[*290] into the king's exchequer; for a part of whose royal maintenance they were originally intended. All future grants of them, however, by the statute 1 Ann. St. 2, c. 7, are to endure for no longer time than the prince's life who grants them.

X. A tenth branch of the king's ordinary revenue, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers. is the right to royal fish, which are whale and sturgeon: and these, when either thrown ashore, or caught near the coast, are the property of the king, on account (v) of their superior excellence. Indeed our ancestors seem to have entertained a very high notion of the importance of this right; it being the prerogative of the kings of Denmark and the dukes of Normandy; (w) and from one of these it was probably derived to our princes. It is expressly claimed and allowed in the statute de prærogativa regis: (w) and the most ancient treatises of law now extant make mention of it, (x) though they seem to have made a distinction between whale and sturgeon, as was incidentally observed in a former chapter. (y)

XI. Another maritime revenue, and founded partly upon the same reason, is that of shipwrecks; which are also declared to be the king's property by the same prerogative, statute 17 Edw. II, c. 11, and were so, long before, at the common law. It is worthy observation, how greatly the law of wrecks has been altered, and the rigour of it gradually softened in favor of the distressed proprietors. Wreck, by the ancient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods so wrecked were adjudged to belong to the king; for it was held that by the loss of the ship all property was gone out of the original owner. (z) But this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity. Wherefore it was first *ordained by King Henry I, that

66

[*291] if any person escaped alive out of the ship, it should be no wreck; (a) and afterwards King Henry II, by his charter (b) declared, that if on the coasts of either England, Poictou, Oleron, or Gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if they claimed them within three months; but otherwise should be esteemed a wreck, and should belong to the king, or other lord of the franchise. This was again confirmed with improvements by King Richard the First; who, in the second year of his reign, (c) not only established these concessions, by ordaining that the owner, if he was shipwrecked and escaped, omnes res suas liberas et quietas haberet," but also that, if he perished, his children, or, in default of them, his brethren and sisters, should retain the property; and, in default of brother or sister, then the goods should remain to the king. (d) And the law, as laid down by Bracton in the reign of Henry III, seems still to have improved in its equity. For then, if not only a dog, for instance, escaped, by which the owner might be discovered, but if any certain mark were set on the goods, by which they might be known again, it was held to be no wreck. (e) And this is certainly most agreeable to reason; the rational claim of the king being only founded upon this, that the true owner cannot be ascertained. Afterwards, in the statute of Westminster, the first, (ƒ) the time of limitation of claims, given by the charter of Henry II, is extended to a year and a day, according to the usage of Normandy; (g) and it enacts, that if a man, a dog, or a cat escape alive, the vessel shall not be adjudged a wreck. These animals, as in Bracton, are only put for examples; (h) for it is now held, (i)

(v) Plowd. 315.

(y) Ch. 4, page 223.

(w) Stiernh. de jure Sueonum. 1. 2. c. 8. Gr. Coustum cap. 17. (w) 17 Edw. II. c. 11. (x) Bracton, 1. 3, c. 3. Britton, c. 17. Fleta, 1. 1, c. 45 and 46. Memorand. Scacch. H. 24 Edw. I. 37, prefixed to Maynard's Year Book of Edward II. (z) Dr. and St. d. 2. c. 51. (a) Spelm. Cod. apud. Wilkins, 305. (b) 26 May, A. D. 1174. 1 Rym. Foed 26. (c) Rog. Hoved. in Ric. I. (d) In like manner Constantine the great, finding that by the imperial law the revenue of wrecks was given to the prince's treasury or fiscus, restrained it by an edict (Cod. 11, 5. 1), and ordered them to remain to the owners, adding this humane expostulation, Quod enim jus habet fiscus in aliena calamitate, ut de re

tam luctuosa compendum sectetur ?"

(e) Bract. 1. 3, c. 3.

(f) 3 Edw. I. c. 4.

(g) Gr. Coustum, c. 17.

(h) Flet. 1. 1, c. 44. 2 Inst. 167. 5 Rep. 107. (i) Hamilton v. Davies. Trin. 11 Geo. III. B. R.

that not only if any live thing escape, but if proof can be made of the *property of any of the goods or lading which come to shore, they shall not be forfeited as wreck. The statute further ordains, that the sheriff [*292 ] of the county shall be bound to keep the goods a year and a day, (as in France for one year, agreeably to the maritime laws of Oleron, (j) and in Holland for a year and a half,) that if any man can prove a property in them, either in his own right or by right of representation, (k) they shall be restored to him without delay; but, if no such property be proved within that time, they then shall be the king's. If the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead. (1) This revenue of wrecks is frequently granted out to lords of manors as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the king's goods are wrecked thereon, the king may claim them at any time, even after the year and day. (m)

