A Treatise on the Law of the Prerogatives of the Crown

quently franchises in the hands of Lords of manors and others. It is worthy of observation that though the Lord of a manor may have waifs by prescription, yet he cannot have bona felonum and fugitivorum, although a species of waifs, by prescription, because every prescription must be immemorial, and the goods of felons and fugitives cannot be forfeited without record, which presupposes the memory of that continuance (a).

11. By the common law, and as declared by the statute de prerogativa Regis, 17 Edw. 2. statute 2. c. 11. the King is entitled to wrecks (b). The prevention of the barbarous practice of destroying persons, who in shipwrecks approached the shore, in order to acquire the property shipwrecked, was the object of the law in conferring this prerogative on the King (c).

There are four sorts of shipwrecked goods: flotsam, jetsam, ligan, and wreck properly so called (d).

Flotsam is when the ship is split, and the goods float upon the water between high and low water mark.

Jetsam is when the ship is in danger of foundering, and for the purpose of saving the ship, the goods are cast into the sea.

Ligan, lagan, or ligam, is when heavy goods are thrown into the sea with a buoy, so that the mariners may know where to retake them. These are also the King's if no owner appear to claim them; but if any owner appear he is entitled to recover the possession. For even if they be cast overboard without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property; much less can things ligan be supposed to be abandoned, since the owner has done all in his power to assert and retain his property (e).

Wreck (properly so called) is where goods shipwrecked are cast upon the land; and goods which are termed flotsam, jetsam and ligan, become and are deemed wrecks if they be cast upon the land.

(a) Bro. Estray, 13. 5 Co. 109. 43 Edw. 3. 16.

(b) 1 Bla. Com. 290.

Inst. 167.

Molloy, 237. Moor. 224. Hale de jure Mar. 40.

(d) 1 Bla. Com. 292. (e) Ibid.

All

All these species of wreck primâ facie belong to, and were originally in, the Crown by virtue of his prerogative (a). Being rights of a secondary nature they may belong to a subject by express grant or prescription, and are frequently vested in Lords of manors. If however a subject prescribe or have a grant, for wreck only, he shall not have jetsam, flotsam or ligan (b).

The antient common law as to wrecks, was very strict in favour of the King; but as the country became more civilized, mitigations of such severities were gradually introduced; and by the common law as laid down by Bracton, in the reign of Henry 3., neither ships nor goods were considered wrecks if there were any sign or mark designating the right of the owner, who appeared and claimed them (c). And by the stat. 3 Edw. 1. c. 4. "concerning wrecks of the sea, it is agreed that where a man, a dog, or a cat escape [quick*] out of the ship, that such ship nor barge, or any thing within them shall not be adjudged a wreck; but the goods shall be saved and kept by view of the sheriff, coroner, [and] the King's bailiff, and delivered into the hands of such as are of the town where the goods were found; so that if any sue for those goods and can prove that they were his, or his lord's, or perished in his keeping, within a year and a day, they shall be restored to him without delay; and if not, they shall remain to the King and be taken by the sheriffs, coroners, [and bailiffs, and shall be delivered to them of the town (d)] to answer before the justices of the wreck belonging to the King. And where wreck belongeth to another than to the King, he shall have it in like manner. And he that otherwise doth, and thereof be attainted, shall be awarded to prison and make fine at the King's will, and shall yield damages also. And if a bailiff do so, and be disavowed by his lord, and the lord [will not pretend any title thereunto (e),] the bailiff shall answer, if he have whereof; and if he have not whereof, the Lord shall deliver the Bailiff's body to the King." This statute has received a very liberal construction, for it was passed to check the abuse of the royal

(a) 5 Co. 106.
6 Mod. 149, per cur.
(b) 5 Co. 107.

* i. e. alive.

(d) The translations previous to Pulton read "bailiffs of the town."

(e) The translations previous to Pul- · ton, read" will not discharge him thereof."

prerogative

prerogative to the prejudice of merchants. The act relates as well to flotsam, jetsam, and ligan, as to wreck, properly so called (a); and the instance of a dog or cat is only put in the statute by way of example (b), and therefore in every case where the owner of the ship or goods can come forward and prove his property, the King has no claim to them. Therefore if a ship be pursued by enemies, and the mariners come on shore and leave the empty floating ship, which comes to land without any person in it, yet if the mariners can prove the property in the ship, the King is not entitled to it (c). Notwithstanding the statute, the interest in property shipwrecked vests in the King or his grantee, even before seizure and without office found, against all but the right owner (d). The statute only divests this interest in cases where the owner, or his executor or administrator, if he die within the year and day (e), pursues the course pointed out by the statute. The owner must therefore apply for the return of his property within a year and a day from the time of the seizure of it, by the persons mentioned in the statute (ƒ). But if he sue for its return before the expiration of the year and a day it is sufficient, although the verdict be not given within that time, for the delay of the law must do no man an injury (g).

