits and profits of it are of a personal nature. 66 In the first place then we have already shewn, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are ferae naturae, 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: "Ferae " igitur bestiae, et volucres, et pisces, et omnia animalia quae mari, cælo, et terra nascuntur, simul atque ab aliquo capta "fuerint, jure gentium statim illius esse incipiunt. Quod enim "ante nullius est, id naturali ratione occupanti conceditur." 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 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 authorise". Many reasons have concurred for making these constitutions: 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 general liberty. 3. For prevention of idleness and dissipation in husbandmen, artificers, and others of lower rank; which would be the un- 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 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, venandi aut aucupandi gratiâ, potest a domino, si is præviderit, prohiberi ne ingrediatur." 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 probable to fix it in him upon whose land they are found. And as to the other restriction which relates to persons and not to place, the pontifical or canon law interdicts "venationes, et sylvaticas vagationes cum "canibus et accipitribus," to all clergymen without distinction; grounded on a saying of St. Jerome that it never is recorded [413] 66 -1- Warburton's Alliance, 324. * Inst. 2. 1. § 12. m 1 Decretal. 1.5. tit. 24. c.2. m Decret. part. 1. dist. 34. l. 1. |