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[civilians, "vetus depositio pecunia" (h). For if a man scatters his treasure into the sea, or upon the surface of the earth, it belongs, not to the Crown but to the first finder (¿). Formerly indeed, treasure-trove, whether hidden, lost, or abandoned, belonged to the finder; but 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; and such part was assigned to be all hidden treasure, as distinguished from such as was either casually lost or designedly abandoned by the former owner. And that the prince shall be entitled to this hidden treasure is now grown to be, according to Grotius, "jus commune, et quasi gentium"; for it is not only observed, he adds, in England, but in Germany, France, Spain, and Denmark (j). The finding of deposited treasure was much more frequent, and the treasures themselves more considerable, in the infancy of our constitution, than at present; and the punishment of such as concealed from the king the finding of hidden treasure was formerly no less than death (k). Concealment of treasure trove is still a misdemeanor at common law (1).

4. Waifs (bona wariata) are such goods stolen as are waived, or thrown away, by the thief in his flight, for fear of being apprehended; and these are given by the law to the king, as a punishment upon the owner for not himself pursuing the felon, and taking away his goods from him (m). Wherefore, if the party robbed do his diligence immediately to follow and apprehend the thief, (which is called making fresh suit,) or do prosecute him to conviction, he shall have his goods again (n); also if the party robbed can retake them before they are seized for the Crown, though at the distance of twenty years, the

(h) L. 3, ch. 3, s. 4.

(i) Bract. 1. 3, ch. 3; 3 Inst. 133. (j) De Jure B. & P. 1. 2, ch. 8, s. 7. (k) Glanv. 1. 1, ch. 2; Craig, 1. 16, 40; 3 Inst. 133.

(1) R. v. Thomas (1863), Le. & Ca. 313.

(m) Cro. Eliz. 694.
(a) Finch, L. 212.

[Crown shall not have them (o). But if the goods are hid by the thief or left anywhere by him, so that he had them not about him when he fled, and therefore did not throw them away in his flight, they do not in such cases become bona waviata, but the owner may have them again when he pleases (p); and the goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs (9).

5. 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 gives them to the king, or now, most commonly, to the lord of the manor as special grantee from the Crown. But in order to vest an absolute property in the king or his grantees, estrays must be proclaimed in the church, and in the 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 grantee without redemption (r), even though the owner be a minor, or under any other legal incapacity (s). If the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them. The Crown or lord has no absolute property in such animals till the year and day passed; and so 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 (t). 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, all, indeed, which we in general call cattle (u) ; but animals feræ naturæ, and not held by the antient law

(0) Finch, L. 212.

(p) Constable's Case (1599), 5 Rep. 109.

(9) Fitz. Abr. tit. Extray, 1; 3 Bulstr. 19.

(r) Mirr. ch. 3, s. 19.

(8) Constable's Case, ubi sup. ;

Bro. Abr. Extray; Cro. Eliz. 716.

(1) Finch, L. 177.

Apparently

the estray might be recovered
from anyone taking it away.
(") Fleta L. 1, ch. 43.

[to be valuable, such as dogs or cats, bears or wolves, cannot be considered as estrays, though swans are said to be an exception to this rule (). He that takes an estray is bound, so long as he keeps it, to find it in provisions, and to preserve it from damage (y); and he may not, it is said, use it by way of labour, but is liable to an action for so doing (2). But he may milk a cow, or the like; for that tends to the preservation, and is for the benefit of the animal (a).

VIII. Another branch of the ordinary revenue is the royal right to mines (b), a right which has its original from the king's prerogative of coinage, in order to supply him with materials; and therefore royal mines are only those of silver and gold (c). But by the old common law, if gold or silver were found in mines of base material, according to the opinion of some, the whole was a royal mine, and belonged to the king; though others were of the opinion, that it did so only if the quantity of gold or silver was of greater value than the quantity of base metal (d).] Now, however, by the 1 W. & M. (1688), C. 30, 5 W. & M. (1693), c. 6, and the Crown Pre-emption of Lead Ore Act, 1815, it has been enacted, that no copper, tin, iron, or lead mines shall be deemed royal mines, whatever quantity of gold or silver may be extracted from them; but that the king, or his grantees, may have the ore on paying for the same a price stated in the Acts. So that private owners are not now discouraged from working mines, through a fear that they may be claimed as royal ones (e).

