Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Title by Prerogative, And Forfeiture
A SECOND method of acquiring property in personal chattels is by the king’s prerogative: whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by grant or by prescription.
SUCH in the first place are all tributes, taxes, and customs; whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis or ancient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former volume. In these the king acquires and the subject loses a property the instant they become due: if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his ancient prerogative, or by particular modern statutes: which revenues created by statute do always assimilate, or take the same nature, with the ancient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined of amerced, do lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it.
IN these several methods of acquiring property by prerogative there is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole: in like manner as the king can, neither by grant nor contract, become a joint-tenant of a chattel real with another person;1 but by such grant or contract shall become entitled to the whole in severalty. Thus, if a horse be given to the king and a private person, the king shall have the sole property: if a bond be made to the king and subject, the king shall have the whole penalty; the debt or duty being one single chattel:2 and so, if two persons have the property of a horse between them, or have a joint debt owing them on bond, and one of them assigns his part to the king, or is attainted, whereby his moiety is forfeited to the crown; the king shall have the entire horse, and entire debt.3 For, as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever lose his right in any instance; but, where they interfere, his is always preferred to that of another person:4 from which two principles it is a necessary consequence, that the innocent, though unfortunate, partner must lose his share in both the debt and the horse, or in any other chattel in the same circumstances.
THIS doctrine has no opportunity to take place in certain other instances of title by prerogative, that remain to be mentioned; as the chattels thereby vested are originally and solely vested in the crown, without any transfer or derivative assignment either by deed or law from any former proprietor. Such is the acquisition of property in wreck, in treasure-trove, in waifs, in estrays, in royal fish, in swans, and the like; which are not transferred to the sovereign from any former owner, but are originally inherent in him by the rules of law, and are derived to particular subjects, as royal Franchises, by his bounty. These are ascribed to him, partly upon the particular reasons mentioned in the eighth chapter of the former book; and partly upon the general principle of their being bona vacantia , and therefore vested in the king, as well to preserve the peace of the public, as in trust to employ them for the safety and ornament of the commonwealth.
WITH regard to the prerogative copyrights, which were mentioned in the preceding chapter, they are held to be vested in the crown upon different reasons. Thus, 1. The king, as the executive magistrate, has the right of promulgating to the people all acts of state and government. This gives him the exclusive privilege of printing, at his own press, or that of his grantees, all acts of parliament, proclamations, and orders of council. 2. As supreme head of the church, he has a right to the publication of all liturgies and books of divine service. 3. He has a right by purchase to the copies of such law books, grammars, and other compositions, as were compiled or translated at the expense of the crown. And upon these two last principles the exclusive right of printing the translation of the bible is founded. 4. Almanacs have been said to be parliament-copies, either as things derelict, or else as being substantially nothing more than the calendar prefixed to out liturgy.5 And indeed the regulation of time has been often considered as a matter of state. The Roman fasti were under the care of the pontifical college: and Romulus, Numa, and Julius Caesar, successively regulated the Roman calendar.
THERE still remains another species of prerogative property, founded upon a very different principle from any that have been mentioned before; the property of such animals ferae naturae, as are known by the denomination of game, with the right of pursuing, taking, and destroying them: which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an inquiry concerning the original of these franchises, or royalties, on which we touched a little in a former chapter;6 the right itself being an incorporeal hereditament, though the fruits and profits of it are a personal nature.
