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evidence (a) ), have an exclusive right of fishing in an arm of the sea, or any particular part of a navigable river. For though the prescription or usage derogate from a public right, yet the existence of an exclusive appropriation may be grounded on B supposition that the inhabitants of a particular district might consent to relinquish a general right for some peculiar advantage of a different, though perhaps of an equal or more extensively beneficial nature. This is generally admitted by elementary writers (b), and there are several decisions to the same effect (c). It seems however that a private right of fishing in the sea cannot be claimed under an existing grant from the Crown, for a grant to support it must be as old as the reign of Hen. 2., and therefore beyond the time of legal memory, as the Crown was restrained by King John's Great Charter and by other charters from making fresh grants of exclusive rights of fishery, affecting the public privilege (d).
As to the soil or fundum maris, there can be no doubt it may be claimed either by charter or prescription, for every prescription respecting a franchise generally supposes a grant, which in this instance could be made by the King, yet it is to be observed that the soil can only be appropriated sub modo; for, according to Lord Hale, though the dominion either of franchise or propriety be lodged by prescription or charter in a subject, yet it is charged or effected with that jus publicum that belongs to all men(e). On the same principles the holder of an exclusive prescriptive right of fishery in public waters enjoys it, subservient to the superior and sacred right of the public to use the arm of the sea or river for the purposes of navigation (f).
With respect to private fisheries, the presumption of law is, that the owner of the soil is the owner of the water or fishery; nor is the grant or licence of the Crown necessary on a party making a fish-pond (a).
(a) Ante 138. Pul. 472. 1 Campb. 309. 11 East,
(*)SeeCo. Lit . 113, a. b. and 114. 263. That a custom to dry nets on the
2 Bla. Com. 39. Hale de jure Maris, land of another is good. See 2 Hen.
page 1. c. 4. Hargr. Tracts, 1 vol. Bla. 395.
page 11. Schultes Aqu. Rights, 99, &c . (rf) 2 Bla. Com. 59. 1 Chitty, G. L.
1 Chitty, O. I, 268 to 272. Selw. N. P. 244, 272.
tit. Fishery. (r) Hale de Portibus. See also Craig,
(r) Davy's Rep. 55. 1 Mod. Rep. lib. 2. dicg. 8. s. 5. 2 Inst. Mag. Ch.
106. 4 Burr. 2162. 4 T. R. 437. 5 cap. 16.
Ibid. 367. 2 Hen. B. 182. 2 Bos. and (/) Ibid. 1 Campb. 517.
The King has no general property in fish. It would be superfluous to specify and particularly designate Whales and Sturgeons alone, as being royal fish, if all fish were the King's property (b). Exceptio probat regulavu With respect however to whales and sturgeons, it was always a doctrine of the common law that they belong to the King (c). And by the statute de Prerogativa Regis (d), it is declared that the King shall have whales and sturgeons taken in the sea or elsewhere, within the realm, except in certain places privileged by the King. But to give the Crown a right to such fish they must be taken within the seas parcel of the dominions and Crown of England, or in creeks or arms thereof; for if taken in the wide seas or out of the precinct of the seas subject to the Crown of England, they belong to the taker (e). A subject may possess this royal perquisite: 1st, by grant; 2dly, by prescription within the shore, between the high water and low water mark, or in a certain districtus maris, or in a port, creek, or arm of the sea; and this may be had in gross or as appurtenant to an honour, manor or hundred (f).
Under this head may also be mentioned the right of the King to swans, being inhabitants of rivers (g). By the statute 22 Edw. 4. c. 6. "no person other than the son of the King shall have any mark or game of swans, except he have lands of freehold to the yearly value of five marks; and if any person not having lands to the said yearly value, shall have any such mark or game, it shall be lawful to any of the King's subjects having lands to the said value, to seize the swans as forfeits, whereof the King shall have one half and he that shall seize the other." A subject may however be entitled to swans: 1st, when they are tame; in which case he has exactly the same property in them as he has in any other tame animal; 2dly, by a grant of swan mark from the King, in which case all the swans marked with such mark shall be the subject's,
(a) 6 Mod. 183. 2 Inst. 199. 1 (e) Year Book, 39 Kdw. 5; per
Chitty, 0. L. 278. Belknap. 1 Taunt. 241.
(A) See Schultes, 15,16. (J) Hale de jure Maria, e. 1. 1
(c) Bracton, 3 lib. ch. 3. s. 5. Britt. Chalm.Coll. of Op. 131. 26, b. 7 Co. 16. (g) 7 Co. 16,7.
(rf) 15 Edw. 2. c. 11.
wheresoever wheresoever they fly; and Sdly, a subject may claim a property in swans ratione privilr^ii, as if the King grant to a subject the game of wild swan in a river (a).
8. Mines. It is quite clear, that by his prerogative the King is entitled to all mines of gold and silver which may be discovered, not only in his own but even in a subject's lands, within his dominions (b).
