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CHAPTER THE TWENTY SEVENTH.
OF TITLE BY PREROGATIVE, AND FORFEITURE.

A SECOND method of acquiring property in perfonal chattels is by the king's prerogative: whereby a right may accrue either to the crown itfelf, or to fuch as claim under the title of the crown, as by grant or by prefcription.

SUCH in the firft place are all tributes, taxes, and cuftoms; whether conftitutionally inherent in the crown, as flowers of the prerogative and branches of the cenfus regalis or antient royal revenue, or whether they be occafionally created by authority of parliament; of both which fpecies of revenue we treated largely in the former volume. In thefe the king acquires and the fubject lofes a property the inftant they become due: if paid, they are a chofe in poffeffion; if unpaid, a chofe in action. Hither alfo may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his antient prerogative, or by particular modern ftatutes: which renevues created by ftatute do always affimilate, or take the fame nature, with the antient revenues; and may therefore be looked upon as arfing from a kind of artificial or fecondary prerogative. And, in either cafe, the owner of the thing forfeited, and the perfon fined of amerced, do lofe and part with the property of the forfeiture, fine, or amercement, the inftant the king or his grantee acquires it.
IN
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IN thefe feveral methods of acquiring property by prerogative there is alfo this peculiar quality, that the king cannot have a joint property with any perfon in one entire chattel, or fuch a one as is not capable of divifion or feparation; but where the titles of the king and a fubject concur, the king fhall have the whole: in like manner as the king can, neither by grant nor contract, become a joint-tenant of a chattel real with another perfon ^a; but by fuch grant or contract fhall become intitled to the whole in feveralty. Thus, if a horfe be given to the king and a private perfon, the king fhall have the fole property: if a bond be made to the king and fubject, the king fhall have the whole penalty; the debt or duty being one fingle chattel ^b: and fo, if two perfons have the property of a horfe between them, or have a joint debt owing them on bond, and one of them affigns his part to the king, or is attainted, whereby his moiety is forfeited to the crown; the king fhall have the entire horfe, and entire debt ^c. For, as it is not confiftent with the dignity of the crown to be partner with a fubject, fo neither does the king ever lofe his right in any inftance; but, where they interfere, his is always preferred to that of another perfon ^d: from which two principles it is a neceffary confequence, that the innocent, though unfortunate, partner muft lofe his fhare in both the debt and the horfe, or in any other chattel in the fame circumftances.

THIS doctrine has no opportunity to take place in certain other inftances of title by prerogative, that remain to be mentioned; as the chattels thereby vefted are originally and folely vefted in the crown, without any transfer or derivative affignment either by deed or law from any former proprietor. Such is the acquifition of property in wreck, in treafure-trove, in waifs, in eftrays, in royal fifh, in fwans, and the like; which are not transferred to the fovereign from any former owner, but are ori-

.{FS}
^a See pag. 184.
^b Fitzh. Abr. t. dette. 38. Plowd. 243.
^c Cro. Eliz. 263. Plowd. 323. Finch. Law. 178. 10 Mod. 245.
^d Co. Litt. 30.
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ginally

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ginally inherent in him by the rules of law, and are derived to particular fubjects, as royal Franchifes, by his bounty. Thefe are afcribed to him, partly upon the particular reafons mentioned in the eighth chapter of the former book; and partly upon the general principle of their being bona vacantia, and therefore vefted in the king, as well to preferve the peace of the public, as in truft to employ them for the fafety and ornament of the commonwealth.

WITH regard to the prerogative copyrights, which were mentioned in the preceding chapter, they are held to be vefted in the crown upon different reafons. Thus, 1. The king, as the executive magiftrate, has the right of promulging to the people all acts of ftate and government. This gives him the exclufive privilege of printing, at his own prefs, or that of his grantees, all acts of parliament, proclamations, and orders of council. 2. As fupreme head of the church, he hath a right to the publication of all liturgies and books of divine fervice. 3. He hath a right by purchafe to the copies of fuch lawbooks, grammars, and other compofitions, as were compiled or tranflated at the expenfe of the crown. And upon thefe two laft principles the exclufive right of printing the tranflation of the bible is founded. 4. Almanacks have been faid to be parliament-copies, either as things derelict, or elfe as being fubftantially nothing more than the calendar prefixed to out liturgy ^e. And indeed the regulation of time has been often confidered as a matter of ftate. The Roman fafti were under the care of the pontifical college: and Romulus, Numa, and Julius Caefar, fucceffively regulated the Roman calendar.

