These are no longer the property of a man than Restraints on while they continue in his keeping or actual pos- the common sporting by session, and if at any time they regain their law, &c. natural liberty, his property instantly ceases, unless they have animum revertendi, which is only to be known by their usual custom of returning. But while they thus continue in the possession of the party reclaiming them, they re as much under the protection of the law as if they were absolutely and indefeasably his property, and an action will lie against any man who detains them from him, or unlawfully destroys them, and it is as much felony by the common law to steal such of them as are fit for food as it is to steal tame animals (s). A qualified property in animals feræ naturæ may also subsist, ratione impotentiæ, or on account of their own inability. As when birds build in the trees upon a person's land, or rabbits or other creatures make their burrows or nests and have young ones there, in which case he has a qualified property in the young ones till they can fly or run away, when the property expires. Till which time it is in some cases trespass, and in others felony to take them away (t). A qualified property in animals feræ naturæ may also exist propter privilegium, that is, by (§) 1 H. H. P. C. 512. 2 East. Pl. Cr. 607.-Post, Appendix, 772. 812. 840. 1063. (t) 2 Bla. Com. 394.-2 East Pl. C. 607. sporting by the common law, &c. Restraints on having the privilege of hunting, taking or killing them in exclusion of other persons, by virtue of a grant of a forest, chase, free warren or park, or of a several or free fishery (u). Here the party has a transient property in these animals usually called game, as long as they continue within his liberty, and may restrain any stranger from taking them therein, but the instant they depart into another liberty this qualified property ceases (v). in Lastly, every person has a qualified property game wwhilst upon his own private ground, ratione soli; and if a man start any game upon his own ground, and follow it upon another's, and kills it there, the property remains in himself, for the property consists in the possession, which possession commences by the finding of it on his own land, and is continued by the immediate pursuit (w). 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 wrongful act of a mere stranger (x). Or if a man starts game on another's private grounds, and kills it there, the property belongs to him in (u) 2 Bla. Com. 38. 394. and 416. (v) 2 Cro. Car. 554. dorf. B. 4. ch. 6.-Gedge and Minne, 2 Bulstr. 60.-Post, Appendix, 873.. (x) Ld. Raym. 251.-Post, Appendix, 984. 1002. whose ground it was killed, because it was also Restraints on started there, the property arising ratione soli (y). the common sporting by Whereas, if after being started there, it is killed law, &c. 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 (*). Our legislative provisions (a) are in restraint Restraints on of the common law right of every owner of statute law, sporting by land, however small the value, to kill game even on and policy of the regulahis own estate. They require that he shall have tions. an estate of a certain annual value; and prohibit every one from killing game at particular seasons of the year, and by particular modes; and persons not having real estate to the prescribed amount are subjected to penalties for sporting. These various provisions, which will hereafter be considered in detail, have not unfrequently been treated, even by authors of authority, as tyrannical, and as an unnecessary and arbitrary restraint upon the liberty of the subject (b). But it will Restraints on on consideration be found that the weight of obsporting by statute, &c. jection is rather to the inartificial language of the statutes upon this subject than to their intended operation, and that there is no injustice or impolicy in this system of law. There is no injustice in excluding a person who has no property in land from pursuing the sports of the field on the land of others. In a civilized state of society all property is appropriated, and no one can acquire any interest in it but by purchase, or by descent from a preceding occupier; and even the air itself, though considered common to all, cannot be enjoyed upon the land of another, without subjecting the party to an action for the unlawful entry; and if a person enter the waste of a manor, or a common highway, for any other purpose than the exercise of his right of common or way, he is subject to an action of trespass (c); and by giving a man an exclusive dominion over his own soil, the improvement of land and of agriculture are greatly encouraged (d). And though wild animals may frequently change their situation from one estate to another, yet as they reciprocally feed upon the corn and other produce of the respective owners, there appears sufficient reason for vesting the right of taking game in such owners, in exclusion of those who have no land, and who consequently do not contribute to the sustenance of these ani (c) 2 Str. 1004.-Dovaston v. Payne, 2 Hen. Bla. 527. (d) 2 Bla. Com. 411, 412. mals; and though it has been objected that there Restraints on sporting by is no reason for excluding persons, who have a statute, &c. less interest in land than 100l. per ann. from killing game, and that it is unreasonable to require so large a property as a qualification to sport, when a freehold of 40s. a year is sufficient to enable a person to vote for a knight of the shire (d); it is obvious that the qualification for the former proceeds quite on a different principle from the latter; the liberty to kill game is confined to persons whose fortune and rank may justify the application of their time to the sports of the field; but this is no reason why a party having a less interest in land, should not have a voice in the election of a representative, who is to protect in parliament his liberty and property, And with respect to the precise amount of the required qualification, the law must, as observed by Sir Wm. Scott, proceed upon some settled rule, and cannot fluctuate according to the change in the value of property or the circumstances of a particular case (e). If any alteration in the law were to be made, it should be in favour of the tenants of large farms, who, by being allowed a qualified power of killing game, would; be induced to adopt measures for the preservation of it, when their interest at present is directly the reverse; and no inconvenience could result (d) 4 Bla. Com. 175. curius, 5 Rob. Rep. 127, 8. |