317

that these game laws (of which we shall have occasion to speak again in the fourth book of these Commentaries) do indeed qualify nobody, 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 inflict 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 may be found offending in this particular. But it does not follow that persons, excused from these additional penalties, are therefore authorized to kill game. The circumstance of having 1001. per annum, and the rest, are not properly qualifications, but exemptions. And these persons, so exempted from the penalties of the game statutes, are not only liable to actions of trespass by the owners of

nor can the precise boundaries, when disputed, be tried in such an action. See cases cited, 4 T. R. 681. 8 East, 170. But it was recently held, that in an action against a supposed gamekeeper for a penalty for using a gun to kill game without being qualified, evidence of the real title to the manor is admissible, for the purpose of negativing the existence of a colourable title in the person under whom the defendant clairns to act. 3 B. & A. 341. This power of appointing a gamekeeper has, no doubt, introduced the very erroneous notion, that a lord of a manor has a peculiar right to the game, superior to that of any other land-owner within the manor, whereas in truth he has no such right, and may be sued as a trespasser for sporting over lands not in his own occupation.

Gamekeepers, we have seen, were first created by 22 & 23 Car. II. c. 25; by the preceding qualification act, 7 Jac. I. c. 11., their power was given to the constable and headborough (resembling the present regulation in France, Code Penal, 28. 42.); and I apprehend it was transferred to the persons appointed by lords of manors, for no other reason than because it was probable they were the most interested in the preservation of the game, by having in general the most extensive range to pursue it in, viz. upon their own estates and wastes. And I conceive the 22 & 23 Car. II. c. 25. is the first instance either in our statutes, reports, or law treatises, in which lords of manors are distinguished from other land-owners with regard to the game.

The 59 Geo. III. c. 102. for further regulating the appointment of gamekeepers in Wales, empowers lords and ladies of manors, and stewards of crown manors, to appoint gamekeepers of such divisions of their respective manors as they think fit, one only to each division, and to be subject to all enactments respecting gamekeepers, and provides, that every person seised in fee, or beneficially entitled in his own right to any lands in the principality, of the clear annual rental of 5001., not within the bounds of any manor, unless enfranchised, may appoint by writing under his hand a gamekeeper to preserve, course, kill, &c. over his own lands, or those of any other proprietor, who shall authorize such person in writing to appoint a gamekeeper, or other servant, to preserve or kill the game thereon. But the act is not to protect any person killing game without a game certificate.

The certificate under the 48 Geo. III. c. 55. and 52 Geo. III. c. 93. depends on the situation of the gamekeeper, whether he be a servant or not, being in effect in the first instance 17. 5s. per annum, and in the second 3l. 13s. 6d.

The lord of a hundred or wapentake cannot appoint a gamekeeper, Dougl. 28; but the owner of a free warnen may. 11 Mod. 74. The devisee of a manor in trust may, to preserve game. 7 Ves. J. 488. The lord need not be an esquire, see reasons and opinion of serj. Williams, 1 Chitty's G. L. 47, 8. A corporation may appoint a gamekeeper. 1 Campb. 457. 10 East, 413. Semble. The owner of a manor may, though by defect of free suitors it may have ceased to be a manor in other respects. 10 East, 259.

The deputation must, by the terms of the 22 & 23 Car. II. c. 25, s. 2. be under the hand and seal of the lord, but it need not state for whose use the game is to be killed, 1 Campb. 457.; but the deputation to kill game for a party's own use, or that of any other person, under 48 Geo. III. c. 93. is to state the authority accordingly, and whether or not the party be qualified. The name of a keeper to kill game must, by 9 Ann. c. 25., be entered with the clerk of the peace, or he will be fiable as if he had no deputation; and the 25 Geo. III. c. 50. s. 2. requires, that the deputation shall be registered with the clerk of the peace of the county in which the manor lies, and provides for a new deputation, and subjects the gamekeeper guilty of omission to 201. penalty.