The danger of rendering a subject too formidable, by vesting in him so immense a treasure as a mine of gold or silver might afford, is the reason assigned for this royal prerogative (c). But mines containing baser metal, belong to the subject in whose lands they are discovered (d). It was formerly held, that if such mines contained gold or silver, the whole mine belonged to the King; because gold and silver, being the nobler and more valuable metals, should attract the less valuable; and because a subject cannot hold property jointly with the Sovereign, and the King's property, though ever so small, ought not to be lost by mixture with the subject's (e). The injustice of such a doctrine called for a remedy; and, accordingly, it was enacted by the statute 1 William and Mary, sess. 1. c. SO. s. 4. "That no mine of copper, tin, iron, or lead, should be adjudged a royal mine, although gold or silver might be extracted out of the same." And it is further provided, by the statute 5 and (i William and Mary, c. 6. that " the owner of any mine wherein any ore shall be discovered, opened, found, or wrought, and in which there is copper, tin, iron or lead, shall hold and enjoy the same mine and ore, and continue in the possession thereof, and dig and work the said mine or ore, notwithstanding that such mine or ore shall be pretended, or claimed to be a royal mine."
"Provided, that the King, and all claiming any royal mines under him, shall have the ore of any such mine, (other than tin ore in the counties of Devon and Cornwall,) paying to the proprietor or owner of the said mine, wherein such ore shall be found, within thirty days after the said ore is or shall be raised and laid upon the banks of the said mine, and before
(a) 1 Co. 16, 17. (tf) [!,id. 323. 1 Inst. 578. 12 Co.
[h) The ca*e of Mines j Plow.l. 315, 7 .'.
6. 5 Bac. Abr. 513. 1 ISIa. Com. 293. (a) Plowil. 323, 328, 336. (<•) Plowd. 318.
*. . the the same be removed from thence, the rates following, (that is to say,) for all ore washt, made clean, and merchantable, wherein is copper, the rate of sixteen pounds per ton; and for all ore washt, made clean, and merchantable, wherein there is tin, the rate of forty shillings per ton; and for all ore washt, made clean, and merchantable, wherein there is iron, the rate of forty shillings per ton; and for all ore washt, made clean, and merchantable, where there is lead, the rate of nine pounds per ton. And in default of payment of such respective sums as aforesaid, the owner of the said mine, wherein such ore shall be found, may sell and dispose of the said ore to his own use."
"Provided always, that nothing contained in this act shall alter, determine, or make void the charters granted to the tinners of Devon and Cornwall, by any of the Kings and Queens of this realm, or any of the liberties, privileges, or franchises of the said tinners, or to alter, determine, or make void the laws, customs, or constitutions of the stannaries of Devon or Cornwall, or any of them."
By the 55 Geo. 3. c. 134. twenty-five pounds per ton, instead of nine pounds, is the rate at which the King may exercise the right of preemption of ore in which there is lead.
The King may legally grant his right to royal mines, and in the hands of a subject they are a franchise; but such grant must be in express terms; so that if the King grant to T. S. certain lands, "and the mines therein contained," and royal mines are found in them they do not pass to the subject (a).
9. Fairs and Markets will be considered in the chapter on
10. By Waifs are to be understood, stolen goods which are waived or thrown away by the thief in his flight, for fear of being apprehended (b). The goods must be thrown away by the thief in his flight; and if he previously hide, or leave them any where, with intent to resume the possession, so that they were
(a) Plowd. 33G. (i) 1 Bla. Com. 290.
not not in his possession when he fled, the King's prerogative does not apply, and the owner is, at all events, entitled to the property (a). But the goods waived need not be the identical property stolen, for if a felon in flight waive his own goods, and the King seize them, they also are a species of waifs, for they are relinquished, and the property is in nobody (6). But these are properly fugitive's goods, and not forfeited, till it be found before the coroner, or otherwise of record, that he fled for the felony (c). But waifs vest in the Crown without office found (d). The King acquires no property in the goods waived until they are seized by some one to his use ; and if the owner of the stolen property can seize them first, though at any distance of time, the King shall not have them(«).
This prerogative was given to the King, that the owner of the goods might be induced to bring the felon to justice to regain them. Therefore, though the property is seized and in the hands of the Crown, yet the owner is entitled to restitution, if he used all reasonable diligence in pursuing the thief, or if he bring him to justice by procuring his conviction, or produce evidence which causes it J). Hence it will be remarked, that this royal prerogative is rather limited, and can only obtain where the party robbed is guilty of that negligence and torpitude, which our law reprehends in every instance, but more especially in those cases where they may occasion the escape of villainyfrom punishment .
The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waits (g). "The reason whereof," observes Sir Wm. Blackstone (k), " 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."
All waifs are prima facie the property of the Crown, and are not necessarily incident to a leet (i), though they are fre
(a) 5 Rep. 109. Cro. El. 694. 1 (/) Finch L. 212. 1 Bla. Com. 296.
Bla. Com. 296. st. 21 Hen. 8. c. 11.
to Bro. Estray, 9. 29 Edw. 3. 19. (g) Filz. Abr. tit. Estray, 1. 3 Bulstr.
(c) Hawk. P.C. 481. B. 2. c. 49. 19.
s. 14. (A) 1 Bla. Com. 296.
(rf) 5 Co. 109. (0 Year Book, 8 Hen. 7. 1. Bro. Es
(*) 21 Edw. 4. 16. Kitchen. 82. tray, 15.
L 2 quently