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 anywhere; the latter was supposed to give the king, and such as he should authorise, a sole and exclusive right. X laws esta This right, thus newly vested in the crown, was exerted The forest with the utmost rigour, at and after the time of the Nor- blished. man establishment; 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; [416] 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 same principle, king John laid a total interdict upon the winged as well as the fourfooted creation: "capturam avium per totam Angliam interdixit." The cruel and unsupportable 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 feudal rigours and the other exactions introduced by the Norman family; and accordingly we find the immunities of carta de foresta as carta de warmly contended for and extorted from the king with as 9 Hen. III. much difficulty as those of magna carta itself. By this charter, confirmed in parliament, many forests were disafforested, or 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 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. foresta. parks, grant But, as the king reserved to himself the forests for his Chases or own exclusive diversion, so he granted out from time to ed by the time other tracts of lands to his subjects under the names of chases or parks," or gave them licence to make such in M. Paris, 303. y 9 Hen. 3. 2 Cap. 10. * See page 39. crown. [417] 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 Free warren. crown, and called free warren; a word, which signifies preservation or custody: as the exclusive liberty of taking Free fishery. 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. 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 until very recently, but he who had a chase or free warren by grant from the crown, or prescription which supposed one, could justify hunting or sporting upon another man's soil; nor indeed, in thorough strictness of common law, either hunting or sporting at all. Who were qualified by law to kill game. However novel this doctrine may seem to such as have the common called 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 b Mirr. c. 5, s. 2. See page 40. he pleases with the game; whereas the contrary is strictly true, that no man, however well qualified he might vulgarly have been esteemed, had a right to encroach on the [ 418 ] royal prerogative by the killing of game, unless he could shew a particular grant of free warren; or a prescription, which presumed 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. c. 27, altered by 7 Jac. I. c. 11, 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 40l. per annum in lands of inheritance, or 80l. for life or lives, or 400l. 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 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 never did indeed qualify anybody, 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 inflicted 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 might be found, offending in this particular. But it does not follow that persons, excused from these additional penalties, were therefore authorized to kill game. The circumstance of having 100l. per annum, and the rest, were not properly qualifications, but exemptions. And these persons, so exempted from the penalties of the game statutes, were not only liable to actions of trespass by the owners of the land; but also, if they killed game within the limits of any royal franchise, they were liable to the actions of such who might have the right of chase or free warren therein. And now the necessity of any qualification whatever has c 1 & 2 W. 4, c. 32, s. 13. acquire property in game. been recently abolished by statute 1 & 2 Will. IV., and it is enacted (s. 6), that every certificated person may kill game subject to the law of trespass; but the act is not to prejudice any rights of manor, forest, chase, or warren (s. 8); nor the forest rights of the crown (s. 9). [ 419 ] Upon the whole it appears, that the king, by his preroWhy 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, however 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, propter privilegium. 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 into another's, and kills it there, the property remains in himself. And this is grounded on reason and natural justice 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, 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; 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, though guilty of a trespass against both the owners. By the statute to which we have already adverted, 1 & 2 W. IV. c. 32, the sale of game is legalized under certain restrictions. forfeiture. III. I proceed now to a third method, whereby a title [ 420 ] to goods and chattels may be acquired and lost, viz. by III. Title by forfeiture; as a punishment for some crime or misdemeanour in 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. It remains therefore in this place only to mention by what means, or for what offences, goods and chattels become liable to forfeiture. In the variety of penal laws with which the subject is at present incumbered, it were a tedious and impracticable task to reckon up the various forfeitures inflicted by special statutes, for particular crimes and misdemeanors: some of which are mala in se, or offences against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as was the forfeiture of 40s. per month by the statute 5 Eliz. c. 4, for exercising a trade without having served seven years as an apprentice thereto; and the forfeiture of 107. by 9 Ann. c. 23, for printing an almanack without a stamp, both of which statutes are now however repealed.. I shall therefore confine myself to those offences only, by which all the goods and chattels of the offender are forfeited; referring the student for such, where pecuniary mulets of different quantities are inflicted, to their several proper heads, under which very many of them have been or will be mentioned; or else to the collections of Hawkins, and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But as, in the instance of partial forfeitures, a h Far. 18; Lord Raym. 251. iSee page 313. J54 Geo. 3, c. 96; 55 Geo. 3, c. 184. |