[417]

ing the king's deer 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 acquiefcence of the crown without exerting the forest laws, this prerogative is now become no longer a grievance to the subject.

BUT, as the king referved to himself the forefts for his own exclufive diverfion, fo he granted out from time to time other tracts of lands to his fubjects under the names of chases or parks, or gave them licence to make fuch in their own grounds; which indeed are smaller forefts, in the hands of a subject, but not governed by the foreft laws; and by the common law no perfon is at liberty to take or kill any beasts of chase, but such as hath an antient chafe or park; unless they be alfo beafts of prey.

As to all inferior fpecies of game, called beasts and fowls of warren, the liberty of taking or killing them is another franchife or royalty, derived likewife from the crown, and called free warren; a word, which fignifies prefervation or cuftody as the exclufive liberty of taking and killing fish in a public stream or river is called a free fishery; of which however no new franchife can at prefent be granted, by the exprefs provifion of magna carta, c. 16. The principal intention of granting to any one thefe franchises or liberties was in order to protect the game, by giving the grantee a sole and exclufive power of killing it himself, provided he prevented other perfons. And no man, but he who has a chafe or free warren, by grant from the crown, or prefcription which fuppofes one, can justify hunting or sporting upon another man's foil; nor indeed, in thorough ftrictness of common law, either hunting or fporting at all.

HOWEVER novel this doctrine may feem, to fuch as call themfelves qualified sportsmen, it is a regular consequence from what has been before delivered; that the fole right b Mirr. c. c § 2. See pag. 40.

a See pag. 38.

of

1

of taking and deftroying game belongs exclufively to the king (7). This appears, as well from the hiftorical deduction here made, as because he may grant to his subjects an exclufive right of taking them; which he could not do, unlefs fuch a right was first inherent in himself. And hence it will follow, that no perfon whatever, but he who has fuch 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 acquiefcence of the crown, the frequent grants of free warren in antient times, and the introduction of new penalties of late by certain statutes for preferving the game, this exclufive prerogative of the king is little known or confidered; 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 [418] royal prerogative by the killing of game, unless he can fhew a particular grant of free warren; or a prefcription, which prefumes a grant; or fome authority under an act of parliament. As for the latter, I recollect but two inftances wherein an express permiffion 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 Car. II. c. 25. which gave authority, fo 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 80l. for life or lives, or 400l. perfonal eftate, (and their fervants) to take partridges and pheasants upon their own, or their master's, free warren, inheritance, or freehold (8): the

(7) See this controverted in p. 419, n. 10.

(8) The Editor apprehends that what the learned Judge has here stated respecting the first permiffion, has arifen from a mifconception of the fubject. The first qualification act is the 13 R. II. c. 13. the title of which is "None fhall hunt but they who "have a fufficient living." The preamble ftates, that divers artificers, labourers, fervants, and grooms, keep grey-hounds

113

"and

other by 5 Ann. c. 14. which empowers lords and ladies of manors to appoint gamekeepers to kill game for the use of fuch lord or lady; which with fome alteration ftill fubfifts, and plainly fuppofes fuch power not to have been in them before (9). The truth of the matter is, that these game laws (of

"and dogs, and on the holydays, when good chriftian people be "at church hearing divine fervice, they go a hunting in parks, "and warrens, and connigrees of lords and others, to the very 66 great deftruction of the fame, and fometime under fuch colour they make their affemblies, conferences, and confpiracies for to rife and disobey their allegiance; it is therefore ordained, that "no artificer, labourer, or other layman, which hath not lands or "tenements to the value of 40s. by the year, nor any priest to the

"

value of 10. fhall keep any dogs, nets, nor engines to destroy "deer, hares, nor conies, nor other gentlemen's game, upon pain "of one year's imprisonment."

This ftatute clearly admits and restrains their former right: the Jac. I.c.27.which feems intended for the encouragement of hawking, the most honourable mode of killing game at that time, begins with a general prohibition to all perfons whatever to kill game with guns, bows, fetting dogs, and nets; but there is afterwards a provifo in the act, that it shall and may be lawful for persons of a certain defcription and estate to take pheasants and partridges, upon their own lands, in the day-time, with nets. This provifo and permiffion clearly refers to the preceding prohibition introduced by the ftatute, and by no means gives a new permiffion to the perfons thus qualified, which they did not poffefs antecedently to that ftatute.

