such a calamity.

And a law of the emperor Frederic, abolishing that inhuman custom, shews it to have prevailed in many countries. It was, however, contrary to one of the most celebrated maxims in the Pandects.3

After various important mitigations of the severity of the ancient law of wrecks, in the reign of king Henry I., Henry II., Richard I., and Henry III., it was enacted by the stat. of Westminster 1st,4 that the owners of the shipwrecked property should have a year and a day to claim it (whereas the charter of Henry II.5 allowed only three months for that purpose), according to the custom of Normandy; and that if any living creature shall escape alive, the vessel shall not be adjudged to be a wreck. This revenue of wrecks is frequently granted out to lords of manors as a royal franchise; and if any one be thus entitled to wrecks in his own land, and the queen's goods are wrecked thereon, the queen may claim them at any time, even after the year and day. It might be wished, for the sake of principle, that the justice of the statute of Westminster should be extended; but laws have been provided for the punishment of persons stealing wrecked goods, plundering ships wrecked or in distress, injuring the voyagers, or endangering any vessels by putting out false lights, removing sea-marks, or other means.7

XII. "A twelfth branch of the royal revenue, the

L. i. Cod. de Naufragiis. Vinnius ad Inst. 1. ii. tit. i. § 47.

2 Grot. D. de la G. et de la P. 1. ii. c. vii. § 1, n. 3.

3 L. 206, ff. de reg. jur. Pufendorf de Jur. Nat. et Gent. 1. iv.

c. xiii. § 6, n. 2.

4 Stat. 3 Ed. I. c. iv.

526 May, A.D. 1174. 1 Rymer, Foeder. 36. By the law of Holland the time allowed is a year and six weeks. Vinnius, ibid.

62 Inst. 168. Bro. Abr. tit. Wreck.

7 Stat. 27 Ed. III. c. xiii. 12 Anne, st. 2. c. xviii. confirmed by 4 Geo. I. c. xii. 26 Geo. II. c. xix.

right of mines, has its original from the queen's prerogative of coinage, in order to supply her with materials; and therefore those mines which are properly royal, and to which the queen is entitled when found, are only those of silver and gold." By the old common law, if gold or silver be 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.2 But now by the statutes 1 Wm. & M. st. 1, c. xxx., and 5 Wm. & M. c. vi., 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 Cornwall and Devon), paying for the same a price stated in the act."

Thus private owners are not discouraged from working mines, through fear that they may be claimed as royal ones; while, on the other hand, her majesty's right to the precious metal contained in the ore is preserved. But as the owner is entitled to all the ore containing base metal, and to the benefit of his labour for all the ore which he brings up, the law gives him the same value for the precious metal, to which he has no right, as he would be enabled to obtain if it were base metal.

XIII. "To the same original may in part be referred the revenue of treasure-trove, called in Latin thesaurus inventus, which is where any money or coin, gold, silver, plate, or bullion, is found hidden in the earth, or other private place, the owner thereof being unknown; in which 1 2 Inst. 577. 2 Plowd. 336.

case the treasure belongs to the queen. But if he that hid it be known, or afterwards found out, the owner, and not the queen, is entitled to it. Also if it be found in the sea, or upon the earth, it does not belong to the queen, but to the finder, if no owner appear.2 So that it seems it is the hiding, and not the abandoning of it, that gives the queen a property; Bracton3 designing it, in the words of the civilians, to be vetus depositio pecuniæ. The civil law grants the whole of a treasure to the finder, if he be proprietor of the place where it is found, or if that place be consecrated or devoted to religious purposes; in which cases the place is, according to that system of jurisprudence, the property of no one. But in other cases, the imperial law awards half of the treasure to the finder, and half to the owner of the place where it was concealed.5 This provision is founded on the general principles of natural law, which give those things that have no owner to whoever first takes possession of them; and as the original proprietor of the treasure and his heirs are unknown, it is the same in law as if no one had any title to it. But the proprietor of the land has the privilege of sharing equally with the finder, because it was a question among the Roman jurisconsults, whether the treasure should not be held an accessory thereof.?

4 Paulus says: "Thesaurus est vetus depositio pecuniæ, cujus non extat memoria, ut jam dominum non habeat. Sic enim fit ejus qui invenit quod non alterius sit."-L. xxxi. ff. de acq. rer. dom. The word pecunia is very comprehensive in its meaning here. See l. v. ff.

de verb. signif.; and 1. lxxxviii. xcvii. clxxviii. ccxxii. eod. tit. 5 § 39, 1. ii. tit. i. (Justin. Instit.) § 12, eod.

6 Grot. Dr. de la G. et de la P. 1. ii. c. viii. § 7. 7 Vinn. ad Inst. ibid., and Heineccii, n.

Grotius, however, lays it down, that the laws of each country may without injustice exclude the title of the finder; and that it is a common law, and a kind of law of nations, that the sovereign should have all treasures; for it is observed in Germany, France, England, Spain, and Denmark.1

Blackstone informs us, on the authority of Bracton, that formerly all treasure-trove belonged to the finder; but that it was afterwards judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was found to the king, which part was assigned to be all hidden treasure; such as is casually lost and unclaimed, and also such as is designedly abandoned, still remaining the right of the fortunate finder."

XIV. "Waifs, bona waivata, are goods stolen and waived, or thrown away by the thief in his flight, for fear of being apprehended. These are given to the queen by the law, as a punishment upon the owner for not himself pursuing the thief 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 suit), or do convict him afterwards, or procure evidence to convict him, he shall have his goods again. Waived goods do not belong to the queen till seized by somebody for her use; for if the party robbed can seize them first, though at the distance of twenty years, the queen shall never have them."

"3

XV. "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 queen as the general owner and lady paramount of the soil, in recompense for the damage which they have done

1 Grot. Dr. de la G. et de la P. 1. ii. c. viii. § 7; and l. ii. c. ii. § 5. 2 Finch, l. ccxii. 3 Ibid.

therein; and they now most commonly belong to the lord of the manor, by special grant from the crown." But on this subject it is unnecessary to dwell here,—this branch of the revenue being mostly in private hands, and having thus ceased to be matter of much importance.

Blackstone observes, that besides the particular reasons why the crown should have the several revenues of royal fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for them all; and that is, because they are bona vacantia, or goods to which no one else can claim a property: and therefore, by the law of nature, they belonged to the first occupant or finder, and so continued under the imperial law. But in settling the modern constitutions of most of the governments of Europe, it was thought proper (to prevent the strife and contention which the mere title of occu pancy is apt to create and continue, and to provide for the support of public authority in a manner the least burdensome to individuals), that these rights should be annexed to the supreme power by the positive laws of the state. And this doctrine of our illustrious commentator is in conformity with the opinion of Grotius; who lays it down that the right of acquiring, by occupancy, things which have no master, is not of natural law in such a sense, that it cannot without injustice be changed. It is not of natural law purely and simply, but on the supposi

1 Quod ante nullius est, id naturali ratione occupanti conceditur. Institut. 1. ii. tit. i. de rerum divis. § 12. The reader will find a curious and amusing illustration of the ancient law respecting acquisition by occupancy of things found in the sea, in Plautus, Rudens, act iv. sc. 3, where a dispute takes place between Gripus and Trachilio about their claims to a trunk, fished up by the former after a storm. The question is referred to Dæmones by the disputants in scene 4, and he decides against them both, as the property turns out to belong to Ampelisca, who had been wrecked in the tempest.