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. (0)

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 out among his soldiers or feudatories, who were to render him military service for such donations ; it behoved 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 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 feudal constitutions, (p) one and the same law prohibiting the rustici in general from carrying arms, and also proscribing the use of nets, snares, of

:

other engines for destroying the game. This exclusive privilege [414] well suited the martial genius of the conquering troops, who delight

ed in a sport (9) 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. (r) And Tacitus in like manner observes, that quonies bella noni neunt, multum venatibus, plus per otium transigunt. (s) 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 rigour. In France all game is properly the king's;10 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

o 4 Inst. 309.

p Feud. 1. 2. tit. 27. § 5.

qIn the laws of Jenghiz Khan, founder of the Mogul and Tartarian empire, published 4. D. 1205, there is one which prohibits the killing of all game from March to October; that the court and soldiery might find plenty enough in the winter, during their recess from war. (Med, Univ. Hist, iv. 468.)

r De Bell Gall. 1.6. c. 20.

sc. 15.

t Mattheus de Crimin c. 3. tit. 1. Carpzov. Practic, Saxonic. p. 2. c. 84,

(9) When archbishop Abbot by an unfortunate accident had killed a park-keeper in shooting at a deer with a cross-bow, though it was allowed no blame could be imputed to the archbishop but from the nature of the diversion, yet it was thought to bring such scandal upon the church, that an apology was published upon the occasion, which was warmly and learnedly answered by sir Henry Spelman, who maintained that the archbishop was in the exercise of an act prohibited by the canons and ordinances of the church, and that he was even disqualified from exercising his spiritual functions. The king referred the consideration of the subject to the lord keeper and several of the judges and bishops, who recommended it to his majesty to grant his grace a dispensation in majorem cautelam, si qua forte sit irregularitas; which was done accordingly. Sée Reliquiæ Spel. 107. Christian

(10) One of the first consequences of the French revolution was the repeal of the ancient gante laws, which took place in 1789. Since which their system of jurisprudence, with respect to game, has been very much altered. See Code Penal, 28. 42.

sorts of game in the times of the Britons; who lived in a wild and pastoral manner, without enclosing 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 enclosed, 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 of a pecuniary forfeiture for such as interfered with their sovereign. [415] 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, (v) and of Edward the Confessor: (u) "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. "Cui"que enim in proprio fundo quamlibet feram quoquo modo venuri 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 kingdon, 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 rigour, at and after the time of the Norman 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, [416] and reserved solely for the king's royal diversion; 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 four-footed creation : capturam avium per totam Angliam interdixit." (r) The cruel and insupportable hardships, which those forest laws created to the subject, occasioned our ancestors to be as jealous for their reformation, as for the relaxation of the feodal rigours and the other exactions introduced by the Norman family, and accordingly we find the immunities of carta de foresta as warmly contended for, and extorted from the king with as much difficulty, as those of magna carta itself. By this charter, confirmed in parliament, (y) many forests were disafforested or stripped of their oppressive privileges, and regulations were made in the

w Stiernhook de jure Sueon. 1. 2, C. P.
y 9 Hen. Ill.

regimen of such as remained; particularly (2) 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. 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, (a) or gave them licence 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.

[417] As to all inferior species of game, called beasts and fowls of warren, the liberty of taking or killing them is another franchise of 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 carta, 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 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 he pleases with the game; whereas the contrary is strictly true, that no man, however well [418] qualified he may vulgarly be esteemed, has a right to encroach on

the royal prerogative by the killing of game, unless he can shew 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 express permission to kill game was ever given by statute; the 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 authority, se

a cap. 10.

a See pag. 38.

b Mirr. c. 5. § 2. See pag. 40.

(11) The prohibitions and exceptions in 22 & 23 Car. II. c. 25. sect. 3. are these: "And it is hereby enacted and declared, that all and every person and persons not having lands and te

CHAP. 27.]