IN the first place then we have already shown, and indeed it cannot be denied, that by the law of nature every man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are ferae naturae, and therefore are property of nobody, but liable to be seized by the first occupant. And so it was held by the imperial law, even so late as Justinian’s time: “ferae igitur bestiae, et volucres, et omnia animalia quo mari, coelo et terra nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt. Quod enim nullius est, id naturali ratione occupanti conceditur.”7 But it follows from the very end and constitution of society, that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community. This restriction may be either with respect to the place in which this right may, or may not, be exercised; with respect to the animals that are the subject of this right; or with respect to the persons allowed or forbidden to exercise it. And, in consequence of this authority, we find that the municipal laws of many nations have exerted such power of restraint; have in general forbidden the entering on another man’s grounds, for any cause, without the owner’s leave; have extended their protection to such particular animals as are usually the objects of pursuit; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall authorize.8 Many reasons have concurred for making these constitutions: as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclusive dominion over his own soil. 2. For preservation of the several species of these animals, which would soon be extirpated by a general liberty. 3. For prevention of idleness and dissipation in husbandmen, artificers, and others of lower rank; which would be the unavoidable consequence of universal license. 4. For preventing of popular insurrections and resistance to the government, by disarming the bulk of the
people:9 which last is a reason oftener meant, than avowed, by the makers of forest or game laws. Nor, certainly, in these prohibitions is there any natural injustice, as some have weakly enough supposed: since, as Pufendorf observes, the law does not hereby take from any man his present property, or what was already his own, but barely abridges him of one means of acquiring a future property, that of occupancy; which indeed the law of nature would allow him, but of which the laws of society have in most instances very justly and reasonably deprived him.
YET, however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must notwithstanding acknowledge that, in their present shape, they owe their immediate original to slavery. It is not till after the irruption of the northern nations into the Roman empire, that we read of any other prohibitions, than that natural one of not sporting on any private grounds without the owner’s leave; and another of a more spiritual nature, which was rather a rule of ecclesiastical discipline, than a branch of municipal law. The Roman or civil law, though it knew no restriction as to persons or animals, for far regarded the article of place, that it allowed no man to hunt or sport upon another’s ground, but by consent of the owner of the soil. “Qui alienum fundum ingreditur, venandi aut aucupandi gratia, potest a domino prohiberi ne ingrediatur.”10 For if there can, by the law of nature, by any inchoate imperfect property supposed in wild animals before they are taken, it seems most reasonable to fix it in him upon whose land they are found. And as to the other restriction, which relates to persons and not to place, the pontifical or canon law11 interdict “enationes, et sylvaticas vagationes cum canibus et accipitribus” to all clergymen without distinction; grounded on a saying of St. Jerome,12 that it never is recorded that these diversions were used by the saints, or primitive fathers. And the canons of our Saxon church, published in the reign of king Edgar,13 concur in the same prohibition: though our secular laws, at least after the conquest, did even in the times of popery dispense with this canonical impediment; and spiritual persons were allowed by the common law to hunt for their recreation, in order to render them fitter for the performance of their duty: as a confirmation whereof we may observe, that it is to this day a branch of the king’s prerogative, at the death of every bishop, to have his kennel of hounds, or a composition in lieu thereof.14
BUT, with regard to the rise and original of our present civil prohibitions, it will be found that all forest and game laws were introduced into Europe at the same time, and by the same policy, as gave birth to the feudal system; when those swarms of barbarians issued from their northern hive, and laid the foundation of most of the present kingdoms of Europe, on the ruins of the western empire. For when a conquering general came to settle the economy of a vanquished country, and to part it out among his soldiers or feudatories, who were to render him military service for such donations; it behooved him, in order to secure his new acquisitions, to keep the rustici or natives of the country, and all who were not his military tenants, in as low a condition as possible, and especially to prohibit them the use of arms. Nothing could do this more effectually than a prohibition of hunting and sporting: and therefore it was the policy of the conqueror to reserve this right to himself, and such on whom he should bestow it; which were only his capital feudatories, or greater barons. And accordingly we find, in the feudal constitutions,15 one and the same law prohibiting the rustici in general from carrying arms, and also proscribing the use of nets, snares, or other engines for destroying the game. This exclusive privilege well suited the martial genius of the conquering troops, who delighted in a sport16 which in its pursuit and slaughter bore some resemblance to war. Vita omnis, (says Caesar, speaking of the ancient Germans) in venationibus atque in studiis rei militaris consistit.17 And Tacitus in like manner observes, that quoties bella non ineunt, multum venatibus, plus per otium transigunt.18 And indeed, like some of their modern successors, they had no other amusement to entertain their vacant hours; they despising all arts as effeminate, and having no other learning, that was couched in such rude ditties, as were sung at the solemn carousals which succeeded these ancient huntings. And
