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case of salvage, three neighboring justices shall decide the amount. All persons who secrete such goods shall forfeit treble their value, and if they wilfully cause the ship to be destroyed, they are guilty of felony, without benefit of clergy. Pilfering such goods is petit larceny.
12. Mines. This is to supply the king with material for coinage, and, therefore, the mines which are properly royal, and to which the king is entitled when found, are only those of gold and silver. This law does not refer to mines of other metals, even if mixed with the precious metals. 13. Treasure Trove. (French, trover, to find). This is
) where any money or coin, gold, silver, plate or bullion is found hidden anywhere, the owner thereof being unknown. The treasure belongs to the king. But if found in the sea or upon the earth, it belongs to the finder, and not to the king, if no owner appears. It is the hiding, not the abandoning of it, that gives the king a property. A man who hides property does not mean to relinquish it, but reserves a right of claiming it again, if he sees occasion. If he dies and his secret dies with him, the law gives it to the king as part of the royal revenue.
But a man who scatters his treasure on the sea, is construed to have absolutely abandoned his property, and, therefore, it belongs to the finders, unless the owner appear and assert his right, which then proves the loss to have been by accident.
Hidden Treasure. Formerly all treasure-trove belonged to the finder, as was also the rule of the civil law. Afterwards it was deemed expedient to grant part of it to the king, which part was specified to be all hidden treasure; such as is casually lost and unclaimed, and also such as is designedly abandoned, remaining the right of the finder. In earlier times the finding of deposited treasure was more frequent than now. When the Romans were driven out of different countries by the northern nations, they often concealed their money in the ground, with a view to return to it when the irruption was over, and the invaders driven back. But as this never happened, the treasures were not claimed, and on the death of the owner, the secret died with him. The conquering generals, aware of the value of these hidden treasures, made it highly penal to secret them froin the public service. In England, at one time the penalty was death, but now it is fine and imprisonment.
14. Waifs. These are goods stolen and waived, or thrown away by the thief in his flight, for fear of being apprehended. These are given to the king by the law, as a punishment to the owner, for not himself pursuing the felon, and recovering his goods. Therefore, if the owner at once follow the thief and apprehend him, or convict him afterwards, he shall have his goods again. Waived goods do not belong to the king, till seized by somebody for his use, for if the party robbed seize them first, though at the distance of twenty years, he shall retain them. If the goods are hidden 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 are not bona waviata, and the owner may have them when he pleases. The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs. This exception is for the encouragement of trade, and also because there is no wilful default in the foreign merchant's not pursuing the thief, he being generally a stranger to our laws, usages and language.
15. Estrays. These are such valuable animals as are found wandering in any manor, whose owner is unknown, in which case the law gives them to the king as the lord paramount of the soil, in recompense for the damage done therein. They now most commonly belong to the lord of the manor, by special grant from the crown. To vest an absolute property in the king or his grantee, they must be proclaimed in the church and two adjacent market towns. If no man claims them after proclamation, and the lapse of a year and a day, they belong to the king or his grantee, without redemption, even though the owner was a minor.
What are Estrays. Any beasts may be estrays, that are - by nature tame, and in which there is a valuable property, as
sheep, oxen, swine and horses, which we call cattle. For animals, on which the law sets no value, as a dog or cat, or animals ferae naturae, as a bear or wolf, cannot be termed estrays. Swans may be estrays, but not any other fowl. He that finds an estray, so long as he keeps it, must supply it with provisions, and preserve it from damage. He may not use it for labor, but is liable in an action for so doing. Yet he may milk a cow, for that tends to its preservation.
General Rule. One general reason, which holds for all
these estrays, 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 belonged to the first occupant, or finder, and 'so continued under the imperial law. But in settling the modern constitutions of most of the governments in Europe, it was thought proper, in order to avoid contention, and to provide towards the support of public authority in a manner the least burdensome, that these rights should be annexed to the supreme power.
16. Forfeitures. The next branch of the king's ordinary revenue consists in forfeitures of lands and goods for offences. The civilians call them bona confiscata, because they belonged to the fiscus or treasury. The reason of this forfeiture for crimes is, that all property is derived from society, being one of those civil rights conferred upon individuals, in exchange for a degree of natural freedom, which every man must sacrifice, when he enters into social communities.