The Editor trufts 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 fome 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 ufually the lords of manors, p. 15, ante; game is royal property, 4 vol. 174; and the new constitutions vefted the fole property of all the game in England in the king alone. Ib. 415.

(9) Gamekeepers were first introduced by the prefent qualification act, 22 & 23 Car. II. c. 25. and various regulations have

been

which we shall have occafion to speak again in the fourth book of these commentaries) do indeed qualify nobody, ex

been made refpecting them by fubfequent ftatutes. As all thefe ftatutes feem to be in force in fome degree at present, and as it is a fubject interesting to fportsmen, I fhall fubjoin a fhort abstract of them according to their chronology.

The 22 & 23 Car. II. c. 25. authorifes lords of manors of the degree of an efquire to appoint under their hands and feals gamekeepers, who shall have power within the manor to feize guns, dogs, nets, and engines kept by unqualified perfons to deftroy game; and by a warrant from a justice of peace, to fearch in the day-time the houfes of unqualified perfons upon good ground of fufpicion, and to feize for the use of the lord, or to destroy guns, dogs, nets, &c. kept for the deftruction of the game. This ftatute does not limit the number of those to whom fuch power and authority may ftill be given. The 4 & 5 W. & M. c. 23. f. 4. gives to these gamekeepers the fame protection in refifting offenders in the night-time, as the law affords to the keepers of antient parks. The 5 Ann. c. 14. f. 4. permits any lord or lady of a manor to empower gamekeepers to kill game within the manor.

The 9 Ann. c. 25. f. 1. enacts, that no lord or lady of a manor fhall appoint more than one gamekeeper, within one manor, with the power of killing game; and his name fhall be entered with the clerk of the peace. And by 3 Geo. I. c. 11. the gamekeeper, who fhall have the power to kill game within the manor, fhall either be a qualified perfon, a domeftic fervant, or a perfon employed to kill for the fole use of the lord or lady of the manor. The only ufe of appointing a qualified perfon a gamekeeper is, to give him the power as before described of feizing the dogs, guns, and other engines of unqualified persons within the manor.

By the 25 Geo. III. c. 50. and 31 Geo. III. c. 21. every deputation of a gamekeeper shall be entered with the clerk of the peace of the county in which the manor lies, and for a certificate thereof fhall be charged one guinea,

By the 5 Ann. c. 14. f. 4. any justice of peace may within his county take either game, or dogs, and inftruments kept for the deftruction of game, from unqualified perfons, and retain them for his own ufe. But it has been decided, that though gamekeepers are liable to the fame penalties as unqualified perfons for killing

Ii 4

game

Book II. cept in the inftance of a gamekeeper, to kill game: but only, to fave the trouble and formal process of an action by the perfon injured, who perhaps too might remit the offence, these ftatutes inflict additional penalties, to be recovered either in a regular or summary way, by any of the king's subjects, from certain perfons of inferior rank who may be found offending in this particular. But it does not follow that perfons, excufed from these additional penalties, are therefore authorised to kill game. The circumftance of having 100l. per annum, and the rest, are not properly qualifications, but exemptions. And thefe perfons, fo exempted from the penalties of the game ftatutes, 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 franchife, they are liable to the actions of fuch who may have the right of chafe or free warren therein.

game out of their respective manors, yet no one is juftified in taking from them their dogs and guns, when they are out of the limits of their lord's manor, even in purfuit of game. 2 Wilf. 387. Rogers v. Carter.

No lord of a manor can grant to another perfon the power of appointing a gamekeeper, without a conveyance alfo of the manor. A right to a manor cannot be tried in a penal action under the game-laws. 5 T. R. 19. This power of appointing a gamekeeper has, no doubt, introduced the very erroneous notion, that a lord of a manor has a peculiar right to the game, fuperior to that of any other land owner within the manor, although his eftate be a fufficient qualification to entitle him to follow the amusements of a sportsman.

Gamkeepers, we have feen, were firft created by 22 & 23 Car. II. c. 25; by the preceding qualification act, 7 Jac. I. c. 11, their power was given to the conftable and headborough; and I apprehend it was transferred to the perfons appointed by lords of manors, for no other reason than because it was probable they were the most interested in the prefervation of the game, by having in general the most extenfive range to pursue it in, viz. upon their own eftates and waftes. And I conceive the 22 & 23 Car. II. c. 25. is the firt inftance either in our ftatutes, reports, or law treatifes, in which lords of manors are diftinguifhed from other land-owners with regard to the game,

UPON