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ment as death or loss of a member. But by 1348 it was, as it is now, a misdemeanour punishable by imprisonment or fine, or both. A case of the last century 7 decided that an averment that treasure-trove had been unlawfully, wilfully and knowingly concealed was sufficient, and that fraudulent concealment means concealment wilfully and knowingly effected. But the finder of treasure-trove who does not conceal his discovery does not, in practice, suffer hardship as a result of his honesty, since it has been the practice of the Crown for many years generously to reward law-abiding finders.
The original object of treasure-trove law in this country-and elsewhere for that matter-is, as has been observed, doubtful. But the reason for its survival is definite and indisputable. The interest of the public in 'finds' of articles, which have an antiquarian or archaeological value, is clear. This interest may be said to date approximately from the middle of the eighteenth century, at which period the hereditary revenues of the Crown, with their small branches (including treasure-trove), were surrendered by the King to public purposes in return for a fixed annual income known as the Civil List. At the same period the establishment of the British Museum (1753) enabled the interest of the public to be fostered. In these circumstances and in view of the indefinite nature of the law as it stands at present, there is much to be said for a revision, so as to bring the rules into consonance with modern ideas. What is, after all, a fairly simple requirement could be defined in plain terms.
As is generally known, in some Continental countries the rules regarding the State's rights in moveables of antiquarian interest is assimilated to or connected with the law dealing with ancient monuments. It may be that such a course is not desirable here; but it is suggested (i) that the nature of the material covered by the rules should be clearly specified, and in particular the advisability considered of enlarging the scope of them to all objects of antiquarian interest, whether gold or silver, or not;
See Year Book 1348, 22 Ass. p. 107, pl. 99.
R. v. Thomas and Willett (1863) 9 Cox C. C. 376. The facts of this case are entertaining for those who do not know the story.
The only mediaeval case revealing any antiquarian interest being officially taken in treasure-trove, which has been found by the present writer, occurred in 1386 (Calendar Patent Rolls, Richard II, vol. iii, p. 162), when Richard II, whose concern for the arts is a matter of historical fact, waived his right to some old sterlings, but desired that they should be brought to him that he might look at them.
(ii) that all necessity should be removed for discrimination between concealment, intentional deposit, and, perhaps also, loss or abandonment; and (iii) that the question whether or not the objects are to belong to the State, if found above ground, should be authoritatively settled one way or the other.
CECIL S. EMDEN.
THE CROWN AND ITS SERVANTS.
PR law dictionary, is that benefit and safety which every
ROTECTION, as Cowell defines it in his seventeenth-century
subject, denizen, and alien specially secured, hath by the King's laws.' Of this, the common right of the subject, I need not speak. But there is a special protection which the Crown granted to its servants as long as they were in its service. It shielded them from arrest; it deferred actions at law to which they were a party; it safeguarded their property from the royal purveyor. It is this that I desire to discuss, though I should like to consider for a moment a third protection, standing apparently between those I have just defined; for it possessed more advantages than the ordinary, but fewer than the special protection.
From the reign of William I down to the close of that of Henry III, when the Curia Regis was slowly dominating the local Courts, the Crown often issued letters patent to the great men of the realm, and even to foreign and native merchants, guaranteeing them a special safety and defence. These letters were addressed to all constables, sheriffs, and bailiffs of the kingdom, and informed them that the grantees enjoyed the special friendship and protection of the King; that they were not to be molested, troubled, or injured in any way; that their goods, lands, and servants must be defended; that any violence or wrong done to them must be speedily and fully redressed.
Cowell's Interpreter, sub. Protectio. Cf. 25 Edw. III, c. 22, where men guilty of certain offences are said to be out of the King's protection.'
2 As example of this class of protection the following issued in 1216 (C.P.R. 1 Hen. III, p. 10, may be cited). Rex omnibus constabulariis, vicecomitibus, et omnibus ballivis et fidelibus suis, presentes litteras inspecturis salutem. Sciatis quod suscepimus in protectionem et defensionem nostram, dilectos nobis in christo abbatem et monachos de Reding et terras et tenementa sua homines suos et omnes possessiones suas. Et ideo vobis mandamus quod dictos abbatem et monachos et homines suos et omnia sua manuteneatis, protegatis et defendatis non inferrentes eis nec inferri permittentes injuriam vel molestiam dampnum vel gravamen. Et si quid eis vel suis foris factum fuerit, id eis sine dilacione faciatis emendari. Si quid etiam de suo vel suorum captum fuerit, id eis sine dilacione et difficultate reddi faciatis. Et in hujus rei testimonium has litteras nostras patentes sigillatas sigillo comitis W. Marescalli rectoris nostri et regni nostri, etc. viii decembris anno regni nostri I. See also Madox, Exchequer, p. 117. A protection granted to the Convent of the Holy Trinity, Canterbury.
