[the crown; but if he that hid it be known, or afterwards found out, the owner, and not the sovereign, is entitled to it (q). It is the hiding, we may observe, and not the abandoning of it, that gives the king a property: Bracton (r) defining it, in the words of the civilians, to be "vetus depositio pecuniæ." For if a man scatters his treasure into the sea, or upon the surface of the earth, it belongs, by the general rule of law already noticed, to the first finder (s).

Formerly] indeed, by the effect of that general rule, [all treasure-trove 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; which part was assigned to be all hidden treasure;] as distinguished from such as is 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 (t), “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 the 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 (u,) the punish

[ment 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 (v).

4. Waifs, bona waviata, are goods stolen, and waived or thrown away by the thief in his flight, for fear of being apprehended. These are given to the sovereign by the law, as a punishment upon the owner (according to the books) for not himself pursuing the felon, and taking away his goods from him (w). And therefore if the party robbed do his diligence immediately to follow and apprehend 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 (x).] So if the party robbed can seize them before they are seized for the crown, though at the distance of twenty years, the crown shall never have them (y). It is also to be observed, that [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 (z). Also the goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs (a); 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.

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 sovereign;] 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 crown or its grantees, they must be proclaimed in the church and two market towns next adjoining to the place where they are

(v) 3 Inst. 133.

(w) Cro. Eliz. 694. (x) Finch, L. 212.

(y) Ibid.

(z) Constable's case, 5 Rep. 109. (a) Fitz. Abr. tit. Estray, 1; 3 Bulstr. 19.

[found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the sovereign or his substitute without redemption (b), even though the owner were a minor, or under any other legal incapacity (c). 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 proximâ villâ vel pago, postremo coram ecclesia vel judicio;" and the space of a year was allowed for the owner to reclaim his property (d). 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 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 (e). 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] the author of [Fleta (f) defines them, "pecus vagans, quod nullus petit, sequitur, vel advocat."] But animals fera

naturæ, as a dog or cat, bear or wolf, cannot be considered as estrays (g), though swans are said to be an exception to this rule (h). The reason why in general the doctrine of estrays is applicable only to animals domitæ naturæ, seems to be that [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 a 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 (i); and may not use it by way of labour, but is liable to an

(b) Mirr. c. 3, s. 19.

(c) Constable's case, 5 Rep. 108; Bro. Abr. tit. Estray; Cro. Eliz. 716. (d) Stiernh. de Jur. Gothor. 1. 3,

c. 5.

(e) Finch, L. 177.
(f) L. 1, c. 43.

(g) 1 Bl. Com. 298.

(h) Case of Swans, 7 Rep. 17 a. (i) 1 Roll. Abr. 879.

[action for so doing (k). Yet he may milk a cow, or the like; for that tends to the preservation, and is for the benefit, of the animal (1).]

VIII. The eighth branch of the ordinary revenue, [the right to mines (m), has its original from the sovereign's prerogative of coinage, in order to supply him with materials; and therefore those mines which are properly royal, and to which the crown is entitled when found, are only those of silver and gold (n). But by the old common law, if gold or silver were 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 (o). But now by the statutes 1 W. & M. st. 1, c. 30, and 5 W. & M. c. 6,] (amended by 55 Geo. 3, c. 134,) [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 his authority, may have the ore (other than tin ore in the counties of Devon and Cornwall (p) ), paying for the same a price stated in the acts. This was an extremely reasonable law; for now private owners are not discouraged from working mines, through a fear that they be claimed as royal ones; neither does the sovereign 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

may

(k) Cro. Jac. 147.

(7) Ibid. 148; Noy, 119.

(m) As to the royal mines in the Forest of Dean, vide 1 & 2 Vict. c. 43.

(n) 2 Inst. 577.

(0) Plowd. 336.

(p) By the custom of Cornwall and

Devon, all tin dug therein was formerly required to be coined, and duties were payable for the coinage, but this custom is now abolished, 1 & 2 Vict. c. 120. See also as to tin ore dug in Cornwall, 2 & 3 Vict. c. 58, s. 1.

[supposed to be; to which base metal the landowner is by reason and law entitled.]

The true

IX. The next branch of the crown's ordinary revenue [consists in forfeitures of lands and goods, for offences; bona confiscata, as they are called by the civilians, because they belonged to the fiscus or imperial treasury; or, as our lawyers term them, forisfacta, that is, such whereof the property is gone away or departed from the owner. reason and only substantial ground of any forfeiture for crimes, consists in this,—that all property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his association, by transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract; and the state may very justly resume that portion of property, or any part of it, which the laws have before assigned him. Hence, in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the moveables or personal estate; and in some cases a perpetual, in others only a temporary, loss of the offender's immovables or landed property; and have vested them both in the sovereign, who is the person supposed to be offended, being the one visible magistrate in whom the majesty of the public resides. The particulars of these forfeitures will be more properly recited when we treat of crimes and misdemeanors. We therefore only mention them here, for the sake of regularity, as a part of the census regalis; and shall postpone for the present the further consideration of all forfeitures,] excepting one species (recently abolished), which arose from the misfortune rather than the crime of the owner, and which was called a deodand.

By this was meant whatever personal chattel was the