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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 (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 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 rigor. In France, all game is properly the king's; and in some parts of Germany it is death for a pea

sant to be found hunting in the woods of the nobility (t). The king's With us in England also, hunting has ever been esteem

ed 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 desart 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 pe[ *415 ] cuniary* 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,

is one which prohibits the killing of all 468).
game from March to October; that the (r) De Bell. Gall. 1. 6, c. 20.
court and soldiery might find plenty (s) C. 15.
enough in the winter, during their re- (t) Mattheus de Crimin. c. 3, tit. 1.
cess from war. (Mod. Univ. Hist. iv. Carpzov. Practic. Saxonic. p. 2, c. 84.

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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 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 The sole and took place; and the right of pursuing and taking all beasts exclusive right

to pursue and of chase or venary, and such other animals as were account- take game was ed game, was then held to belong to the king, or to such the king,

and in only as were authorized under him. And this, as well upon his grantees. 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 (5); 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 authorize, a sole and exclusive right.

This right, thus newly vested in the crown, was exerted The royal fowith the utmost rigour, at and after the time of the Norman

by the conquerestablishment; not only in the antient forests, but in the or. new ones which the conqueror made by laying together vast *tracts of country, depopulated for that purpose, and reserv- [*416 ] ed solely for the king's royal diversion; in which were

rests extended

(v) C. 77. (u) C. 36.

(w) Stiernhook de Jure Sueon. I. 2, c. 8.

(5) See ante, p. 51.

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, The killing of was as penal as the death of a man. And, in pursuance of birds prohibited the same principle, king John laid a total interdict upon by king John.

the winged as well as the four-footed creation: capturam avium per totam Angliam interdixit(«). 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 rigors,

and the other exactions introduced by the Norman family; Carta de foresta. 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 (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 be

come no longer a grievance to the subject. Chases or parks. 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 licence 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.

*As to all inferior species of game, called beasts and fowls [ *417 ] of warren, the liberty of taking or killing them is another

franchise of royalty, derived likewise from the crown, and

Free-warren.

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called free-warren; a word, which signifies preservation or custody: as the exclusive liberty of taking and killing fish Free-fishery. 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 None but those themselves qualified sportsmen, it is a regular consequence derivative right from what has been before delivered: that the sole right of from the crown, taking and destroying game belongs exclusively to the king. law entitled to This appears, as well from the historical deduction here kill game. made, as because he may grant to his subjects an exclusive right of taking them; which he could not do, unless such 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 fre- Statutes con

cerning game. quent 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 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 shew a particular grant of free warren; or a prescription, which pre

a

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sumes 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. 1), and virtually repealed by 22 & 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 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 freeholdt: the other by 5 Ann. c. 14, which 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 the matter is, that these game laws

+ Mr. Christian says, he " appre- hibition introduced by the statute, and hends that what the learned judge has by no means gives a new permission to here stated respecting the first permis- the persons thus qualified, which they sion, has arisen from a misconception did not possess antecedently to that of the subject. The first qualification statute.” act is the 13 R. II. c. 13, the title of Mr. Christian adds," he trusts that which is • None shall hunt but they those who will take the trouble to exwho have a sufficient living.'

amine the statute, will be convinced of “ This statute clearly admits and re- the truth of this remark; and that the strains their former right: the 1 Jac. correction of this error alone, will contriI. c. 27, which seems intended for the bute in some degree to the refutation of encouragement of hawking, the most the doctrine which the learned judge has honourable mode of killing game at advanced in this chapter, and other parts that time, begins with a general prohi- of the Commentaries, viz. that all the bition to all persons whatever to kill game in the kingdom is the property of game with guns, bows, setting dogs, the king or his grantees, being usually and nets; but there is afterwards a the lords of manors." proviso in the act, that it shall and may Mr. Christian, in his note upon he lawful for persons of a certain de- this passage, says, “ Gamekeepers were scription and estate to take pheasants first introduced by the present qualifiand partridges, upon their own lands, cation act, 22 & 23 Car. II. c. 25; and in the day-time, with nets. This pro- various regulations have been made viso clearly refers to the preceding pro- respecting them by subsequent statutes.

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