(of which we shall have occasion to speak again in the fourth book of these commentaries) do indeed qualify

As all these statutes seem to be in force in some degree at present, and as it is a subject interesting to sportsmen, I shall subjoin a short abstract of them according to their chronology.

"The 22 & 23 Car. II. c. 25 [which, however, is in part repealed by the 7th & 8th of Geo. IV. c. 27, though such repeal does not go to the parts of the act recited in this note,] authorizes lords of manors of the degree of an esquire to appoint under their hands and seals gamekeepers, who shall have power within the manor to seize guns, dogs, nets, and engines kept by unqualified persons to destroy game; and by a warrant from a justice of peace, to search in the day-time the houses of unqualified persons upon good ground of suspicion, and to seize for the use of the lord, or to destroy, guns, dogs, nets, &c., kept for the destruction of the game. This statute does not limit the number of those to whom such power and authority may still be given. The 4 & 5 W. & M. c. 23, s. 4, gives to these gamekeepers the same protection in resisting offenders in the night-time, as the law affords to the keepers of antient parks. The 5 Ann. c. 14, s. 4, permits any lord or lady of a manor to empower gamekeepers to kill game within the manor.

person, a domestic servant, or a person
employed to kill for the sole use of the
lord or lady of the manor.
The only
use of appointing a qualified person a
gamekeeper is, to give him the power
as before described of seizing 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 shall be charged one guinea.

By the 5 Ann. c. 14, s. 4, any justice of peace may, within his county take either game, or dogs, and instruments kept for the destruction of game, from unqualified persons, and retain them for his own use. But it has been decided, that though gamekeepers are liable to the same penalties as unqualified persons for killing game out of their respective manors, yet no one is justified in taking from them their dogs and guns, when they are out of the limits of their lord's manor, even in pursuit of game. (2 Wils. 387, Rogers v. Carter).

"No lord of a manor can grant to another person the power of appointing a gamekeeper, without a convey"The 9 Ann. c. 25, s. 1, enacts, that ance also of the manor. A right to a no lord or lady of a manor shall ap- manor cannot be tried in a penal action point more than one gamekeeper, within under the game-laws. (5 T. R. 19). This one manor, with the power of killing power of appointing a gamekeeper has, game; and his name shall be entered no doubt, introduced the very erroneous with the clerk of the peace. And by notion, that a lord of a manor has a 3 Geo. I. c. 11, the gamekeeper, who peculiar right to the game, superior to shall have the power to kill game within that of any other land-owner within the manor, shall either be a qualified the manor, although his estate be a

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 authorized to kill game. The cir-
cumstance of having 100l. per annum, and the rest, are not
properly qualifications, but exemptions. And these per-
sons, 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 prero-
gative, and 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, how-
ever 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 [ch. 3] propter privilegium†.

sufficient qualification to entitle him to
follow the amusements of a sportsman.

"Gamekeepers, we have seen, were
first created by 22 & 23 Car. II. c. 25;
by the preceding qualification act, 7
Jac. I. c. 11, their power was given to
the constable and headborough; and I
apprehend it was transferred to the
persons appointed by lords of manors,
for no other reason than because it
was probable they were the most inter-
ested in the preservation of the game,
by having in general the most extensive
range to pursue it in, viz. upon their
own estates and wastes. And I con-
ceive the 22 & 23 Car. II. c. 25, is the

first instance, either in our statutes, reports, or law treatises, in which lords of manors are distinguished from other land-owners with regard to the game." + Mr. Christian, in a long note upon this passage of the text, impugns the position so frequently, and even zealously, inculcated by our author, that the common law has vested the sole property of all the game in England in the king alone, and of consequence that no man, let his rank and fortune be what they may, is qualified to kill game, or is exempt from the original penalties, unless he possesses some peculiar privilege derived from the king."

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 (c) 11 Mod. 75.

deer or other game, when they are out of a forest, was determined also in a case reported by Keilway, 30, and copied by Manwood, 202. In that case an action of trespass was brought for entering the plaintiff's close; the defendant pleaded, that the place in which the trespass was supposed to be committed was adjoining to the king's forest, and that the plaintiff was bound to impale the said forest, and that, for want of paling, four deer escaped out of the forest into the plaintiff's land, and that he the defendant entered by the command of the forester to drive them back to the forest. The court held that

ate those creatures which are fera naturæ et nullius in bonis, to himself, and to restrain them of their natural liberty, which he cannot do without the king's licence; but for hunting, hawking, &c., which are matters of 'pastime, pleasure, and recreation, there needs no licence, but every one

may, in his own land, use them at his pleasure, without any restraint to be made, unless by Parliament, as appears by the statutes of 11 Hen. VII. c. 17. 23 Eliz. c. 10, and 3 Jac. I. c. 13.'

this plea was not good; ' for though
the plaintiff was in fault for not
'paling, yet it was not lawful for the
forester or any person to drive the
deer out of the ground, or to take
" them;
"
and the reason was, because
the king had no property in them;
and this was different from the case
' of tame cattle, where the property
'still remains in the owner though
they are out of his ground, for which
reason he may retake them wherever
he finds them; but it is not so when
the beasts are wild.'

"The learned judge frequently intimates that no person is exempt from the original penalties; but I am inclined to think, that no authority whatever can

66

These authorities are also recognized and confirmed in Bro. Abr. tit. Propertie, and in Hale's Commentary to F. N. B. 197.

"The following may serve as a specimen of the authorities collected by Brooke: quant beastes savages le roye aler hors del forrest, le property est hors del roy; and again, silz sount hors del parke capienti conceditur."

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); this 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 t.

*III. I proceed now to a third method whereby a title to III. By forfeigoods and chattels may be acquired and lost, viz. by forfei- ture. ture; as a punishment for some crime or misdemesnor in [ *420] 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 men

(d) Puff. L. N. 1. 4, c. 6.
(e) Lord Raym. 251.
(f) Ibid.

+ Mr. Christian observes, that "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," Mr. Christ

ian

(g) Farr. 18. Lord Raym. 251.
(h) See page 267.

says, "I have heard recognized 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."