Chap. 27.] PROPERTY IN Game. 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. (0) 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, (p) 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 [*414] game. This exclusive privilege well suited the martial genius of the conquering troops who delighted in a sport, (g) which, in its pursuit Vita omnis (says Cæsar, speaking and slaughter, bore some resemblance to war. of the ancient Germans) in venationibus atque instudiis reimilitaris consistit. (r) And Tacitus in like manner observes, that quoties bella non ineunt, multum venatibus plus per otium transigunt. (8) And indeed, like some of their modern successors, they had no other amusement to entertain their vacant hours; despis ing all arts as effeminate, and having no other learning, than 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 rigour. In France all game is properly the king's; (4) and in some parts of Germany it is death for a peasant to be found hunting in the woods of the nobility. (t) 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 time of the Britons; who lived in a wild and pastoral manner, without enclosing or improving their grounds, and derived much of their subsistence But when husbandry took from the chase, which they all enjoyed in common. place under the Saxon government, and lands began to be cultivated, improved, and enclosed, the beasts naturally fled into the woody and desert 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 [ *415 ] diversion, on pain of a pecuniary *forfeiture for such as interfered with their sovereign. But every freeholder had the full liberty of sporting (0) 4 Inst. 309. (p) Feud. l. 2, tit. 27, § 5. (9) 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 of soldiery might find plenty enough in the winter, during their recess from war. (Mod. Univ. Hist. iv, 468.) (r) De Bell. Gall. 1. 6. c. 20. (8) C. 15. (t) Mattheus de Crimin. c. 3, tit. 1. Carpzov. Practic Saxonic. p. 2, c. 84. (4) [One of the first consequences of the French revolution was the repeal of the ancient game laws, which took place in 1789. Since which their system of jurisprudence with respect to game, has been very much altered. See Code Penal, 28, 42.] 605 upon his own territories, provided he abstained from the king's forests: as is fully expressed in the laws of Canute, (u), and of Edward the Confessor: (v) "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 propriofundo quamlibet feram quoquo modo venari permissum." (w) However, upon the Norman conquest, a new doctrine took place; and the right of pursuing and taking all beasts 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 him. And this, as well upon the priciples of the feudal law, that the king is the ultimate proprietor of all the lands in the kingdom, they being all held to 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 anywhere; 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 rigour, 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 tracts of country depopulated for that purpose, and reserved The [*416] solely for the king's royal diversion; in which were exercised the most horrid tyrannies and oppressions, under colour 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." (x) cruel and insupportable hardships which those forest laws created to the subject, occasioned our ancestors to be as zealous for their reformation, as for the relaxation of the feudal rigours, 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 (y) many forests were disafforested, or stripped of their oppressive privileges, and regulations were made in the regimen of such as remained; particularly (z) killing the king's deer was made no longer a capital offense, but only punished by a 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, (a) 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 is at liberty to take or kill any beasts of chase, but such as hath 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, [*417] the liberty of taking or killing them is another franchise of 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. (b) (w) Stiernhook de jure Sueon. 1. 2, c. 8. (x) M. Paris, 303. (a) See page 38. (b) Mirr. c. 5, 2. See page 40. (u) C. 77. (v) C. 36. (z) Cap. 10. Chap. 27.] PROPERTY IN GAME. The principal intention of granting to any one these franchises or liberties was in order to protect the game by giving the grantee 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 to such as call themselves qualified sportsmen, 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 the killing of game, unless he can show a particular [*418] grant of free warren; or a prescription, which presumes a grant; or some authority under an act of parliament. As for the latter, I recollect but two instances wherein an express permission to kill game was ever given by statute; the one by 1 Jac. I, cap. 27, altered by 7 Jac. I, cap 11, and virtually repealed by 22 and 23 Car. II, 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 401. per annum in lands of inheritance, or 80%. for life or lives, or 4007. 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 game-keepers to kill game for the use of such lord or lady; which, with some alteration, 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 game-keeper, 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 offence, these statutes inflict additional penalties, to be recovered either in a regular or a 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 circumstance of having 100l. 