sea, and are unclaimed by any owner, are supposed to be abandoned by the last Goods found and proprietor; and, as such, are returned into the common stock owner unknown. and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for [* 598] these are vested by law in the king, and form a part of the ordinary revenue of the crown; or belong to grantees of the crown, lords of manors, and the like.

Animals feræ naturæ.

*

With regard, likewise, to animals feræ naturæ, all mankind had by the original grant of the Creator a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or, if dead, are absolutely his own. (405) The restrictions which have been laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aërial, or aquatic animals as go under the denomination of game; the taking of the former is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege, and that of the latter is subject to special restrictions.

We may remember (k) that the right to hunt and kill game was, in the days of the early Norman kings (if not earlier), claimed as a special prerogative of the sovereign, and of those to whom he had granted the privilege; and this right was not only claimed, but it was, as is well known, enforced with a rigour, the cruelty of which even exceeded the injustice upon which it rested. The forest laws, however, even in the time of King John (who had himself issued some of the most arbitrary interdicts (7)), were much relaxed; and, indeed, the Carta de Forestâ (m) (extracted from him with almost as much difficulty as Magna Carta itself) went far to put an end to them. [* 599] The ancient forest laws then gradually lost their force; *but in their place numerous statutes have been from time to time passed, not involving, indeed, such manifest injustice as those laws, yet, to no inconsiderable extent, founded on very similar doctrines, that the pleasures of the chase and of sporting generally were to be reserved for the rich.

By an early statute (n) it is ordained that "no artificer, labourer, or other layman which hath not lands or tenements to the value of 40s. by the year, nor any priest, to the value of 107., shall keep any dogs, nets, or engines to destroy deer, hares, or conies, or other gentlemen's game, upon pain of one year's imprisonment."

Other later statutes, such as 1 Jac. 1, c. 27 (0), prohibited, with more or less generality, the killing of game, making exceptions in favour of those persons possessed of special qualifications, such as being a lord or lady of a manor, or owners of estates of inheritance worth 401. a year, and the like.

(k) Ante, p. 101.

(0) Which was altered by 7 Jac. 1, c. 11,

(1)" Capturam avium per totam Angliam and virtually repealed by 22 & 23 Car. 2, c. 25. interdixit." M. Paris, 303.

(m) Confirmed by 9 Hen. 3. (n) 13 Ric. 2, c. 13.

By the last act the qualification was an estate of inheritance worth 1007. a year; or an estate for life worth 150l. a year.

(405) See ante, p. 799, note 401.

The result of these acts was, therefore, that only those who possessed considerable fortunes had the right to kill game. But the right of these is founded upon that general right which, in the absence of any laws on the subject, every person would seem naturally to possess of shooting game, like other wild animals, upon his own land, or the land of any other person whose permission to do so has been given him. No statute gives any express permission to an individual to kill game, except, indeed, those which permit gamekeepers to do so, when duly appointed, though not possessed of a property qualification, and these do not so much confer any right as remove the penalties which previous enactments had imposed (p).

It is therefore an incorrect, though it was a common, expression, [* 600] to say that the possession of 100l. a year, or so forth, gave a qualification, for that possession merely took the person having it out of the operation of the game acts, and left him to his natural rights.

Whether, however, we regard the so-called "qualified " persons as the only ones to whom permission to kill game has been given, or whether as the only persons from whom the natural birthright of doing so has not been taken away, the effect is the same, and involves ideas which are ill-suited to the sense of liberty of the present day, and, accordingly, all "qualifications" have been abolished (7). Every person may now kill game, though of course his right can have no opportunity of exercise unless with the permission of the owner of the land on which the game is to be killed. The right to kill any particular game, therefore, emanates from the owner of the land on which it is killed, to whom, by a principle of occupancy, or rather a kind of special occupancy, the property in the game, as soon as it becomes the subject of property, that is, as soon as it is killed, accrues (r).

Property in game.

We may here note, however, that these ancient ideas and prejudices as to the right of killing game have been put to a practical use for purposes of the public revenue. Under the act which abolished qualifications, it was necessary for every person who was about to kill game to purchase a game certificate (s). These certificates have since been abolished (t), and in [* 601] their stead there has been substituted an ordinary excise licence, to be obtained for every year, for which the sum of 3l., or 21., according to the portion of the year through which the licence extends, must be paid (u).

Licences to kill game.