(x) Case of Swans (1592), 7 Rep. 17 a.

(y) 1 Roll. Abr. 879.

(z) Bagshaw v. Goward (1605), Cro. Jac. 147.

(a) Ib. 148; Noy, 119.

(b) As to the coal and other mines in the royal forest of Dean,

see the Dean Forest (Mines) Act,
1838; 24 & 25 Vict. (1861), c. 40;
Dean Forest (Mines) Act, 1871.
(c) 2 Inst. 577; Att.-Gen. v.
Morgan, [1891] 1 Ch. 432.
(d) Plowd. 336.

(e) Att.-Gen. v. Morgan, supra. As to the tin ore in Devon and

IX. and X. The two remaining 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 require here to be enumerated, the mere enumeration will suffice, as they have been both discussed, as far as the plan of the work permits, in former chapters (ƒ).

XI. There was, until recently, another branch of the ordinary revenue, namely, the forfeiture of a felon's lands and goods which ensued on conviction. These were called bona confiscata by the civilians, because they belonged to the fiscus or imperial treasury; but by our law they are called bona forisfacta, that is, such whereof the property is gone away from the owner. By the present law of England, however, no forfeiture of property takes place on the conviction of its owner for felony; though, perhaps, it may still do so on criminal outlawry or pramunire. We need, therefore, now mention only one species of forfeiture, called a deodand, which arose from the misfortune rather than from the crime of the owner. [Any personal chattel which was the immediate and accidental occasion of the death of any reasonable creature was called a deodand, or thing which should be given to God, as a sort of expiation for the unwitting offence (g). Where a thing not in motion was the cause of a man's death, that part only which was the immediate cause was forfeited (h); but whenever the thing was in motion, not only that part which immediately gave the wound, but all things which moved with it, and helped to make the wound more dangerous, were included in the forfeiture (). It mattered not whether

Cornwall, see the Tin Duties Act, 1838; as to tin ore in Cornwall, the Stannaries Act, 1839, s. 1; as to lead ore in Durham, 21 & 22 Vict. (1858), c. 58; as to mines and minerals, generally, in Cornwall, see 21 & 22 Vict. (1858), c. 109. (f) As to escheats, vide sup.

bk. ii. pt. i. ch. xii.; and as to the Crown's custody of idiots, vide sup. p. 507.

(g) Pollock and Maitland, Hist. Eng. Law, ii. p. 473, and the authorities cited in note 3 to that page. (h) 1 Hale, P. C. 422. (i) 1 Hawk. P. C. ch. 26.

[the owner were concerned in the killing or not; for if A. killed B. with the sword of C., the sword was forfeited as an accursed thing (j). Hence, in all indictments for homicide, the value of the instrument of death as well as its description used to be found by the grand jury, to enable the Crown or its grantee to claim the deodand. But no thing being a deodand, unless it were presented as such by the jury (k), 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 of the death; and although such finding of the jury may have been hardly warrantable by law, the Court, in general, refused to interfere.] It being, 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, it was enacted by the 9 & 10 Vict. (1846), c. 62, that from the 1st September, 1846, there should be no forfeiture of any chattel in respect of the same having moved to or caused the death of a man.

So far we have spoken of the ordinary revenue of the Crown, which, despite recent changes in the law, still stands upon a footing different from that of the extraordinary revenue. For although this ordinary revenue is now, by virtue of arrangements made with successive. monarchs at their accession (1), paid into the national exchequer, and forms part of the Consolidated Fund, yet it differs from the extraordinary revenue in this most important respect, that it is not the result of parliamentary enactment, but the creature of immemorial custom. And although it is at present merged in the national income, as part of the arrangement by which the monarch receives a fixed annual sum for his personal expenditure, instead

(j) Doc. & Stud. d. 2, ch. 51. (k) 3 Inst. 57; R. v. Brownlow (1839), 11 A. & E. 119; R. v. Polwart (1841), 1 Q. B. 818.

(1) Civil List Acts, 1837 and 1901.

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