It is to be observed, that in order to constitute a legal wreck the goods must come to land. If they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of jetsam, flotsam, and ligan. Jetsam is where goods are cast into the sea, and there sink and remain under water: flotsam is where they continue swimming on the surface of the waves; ligan is where they are sunk in the sea, but tied to a cork or buoy, in order to be found again. (n) These are also the king's, if no owner appears to claim them; but if any owner appears, he is entitled to recover the possession. For, even if they be cast overboard without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property; (0) much less can things ligan be supposed to be abandoned, since the owner has done all in his power to assert and retain his property. These three are therefore accounted so far a distinct thing from the former, that by the *king's grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass. (p)

[*293] Wrecks, in their legal acceptation, are at present not very frequent; for, if any goods come to land, it rarely happens, since the improvement of commerce, navigation, and correspondence, that the owner is not able to assert his property within the year and day limited by law. And in order to preserve this property entire for him, and if possible to prevent wrecks at all, our laws have made many very humane regulations; in a spirit quite opposite to those savage laws which formerly prevailed in all the northern regions of Europe, and a few years ago were still said to subsist on the coasts of the Baltic sea, permitting the inhabitants to seize on whatever they could get as lawful prize; or, as an author of their own expresses it, "in naufragorum miseria et calamitate tanquam vultures ad prædam currere." (q) For, by the statute 27 Edw. III, c. 13, if any ship be lost on the shore, and the goods come to land, (which cannot, says the statute, be called wreck,) they shall be presently delivered to the merchants, paying only a reasonable reward to those that saved and preserved them, which is entitled salvage. Also by the common law, if any persons (other than the sheriff) take any goods so cast on shore, which are not legal wreck, the owners might have a commission to inquire and find them out, and compel them to make restitution. (r) And by statute 12 Ann. st. 2, c. 18, confirmed by 4 George I, c. 12, in order to assist the distressed and prevent the scandalous illegal practices on some of our seacoasts, (too similar to those on the Baltic,) it is enacted, that all head officers and others of towns near the sea, shall, upon application made to them, summon as many hands as are necessary, and send them to the relief of any ship in distress, on forfeiture of 1007., and, in case of assistance given, salvage shall be paid by the owners, to be assessed by three neighbouring justices. All persons that secrete any goods shall forfeit their treble value; and if they wilfully do any act whereby the ship is lost or destroyed, *by making [294] holes in her, stealing her pumps, or otherwise, they are guilty of felony,

(j) 28. (k) 2 Inst. 168. (1) Plowd. 166. (m) 2 Inst. 168. Bro. Abr. tit. Wreck. (n) 5 Rep. 106. (o) Quæ enim res in tempestate, levandæ navis causa ejiciuntur, hæ dominorum permanent. Quia polam est, eas non eo animo ejici, quod quis habere nolit. Inst. 2, 1, 48. (P) 5 Rep. 108. (q) Stiernh. de jure Sueon. 1, 3, c. 5.

VOL. I.-24

(r) F. N. B. 112.

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without benefit or clergy. Lastly, by the statute 26 George II, c. 19, plundering any vessel either in distress, or wrecked, and whether any living creature be on board, or not, (for, whether wreck or otherwise, it is clearly not the property of the populace,) such plundering, I say, or preventing the escape of any person that endeavours to save his life, or wounding him with intent to destroy him, or putting out false lights in order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the destroying of trees, steeples, or other stated seamarks, is punished by the statute 8 Eliz. c. 13, with a forfeiture of 1007. or outlawry. Moreover, by the statute of George II, pilfering any goods cast ashore is declared to be petit larceny; and many other salutary regulations are made, for the more effectually preserving ships of any nation in distress. (s) (6)

XII. A twelfth branch of the royal revenue, the right to mines, has its original from the king's prerogative of coinage, in order to supply him with materials; and therefore those mines which are properly royal, and to which the king is entitled when found, are only those of silver and gold. (t) By the old common law, if gold or silver be found in mines of base metal, according to the opinion of some, the whole was a royal mine, and belonged to the king; though others held that it only did so, if the quantity of gold or silver was of greater value than the quantity of base metal. (u) (7) But now by the statutes 1 W. and M. st. 1, c. 30, and 5 W. and M., c. 6, this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines, notwithstanding gold or silver may be extracted from them in any quantities; but that the king,)or *persons claiming royal mines under

[*295] his authority, may have the ore, (other than tin-ore in the counties of

Devon and Cornwall, paying for the same a price stated in the act. This was an extremely reasonable law; for now private owners are not discouraged from working mines, through a fear that they may be claimed as royal ones; neither does the king depart from the just rights of his revenue, since he may have all the precious metal contained in the ore, paying no more for it than the value of the base metal which it is supposed to be; to which base metal the land-owner is by reason and law entitled.