THERE ftill remains another fpecies of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of fuch animals ferae naturae, as are known by the denomination of game, with the right of purfuing, taking, and deftroying them: which is vefted in the king alone, and from him derived to fuch of his fubjects as have

.{FS}
^e 1 Mod. 257.
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received
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received the grants of a chafe, a park, a free warren, or free fifhery. This may lead us into an enquiry concerning the original of thefe franchifes, or royalties, on which we touched a little in a former chapter ^f; the right itfelf being an incorporeal hereditament, though the fruits and profits of it are a perfonal nature.

IN the firft place then we have already fhewn, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peafant, has an equal right of purfuing, and taking to his own ufe, all fuch creatures as are ferae naturae, and therefore are property of nobody, but liable to be feifed by the firft occupant. And fo it was held by the imperial law, even fo late as Juftinian's time: “ferae igitur beftiae, et volucres, et omnia animalia quae mari, coelo, et terra nafcuntur, fimul atque ab aliquo capta fuerint, jure gentium ftatim illius effe incipiunt. Quod enim nullius eft, id naturali ratione occupanti conceditur ^g.” But it follows from the very end and conftitution of fociety, that this natural right, as well as many others belonging to man as an individual, may be reftrained by pofitive laws enacted for reafons of ftate, or for the fuppofed benefit of the community. This reftriction may be either with refpect to the place in which this right may, or may not, be exercifed; with refpect to the animals that are the fubject of this right; or with refpect to the perfons allowed or forbidden to exercife it. And, in confequence of this authority, we find that the municipal laws of many nations have exerted fuch power of reftraint; have in general forbidden the entering on another man's grounds, for any caufe, without the owner's leave; have extended their protection to fuch particular animals as are ufually the objects of purfuit; and have invefted the prerogative of hunting and taking fuch animals in the fovereign of the ftate only, and fuch as he fhall authorize ^h. Many reafons have concurred for making thefe conftitutions: as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclufive dominion over

.{FS}
^f pag. 38, 39.
^g Inft. 2. 1, 12.
^h Puff. L. N. 1. 4. c. 6. §. 5.
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his

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his own foil. 2. For prefervation of the feveral fpecies of thefe animals, which would foon be extirpated by a general liberty. 3. For prevention of idlenefs and diffipation in hufbandmen, artificers, and others of lower rank; which would be the unavoidable confequence of univerfal licence. 4. For preventing of popular infurrections and refiftance to the government, by difarming the buld of the people ⁱ: which laft is a reafon oftener meant, than avowed, by the makers of foreft or game laws. Nor, certainly, in thefe prohibitions is there any natural injuftice, as fome have weakly enough fuppofed: fince, as Puffendorf obferves, the law does not hereby take from any man his prefent property, or what was already his own, but barely abridges him of one means of acquiring a future property, that of occupancy; which indeed the law of nature would allow him, but of which the laws of fociety have in moft inftances very juftly and reafonably deprived him.

YET, however defenfible thefe provifions in general may be, on the footing of reafon, or juftice, or civil policy, we muft notwithftanding acknowlege that, in their prefent fhape, they owe their immediate original to flavery. 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 fporting on any private grounds without the owner's leave; and another of a more fpiritual nature, which was rather a rule of ecclefiaftical difcipline, than a branch of municipal law. The Roman or civil law, though it knew no reftriction as to perfons or animals, for far regarded the article of place, that it allowed no man to hunt or fport upon another's ground, but by confent of the owner of the foil. “Qui alienum fundum ingreditur, venandi aut aucupandi gratia, poteft a domino prohiberi ne ingrediatur^k.” For if there can, by the law of nature, by any inchoate imperfect property fuppofed in wild animals before they are taken, it feems most reafonable to fix it in him upon whofe land they are found. And as to the other reftriction, which relates to perfons and not