(p) As to game-keepers, see 5 Anne, c. 14; 48 Geo. 3, c. 93; 1 & 2 Will. 4, c. 32.

(q) By 1 & 2 Will. 4, c. 32, repealing 22 & 23 Car. 2, c. 25, and a vast number of other game acts. Those enactments which remained unrepealed appear to be 3 Jac. 1, c. 13, s. 5; 25 Geo. 3, c. 50; 31 Geo. 3, c. 21; 48 Geo. 3, c. 55; 52 Geo. 3, c. 93; 54 Geo. 3, c. 141, 9 Geo. 4, c. 169. These provisions have since become obsolete, or have been expressly repealed.

(r) As to the ownership of the game by the person on whose land it is killed (or his licensees or assigns), see 1 & 2 Will. 4, c. 32, ss. 11, 12, 36. The game killed on the wastes of a manor belongs to the lord, ib. s. 10; and see Rigg v. Lonsdale, 1 H. & N. 923; Ewart v. Graham, 7 H. L. 331; Bruce v. Halliwell, 5 H. & N. 609.

(8) Certificates were not, however, first introduced by that act. See 52 Geo. 3, c. 93. (t) By 23 & 24 Vict. c. 90. (u) An exception is made as to taking woodcocks or snipes with nets or springes, the destruction of rabbits by the proprietor of the land or his tenant, the coursing of hares, and hunting of deer, and the killing deer in any enclosed lands by the owner or occupier of the land. We may remark that the license is necessary not only to kill game, properly so called (i. e., hares, pheasants and partridges, grouse and moor game), but also woodcocks, snipes, quails or landrails, conies, and deer; 23 & 24 Vict. c. 90, s. 2. The definition of the word game in the Night Poaching Act, 25 & 26 Vict. c. 114, s. 1, is somewhat different.

These licences, however, can no more be said to confer the right of shooting, than the payment of duty upon carriages confers the right to ride in them.

The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or artificial means, as by the By accession. growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement (x), (406) whatever might be the change of form; it being only necessary to prove the identity of the materials: but if the thing itself, by such operation, was changed into a different species, as, by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials which he had so converted (y). And these doctrines are implicitly copied and adopted by our* Bracton (z), and [* 602] have since been confirmed by many resolutions of the courts (a). It has even been held, that if one takes away and clothes another's wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman (b). But in the case of cónfusion of goods, where those of two persons are so intermixed, that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If intermixture of the intermixture be by consent, it seems that, in both laws, the proprietors have an interest in common, in proportion to their respective shares (c). (407) But, if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered

Confusion an

goods.

(x) Inst. 2. 1. 25, 26, 31. Dig. 6. 1. 5.

(y) Inst. 2. 1. 25, 34.

(z) L. 2, c. 2 & 3; 5 Hen. 7, fo. 15; 12 Hen. 8, fo. 15.

(a) Bro. Abr. tit. Propertie, 23; Moor. 20; Poph. 38.

(b) Moor. 214.

(c) Inst. 2. 1. 27, 28; 1 Vern. 217.

(406) The law will not allow one man to gain a title to the property of another, upon the principle of accession, if he took the property of the other willfully as a trespasser; and the owner may take it in whatever form he may find it, and, however much it may have been altered or changed by the wrong-doer, if he can establish the identity of the original materials. This is the rule when corn is taken and converted into whisky (Silsbury v. McCoon, 3 N. Y. [3 Comst.] 379); or trees are cut down and made into shingles (Betts v. Lee, 5 Johns. 349); or into charcoal (Curtis v. Groat, 6 id. 169; Riddle v. Driver, 12 Ala. 590); or trees cut down and cut into rails and posts (Snyder v. Vaux, 2 Rawle, 423); or trees made into boards (Davis v. Easley, 13 Ill. 192); or staves. Heard v. James, 49 Miss. 236.

Where the taking of the original materials was in good faith, and the labor of the taker has made the property of much greater value than such materials, it has been held that the title will be in the taker, and the original owner will be entitled to the value of the materials. Wetherbee v. Green, 22 Mich. 311; 7 Am. Rep. 653; Hyde v. Cookson, 21 Barb. 92; Single v. Schneider, 30 Wis. 570.