This protection proclaimed the superiority of the Crown over all other authorities, and in the hands of the Norman and Angevin monarchs increased the power and dignity of the royal jurisdiction. For it usually gave a second and even valuable privilege; it permitted the grantee in all disputes arising out of his holding, land, or tenement to be tried by the King, or by his Chief Justiciar, or as the King should direct. By this means he avoided the jealousy and hatred of the local Court, whose justice was more often an expression of might or prejudice than of right.
The Great Roll of the Pipe, and, at a later date, the Calendar of Letters Patents, contain many examples granted by Henry II, Richard, and John, and from these Madox has gleaned several of interest. The Prior of Coventry paid twenty marks, Walter Baskerville fourteen marks, and Simon the son of Nicolas had still to pay 100 shillings to Henry II's sheriffs to obtain this favour. In the reign of John four feudal magnates (churchmen and laymen) purchased it at the price of two palfreys, a tun of wine, ten, and five marks, respectively. Though granted perhaps by Henry I himself, few grants were made after the death of John, and, if we meet them in the document of Henry III, it is generally by way of regrant or in an Inspeximus. Even an apparently new grant (1270) has been made, as the letters patent themselves inform us, pursuant to the charters of Richard and John.' 5
For the ideals of Henry II are now realised. The royal machinery of justice with its hierarchy of Courts is firmly established, and such an instrument is no longer necessary; and though it is leaving our subject to mention it, the letters close of Edward I show us that the Crown has advanced its jurisdiction still further, for by its writ of prohibition it empowered the tenant of the feudal magnate to transfer any dispute concerning his holding from his master's private Court to that of the Grand Assize in just the same way as it had enabled the vassal, at an earlier date, to withdraw like disputes from any local Court to its own presence."
Compare Brunner, Deutsche Rechtsgeschichte, I, p. 281. The entire page is well worth quoting, as showing the results of the rise of Konigsrecht,' on the modern development of legal institutions. See also examples cited by Professor Davis, Regesta Regum Anglo-Normannorum, p. xxx, § 26.
Madox, op. cit. p. 117 and p. 118. [Cf. similar protection granted by Charles the Bold] Brunner, op. cit. II, p. 140.
Cal. Charter Rolls, Vol. II, p. 142: charter to Monastery of Burgh. Cal. of Chancery Rolls, Supplementary Close Rolls, Ed. I and II, p. 146. Magnae assisae de anno Regni Regis Edwardi filii regis Edwardi primi.' There are several pages of cases whose removal is commanded to the King's Court.
I will now discuss the main subject of this essay-the special protection which the Crown granted as long as it exercised the dispensing power, and which conferred greater privileges than that whose history I have just reviewed.
Cowell has defined it as an exemption or immunity given by the King to a person against suits at law and upon reasonable causes him thereto moving, and which is a branch of the prerogative.'' Fitzherbert, supplementing this definition, classifies the persons for whom it was created, and gives it its technical name-the protection cum clausula volumus—from the opening word of the King's grant or intention.
It was given to the King's servants and soldiers while on duty at home or abroad, occasionally to foreign merchants and distinguished royal visitors, to ambassadors and their suits. We may likewise include under it that freedom from arrest which the King's debtor enjoyed in order that he might find means to pay his royal creditor, who took precedence before all others; and that which the debtor of a subject sometimes enjoyed as a matter of equity, for otherwise he would have been debarred from continuing actions at law. It is perhaps not out of place here to mention that the Crown often encouraged the alien to stay and find new industries by promising him freedom from arrest for debt for a period of years.
The protection was withdrawn if the grantee did not set out on the King's business, and the Calendars of Patent Rolls contain from time to time numerous entries, 'Protection withdrawn because he delays to set out.' Had not this been done, dishonest men would have obtained-as, indeed, they often tried to do these letters merely to defraud their creditors. Though both the Calendars of Patent Rolls and the State Papers Domestic give briefly the names of the persons who receive it, and the time for which it is valid, they cannot naturally give in full the countless protections that they register. Rymer, however, prints one granted at time when (1274) this instrument, under the watchful eye of Parliament, was becoming stereotyped in form. William le Provencall, the
'Cowell in his Interpreter remarks that a personal privilege, which the protection undoubtedly was, is that which is granted either against or beyond the common law '; he gives as an example the privilege of members of Parliament from arrest.
Cal. Pat. Rolls, 20 Rich. II, Oct. 16, p. 16. Revocation of protection cum clausula volumus for one year, granted 14th May last to Henry Cooke of Berkhamstede, Co. Hereford, as staying on the King's service in company of John Stanley, Knight . . . because he tarries in London and elsewhere on his own affairs as certified by the sheriff. Rolls of Parlt. IV, p. 147.