it is remarkable that, in those nations where the feudal policy remains the most uncorrupted, the forest or game laws continue in their highest rigor. In France all game is properly the king’s; and in some parts of Germany it is death for a peasant to be found hunting in the woods of the nobility.19
WITH us in England also, hunting has ever been esteemed a most princely diversion and exercise. The whole island was replenished with all sorts of game in the times of the Britons; who lived in a wild and pastoral manner, without enclosing or improving their grounds, and derived much of their subsistence from the chase, which they all enjoyed in common. But when husbandry took place under the Saxon government, and lands began to be cultivated, improved, and enclosed, the beasts naturally fled into the woody and defart tracts; which were called the forests, and, having never been disposed of in the first distribution of lands, were therefore held to belong to the crown. These were filled with great plenty of game, which our royal sportsmen reserved for their own diversion, on pain of a pecuniary forfeiture for such as interfered with their sovereign. But every freeholder had the full liberty of sporting upon his own territories, provided he abstained from the king’s forests: as is fully expressed in the laws of Canute,20 and of Edward the confessor;21 “sit quilibet homo dignus venatione sua, in sylva, et in agris, sibi propriis, et in dominio suo: et abstineat omnis homo a venariis regiis, ubicunque pacem eis habere voluerit“: which indeed was the ancient law of the Scandinavian continent, from whence Canute probably derived it. “Cuique enim in proprio fundo quamlibet feram quoquo modo venari permissum.”22
HOWEVER, upon the Norman conquest, a new doctrine took place; and the right of pursuing and taking all beast of chase or venary, and such other animals as were accounted game, was then held to belong to the king, or to such only as were authorized under hi. And this, as well upon the principles of the feudal law, that the king is the ultimate proprietor of all the lands in the kingdom, they being all held of him as the chief lord, or lord paramount of the fee; and that therefore he has the right of the universal soil, to enter thereon, and to chase and take such creatures at his pleasure: as also upon another maxim of the common law, which we have frequently cited and illustrated, that these animals are bona vacantia, and, having no other owner, belong to the king by his prerogative. As therefore the former reason was held to vest in the king a right to pursue and take them any where; the latter was supposed to give the king, and such as he should authorize, a sole and exclusive right.
THIS right, thus newly vested in the crown, was exerted with the utmost rigor, at and after the time of the Norman establishment; not only in the ancient forests, but in the new ones which the conqueror made, by laying together vast tract of country, depopulated for that purpose, and reserved solely for the king’s royal diversion; in which were exercised the most horrid tyrannies and oppressions, under color of forest law, for the sake of preserving the beasts of chase; to kill any of which, within the limits of the forest, was as penal as the death of a man. And, in pursuance, of the same principle, king John laid a total interdict upon the winged as well as the fourfooted creation: “capturam avium per totam Angliam interdixit.”23 The cruel and insupportable hardships, which these forest laws created to the subject, occasioned our ancestors to be as zealous for their reformation, as for the relaxation of the feudal rigors and the other exactions introduced by the Norman family; and accordingly we find the immunities of carta de foresta as warmly contended for, and extorted from the king with as much difficulty, as those of Magna Carta itself. By this charter, confirmed in parliament,24 many forests were disafforested, or stripped of their oppressive privileges, and regulations were made in the regimen of such as remained; particularly25 killing the king’s deer was made no longer a capital offense, but only punished by fine, imprisonment, or abjuration of the realm. And by a variety of subsequent statutes, together with the long acquiescence of the crown without exerting the forest laws, this prerogative is now become no longer a grievance to the subject.
BUT, as the king reserved to himself the forests for his own exclusive diversion, so he granted out from time to time other tracts of land to his subjects under the names of chases or parks;26 or gave them license to make such in their own grounds; which indeed are smaller forests, in the hands of a subject, but not governed by the forest laws: and by the common law no person in at liberty to take or kill any beasts of chase, but such as has an ancient chase or park; unless they be also beasts of prey.