.{FS}
ⁱ Warburton's alliance. 324.
^k Inft. 2, 1. §. 12.
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to
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to place, the pontificial or canon law ^l interdict “venationes, et fylvaticas vagationes cum canibus, et accipitribus” to all clergymen without diftinction; grounded on a faying of St. Jerom ^m, that it never is recorded that thefe diverfions were ufed by the faints, or primitive fathers. And the canons of our Saxon church, publifhed in the reign of king Edgar ⁿ, concur in the fame prohibition: though our fecular laws, at leaft after the conqueft, did even in the times of popery difpenfe with this canonical impediment; and fpritual perfons were allowed by the common law to hunt for their recreation, in order to render them fitter for the performance of their duty: as a confirmation whereof we may obferve, that it is to this day a branch of the king's prerogative, at the death every bifhop, to have his kennel of hounds, or a compofition in lieu thereof ^o.

BUT, with regard to the rife and original of our prefent civil prohibitions, it will be found that all foreft and game laws were introduced into Europe at the fame time, and by the fame policy, as gave birth to the feodal fyftem; when thofe fwarms of barbarians iffued from their northern hive, and laid the foundation of moft of the prefent kingdoms of Europe, on the ruins of the weftern empire. For when a conquering general came to fettle the oeconomy of a vanquifhed country, and to part it out among his foldiers or feudatories, who were to render him military fervice for fuch donations; it behoved him, in order to fecure his new acquifitions, to keep the ruftici or natives of the country, and all who were not his military tenants, in as low a condition as poffibel, and efpecially to prohibit them the ufe of arms. Nothing could do this more effectually than a prohibition of hunting and fporting: and therefore it was the policy of the conqueror to referve this right to himfelf, and fuch on whom he fhould beftow it; which were only his capital feudatories, or greater barons. And accordingly we find, in the feudal conftitutions ^p, one and the fame law prohibiting the ruftici in general

.{FS}
^l Decretal. l. 5. tit. 24. c. 2.
^m Decret. part. 1. dift. 34. l. 1.
ⁿ cap. 64.
^o 4 Inft. 309.
^p Feud. l. 2. tit. 27. §. 5.
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from
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Ch. 27.
from carrying arms, and alfo profcribing the ufs of nets, fnares, or other engines for deftroying the game. This exclufive privilege well fuited the martial genius of the conquering troops, who delighted in a fport ^q which in it's purfuit and flaughter bore fome refemblance to war. Vita omnis, (fays Caefar, fpeaking of the antient Germans) in venationibus atque in ftudiis rei militaris confiftit ^r. And Tacitus in like manner obferves, that quotiens bella non ineunt, multum venatibus, plus per otium tranfigunt ^s. And indeed, like fome of their modern fucceffors, they had no other amufement to entertain their vacant hours; they defpifing all arts as effeminate, and having no other learning, that was couched in fuch rude ditties, as were fung at the folemn caroufals which fucceeded thefe antient huntings. And it is remarkable that, in thofe nations where the feodal policy remains the moft uncorrupted, the foreft or game laws continue in their higheft rigor. In France all game is properly the king's; and in fome parts of Germany it is death for a peafant to be found hunting in the woods of the nobility ^t.

WITH us in England alfo, hunting has ever been efteemed a moft princely diverfion and exercife. The whole ifland was replenifhed with all forts of game in the times of the Britons; who lived in a wild and paftoral manner, without inclofing or improving their grounds, and derived much of their fubfiftence from the chafe, which they all enjoyed in common. But when hufbandry took place under the Saxon government, and lands began to be cultivated, improved, and enclofed, the beafts naturally fled into the woody and defart tracts; which were called the forefts, and, having never been difpofed of in the firft diftribution of lands, were therefore held to belong to the crown. Thefe were filled with great plenty of game, which our royal fportf-