(407) 4 Kent's Com. 364; Adams v. Meyers, 1 Sawyer, 306; Dale v. Olmstead, 36 Ill. 150. The rule is the same where such intermixture is by accident, as where a freshet floats off the wood of different owners, and the property of one is mingled with and undistinguishable from that of the other (Moore v. Erie Railway Co., 7 Lans. 39); or by the mistake of the owner. Pratt v. Rawson, 20 Vt. 333.

in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost (d). But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain, without his own consent (e). (408)

*CHAPTER XXVII.

TITLE BY PREROGATIVE AND FORFEITURE.

Title by preroga

[* 603]

A SECOND method of acquiring property in personal chattels is by the king's prerogative; whereby a right may accrue either to the crown tive in the king itself, or to such as claim under the title of the crown; as by the or his grantee. king's grant, or by prescription, which supposes an ancient grant.

Formerly, tributes, taxes, and customs were payable to the crown by virtue of the royal prerogative, whatever was their foundation, whether as inherent in the crown, or granted by authority of parliament. At the present day, however, our sovereign derives no direct personal advantage from any tributes, taxes, or customs, or indeed from any other of the ancient sources of wealth given to or acquired by the crown; inasmuch as all such acquisitions fall into the general funds applied annually by parliament to the services of the state. This has been sufficiently dealt with in a former book.

The state now derives, or may derive, the benefit of these doctrines, which are still part of the law, and attach to the prerogative; though they are never given effect to when they work to the manifest hardship of individuals. One of these doctrines is, 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 person, 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 (d) Inst. 2. 1. 28.

*

[* 604 ]

513; 2 Vern. 516. See 2 Camp. 576; 15 Ves.

(e) Poph. 38; 2 Bulstr. 325; 1 Hal. P. C. 442.

(408) This rule has been frequently followed in this country. Bryant v! Ware, 30 Me. 295; Smith v. Morrill, 56 id. 566; Seavey v. Dearborn, 19 N. H. 351; Gilman v. Hill, 36 id. 311; Weil v. Silverstone, 6 Bush (Ky.), 698.

Where goods belonging to different individuals are willfully mixed, without mutual consent, no change of ownership will take place if the goods can be easily distinguished and separated, as where one person makes additions to steam machinery which belongs to another. Alley v. Adams, 44 Ala. 609.

A person who willfully so confounds the property of another with his own that the line of distinction cannot be traced, will be subjected to all the inconveniences of the confusion, and he will be required to distinguish his own property or lose it. Weil v. Silverstone, 6 Bush (Ky.), 698; Smith v. Morrill, 56 Me. 566; Gilman v. Hill, 36 N. H. 311, 323; Seavey v. Dearborn, 19 id. 351; Loomis v. Green, 7 Greenl. (Me.) 386; Treat v. Barber, 7 Conn. 274.

king shall have the whole penalty; the debt or duty being one single chattel (a); 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 (b). 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 (c): 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. But this rule has been relaxed in favour of commercial interests, as it has been held that on an extent against one of several partners, only the beneficial interest of that partner can be taken (d).

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

King's property in treasure

trove, wrecks, waifs, royal fish, etc.

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, goods found jetsam, flotsam, or lagan, in treasure-trove, in waifs, in estrays, in royal fish, in swans, 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 fran[*605] chises, by his bounty. These are ascribed to him, partly upon the particular reasons already mentioned; 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 ornament of the commonwealth. The right of the crown to wreck and goods found jetsam, flotsam, or lagan, has been regulated by statute (e).

**

There is also a kind of prerogative copyright subsisting in which is held to be vested in the crown upon different reasons.

Prerogative copyright.

certain books, 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 (f). 2. As supreme head of the church, he has 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, grammar, and other compositions, as were compiled or translated at the expense of the crown. And upon these two last principles combined, the exclusive right of printing the translation of the bible is founded (g).

The third method whereby a title to goods and chattels may be acquired and lost, viz., by forfeiture, as a punishment for crime, needs here but a brief

(a) Fitzh. Abr. tit. Dette, 38; Plowd. 243. (b) Cro. Eliz. 263; Plowd. 323; Finch. Law, 178; 10 Mod. 245.

(c) Co. Litt. 30.

(d) 1 Wright, 50; Chitt. Prerog. 287. (e) 9 & 10 Vict. c. 99, amending and consolidating the previous law.

(f) 1 W. Bl. 105; 2 Burr. 661. It has been decided that the Crown has no monopoly or right to grant a monopoly in almanacs. 2

W. Bl. 1004.

(g) 3 Bligh, N. S. 391.