XIII. To the same original may in part be referred the revenue of treasuretrove (derived from the French word trover, to find,) called in Latin thesaurus inventus, which is where any money or coin, gold, silver, plate, or bullion, is found hidden in the earth, (8) or other private place, the owner thereof being unknown; in which case the treasure belongs to the king; but if he that hid it be known, or afterwards found out, the owner, and not the king, is entitled to it. (v) Also if it be found in the sea, or upon the earth, it doth not belong to the king, but the finder, if no owner appears. (w) So that it seems it is the hiding, and not the abandoning of it, that gives the king a property: Bracton (x) defining it, in the words of the civilians, to be "vetus depositio pecuniæ." This difference clearly arises from the different intentions, which the law implies

(s) By the civil law, to destroy persons ship-wrecked, or prevent their saving the ship, is capital. And to steal even a plank from a vessel in distress or wrecked, makes the party liable to answer for the whole ship and cargo. (Ef. 47, 9, 3.) The laws also of the Wisigoths, and the most early Neapolitan constitutions, punished with the utmost severity all those who neglected to assist any ship in distress, or plundered any goods cast on shore. (Lindenbrog. Cod. LL. an. tiq. 146, 715.)

(t) 2 Inst. 577. (u) Plowd. 336. (v) 3 Inst. 132. Dalt. of Sheriffs, c. 16.

(w) Britt. c. 17. Finch, L. 177.

(x) L. 3, c. 3, 24.

(6) For the statute of the United States, punishing similar offenses, see 4 Statutes at Large, 115. (7) And it is said, that though the king grants lands in which mines are, and all mines in them, yet royal mines do not pass. Plowd. 336.

In California it was held, that on the organization of the state government, the right to the precious metals in the soil of the public lands passed to the state; Stokes v. Barrett, 5 Cal. 36; and still later it was decided that when the government granted the title in fee simple to individuals, the right to the precious metals vested absolutely in the grantee. Boggs v. Merced, &c., Co., 14 Cal. 279; Moore v. Smaw, 17 id. 199.

(8) [Not upon the land. Staunf. Pl. Cor. 39. But it is not said to be treasure-trove if it be other metal than gold or silver. 3 Inst. 132.]

in the owner. The 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 to 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.

[*296] Formerly all treasure-trove belonged to the finder; (y) as was also the rule of the civil law. (z) 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 deposited 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 deserts. 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. (9) 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 therefore *if the party robbed do his diligence immediately to follow and apprehend [ *297] 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. (f) If the goods are hid by the thief, or left any where by him, so that he had them not 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 (y) Bracton, 1. 3, c. 3, 3 Inst. 133.

(z) Ff. 41, 1. 31. (c) 3 Inst. 133.

(b) Glanv. l. 1, c. 2. Crag. 1, 16, 46.
(f) Ibid. (g)5 Rep. 100.

(h) Fitz. Abr. tit.

(a) De jur. b. & p. l. 2, c. 8, § 7.
(d) Cro Eliz. 694.
(e) Finch, L. 212.
Estray, 1. 3 Bulstr. 19.

(9) [And this though left by him at a common inn. 2 Rol. 809, c. 15. If so left to ease him in his flight. For if he leave a stolen horse at a common inn for his meal, it is no waif. Id. c. 10.]

Goods waived may be reclaimed by the real

gives them to the king as the general owner and lord paramount of the soil, in recompence for the damage which they may 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 comitibus et viatoribus obviis, deinde in proxima *villa vel pago, postremo coram ecclesia vel judicio; and the space [*298] of a year was allowed for the owner to reclaim his property. (7) If the owner claims them within the year and day he must pay the charges of finding, keeping and proclaiming them. (m) (10) 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 (0) 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 feræ naturæ, 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 day. For he that takes an estray is bound, so long as he keeps it, to find it in provisions and preserve it from damage; (9) 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 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 belong to the first occupant or finder; and so continued under the *imperial law. But, in settling the modern con[ *299] stitutions of most of the governments in 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

(i) Mirr. c. 3, § 19.

(k) 5 Rep. 108. Bro. Abr. tit. Estray. Cro. Eliz. 716. (m) Dalt. Sh. 79.

(g) 1 Roll. Abr. 889.

(n) Finch, L. 177.
(r) Cro. Jac. 147.

(7) Stiernh. de jur. Gothor,l. 3, c. 5.
(0) L. 1, c. 43.
(p) 7 Rep. 17.
(8) Cro. Jac. 148. Noy. 119.

(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 Bl. Rep. 1117; 2 Hen. Bl. 254.]

By statutes in the several states of the Union, provision is made for taking charge of estrays, either by a township officer designated for the purpose, or by the person taking them; and after a reasonable period, and duly advertising the same, if the owner does not reclaim the estray, it is sold to satisfy charges. Any surplus that may remain is retained for the owner, or devoted to some charitable purpose. These statutes must be followed strictly, or the title of the owner will not be divested by them. Newsom v. Hart, 14 Mich. 233; Hyde v. Pryor, 13 Ill. 64; Smith v. Ewers, 21 Ala. 38.