Confiscation. If therefore, a member of the community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to the privileges of such contract, and the state may resume that portion of property, or any part of it, which the laws have previously assigned him. Hence in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the personal estate, and in many cases a perpetual, in others only a temporary loss, of the offender's immovable or landed property, and have vested them both in the king. We will treat further of forfeitures under the head of crimes in the fourth book, excepting one species only, called a deodand.
Deodand. By this is meant, whatever personal chattel is the immediate cause of the death of any reasonable creature; which is forfeited to the king, to be distributed in alms. Originally it was designed as an expiation for the souls of those, who were snatched away by sudden death, and which should be given to the church, 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. No deodand was due, where an infant was killed by a fall, for the reason, that by want of discretion, he was presumed
1 Forfeiture of estate and corruption of blood do not exist in the United States, nor now in England, except forfeiture for treason.
incapable of sin. But if the object that killed an infant was in motion at the time of the accident, as a horse, or if a cart ran over him, they shall be forfeited as deodands, on the principle that such misfortunes are in part owing to the negligence of the owner, though he may not have been concerned in the killing.
The Instrument Causing Death. In all indictments for homicide, the instrument of death may be claimed by the king as a deodand, and be presented to him by the jury, which tries the criminal. No deodands are due for accidents happening on the high seas, for they are out of the jurisdiction of the common law, but if a man fall from a boat in inland waters, and is drowned, the vessel and cargo, at one time, became a deodand. But juries of late years have lessened these forfeitures, by finding only some trifling thing, or a portion of an entire thing, to have been the occasion of death. Deodands and forfeitures in general, may be granted by the king to a particular subject, as a royal franchise.
17. Escheat. This happens on defect of heirs to succeed to inheritances, whereupon they in general revert to and vest in the king, the original proprietor of all the lands. This subject properly belongs to the second book of the commentaries.
18. Custody of Idiots and Lunatics. An idiot or natural fool, is one who has no understanding from his birth, and hence is presumed never likely to attain any. For which reason the custody of both him and his lands was formerly vested in the lord of the fee, and still continues so by special custom in some manors. But this power was so abused by subjects, that finally it was given to the king, by common consent, as the conservator of the people, in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty. After the death of such idiot, the king transfers his estate to the heirs, in order to prevent the idiot from alienating his lands and disinheriting his heirs.
Writ de Idiota Inquirendo. By the old common law, this was a writ to inquire whether a man was an idiot, which question was tried by a jury of twelve men. If they found him such, the profits of his lands and the custody of his person might be given by the king to some subject interested. This branch of the revenue has long been deemed a hardship upon private families, yet few instances are given of the oppressive exertion of it, since it seldom happens, that a jury finds a man an idiot from birth, but only
non compos mentis from some particular time, which has an operation very different in law.
Who is an Idiot. A man is not an idiot, if he has any glimmering of reason, so that he can tell his parents, his
and other common matters. A man born deaf, dumb and blind, is looked upon by the law, as in the same state as an idiot.
Lunatics Defined. A lunatic, or one non compos mentis, is one who has had understanding, but by disease, grief or accident, has lost the use of his reason. A lunatic properly is one, who has lucid intervals, sometimes enjoying his reason, sometimes not; this condition being believed to be affected by changes of the moon. Under the general name non compotes mentis, are comprised not only lunatics, but persons under frenzies, or who lose their intellects by disease, those that grow deaf, dumb and blind, not being born so, or such as are judged by the court of chancery incapable of conducting their own affairs.
The King, a Guardian. To these also, as well as idiots, the king is guardian, but for a very different purpose. For the law always imagines these accidental misfortunes may be removed, and therefore only constitutes the crown a trustee for these persons, to protect their property, and to account to them for all profits received, should they recover, or after their death, to their representatives.
Treatment of Lunatics. On the first attack of lunacy, or other occasional insanity, while there may be hope of speedy restoration of reason, it is usual to confine the parties in private custody, under the direction of their nearest relatives and friends, such private mad-houses being regulated by provisions of the legislature. But when the disorder has grown permanent, and the circumstances of the party will bear additional expense, it is proper to apply to the king for authority for a lasting confinement.
Writ de Lunatico Inquirendo. The method of proving a man non compos is very similar to that of proving him an idiot. The lord chancellor, under special authority from the king, upon petition or information, grants a commission to inquire into the state of the party's mind, and if he be found non compos, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is then called his committee.