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. (5) (5) [The game laws were revised in 1831, by statute 1 and 2 William IV, c. 32, which allowed any person who purchased a certificate or license to kill game upon his own land, or on the land of any other person with his permission-thus doing away with the qualification of birth or estate. Persons sporting without license are still liable to a penalty, except that by statute 11 and 12 Vic. c. 29, and c. 30, the owner or occupier of enclosed grounds, having a right to kill game thereon, may kill hares, either in person or by any one authorized by him in writing, without taking out a game certificate. The law is very severe against persons not authorized, who take and destroy game by night, or are found in possession of any which appears to have been recently killed. A license is also required to entitle one to sell game.] 60% *Upon the whole it appears, that the king, by his prerogative, and [*419] such persons as bave, 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 feræ naturæ, while living; which is said to be vested in them, as was observed in a former chapter, propter privilegium. (6) 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. (c) And this is grounded on reason and natural justice: (d) 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, (e) 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; (f) the 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, (g) though guilty of a trespass against both the owners. (7) *III. I proceed now to a third method, whereby a title to goods and [*420] 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 offence 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. (h) It remains, therefore, in this place only to mention by what means or for what offences, 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 offences 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 40s. 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 107. by 9 Ann. c. 23, for printing an almanack without a stamp. (8) I shall (c) 11 Mod. 75. (d) Puff. L. N. l. 4, c. 6. (e) Lord Raym. 251. (g) Farr. 18. Lord Raym. 251. (h) See page 267. In America no similar laws exist. There are laws prohibiting the destruction of game in the breeding season, or in seasons when it is unfit for market, but it is no part of their purpose to enforce discrimination against any class of persons, or to preserve game for auy other purpose than the general benefit. (6) Mr. Christian controverts this doctrine-and Mr. Justice Coleridge thinks successfully-in a learned and somewhat lengthy note, but the importance of the subject does not appear sufficient to warrant its republication. Mr. Hovenden thinks the statute 1 and 2 Wm. IV, e. 32, in doing away with the qualification previously required, has recognized the correctness of Mr. Christian's position. (7) [These distinctions never could have existed, if the doctrine had been true that all the game was the property of the king for in that case the maxim, in æquali jure potior est conditio possidentis, must have prevailed.] (8) These forfeitures are now abolished. therefore, confine myself to those offences only, by which all the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulets of different quantities are inflicted, to their several 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. [ *421] Goods and chattels, then, are totalty forfeited by conviction of high treason or misprision of treason; (9) of petit treason; (10) of felony in general, and particularly of felony de se, and of manslaughter; nay, even by conviction of excusable homicide; (i) by outlawry for treason or felony; by conviction of petit larceny; (11) by flight, in treason or felony, even though the party be acquitted of the fact; (12) 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 præmunire; by pretended prophecies, upon a second conviction; by owling; by the residing abroad of artificers; (13) and by challenging to fight on account of money won at gaming. All these offences, 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 forfeiture 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. (14) CHAPTER XXVIII. OF TITLE BY CUSTOM. A FOURTH method of acquiring property in things personal, or chattels, is by custom whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of (i) Co. Litt. 391. 2 Inst. 316. 3 Inst. 320. (9) [This forfeiture extends to all the offenders personal property, including chattels real, whether legal or equitable, in possession or in action. Cro. Jac. 513; 2 B. and Ål. 258; 2 C. M. and R. 416; with the exception of contingent interests. 1 Keen, 145. The goods vest in the crown immediately upon conviction; and, as a felon who is transported is not restored to his civil rights until he is pardoned, or the term expires, all personal property accruing to him in the interval is forfeited to the crown. 2 B. and AÍ. 258; 1 Myl. and K. 752.] (10) Petit treason is now unknown to the law. (11) [The distinction between grand and petit larceny is abolished. Statute 7 and 8 Geo. IV, c. 29, s. 2. (12) [By statute 7 and 8 Geo. IV, c. 28, s. 5, on indictments for felony, the jury is no longer to be charged to inquire concerning the prisoner's land or goods, or whether he fled for the offence.] (13) Owling is no longer an offence: 5 Geo. IV, c. 47. By the 5 Geo. IV, c. 97, all the laws relating to artificers or colliers going into foreign parts are repealed.] (14) [A bona fide sale of goods and chattels by the offender, for good consideration, after the offence and before conviction, is good. 8 Rep. 171. See Skin. 357; 1 Stark. 319; 6 Car. and P. 145.] VOL. I.-77 609 |