.{FS}
^q In the laws of Jenghiz Khan, founder of the Mogul and Tartarian empire, publifhed A. D. 1205. there is one which prohibits the killing of all game from March to October; that the court and foldiery might find plenty enough in the winter, during their recefs from war. (Mod. Univ. Hift. iv. 468.)
^r De bell. Gall. l. 6. c. 20.
^s c. 15.
^t Mattheus de Crimin. c. 3. tit. 1. Carpzov. Practic. Saxonic. p. 2. c. 84.
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men
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men referved for their own diverfion, on pain of a pecuniary forfeiture for fuch as interfered with their fovereign. But every freeholder had the full liberty of fporting upon his own territories, provided he abftained from the king's forefts: as is fully expreffed in the laws of Canute ^v, and of Edward the confeffor ^u; “fit quilibet homo dignus venatione fua, in fylva, et in agris, fibi propriis, et in dominio fuo: et abftineat omnis homo a venariis regis, ubicunque pacem eis habere voluerit:” which indeed was the antient law of the Scandinavian continent, from whence Canute probably derived it. “Cuique enim in proprio fundo quamlibet feram quoquo modo venari permiffum ^w.”

HOWEVER, upon the Norman conqueft, a new doctrine took place; and the right of purfuing and taking all beaft of chafe or venary, and fuch other animals as were accounted game, was then held to belong to the king, or to fuch only as were authorized under hi. And this, as well upon the principles of the feodal law, that the king is the ultimate proprietor of all the lands in the kingdom, they being all held of him as the chief lord, or lord paramount of the fee; and that therefore he has the right of the univerfal foil, to enter thereon, and to chafe and take fuch creatures at his pleafure: as alfo upon another maxim of the common law, which we have frequently cited and illuftrated, that thefe animals are bona vacantia, and, having no other owner, belong to the king by his prerogative. As therefore the former reafon was held to veft in the king a right to purfue and take them any where; the latter was fuppofed to give the king, and fuch as he fhould authorize, a fole and exclufive right.

THIS right, thus newly vefted in the crown, was exerted with the utmoft rigor, at and after the time of the Norman eftablifhment; not only in the antient forefts, but in the new ones which the conqueror made, by laying together vaft tract of

.{FS}
^v c. 77.
^u c. 36.
^w Stiernhook, de jure Sueon. l. 2. c. 8.
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country,
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country, depopulated for that purpofe, and referved folely for the king's royal diverfion; in which were exercifed the moft horrid tyrannies and oppreffions, under colour of foreft law, for the fake of preferving the beafts of chafe; to kill any of which, within the limits of the foreft, was as penal as the death of a man. And, in purfuance, of the fame principle, king John laid a total interdict upon the winged as well as the fourfooted creation: “capturam avium per totam Angliam interdixit^x.” The cruel and infupportable hardfhips, which thefe foreft laws created to the fubject, occafioned our anceftors to be as zealous for their reformation, as for the relaxation of the feodal rigors and the other exactions introduced by the Norman family; and accordingly we find the immunities of carta de forefta as warmly contended for, and extorted from the king with as much difficulty, as thofe of magna carta itfelf. By this charter, confirmed in parliament ^y, many forefts were difafforefted, or ftripped of their oppreffive privileges, and regulations were made in the regimen of fuch as remained; particularly ^z killing the king's deer was made no longer a capital offence, but only punifhed by fine, imprifonment, or abjuration of the realm. And by a variety of fubfequent ftatutes, together with the long acquiefcence of the crown without exerting the foreft laws, this prerogative is now become no longer a grievance to the fubject.

BUT, as the king referved to himfelf the forefts for his own exclufive diverfion, fo he granted out from time to time other tracts of land to his fubjects under the names of chafes or parks ^a; or gave them licence to make fuch in their own grounds; which indeed are fmaller forefts, in the hands of a fubject, but not governed by the foreft laws: and by the common law no perfon in at liberty to take or kill any beafts of chafe, but fuch as hath an antient chafe or park; unlefs they be alfo beafts of prey.

