immediate and accidental (q) occasion of the death of any reasonable creature: which was forfeited to the crown (r), to be applied to pious uses, and distributed in alms by his high almoner (s), though in early times destined to a more superstitious purpose. It seems to have been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church (t): in the same manner as the apparel of a stranger, who was found dead, was applied to purchase masses for the good of his soul. And on the subject of deodands the law made the following distinction, for which no very satisfactory reason can now be traced, that none was due where an infant under the age of discretion was killed by a fall from a cart, or horse, or the like, not being in motion (u); whereas if an adult person fell from thence and was killed, the thing was certainly forfeited. On the other hand if a horse, or ox, or other animal, of his own motion, killed either an infant or an adult, or if a cart ran over him, they were in both cases to be forfeited as deodands (v). It may be observed, that a [like punishment is, in like cases, inflicted by the Mosaical law (w): "if an ox gore a man that he die, the ox shall be stoned, and his "flesh shall not be eaten." And, among the Athenians (x), whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic.] But to return to the law of deodands. Where (9) No deodand was ever due in the case of a felonious homicide, as in manslaughter. R. v. Polwart, 1 Q. B. 818. (r) See 3 & 4 Will. 4, c. 97, containing provisions for the more speedy recovery of fines, deodands, &c., by the crown. (s) 1 Hale's P. C. 419; Fleta, 1. 1, c. 25. (t) Fitz. Abr. tit. Enditement, pl. 27; Staunf. P. C. 20, 21. (u) 3 Inst. 57; 1 Hale, P. C. 422. (v)" Omnia, quæ movent ad mortem, sunt Deo danda."-Bract. 1. 3, c. 5, (5). (w) Exod. xxi. 28. (x) Eschin. Cont. Ctesiph. Thus too by our antient law, a well in which a person was drowned was ordered to be filled up, under the inspection of the coroner. Fleta, 1. 1, c. 25, s. 10; Fitzh. Abr. tit. Coroner, 416. a thing not in motion was the occasion of a man's death, that part only which was the immediate cause was forfeited; as if a man climbing up the wheel of a cart, was killed by falling from it, the wheel alone was a deodand (y): but wherever the thing was in motion, not only that part which immediately gave the wound (as the wheel which ran over his body), but all things which moved with it, and helped to make the wound more dangerous (as the cart and loading, which increased the pressure of the wheel), were forfeited (z). It mattered not whether the owner were concerned in the killing or not; for if a man killed another with my sword, the sword was forfeited (a) as an accursed thing (5). And therefore, in all indictments for homicide, the value of the instrument of death as well as its description were presented and found by the grand jury (as that the stroke was given by a certain pen-knife, value sixpence), the origin of which custom was to enable the crown or its grantee to claim the deodand; for it was no deodand unless it were presented as such by a jury of twelve men (c). No deodands were due for accidents happening upon the high sea, that being out of the jurisdiction of the common law; but if a man fell from a boat or ship in fresh water, and was drowned, it has been said, that the vessel and cargo were in strictness of law a deodand (d). But in modern times juries very frequently took upon themselves to mitigate these forfeitures, by finding only some trifling thing, or part of an entire thing, to have been the occasion (y) 1 Hale, P. C. 422. (z) 1 Hawk. P. C. c. 26. (a) A similar rule obtained among the antient Goths: "Si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex ædibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliquá mulcta plectar; ut in parte infelici tatis meæ numeretur, habuisse vel ædi- (d) 3 Inst. 58; 1 Hale, P. C. 423; Molloy, de Jur. Maritim. 2, 225. of the death. And, in such cases, although the finding by the jury were hardly warrantable by law, the Court of Queen's Bench generally refused to interfere on behalf of the lord of the franchise to assist so unequitable a claim (e). It was however obviously better that a law so repugnant to the feelings of mankind should be abandoned, than that the solemn oath under which a juror gives his verdict should be thus evaded. Indeed its manifest unreasonableness and inconvenience, as well as unpopularity, called loudly for its abolition. This improvement was accordingly carried into effect by 9 & 10 Vict. c. 62; by which it was enacted, that from 1st September, 1846, there should be no forfeiture of any chattel in respect of the same having moved to or caused the death of man; and that no coroner's inquest, sworn to inquire, upon the sight of any dead body, how the deceased came by his death, should find any forfeiture of any chattel which may have moved to or caused the death of the deceased, or