Origin of the prohibitions respecting game. Jerome (m)(11), 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 bishop, to have his kennel of hounds, or a composition in lieu thereof (o) (12). 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 behoved 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 (m) Decret. part 1, dist. 34, 1. 1. (11) Viz. Venatorem nunquam legimus sanctum.-Cн. (12) Mr. Christian observes, that "when Archbishop Abbot, by an unfortunate accident, had killed a parkkeeper, 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, than an apology was published upon the occasion, which was warmly and learnedly answered by Sir Henry Spelman, (0) 4 Inst. 309, [post, p. 427.] 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." 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 game. *This exclusive privilege well [ *414 ] suited the martial genius of the conquering troops, who delighted in a sport (q) which in its pursuit and slaughter bore some resemblance to war. Vita omnis (says Cæsar, speaking of the ancient 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 (s). 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 ancient 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, 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). forests. With us in England also, hunting has ever been esteemed The king's a most princely diversion and exercise. The whole island was replenished with all sorts of game in the times of the Britons; who lived in a wild and pastoral manner, without inclosing 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 (p) Feud. 1. 2, tit. 27, s. 5. (q) 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 and soldiery might find plenty enough in the winter, during (r) De Bell. Gall. 1. 6, c. 20. (t) Mattheus de Crimin. c. 3, tit. 1; 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 [415] *forfeiture for such as interfered with their sovereign. But every freeholder had the full liberty of sporting upon his own territories, provided he abstained from the king's forests as is fully expressed in the laws of Canute (v), and of Edward the Confessor (u): "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 proprio fundo quamlibet feram quoquo modo venari permissum” (w). The sole and exclusive right to pursue and take game was held to be in the king, and in his grantees. The royal forests extended by the conqueror. 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 authorised under him. 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 of him as the chief lord, or lord paramount of the fee (13); 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 any where; the latter was supposed to give the king, and such as he should authorise, 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 (v) C. 77. (u) C. 36. (w) Steirnhook de Jure Sueon. 1. 2, c. 8. (13) See ante, p. 51. birds prohibited new ones which the conqueror made by laying together vast *tracts of country, depopulated for that purpose, and re- [416] served 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 killing of the same principle, king John laid a total interdict upon the by king John. winged as well as the four-footed creation: " capturam avium per totam Angliam interdixit" (x). The cruel and insupportable hardships which these forest laws created to the subject, occasioned our ancestors to be as zealous 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 Carta de foresta. as warmly contended for, and extorted from the king with as much difficulty, as those of magna carta itself (14). 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 (2) killing 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 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 Chases or parks. 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 ancient chase or park; unless they be also beasts of prey. * 417 ] *As to all inferior species of game, called beasts and fowls Free-warren. of warren, the liberty of taking or killing them is another franchise of royalty, derived likewise from the crown, and (x) M. Paris, 303. (y) 9 Hen. III. (2) Cap. 10. (14) See post, Vol. III. p. 72 ; and Vol. IV. pp. 415, 416. Free-fishery. None but those who have a from the crown, are by common law entitled to kill game. 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). 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 (15). However novel this doctrine may seem to such as call derivative right 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 [418] 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, Statutes concerning game. (b) Mirr. c. 5, s. 2. See pag. 40. (15) Whether this was strictly so at common law or not, it is now unimportant to inquire. Subject to proceedings for trespass, if he commits it, every man is authorised by statute to kill game; and no qualification is required except an annual certificate. See ante, p. 411, note. |