315

long as they remained in force to the owners of free warren, to lords of manors, and to all freeholders having 401. per annum in lands of inheritance,

nements, or some other estate of inheritance, in his own or his wife's right, of the clear yearly value of 1001. per annum, or for term of life, or having lease or leases of ninety-nine years, or for any longer term of the clear yearly value of 150l., other than the son and heir apparent of an esquire, or other person of higher degree, and the owners and keepers of forests, parks, chases, or warrens, being stocked with deer or conies for their necessary use, in respect of the said forests, parks, chases, or warrens, are hereby declared to be persons by the laws of this realm not allowed to have or keep for themselves, or any other person or persons, any guns, bows, greyhounds, setting dogs, ferrets, coney-dogs, lurchers, hays, nets, lowbels, bare-pipes, gins, snares, or other engines aforesaid, but shall be and are hereby prohibited to have, keep,

or use the same.

The 5 Ann. c. 14. subjects any person not so qualified to 51. penalty for keeping or using any greyhounds, setting-dogs, hays, lurchers, tunnels, or other engines, to kill and destroy the game; and the 9 Ann. c. 25. s. 2. enacts, that if game be found in the shop, house, or possession of any person not qualified in his own right to kill game, or being entitled thereto under some person so qualified, he shall be deemed guilty of exposing the same to sale, and be subject to 51. penalty for each head of game.

Under these and other acts the existing qualifications to kill game are as follows: owners and keepers of forests, parks, chases, and free warrens, and other royalties within their franchises, 11 Mod. 74. A lord by 2 Jac. I. c. 27. s. 6. 7 Jac. I. c. 11. s. 6. and 22 & 23 Car. II. c. 25. of a manor as such within the same, however small his beneficial interest, but not as such out of the limits of his manor, unless he be otherwise qualified. 2 Jac. I. c. 27. s. 6. 5 Ann. c. 14. s. 4. 9 Ann. c. 25. and the decisions upon them in 7 Mod. 482. 1 Burr. 148. 10 Mod. 26. Nor need the lord be an esquire. 1 Ch. G. L. 47, 8. A colourable but unfounded claim to the manor will constitute no protection. 3 B. & A. 341.

As to an estate of inheritance in the party's own or his wife's right, it must be of the clear yearly value of 100%. If reduced below that sum by a rent-charge, mortgage, land-tax, or any incumbrance, it gives no qualification. Caldecot, 230. 8 T. R. 220. Consequently, in case of joint-tenancy and tenancy in common, each must have a clear beneficial yearly interest of 100. 7 Mod. 482. It is immaterial whether it be freehold or copyhold, Cald. 230.; or whether it be in land or house, or rent-charge, or other hereditament, but it must be in England, and not in Scotland, Semb. 271. 364. The words "having an estate" mean an estate in possession, and not in reversion, and therefore a seisin of a reversion expectant, on terms for ninety-nine years, determinable on lives at reserved rents of 151. 13s. is no qualification, though the premises be worth annually more than 1007. 7 Mod. 482. But an equitable interest is sufficient, and a mortgagor who still has a beneficial income exceeding 100% per annum, is therefore qualified. Cald. 230. and Sergt. William's opinions, 1 Ch. G. L. 64. A conveyance of land in order to give a qualification to kill game, is valid, and conveys such qualification, at least against the grantor. 2 B. & A. 367. And where a conveyance was executed for the purpose of giving the grantee a colourable qualification to kill game, remained without being made use of in the custody of the grantor, and after his death of his son, and the grantee afterwards obtain ed possession of it by representing that he intended by means of it to impose upon a third person, and then claimed the estate, the vice chancellor ordered an action of ejectment to be brought, but it was defeated by the son of the grantor setting up an outstanding estate, upon which another order to the same effect was made; and to prevent the setting up of the outstanding estate, the lord chancellor was then applied to to discharge this order, who did so, but would not grant further relief to either party, observing, that the inclination of his opinion was, that it was not a case in which either party had a right to apply to a court of equity in the first instance. 2 Jac. & Walk. 391. In an action of debt to recover penalties from an unqualified person for killing game, who had paid one penalty into court, and pleaded the general issue, the only evidence of qualification offered by him at the trial was certain deeds of lease and release to his father and his father's possession; and it was cbjected that such evidence was insufficient, but the judge held it was sufficient to go to the jury: the court of exchequer afterwards refused a rule for a new trial, holding that very slight proof of qualification was sufficient in such cases, unless rebutted by other evidence. 9 Price, 257.