AS to all inferior species of game, called beasts and fowls of warren, the liberty of taking or killing them is another franchise or royalty, derived likewise from the crown, and called free warren; a word, which signifies preservation or custody: as the exclusive liberty of taking and killing fish in a public stream or river is called a free fishery; of which however no new franchise can at present be granted, by the express provision of Magna Carta, c. 16.27 The principal intention of granting a man these franchises or liberties was in order to protect the game, by giving him a sole and exclusive power of killing it himself, provided he prevented other persons. And no man, but he who has a chase or free warren, by grant from the crown, or prescription which supposes one, can justify hunting or sporting upon another man’s soil; nor indeed, in thorough strictness of common law, either hunting or sporting at all.
HOWEVER novel this doctrine may seem, it is a regular consequence from what has been before delivered; that the sole right of taking and destroying game belongs exclusively to the king. This appears, as well from the historical deduction here made, as because he may grant to his subjects an exclusive right of taking them; which he could not do, unless such a right was first inherent in himself. And hence it will follow, that no person whatever, but he who has such derivative right from the crown, is by common law entitled to take or kill any beasts of chase, or other game whatsoever. It is true, that by the acquiescence of the crown, the frequent grants of free warren in ancient times, and the introduction of new penalties of late by certain statutes for preserving the game, this exclusive prerogative of the king is little known or considered; every man, that is exempted from these modern penalties, looking upon himself as at liberty to do what he pleases with the game: whereas the contrary is strictly true, that no man, however well qualified he may vulgarly be esteemed, has a right to encroach on the royal prerogative by killing of game, unless he can show a particular grant of free warren; or a prescription, which perfumes a grant; or some authority under an act of parliament. As for the latter, I know but of two instances wherein an express permission to kill game was ever given by statute; the one by 1 Jac. I. c. 27. altered by 7 Jac. I. c. 11. and virtually repealed by 22 & 23 Car. III. c. 25. which gave authority, so long as they remained in force, to the owners of free warren, to lords of manors, and to all freeholders having 40£ per annum in lands of inheritance, or 80£ for life or lives, or 400£ personal estate, (and their servants) to take partridges and pheasants upon their own, or their master’s, free warren, inheritance, or freehold: the other by 5 Ann. c. 14. which empowers lords and ladies of manors to appoint gamekeepers to kill game for the use of such lord or lady; which with some alterations still subsists, and plainly supposes such power not to have been in them before. The truth of the matter is, that these game laws (of which we shall have occasion to speak again in the fourth book of these commentaries) do indeed qualify nobody, except
in the instance of a gamekeeper, to kill game: but only, to save the trouble and formal process of an action by the person injured, who perhaps too might remit the offense, these statutes inflict additional penalties, to be recovered either in a regular of summary way, by any of the king’s subjects, from certain persons of inferior rank who may be found offending in this particular. But it does not follow that persons, excused from these additional penalties, are therefore authorized to kill game. The circumstances, of having 100£ per annum, and the rest, are not properly qualifications, but exemptions. And these persons, so exempted from the penalties of the game statutes, are not only liable to actions of trespass by the owners of the land; but also, if they kill game within the limits of any royal franchise, they are liable to the actions of such who may have the right of chase or free warren therein.
UPON the whole it appears, that the king, by his prerogative, and such persons as have, under his authority, the royal franchises of chase, park, free warren, or free fishery, are the only persons, who may acquire any property, however fugitive and transitory, in these animals ferae naturae, while living; which is said to be vested in them as was observed in a former chapter, propter privilegium . And it must also be remembered, that such persons as may thus lawfully hunt, fish, or fowl, ratione privilegii, have (as has been said) only a qualified property in these animals; it not being absolute or permanent, but lasting only so long as the creatures remain within the limits of such respective franchise or liberty, and ceasing the instant they voluntarily pass out of it. it is held indeed, that if a man starts any game within his own grounds, and follows it into another’s, and kills it there, the property remains in himself.28 And this is grounded on reason and natural justice:29 for the property consists in the possession; which possession commences by the finding it in his own liberty, and is continued by the immediate pursuit. And so, if a stranger starts game in one man’s chase or free warren, and hunts it into another liberty, the property continues in the owner of the chase or warren; this property arising from privilege,30 and not being changed by the act of a mere stranger. Or if a man starts game on another’s private grounds and kills it there, the property belongs to him in whose ground it was killed, because it was also started there;31 this property arising ratione soli. Whereas if, after being started there, it is killed in the grounds of a third person, the property belongs not to the owner of the first ground, because the property is local; nor yet to the owner of the second, because it was not started in his soil; but it vests in the person who started and killed it,32 though guilty of a trespass against both the owners.
