monarchs of the Norman line not only reserved to themselves the sole and exclusive property of the ancient forests, but also created others of great extent 4 Inst. 390. over the lands of private persons; which they placed under the jurisdiction of particular courts; and enacted laws of the most arbitrary and cruel kind for the preservation of the game therein. 6. The practice of afforesting the lands of private persons, being highly destructive of their properties, was remedied by the charta de forestá, 9 Hen. 3, which enacted, that all the lands that had been afforested by King Henry II., King Richard I., and King John, except the proper demesnes of the Crown, should be disafforested, and freed from the forest laws. The lands thus disafforested are called purlieus. But though exempted from the forest laws, so that the proprietors of such districts may occupy them as their freehold ; yet, as to some purposes, they have the privileges of a forest. 7. Manwood defines a forest to be "A certain territory or circuit of woody grounds and pastures, known by its bounds and privileges, for the peaceable being and abiding of wild beasts and fowls of forest, chase, and warren; to be under the King's protection, for his princely delight; replenished with beasts of venery and chase, and great coverts of vert for the succour of the said beasts; for preservation whereof there are particular laws, privileges, and offices belonging thereto." Beasts of forest are properly hart, hind, hare, boar, and wolf: but all beasts of venery are equally protected in a forest, for it comprehends within it a chase, park, and free warren. 8. Several of the royal forests were granted by the Crown to great lords, by which they acquired the royal franchise of a forest. Thus in 5 Jac. 1., all the jus- Case of Leicestices and barons held that a forest may well be in the Jac. 155. hands of a subject; and shall be used as a forest, if the King gives authority, by express words, for the admini 4 Inst. 297. Cro. Jac. 155. A chase. 11 Rep. 86 a. 4 Inst. 314. 4 Inst. 301. Statutes at large. fol. ed. 1817. stration of justice there, and for his justices to come there. And if such grantee might have commission in such case to use, and have officers of a forest, then it should continue a forest in the hands of a subject. 9. Part of the land and wood comprised in a forest may belong to private persons: but they can only occupy and enjoy it in such manner as is consistent with the rights of the proprietor of the franchise of forest, and the preservation of the game. 10. A chase is a franchise or liberty of keeping certain kinds of wild animals within a particular and known district, with an exclusive right of hunting them therein. It is in most respects similar to a forest; the only difference between them being, that a chase has no laws peculiar to it, so that all offences in chases are punishable by the common law, not by the forest laws. Beasts of chase are buck, doe, fox, martin, and roe, in which the owner of the chase has a property. 11. Where a chase belongs to a subject, it must have been originally created by a grant from the Crown, giving to the grantee the franchise of chase over a certain tract of ground; or by a grant of a royal forest to a subject, but without any words enabling him to hold courts; in which case the forest became a chase. 12. Lord Coke says, no King of England could have made a chase for himself in any of the grounds of his subjects. And that when King Henry VIII. determined to make a chase about his palace at Hampton Court, he was obliged to obtain the previous consent of the freeholders, and customary tenants, over whose lands the chase was to extend. 13. The erection of this chase was confirmed by an act of parliament, 31 Hen. 8. c. 5., which recites the indenture made between the King and the freeholders and customary tenants of the neighbouring townships, in which it was stipulated that they should have liberty to cut their woods within the chase, without the King's licence; and to fence against the deer, while their corn was growing but that after the corn was carried, the officers of the chase should be allowed to make deer lepes and brekes in the fences, that the deer might enter the ground where the corn had been sown, for their feeding, while the land remained unsown: but that in other respects the proprietors should obey the laws of the chase. And for recompence it was agreed that a third of the rent of the freeholds, and a moiety of the fine of every copyholder, should be deducted. Case of forests. 12 Rep. 22. 4 Inst. 298. 14. It was resolved by all the Judges in 5 Ja. 1. that persons having freehold lands within a royal chase might cut their timber and wood growing there without the view or licence of any but if they cut so much that there was not sufficient left for covert, to maintain the game of the King, they should be punished. So if a common person had chase in another's soil, the owner of the soil could not destroy all the wood: but must leave sufficient covert and browse, as had been accustomed. 