With respect to an estate for life, it must be of a clear beneficial interest to the amount of 150/. per annum, or upwards. Caldecot, 188. A rector or vicar, in respect of his church, has only a life estate. id. ibid. An estate pur auter vie is sufficient. 6 Terin. R. 292.

As to lease or leases of ninety-nine years, of the clear yearly value of 1501. it is not necessary that it should be a lease of certain duration for that time; a lease to trustees depending on the contingency of the cestui que trust and others so long living, constitutes a sufficient qualification. 8 T. R. 506.

As to the qualification as son and heir apparent of an esquire or other person of higher degree, it is to be read as if the word " of" were introduced before the word "other," so that neither an esquire or person of higher degree is himself qualified as such. 1 Term. R. 44. Cald. 389 As to who is an esquire, see ante, Book. 405. The eldest son of a barrister, 1 T. R. 44.; a captain or other officer in the army or navy, holding a commission signed by the king himself, and terming him as an esquire, is such, 1 T. R. 44.; but a cominission as captain of vo

or 801. 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 : 12 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. 13 The truth of the matter is,

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lunteers, signed only by the lord lieutenant of a county, does not confer that title, and his eldest son is not qualified. 1 Taunt. 410. Chitty.

(12) Mr. Christian here gives the following note in his edition :-The Editor apprehends that what the learned judge has here stated respecting the first permission, has arisen from a miscon ception of the subject. The first qualification act is the 13 R. II. c. 13. the title of which is, "None shall hunt but they who have a sufficient living." The preamble states, that "divers artificers, labourers, servants, and grooms keep greyhounds and dogs, and on the holydays, 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 some. times under such colour they make their assemblies, conferences, and conspiracies for to rise and disobey their allegiance; it is therefore ordained, that no artificer, labourer, or other layman, which hath not lands or tenements to the value of 40s. by the year, nor any priest to the value of 107. shall keep any dogs, nets, or engines to destroy deer, hares, nor conies, nor other gentle. men'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 honourable 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 afterwards a proviso in the act, that it shall and may be lawful for persons of a certain description and estate to take pheasants and partridges upon their own lands, in the day-time, 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 statute.

The Editor trusts that those who will take the trouble to examine the statute, will be convinced of the truth of this remark; and that the correction of this error alone will contribute in some degree 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, Book 174.; and the new constitutions vested the sole property of all the game in England in the king alone. Ib. 415.-Mr. Christian's note.

(13) Gamekeepers were first introduced by the present qualification act, 22 & 23 Car. II. c. 25. and various regulations have been made respecting them by subsequent statutes. 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. 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 unqualised 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 ancient 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.

The 9 Ann. c. 25. s. 1. enacts, that no lord or lady of a manor shall appoint more than one gamekeeper, within one manor, with the power of killing game; and his name shall be entered with the clerk of the peace. And by 3 Geo. I. c. 11. the gamekeeper, who shall have the power to kill game within the manor, shall either be a qualified 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 was, to give him the power as before described of seizing the dogs, guns, and other engines of unqualified persons within the manor.

But by the 48 Geo. III. c. 93. the 3 Geo. I. c. 11. is repealed, and the gamekeeper, who has authority to kill game, may be any person whatever, qualified or unqualified, and who may kill for his own use, or the use of any other person specified in his deputation.

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 gaine. 2 Wils. 387.

No lord of a manor can grant to another person the power of appointing a gamekeeper, without a conveyance also of the manor. If the gamekeeper kill, or shoot at, or beat for game out of the manor. he is liable to a penalty as if he had no deputation. 5 T. R. 19. 1 Chitty's R. 607. A right to a manor cannot, it is said, be tried in a penal action under the game laws, 5 T. R. 19.;