III. I PROCEED now to a third method, whereby a title to goods and chattels may be acquired and lost, viz. by forfeiture; as a punishment for some crime or misdemeanor in the party forfeiting, and as a compensation for the offense and injury committed against him to whom they are forfeited. Of forfeitures, considered as the means whereby real property might be lost and acquired, we treated in a former chapter.33 It remains therefore in this place only to mention, by what means or for what offenses goods and chattels become liable to forfeiture.
IN the variety of penal laws with which the subject is at present encumbered, it were a tedious and impracticable task to reckon up the various forfeitures, inflicted by special statutes, for particular crimes and misdemeanors: some of which are mala in se, or offenses against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as is the forfeiture of 40 s. per month by the statute 5 Eliz. c. 4. for exercising a trade without having served seven years as an apprentice thereto; and the forfeiture of 10£ by 9 Ann. c. 23. for printing an almanac without a stamp. I shall therefore confine myself to those offenses only, by which all the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulcts of different quantities are inflicted, to their proper heads, under which very many of them have been or will be mentioned; or else to the collections of Hawkins and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But as, in the instance of partial forfeitures, a moiety often goes to the informer, the poor, or sometimes to other persons; and as one total forfeiture, namely that by a bankrupt who is guilty of felony by concealing his effects, accrues entirely to his creditors. I have therefore made it a distinct head of transferring property.
GOODS and chattels then are totally forfeited by conviction of high treason, or misprision of treason; of petit treason; of felony in general, and particularly of felony de se, and of manslaughter; nay even by conviction of excusable homicide;34 by outlawry for treason or felony; by conviction of petit larceny; by flight in treason or felony, even though the party be acquitted of the fact; by standing mute, when arraigned of felony; by drawing a weapon on a judge, or striking any one in the presence of the king’s courts; by praemunire; by pretended prophecies, upon a second conviction; by owling; by the residing abroad of artificers; and by challenging to fight on account of money won at gaming. All these offenses, as will more fully appear in the fourth book of these commentaries, induce a total forfeiture of goods and chattels.
AND this forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeitures of real property. For chattels are of so vague and fluctuating a nature, that to affect them, by any relation back, would be attended with more inconvenience than in the case of landed estates: and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5.
1. See pag. 184.
2. Fitzh. Abr. t. dette. 38. Plowd. 243.
3. Cro. Eliz. 263. Plowd. 323. Finch. Law. 178. 10 Mod. 245.
4. Co. Litt. 30.
5. 1 Mod. 257.
6. pag. 38, 39.
7. Inst. 2. 1, 12.
8. Puf. L. N. 1. 4. c. 6. § 5.
9. Warburton’s alliance. 324.
10. Inst. 2, 1. § 12.
11. Decretal. l. 5. tit. 24. c. 2.
12. Decret. part. 1. dist. 34. l. 1.
13. cap. 64.
14. 4 Inst. 309.
15. Feud. l. 2. tit. 27. § 5.
16. In the laws of Jenghiz Khan, founder of the Mogul and Tartarian empire, published A. D. 1205. there is one which prohibits the killing of all game from March to October; that the court and soldiery might find plenty enough in the winter, during their recess from war. (Mod. Univ. Hist. iv. 468.)
17. De bell. Gall. l. 6. c. 20.
18. c. 15.
19. Mattheus de Crimin. c. 3. tit. 1. Carpzov. Practic. Saxonic. p. 2. c. 84.
20. c. 77.
21. c. 36.
22. Stiernhook, de jure Sueon. l. 2. c. 8.
23. M. Paris. 303.
24. 9 Hen. III.
25. cap. 10.
26. See pag. 38.
27. Mirr. c. 5. § 2. See pag. 39.
28. 11 Mod. 75.
29. Puf. L. N. l. 4. c. 6.
30. Lord Raym. 251.
32. Farr. 18. Lord Raym. ibid.
33. See pag. 267.
34. Co. Litt. 391. 2 Inst. 316. 320.