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^x M. Paris. 303.
^y 9 Hen. III.
^z cap. 10.
^a See pag. 38.
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AS
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AS to all inferior fpecies of game, called beafts and fowls of warren, the liberty of taking or killing them is another franchife or royalty, derived likewife from the crown, and called free warren; a word, which fignifies prefervation or cuftody: as the exclufive liberty of taking and killing fith in a public ftream or river is called a free fifhery; of which however no new franchife can at prefent be granted, by the exprefs provifion of magna carta, c. 16 ^b. The principal intention of granting a man thefe franchifes or liberties was in order to protect the game, by giving him a fole and exclufive power of killing it himfelf, provided he prevented other perfons. And no man, but he who has a chafe or free warren, by grant from the crown, or prefcription which fuppofes one, can juftify hunting or fporting upon another man's foil; nor indeed, in thorough ftrictnefs of common law, either hunting or fporting at all.

HOWEVER novel this doctrine may feem, it is a regular confequence from what has been before delivered; that the fole right of taking and deftroying game belongs exclufively to the king. This appears, as well from the hiftorical deduction here made, as becaufe he may grant to his fubjects an exclufive right of taking them; which he could not do, unlefs fuch a right was firft inherent in himfelf. And hence it will follow, that no perfon whatever, but he who has fuch derivative right from the crown, is by common law entitled to take or kill any beafts of chafe, or other game whatfover. It is true, that by the acquiefcence of the crown, the frequent grants of free warren in antient times, and the introduction of new penalties of late by certain ftatutes for preferving the game, this exclufive prerogative of the king is little known or confidered; every man, that is exempted from thefe modern penalties, looking upon himfelf as at liberty to do what he pleafes with the game: whereas the contrary is ftrictly true, that no man, however well qualified he may vulgarly be efteemed, has a right to encroach on the royal

.{FS}
^b Mirr. c. 5. §. 2. See pag. 39.
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prerogative by killing of game, unlefs he can fhew a particular grant of free warren; or a prefcription, which perfumes a grant; or fome authority under an act of parliament. As for the latter, I know but of two inftances wherein an exprefs permiffion to kill game was ever given by ftatute; the one by 1 Jac. I. c. 27. altered by 7 Jac. I. c. 11. and virtually repealed by 22 & 23 Car. III. c. 25. which gave authority, fo long as they remained in force, to the owners of free warren, to lords of manors, and to all freeholders having 40 l. per annum in lands of inheritance, or 80 l. for life or lives, or 400 l. perfonal eftate, (and their fervants) to take partridges and pheafants upon their own, or their mafter's, free warren, inheritance, or freehold: the other by 5 Ann. c. 14. which empowers lords and ladies of manors to appoint gamekeepers to kill game for the ufe of fuch lord or lady; which with fome alterations ftill fubfifts, and plainly fuppofes fuch power not to have been in them before. The truth of the matter is, that thefe game laws (of which we fhall have occafion to fpeak again in the fourth book of thefe commentaries) do indeed qualify nobody, except in the inftance of a gamekeeper, to kill game: but only, to fave the trouble and formal procefs of an action by the perfon injured, who perhaps too might remit the offence, thefe ftatutes inflict additional penalties, to be recovered either in a regular of fummary way, by any of the king's fubjects, from certain perfons of inferior rank who may be found offending in this particular. But it does not follow that perfons, excufed from thefe additional penalties, are therefore authorifed to kill game. The circumftances, of having 100 l. per annum, and the reft, are not properly qualifications, but exemptions. And thefe perfons, fo exempted from the penalties of the game ftatutes, are not only liable to actions of trefpafs by the owners of the land; but alfo, if they kill game within the limits of any royal franchife, they are liable to the actions of fuch who may have the right of chafe or free warren therein.
UPON
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UPON the whole it appears, that the king, by his prerogative, and fuch perfosn as have, under his authority, the royal franchifes of chafe, park, free warren, or free fifhery, are the only perfons, who may acquire any property, however fugitive and tranfitory, in thefe animals ferae naturae, while living; which is faid to be vefted in them as was obferved in a former chapter, propter privilegium. And it muft alfo be remembered, that fuch perfons as may thus lawfully hunt, fifh, or fowl, ratione privilegii, have (as has been faid) only a qualified property in thefe animals; it not being abfolute or permanent, but lafting only fo long as the creatures remain within the limits of fuch refpective franchife or liberty, and ceafing the inftant they voluntarily pafs out of it. it is held indeed, that if a man ftarts any game within his own grounds, and follows it into another's, and kills it there, the property remains in himfelf ^c. And this is grounded on reafon and natural juftice ^d: for the property confifts in the poffeffion; which poffeffion commences by the finding it in his own liberty, and is continued by the immediate purfuit. And fo, if a ftranger ftarts game in one man's chafe or free warren, and hunts it into another liberty, the property continues in the owner of the chafe or warren; this property arifing from privilege ^e, and not being changed by the act of a mere ftranger. Or if a man ftarts game on another's private grounds and kills it there, the property belongs to him in whofe ground it was killed, becaufe it was alfo ftarted there ^f; this property arifing ratione foli. Whereas if, after being ftarted there, it is killed in the grounds of a third perfon, the property belongs not to the owner of the firft ground, becaufe the property is local; nor yet to the owner of the fecond, becaufe it was not ftarted in his foil; but it vefts in the perfon who ftarted and killed it ^g, though guilty of a trefpafs againft both the owners.