any deodand whatsoever. And it was moreover provided, that it should not be necessary, in any indictment or inquisition for homicide, to allege the value of the instrument which caused the death of the deceased, or to allege that the same was of no value. Before concluding this head, we will add that deodands, while they existed, fell under the general remark of Blackstone, that [forfeitures in general, as well as wrecks, treasure-trove, royal fish, mines, waifs, and estrays, may be granted by the sovereign, to particular subjects, as a royal franchise and indeed they are for the most part granted out to the lords of manors, or other liberties, to the perversion of their original design.] X. and XI. Two other branches of the crown's ordinary revenue are those which arise from escheats and the custody of idiots; but though in point of order they (e) Foster of Homicide, 266; 1 Bl. Com. 300; from which latter trea tise the statement above given, as to the law of deodand, is extracted. require to be here enumerated, the mere enumeration will suffice, as they have been both discussed, as far as the plan of the work permitted, in former chapters (g). [This may suffice therefore for a short view of the sovereign's ordinary revenue, or the proper patrimony of the Crown; which was very large formerly, and capable of being increased to a magnitude truly formidable; for there are very few estates in the kingdom that have not, at some period or other since the Norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise.] But both the hereditary landed revenue, and the casual profits arising from the other branches of the census regalis, are now, by the gradual effect of improvident management, by royal grants to subjects, and by other causes, reduced to comparative insignificance. This diminution, however, has been attended with no real loss or disparagement to the Crown. The ordinary revenue, even in its most flourishing state, did not suffice on all occasions for the exigencies of the sovereign's government; but at very early periods of the national history, our ancestors were obliged to supply the public necessities by contributions from their private means, which formed an extraordinary revenue for the Crown, in addition to its proper patrimony. These burthens gradually increased, until at length, in later times, they swelled into the modern system of taxation, by means of which a large annual sum is now raised, applicable generally to the whole expenditure of the state, comprising not only what is required for the public service, in the strict sense of the term, but for the maintenance and dignity of the royal person and household. The remains of the patrimonial revenue are, on the other hand, no longer specifically applied to the sovereign's private purposes, but are mixed with the produce of taxation, so (g) As to escheats, vide sup. vol. 1. p. 431; as to the Crown's custody of idiots, vide sup. p. 519. VOL. II. as to form part of the common fund which thus constitutes the national income. The decay of the sovereign's private patrimony ought to be considered as in some degree compensatory for the burthen of taxation. [For if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the property of the Crown; was to be again subject to the inconveniences of purveyance and pre-emption, the oppression of forest laws and the slavery of feudal tenures; and was to resign into the sovereign's hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, fines, forfeitures, and the like; many would perhaps find themselves greater losers than by paying their quota to such taxes as are necessary to the support of government.] But, independently of any such consideration, the principle of taxation is in itself liable to no sound and fair objection. [The thing to be wished and aimed at in a land of liberty, is by no means the total abolition of taxes, which would draw after it very pernicious consequences, and the very supposition of which is the height of political absurdity. For as the true idea of government and magistracy will be found to consist in this, that some few men are deputed by many others to preside over public affairs, so that individuals may the better be enabled to attend their private concerns, it is necessary that those individuals should be bound to contribute a portion of their private gains in order to support that government, and reward that magistracy, which protects them in the enjoyment of their respective properties. But the things to be aimed at are wisdom and moderation, not only in granting, but also in the method of raising the necessary supplies; by contriving to do both in such a manner as may be most conducive to the national welfare, and at the same time most consistent with economy and the liberty of the subject, who, when properly taxed, contributes only some part of his property in order to enjoy the rest.] These contributions by way of taxation have been at |