The King is not restricted to the year and day mentioned in the statute, and consequently if the grantee of wrecks take the King's goods as wreck, the King may claim them after that period (h).

If goods wrecked be bona peritura, the King or Lord may sell them, even before the year and day be past; for the statute shall not be understood to compel them to keep those things which of their own nature cannot be kept (i). It should seem, however, that the produce of the articles so sold would be governed in all respects by those rules which would have applied to the articles themselves.

Where the King is entitled to wrecked property, he is entitled to a right of way over any man's grounds to obtain it (k).

(a) 5 Co. 107. Inst. 167. (b) Ibid.

(d) 5 Co. 107.

(e) 2 Inst. 168.

(f) 5 Co. 107.

(g) Ibid. 108.

(h) 2 Inst. 168.

(i) Ibid. Plowd. Com. 465, 6. 12 Co. R. 73. Parker's R. 72. And see

same principle, 1 Ventr. 313.

(k) 6 Mod. 149. per Curiam.

"Quando

"Quando lex aliquid alicui concedit concedere videtur et id sine quo res ipsa esse non posset.”

It may also be worthy of observation that the King may by the statute 27 Geo. 3. st. 2. c. 13. seize goods taken by pirates where the property is unknown, and detain them until proof of property is made; and if they be perishable goods the King may sell them, and, upon proof, restore the value (a).

12. 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, says Sir Wm. Blackstone, the law gives them to the King, as the general owner and lord paramount of the soil, in recompence for the damage they may have done therein (b); and they now most commonly belong to Lords of manors by special grant from the Crown. Animals feræ nature, and those on which the law sets no value, cannot be estrays: that term only including, in legal consideration, such beasts as are by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, swine, and horses, which we generally call cattle (c); and with respect to fowl, only swans may be estrays (d). The reason of which distinction seems to be, that cattle and swans being of a reclaimed nature, 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 day (e).

In order to vest an absolute property in the King, the estray must be proclaimed in the church and two market towns, next adjoining to the place where they are found, and if no one claim them after proclamation and a year and a day passed, they belong to the King without redemption (ƒ); even though the owner be a minor, or under any other legal inca-· pacity (g). If the proclamation be irregular, the owner is entitled to restitution at any distance of time (h). Notwithstanding the proclamation, the King's interest in the estray does not become vested or indefeasible, until the expiration of

the year and day, but his Majesty has a property in it by possession thereof, within the year and day, against all but the right owner (a). If however it wander again within that period, and a subject who is entitled to estrays (which he may be either by the royal grant or by prescription, which supposes such grant (b),) seize it, the King has no claim (c). The right of the subject to seize in such case, clearly proves that the property in the estray was not completely vested in the Sovereign, for it is laid down as clear law that no one can take the King's beasts as estrays (d).

The King or his grantee should, so long as the estray is in his possession, feed and preserve it from injury (e), and cannot legally use it by way of labour (ƒ); though, it seems, that he may milk a cow, which is an estray, or do any act of a similar nature, which tends to the preservation and benefit of the animal, and, consequently, to the advantage of the owner (g). If the owner reclaim the estray, he must, it seems, pay the charges of finding, keeping, and proclaiming it (h); and though an unreasonable sum, by way of compensation for expenses incurred, be demanded, yet if the owner do not tender sufficient amends, the detainer of the estray is lawful (¿).

13. Treasure trove, is where any gold or silver in coin, plate, or bullion is found concealed in a house, or in the earth, or other private place, the owner thereof being unknown, in which case the treasure belongs to the King or his grantee, having the franchise of treasure trove; but if he that laid it be known or afterwards discovered, the owner and not the King is entitled to it; this prerogative right only applying in the absence of an owner to claim the property (k). If the owner, instead of hiding the treasure, casually lost it, or purposely parted with it, in such a manner that it is evident he intended to abandon the property altogether, and did not purpose to re

(a) Yelv, 96.

(b) See 44 Edw. 3, 19. 5 Co. 105. Kitch. 80, 2. 5 Bac. Ab. 517.

(c) Finch L. 177. 1 Bla. Com. 298. (d) Year Books, 44 Edw. 3. 19. 5 Co. 105. 1 Rol. Abr. 888. Kitch. 80. 5 Bac. Ab. 517. tit. Prerogative, B. 9.

(S) Cro. Jac. 147.

(g) Ibid. 148. Noy. 119.

(h) Dalt. Sheriff, 79. 1 Rol. Abr. 879. 1 Bla. Com. 297. See 1 Hen. Bla. 254.

(i) 1 Rol. Abr. 879. pl. 5. See Bro. Ab. tit. Estray and Waif, pl. 1. 44 Edw. 3. 14.

(k) 3 Inst. 152, 3. Dalt. of Sheriffs, c. 16. 1 Bla. Com. 295.

sume

« Zurück Weiter »