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 fupply him with materials and therefore those mines, which are properly royal, and to which the king is entitled when found, are only those of filver and gold *. By the old common law, if gold or filver be found in mines of base metal, according to the opinion of fome the whole was a royal mine, and belonged to the king; though others held that it only did fo, if the quantity of gold or filver was of greater value than the quantity of bafe metal'. But now by the ftatutes 1 W. & M. ft. 1. c. 30. and 5 W. & M. c. 6. this difference is made immaterial; it being enacted, that no mines of copper, tin, iron, or lead, fhall be looked upon as royal mines, notwithstanding gold or filver may be extracted from them in any quantities: but that the king, or perfons claiming royal mines under his authority, may have the ore, (other than tin-ore in the counties of Devon and Cornwall) paying for the fame a price ftated 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, fince 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 fupposed to be; to which base metal the land owner is by reason and law entitled. XIII. To the fame original may in part be referred the revenue of treasure-trove (derived from the French word, trover, to find) called in Latin thefaurus inventus, which is where any money or coin, gold, filver, plate, or bullion, is found hidden in the earth, 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". Alfo if it be found in the fea, or upon the earth, it doth not s 2 Inft. 577. u 3 Inft. 132. Dalt. of Sheriffs. c. 16. belong Book I. belong to the king, but the finder, if no owner appears". So that it seems it is the hiding, and not the abandoning of it, that gives the king a property: Bracton * defining it, in the words of the civilians, to be "vetus depofitio pecuniae." This dif ference clearly arifes from the different intentions, which the law implies in the owner. A man, that hides his treasure in a fecret place, evidently does not mean to relinquish his property; but referves a right of claiming it again, when he fees occafion: and, if he dies and the fecret alfo dies with him, the law gives it the king, in part of his royal revenue. But a man that scatters his treasure into the fea, or upon the public furface of the earth, is conftrued 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 affert his right, which then proves that the lofs was by accident, and not with an intent to renounce his property. FORMERLY all treafure-trove belonged to the finder; as was alfo the rule of the civil law 2. Afterwards it was judged expedient for the purposes of the ftate, and particularly for the coinage, to allow part of what was so found to the king; which part was affigned to be all hidden treasure; fuch as is cafually loft and unclaimed, and alfo fuch as is defignedly abandoned, ftill remaining the right of the fortunate finder. And that the prince fhall be entitled to this hidden treasure is now grown to be, according to Grotius, "jus commune, et 66 quafi gentium :" for it is not only observed, he adds, in England, but in Germany, France, Spain, and Denmark. · The finding of depofited treasure was much more frequent, and the treasures themselves more confiderable, in the infancy of our conftitution than at prefent. When the Romans, and other inhabitants of the refpective countries which compofed their empire, were driven out by the northern nations, they concealed their money under-ground: with a view of refortz Ff. 41. 1. 31. w Britt. c. 17. Finch. L. 177. x 1. 3. c. 3. §. 4. y Bracton. 7. 3. c. 3. 3 Inft. 133. a de jur. b. I p. 1. 2. c. 8. §. 7. ing to it again when the heat of the irruption fhould be over, and the invaders driven back to their defarts. But, as this never happened, the treasures were never claimed; and on the death of the owners the fecret alfo died along with them. The conquering generals, being aware of the value of these hidden mines, made it highly penal to fecrete them from the public fervice. In England therefore, as among the feudists », the punishment of fuch as concealed from the king the finding of hidden treasure was formerly no lefs than death; but now it is only fine and imprisonment. XIV. WAIFS, bona waviata, are goods ftolen, 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 upon the owner, for not himself pursuing the felon, and taking away his goods from him. And therefore if the party robbed do his diligence immediately to follow and apprehend the thief, (which is called making fresh fuit) or do convict him afterwards, or procure evidence to convict him, he shall have his goods again. Waived goods do alfo not belong to the king, till seised by somebody for his use; for if the party robbed can seise them first, though at the distance of twenty years, the king shall never have them. If the goods are hid by the thief, or left any where by him, fo that he had them not about him, when he fled, and therefore did not throw them away in his flight; these alfo are not bona waviata, but the owner may have them again when he pleases. The goods of a foreign merchant, though stolen and thrown away in flight, fhall never be waifs : 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. ESTRAYSs are fuch valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which cafe the law gives them to the king as the general owner and lord paramount of the foil, in recompenfe for the damage which.they may have done therein: and they now moft comraonly belong to the lord of the manor, by fpecial grant from the crown. But, in order to veft an abfolute 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 paffed, they belong to the king or his fubftitute without redemption; even though the owner were a minor, or under any other legal incapacity . A provifion fimilar to which obtained in the old Gothic conftitution, 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, poftremo coram ecclefia vel judicio: and the space of a year was allowed for the owner to reclaim his property 1. If the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them ". The king or lord has no property till the year and day paffed: for if a lord keepeth an eftray three quarters of a year, and within the year it ftrayeth again, and another lord getteth it, the first lord cannot take it again". Any beafts may be eftrays, that are by nature tame or reclaimable, and in which there is a valuable property, as fheep, oxen, fwine, and horfes, which we in general call cattle; and fo Fleta ° defines them, pecus vagens, quod nullus petit, fequitur vel advocat. For animals upon which the law fets no value, as a dog or cat, and animals ferae naturae, as a bear or wolf, cannot be confidered as eftrays. So fwans may be eftrays, but not any other fowl; whence they are faid to be royal fowl. The reafon of which diftinction feems to be, that, cattle and fwans being of a reclaimed nature, the owner's property in them is not loft merely by their temporary escape; and they also, from their intrinsic value, are a fufficient pledge for the expence of the i Mirr. c. 3. §. 19. k 5 Rep. 18. Bro. Abr. tit. Eftray. Cro. Eliz. 716. Stiernh. de jur. Gotbor. 1. 3. c. 5. m Dalt. Sh. 79. n Finch. L. 177. • 1. 1. c. 43. I. P 7 Rep. 17. lord lord of the franchife in keeping them the year and day. For he that takes an eftray is bound, so long as he keeps it, to find it in provisions and preferve it from damage; and may not ufe it by way of labour, but is liable to an action for fo doing. Yet he may milk a cow, or the like; for that tends to the prefervation, and is for the benefit, of the animal'. BESIDES the particular reafons before given why the king fhould have the feveral revenues of royal fifh, fhipwrecks, treasure-trove, waifs, and eftrays, there is alfo one general reafon 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 belonged to the first occupant or finder; and fo continued under the imperial law. But, in fettling the modern conftitutions of most of the governments in Europe, it was thought proper (to prevent that ftrife and contention, which the mere title of occupancy is apt to create and continue, and to provide for the fupport of public authority in a manner the leaft burthenfome to individuals) that these rights fhould be annexed to the fupreme power by the pofitive laws of the state. And fo it came to pafs that, as Bracton expreffes it', haec quae nullius in bonis funt, et olim fuerunt inventoris de jure naturali, jam efficiuntur principis de jure gentium. XVI. THE next branch of the king's ordinary revenue confifts in forfeitures of lands and goods for offences; bona confifcata, as they are called by the civilians, because they belonged to the fifcus or imperial treafury; or, as our lawyers term them, forisfacta; that is, fuch whereof the property is gone away or departed from the owner. The true reason and only substantial ground of any forfeiture for crimes confift in this; that all property is derived from fociety, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom, which every man must facrifice when he enters into focial communities. 1 Roll. Abr. 889. I Cro. Jac. 147• s Cro. Jac. 143. Noy. 119. t/. 1. c. 12. 3 If |