15. A park is an inclosed chase, extending over a person's own grounds, privileged for beasts of venery, and beasts of forest and chase, by the King's grant or prescription. And it appears from the Ordinatio de Libertatibus Perquirendis, 27 Edw. 1., that those who would purchase a new park should have writs of enquiry out of Chancery, and there make fine for the park having. And in Madox's History of the Exchequer there Vol. I. 557.4to, is an instance of a person being fined forty marks for making a park without the King's licence. A park. 2 199. 16. To a park three things are necessary:-1. A grant 11 Rep. 87. 6. from the Crown. 2. Inclosures by pale, wall, or hedge. Cro. Car. 60. 3. Beasts of park, such as buck, doe, &c. And where all the deer are destroyed, it shall no more be accounted a park; which consists of vert, venison, and inclosure; for if it be determined in any of these, it is a total disparking. 17. Manwood says, there are parks in many forests, which are claimed either by grant from the King, or 1 A free warren. by prescription. That if a subject is owner of a forest, he may give licence to another to inclose a park within the meers of his forest; to hold the same so inclosed, with all such venison as the grantee shall put in, to him and his heirs. But if such park is so slightly inclosed, that the wild beasts of the forest get into it, the lord of the forest may, in that case, enter and hunt there at his pleasure. 18. Parks as well as chases are subject to the common law, and not governed by the forest laws: but by the statute Westm. 1. c. 20. trespassers in parks are made liable to very severe punishments. 19. A free warren is a franchise to have and keep certain wild beasts and fowls called game within the precincts of a manor, or other known place; in which animals the owner of a warren has a property, and consequently, a right to exclude all other persons from hunting or taking them. This franchise like that of chase, or park, must be derived from a royal grant, or from prescription, which supposes such a grant; it being 11 Rep. 87. 8. laid down in the case of monopolies, 44 Eliz.-"That none can make a park, chase, or warren, without the King's licence; for that is quodammodo to appropriate those creatures which are feræ naturæ, et nullius in bonis, to himself; and to restrain them of their natural liberty." And it appears from the Ordinatio de Libertatibus Perquirendis, that those who would purchase free warren should make fine for it, in the same manner as for a park. Ante § 15. Gloss. voce warrenna. Dugd. Mon. 20. Spelman was of opinion that free warren was introduced into England by the Normans; and it is certain that our monarchs have been in the practice of granting this franchise ever since the Conquest. For in the charter of foundation of Battle-abbey are the following words, Warrennam propriam in ipsâ leugá habeat ecclesiaetin omnibus maneriis suis. And the following is the usual form in which these grants were P. 1. § 359. made-Quod ipse et hæredes sui imperpetuum habeant West. Symb. liberam warrennam in omnibus dominicis terris de N. in com. E., dum tamen terræ illæ non sint infra metas forestæ nostræ, ita quod nullus intret terras illas ad fugandum in eis, vel aliquid capiendum quæ ad warrennam pertinet, sine licentiâ et voluntate ipsius E., vel hæredum suorum, sub forisfacturâ decem librarum. 21. The most ancient charter of free warren in the Tower is dated 1 John. And it appears from Dugdale's Baronage that, during the reigns of the three first Edwards, an infinite number of grants of this kind were made to the principal nobility, from which Sir W. 2 Comm. 417. Blackstone has justly concluded that the sole right of taking and destroying game belonged exclusively to the King; for otherwise he could not grant it to his subjects. 22. An opinion has however been lately advanced that by the common law every possessor of land had an exclusive right, ratione soli, to all the game thereon. But this is not supported by any authority; and is contradicted by the several acts, which require a certain qualification of property to enable a person to kill the game on his own estate. For if the game did belong to the proprietor of the land, those acts would have been grossly unjust, as taking from the poor man, though not from the rich one, the right of enjoying that which was Infra, § 47. before his own. 23. The beasts of warren are hares and rabbits; the fowls of warren are pheasants and partridges. And the effect of a grant of free warren is, to vest in the grantee a qualified property in those beasts and fowls, of the above description, that are on the lands comprised in the grant, as long as they remain there, and even afterthey are hunted out of the warren. And although it is L. note. said that a person may have a property in some wild animals, namely, rabbits, ratione soli; yet it is admitted' Sutton v. that this property is subservient to that of a person hav- Mod. 144. Ld. ing the franchise of free warren, which is ratione privi Fitz. N. B. 86. Moody, 12 Raym. 251. |