Page images

hrberi ne ingrediatur."(K) For if there can, by the law of nature, be 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 law(1) interdicts “venationes, et sylvaticas vagationes cum canibus et accipi*413]

tribusto all clergymen without distinction; grounded on *a saying of

St. Jerome,(m) 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,(n) 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 Lisbop, to have his kennel of hounds, or a composition in lieu thereof.o):

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 feodal 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 *414]

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 sport(9) which, in its pursuit and slaughter, bore some resemblance to war. Vita omnis (says Cæsar, speaking of the antient Germans) in venationibus atque in studiis rei militaris 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; despising 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 antient huntings. And it is remarkable that, in those nations where the feodal policy remains the most uncorrupted, the forest or game laws continue in their highest rigour. In France (*) Inst. 2, 1, 2 12.

and Tartarian empire, published A.D. 1205, there is one Decretal. 1. 5, t. 24, c. 2.

which probibits the killing of all game from March to 0c(*) Decretal. part. 1, dist. 34, l. 1.

tober, that the court and soldiery might find plenty enough

in the winter, during their recess from war. (P) Frud. I. 2, t. 27,5.

(1) De Bell. Gall. I. 6, C. 20. (9) In the laws of Jenghiz Khan, founder of the Mogul

Mod. Univ.

(*) Cap. 64.
( 4 Inst. 309.

Hist. iv. 408.

(*) C. 15.

• When archbishop Abbot, by an unfortunate accident, had killed a park-keeper in shooting at a deer with a cross-bow, though it was allowed no blame could be imputed to the archbishop but from the nature of the diversion, yet it was thought to bring such scandal upon the church that an apology was published upon the occasion, which was warmly and learnedly answered by Sir Henry Spelman, who maintained that the archbishop was in the exercise of an act prohibited by the canons and ordinances of the church, and that he was even disqualified from exercising his spiritual functions. The king referred the consideration of the subject to the lord-keeper and several of the judges and bishops, who recommended it to his majesty to grant his grace a dispensation in majorem cautelam, si qua forte sit irregularitas, which was done accordingly. See Reliquiæ spelm. 107.-CHRISTIAN.

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.(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 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 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 diversion, on pain of a pecuniary *forfeiture for such as interfered with their sovereign. But every freeholder had the full liberty of sporting

[*415 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 antient law of the Scandinavian continent, from whence Canute probably derived it. “Cuique enim in proprio fundo 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 bim. And this, as well upon the principles of the feodal 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 antient forests, but in the new ones which the conqueror made, by

[*416 laying together vast *tracts 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 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) The cruel and insupportable hardships, which those forest laws created to the subject, occasioned our ancestors to be as jealous for their reformation, as for the relaxation of the feodal 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 () Mattheos de Crimin. c. 3, t. 1. Carpzov. Practic. Sax

() Stiernhook de jure Sueon. I. 2, c. 8.

onie. p. 2, c. 84.

(*) C. 77. (° C. 36.

(*) M, Paris, 303.
(v) 9 Hen. III.

One of the first consequences of the French revolution was the iepeal 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.-СнітTY. VOL. I.-46


were made in the regimen of such as remained; particularly(2) killing the king's deur was made no longer a capital offence, 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 lands 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 antient chase or park; unless they be also beasts of prey. *417]

*As to all inferior species of game, called beasts and fowls of warren,

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.(6) 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 antient 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 *418]

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 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 & 23 Cår. 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 801. for life or lives, or 4001. 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 Anne, c. 14, which (*) Cap. 10. (*) See page 38.

(0) Mirr. c. 5, 2 2. See page 40.

• The editor apprehends that what the learned judge has here stated respecting the first permission has arisen from a misconception of the subject. The first qualification act is the 13 Ric. II. c. 13, the title of which is, “None shall hunt but they who have a sufficient living.” The preamble states that “divers artificers, labourers, servants, and grooms keep greyhounds and dogs, and on the holydays, when good Christian people be at church hearing divine service, they go a-hunting in parks, and warrens, and connigree's of lords and others, to the very great destruction of the same; and sometimes under such colour they make their assemblies, conferences, and conspiracies for to rise and ilisobey their allegiance: it is therefore ordained that no artificer, labourer, or other

