Definition. general rule what animals are game within the Of the king's property in game, and power to grant fran legal meaning of that term; for some of the statutes treat even rabbits as game, which are not so considered in others (d); and therefore where the term game is mentioned in a statute, it is necessary to attend to the object of the legislature in passing the particular provision, in order to ascertain what animals are included within it. Most of the writers on general law assert that the sovereign has the sole property in game, and that he may communicate that right to chises rela- others exclusively in what degree and under what restraints he pleases. (e) In this country there seems to be considerable doubt as to the nature of the sovereign's interest in the game. ting to it. (d) Thus the Statute 13 R. 2. c. 13. and the 22 and 23 C. 2. c. 25. treat rabbits as game, which could not be so considered within the prohibition of 5 Ann. c. 14. s. 4.; and the 48 Geo. 3. c.55. mentions woodcocks, snipes, quails, landrails, and rabbits as distinguishable from game. The 13 R. 2. c. 13. post, Appendix, 369. mentions" deer, hares, conies, or other gentlemen's game." The Stat. 22 and 23 C. 2. c. 25. enables lords of manors to take and seize dogs and nets for kil. ling conies, hares, pheasants, partridges, or other game; and the 4 and 5 W. & M. c. 23. speaks of hare, par. tridge, pheasant, pidgeon, fish, fowl, or other game; and Lord Coke, in his 7 Rep. 15. b. post, Appendix, 840. treats deer and rabbits as game; however, in the case of the King v. Thomson, 2 Term Rep. 18.-post, Appendix, 1225. Mr. Justice Ashurst appears to have considered it as being quite clear that a woodcock or rabbit was not game, and the 48 Geo. 3. c. 55. schedule L. affords the same conclusion; and in Rex v. Yaites, 1 Lord Raymond, 151. post, Appendix, 981. the Court held that rabbits, though in a private warren, were not game. (e) Puffendorf, lib. 4. ch. 6. s. 4, 5, 6. It is laid down by Sir William Blackstone, in his Property in Commentaries (ƒ), " that by the common law game. the sole property of all the game in England is vested in the king alone, and that the sole right of taking and destroying it belongs exclusively to him, and that consequently no person, of whatever estate or degree, has at common law a right to kill game, even upon his own land, unless by licence or grant from the king." This doctrine is in some measure countenanced by the undoubted power of the king to grant a free warren, which is a liberty to take game within a particular district, in exclusion of all others (g). But there are such a current of dicta and decisions which shew that the owners of land have uniformly been considered to have a local property in game, and a right to take it whilst upon their own land (h), that this unqualified position of the learned commentator must be deemed incorrect. And we find no instance, either criminal or civil, in which a party has been sued or prosecuted on behalf of the king for taking game, unless he took it within some privileged place; and on the contrary it is laid down that no indictment can be supported (f) 2 Bla. Com. 14, 15. 391. 394. 413. 419. and in 4 Vol. 174. 415. (g) Post, Appendix, 769. (h) Post, Appendix, 705. 709.732.741.796. 802. 808. 835. 839. 844. 863. 903. 905. B 2 Property in for stealing animals feræ naturæ unless reclaimed, game. because they are the property of no one (i). For some time after the Conquest, the sovereign indeed did assume the power of making for himself, and of granting to his subjects, forests, chases, parks and warrens over the lands of others without their concurrence; but we find, from the authority of Lord Coke (j), that this was contrary to the common law, and that the charta de foresta, which expressly prohibits the making of fresh forests and disafforests several, is only a declaratory law, securing to the subject his former right, and that the king cannot raise a free chase, park, or warren for himself in any of the grounds of his subjects, because the common law has so admeasured the king's prerogatives that they cannot take away or prejudice the inheritance of any one. And we find that, in the reign of Hen. 8. (a prince who insisted particularly upon his prerogative,) it was admitted that the king could not erect a chase or forest over any man's grounds without his consent (k). The charta de foresta, though it precluded the king in future from granting exclusive privileges over other person's lands, without their concurrence, still, however, leaves it open to him to make a forest over the demesnes of the crown, or a chase, park or free warren over the grounds of (i) Post, 840. 1063.-2 Bla. Com. 393. (j) 4 Inst. 300, 301. 5 game. others with their consent (1). And therefore forests Property in and free warrens over other person's lands may at this day exist, because, as observed by Lord Coke (m), when the ancient kings had the most part of the lands in their own hands, they might make what forests they pleased therein, in which case, after they granted out parts of those lands, the forest would nevertheless continue, there being a reason and cause of a lawful beginning; and therefore a forest may be by prescription good in law over other men's grounds. So, as a grant of free warren might be made by the king to a person over his own land, who afterwards sold the land, reserving the free warren, or right of killing game to himself, it came to pass that a man and his heirs may have free warren over another's ground (n). In these cases there was no infraction of the right of the first owner of the soil, for the king, in the first instance, only made the forest over the demesnes of the crown, and, in the latter, only granted the free warren to him who was owner of the land. This power, however, of the crown, does not prove the existence of any exclusive right to the game, but merely shews that it has the privilege of securing to the then owner of the soil a more permanent and certain interest in the game than he could otherwise have acquired (o). (1) 4 Inst. 301. (m) 4 Inst. 301. (n) 2 Bla. Com. 39. Restraints by Our game laws are restrictive of the right the common game, and the property a private individual may have in it in general. law on taking which, in a mere state of nature, exists in every one to kill animals feræ naturæ, wherever he may find them. The common law subjects every person, even a lord of the manor (p), to an action of trespass for entering the land of another, in order to search for or pursue game, unless he have a free chase or free warren over it, so that no one can sport, except in his own land, without being guilty of an infraction of the law (q), though he may in some cases acquire a property in the game which he may thus have illegally taken. A person may be invested with a qualified but not an absolute property in all creatures feræ naturæ, either per industriam, propter impotentiam, propter privilegium, or ratione soli (r). A qualified property may subsist in animals feræ naturæ per industriam hominis, as by a man's reclaiming or making them tame, or by so confining them within his own immediate power that they cannot escape and use their natural liberty; as deer in a park, hares or rabbits in an enclosed warren, pheasants or partridges in a mew, and fish in a private pond, or in trunks. king's concurrent right with 1006, (q) 2 Bla. Com. 419. Lord Raym. 251. (r) 7 Coke, 15. b. Case of Swans, post, 839. as to the property in game. |