.{FS}
^c 11 Mod. 75.
^d Puff. L. N. l. 4. c. 6.
^e Lord Raym. 251.
^f Ibid.
^g Farr. 18. Lord Raym. ibid.
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E e e 2

I PRO-

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III. I PROCEED now to a third method, whereby a title to goods and chattels may be acquired and loft, viz. by forfeiture; as a punifhment for fome crime or mifdemefnor in the party forfeiting, and as a compenfation for the offence and injury committed againft him to whom they are forfeited. Of forfeitures, confidered as the means whereby real property might be loft and acquired, we treated in a former chapter ^h. It remains therefore in this place only to mention, by what means or for what offences goods and chattels become liable to forfeiture.

IN the variety of penal laws with which the fubject is at prefent incumbered, it were a tedious and impracticable tafk to reckon up the various forefeitures, inflicted by fpecial ftatutes, for particular crimes and mifdemefnors: fome of which are mala in fe, or offences againft the divine law, either natural or revealed; but by far the greateft part are mala prohibita, or fuch as derive their guilt merely from their prohibition by the laws of the land: fuch as is the forfeiture of 40 s. per month by the ftatute 5 Eliz. c. 4. for exercifing a trade without having ferved feven years as an apprentice thereto; and the forfeiture of 10 l. by 9 Ann. c. 23. for printing an almanac without a ftamp. I fhall therefore confine myfelf to thofe offences only, by which all the goods and chattels of the offender are forfeited: referring the ftudent for fuch, where pecuniary mulcts of different quantities are inflicted, to their proper heads, under which very many of them have been or will be mentioned; or elfe to the collections of Hawkins and Burn, and other laborious compilers. Indeed, as moft of thefe forfeitures belong to the crown, they may feem as if they ought to have been referred to the preceding method of acquiring perfonal property, namely, by prerogative. But as, in the inftance of partial forfeitures, a moiety often goes to the informer, the poor, or fometimes to other perfons; and as one total forfeiture, namely that by a bankrupt who is guilty of felony by

.{FS}
^h See pag. 267.
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concealing
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concealing his effects, accrues entirely to his creditors. I have therefore made it a diftinct head of transferring property.

GOODS and chattels then are totally forfeited by conviction of high treafon, or mifprifion of treafon; of petit treafon; of felony in general, and particularly of felony de fe, and of manflaughter; nay even by conviction of excufable homicide ⁱ; by outlaway for treafon or felony; by conviction of petit larceny; by flight in treafon or felony, even though the party be acquitted of the fact; by ftanding mute, when arraigned of felony; by drawing a weapon on a judge, or ftriking any one in the prefence of the king's courts; by praemunire; by pretended prophecies, upon a fecond conviction; by owling; by the refiding abroad of artificers; and by challenging to fight on account of money won at gaming. All thefe offences, as will more fully appear in the fourth book of thefe commentaries, induce a total forfeiture of goods and chattels.

AND this forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeitures of real property. For chattels are of fo vague and fluctuating a nature, that to affect them, by any relation back, would be attended with more inconvenience than in the cafe of landed eftates: and part, if not the whole of them, muft be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the intereft of the crown, is made void by ftatute 13 Eliz. c. 5.

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ⁱ Co. Litt. 391. 2 Inft. 316. 320.
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