empowers lords and ladies of manors to appoint gamekeepers 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 ihe 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 offence, these statutes inflict additional penalties, to be recovered, either in a regular or 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 uuthorized to kill game. The circumstance of having 1001. per annum, and the rest, are not properly qualifications, but exe

xemptions. 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

[*+19 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 feræ naturæ, while living; which is said to be vested in them, as was observed in a former chapter, propter privilegium. And it must also be reme

membered, that such persons as may

layman, which hath not lands or tenements to the value of 40s. by the year, nor any priest to the value of 101., shall keep any dogs, nets, nor engines to destroy deer, hares, nor coneys, nor other gentlemen's game, upon pain of one year's imprisonment."

This statute clearly admits and restrains the former right. The 1 Jac. I. c. 27, which seems intended for the encouragement of hawking,--the most honourable mode of killing game at that time,-begins with a general prohibition to all persons whatever to kill game with guns, bows, setting-dogs, and nets; but there is afterwards a proviso in the act, that it shall and may be lawful for persons of a certain description and estate to take pheasants and partridges upon their own lands, in the daytime, with nets. This proviso clearly refers to the preceding prohibition introduced by the statute, and by no means gives a new permission to the persons thus qualified which they did not possess antecedently to that statute.

The editor trusts that those who will take the trouble to examine the statute will be convinced of the truth of this remark, and that the correction of this error alone will contribute in some degree to the refutation of the doctrine which the learned judge has advanced in this chapter and other parts of the commentaries,-viz., that all the game in the kingdom is the property of the king or his grantees, being usually the lords of manors, (p. 15, ante ;) game is royal property, (4 book, 174;) and the new constitution vested the sole property of all the game in England in the king alone. Ib. 415.CHRISTIAN.

* By statute, 1 & 2 W. IV. c. 32 the arbitrary distinctions of qualification have been done away with; and now the right to kill game upon any land is vested in the owner or occupier thereof, (in the absence of a reservation of the right by the landlord,) and any person with permission of the owner may kill game on any land. But the act requires all persons killing or taking game to take out a yearly certificate; and persons selling it must also obtain a yearly license. The effect of this act seems to be virtually to vest the property in game in the owner of the land wherever it is found, although he cannot avail himself of such right of property without the required certificate.—KERR.

Mr. Christian, in a note on this passage, has, I think, successfully controverted the general doctrine laid down by the author. He has pointed out that it cannot follow that the king and his grantees have a sole right to take game, either from feudal principles, because he is the ultimate proprietor of all land, nor from the fact that animals fere naturæ are bona vacantia. And he has cited a good deal of authority to show that at common law every person ratione soli had a right to take game on his own lands.

The question is not of much practical importance On the one hand, it is clear that by statute law a person unqualified cannot kill the game even on his own estate; on the other, it is equally clear by common law that he may preserve it, and that no man, however qualified or whatever ultimate rights he may have in the soil, unless he has the franchise of chase or free warren, can enter to destroy game without subjecting himself

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 libefty, 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 g_unded 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,(9) though guilty of a trespass against both the owners. *420]

*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 misdemesnor 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 misdemesnors; 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;1o and the forfeiture of 101. by 9 Anne, c. 2311 for printing an almanac without a stamp. I shall 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 mulcts 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 pro() 11 Mod. 75.

Lord Raym. 251.

Farr. 18. Lord Raym. 251. (©) Lord Raym. 151. 2 Salk. 555. 3 Salk. 290. Comb. 450;

(*) See page 267.

(d) Puff. L. N. I. 4, c. 6.

and see 14 East, 249.

to an action of trespass. Even the lord of a manor cannot enter on his copyholder's land without the same consequence.-COLERIDGE.

9 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.

These distinctions I have heard recognised by lord Kenyon, who, in an action of trover, directed a verdict for the plaintiff, the defendant having carried away a hare killed by the plaintiff's greyhounds upon the defendant's ground, but which had not been started there.-CHRISTIAN.

10 This forfeiture is abolished by the 54 Geo. III. c. 96.-CHITTY.

11. This forfeiture is also abolished, and persons uttering or exposing to sale unstamped almanacs are punishable with three months' imprisonment. " 30 Geo. II. c. 19, s. 26. -CHITTY.

« PreviousContinue »