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Roman or civil law, though it knew no restriction as to persons or animals, so far regarded the article of place, that it allowed no man to hunt or sport upon another's ground but by consent of the owner of the soil. Qui alienum fundum ingreditur, venandi aut aucupandi gratia, potest a domino prohiberi ne ingrediatur." 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 law1 interdicts "venationes, et sylvaticas vagationes cum canibus et accipitribus," to 'all clergymen without distinction, grounded on a saying of St. Jerome,m that it never is record- [413 | ed 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," 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

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 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

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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 feodal 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 414] game. This exclusive privilege well suited the martial genius of the conquering troops, who delighted in a sports 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. And Tacitus in like manner observes, that quoties bella non ineunt, multum venatibus, plus per otium transigunt. 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 rigor. 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

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 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 inclosed, 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 [115] of a pecuniary forfeiture for such as interfered with their sov

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ereign. 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" 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 ancient 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 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; 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 with the utmost rigor, at and after the time of the Norman establish- [416} ment; not only in the ancient forests, but in the new ones which the Conqueror made by 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 color 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 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 rigors, and the other exactions introduced by the Norman family; and, accordingly, we find the immunities of Charta de Forestà as warmly contended for, and extorted from the king with as much difficulty, as those of Magna Charta itself. By this charter, confirmed in Parliament, many forests were disafforested, or

" C. 77:
▾ C. 36.
w Stiernh., De Jure Sueon., 1. 2, c. 8.

I M. Paris, 303.
y 9 Hen. III.

[417]

Sole right of

stripped of their oppressive privileges, and regulations were made in the regimen of such as remained; particularly, killing the king's deer was made no longer a capital offense, 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, 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.

As to all inferior species of game, called beasts and fowls of warren, the liberty of taking or killing them is another franchise or 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 Charta, 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.

However novel this doctrine may seem to such as call themtaking game selves qualified sportsmen, it is a regular consequence, from originally in the king. 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 exa See page 38. b Mirr., c. 5, § 2. See page 40.

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Cap. 10.

to kill game.

empted 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 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 ex- Permission press permission to kill game was ever given by statute; the by statutes 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 author- Qualificaity, so long as they remained in force, to the owners of free warren, to lords of manors, and to all freeholders having £40 per annum in lands of inheritance, or £80 for life or lives, or £400 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 Ann., c. 14, which empowers lords and ladies of manors to appoint game-keepers Game-keep 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

(8) 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, laborers, servants, and grooms keep greyhounds and dogs, and on the holy-days, when good Christian people be at church hearing divine service, they go a hunting in parks, and warrens, and connigrees of lords and others, to the very great destruction of the same, and sometimes under such color they make their assemblies, conferences, and conspiracies for to rise and disobey their allegiance; it is therefore ordained, that no artificer, laborer, 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, shall 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 statute clearly admits and restrains their former right: the 1 Jac. I., c. 27, which seems intended for the encouragement of hawking, the most honorable 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 afterward a proviso in the act, that it VOL. II.-I I

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 stat
ute.

The editor trusts that those who will
take the trouble to examine the statute
will be convinced of the truth of this re-
mark, and that the correction of this
error alone will contribute in some de-
gree 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, vol. iv., 174; and the new con-
stitutions vested the sole property of all
the game in England in the king alone.
(Ib., 415).—[CHRISTIAN.]

(9) The appointment and authority of game-keepers is now regulated by the stat. 1 & 2 Will. IV., c. 32, which (sect. 13) authorizes any lord of a manor, lordship, or royalty, or reputed manor, &c., or the steward of the crown of any manor, &c., by writing under hand and seal (to be registered with the clerk of the peace), to appoint one or more persons 497

tion or Excepting Act,

22 & 23 Car.

II., c. 25.

ers.

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