A gamekeeper by his deputation has no authority to seize game, or take it from an unqualified gerson. 1 Moore, 290. And he has no right to shoot the dog of a qualified person in pursuit of pame, nor any dog, was unless he illegally used at the time by some unqualified person. 11 East, 568. And a gamekeeper authorized by his deputation to seize greyhounds, setting dogs, ferrets, and to do all things belonging to the office of gamekeeper, according to the directions of the acts of parliament, is not thereby authorized to seize hounds. 1 Bar. & Ald. 134.

A gamekeeper may be discharged at pleasure, without any previous notice, unless there be an express contract to the contrary; and the occupation of any house he may be permitted to reside in, is merely an incident. Moore, 8 & 9. Litt. Rep. 139. 16 East, 33. Chitty.

or 801. for life or lives, or 400l. personal estate (and their servants to the partridges and pheasants upon their own, or their master's, free warres, a heritance, or freehold : " the other by 5 Ann. c. 14. which empowers LTD and ladies of manors to appoint gamekeepers to kill game for the use of s lord or lady which with some alteration still subsists, and plainly suOURI such power not to have been in them before. 13 The truth of the mater

:

lunteers, signed only by the lord lieutenant of a county, does not confer that urtle, son is not qualified. 1 Taunt. 410.

(12) Mr. Christian here gives the following note in his edition:-The Editor ap what the learned judge has here stated respecting the first permission, has arisen tra ception of the subject. The first qualification act is the 13 R. II. c. 13. the tue se "None shall hunt but they who have a sufficient living." The preamble states, tha artificers, labourers, servants, and grooms keep greyhounds and dogs, and on the altars good christian people be at church hearing divine service, they go a hunting is parks an rens, and connigrees of lords and others, to the very great destruction of the r times under such colour they make their assemblies, conferences, and compra. and disobey their allegiance; it is therefore ordained, that no artificer, labour, aber la which hath not lands or tenements to the value of 40s. by the year, nor any wa 101. shall keep any dogs, nets, or engines to destroy deer, hares, nor comes men's game upon pain of one year's imprisonment."

This statute clearly admits and restrains their former right: the 1 Jac. I. c intended for the encouragement of hawking, the most honourable mode of king time, begins with a general prohibition to all persons whatever to kill garm w: setting-dogs, and nets; but there is afterwards a proviso in the act, that it shall ful for persons of a certain description and estate to take pheasants and partridges own lands, in the day-time, with nets. This proviso clearly refers to the precede introduced by the statute, and by no means gives a new permission to the perso which they did not possess antecedently to that statute.

The Editor trusts that those who will take the trouble to examine the statute, wit ed of the truth of this remark; and that the correction of this error alone will centra degree to the refutation of the doctrine which the learned judge has advanced m and other parts of the Commentaries, viz. that all the game in the kingdom is the pre; king or his grantees, being usually the lords of manors, p. 15. ante; game is roval Book 174.; and the new constitutions vested the sole property of all the game in Eng king alone. Ib. 415.-Mr. Christian's note.

(13) Gamekeepers were first introduced by the present qualification act, 2

25. and various regulations have been made respecting them by subsequent statin these statutes seem to be in force in some degree at present, and as it is a subpest marut & 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 esjure under their hands and seals gamekeepers, who shall have power within the marts dogs, nets, and engines kept by unqualified persons to destroy game; and by a ma justice of peace, to search in the day-time the houses of unqualified persons, upun guat suspicion, and to seize for the use of the lord, or to destroy, guns, dogs, neta, t truction of the game. This statute does not limit the number of those to mám authority may still be given.

The 4 & 5 W. & M. c. 23. s. 4. gives to these gamekeepers the same protestam in 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 gamekeeper z kal game within the manor.

The 9 Ann. c. 25. s. 1. enacts, that no lord or lady of a manor shall appoint more t gamekeeper, within one manor, with the power of killing game; and his name shale with the clerk of the peace. And by 3 Geo. I. c. 11. the gainekeeper, who shall have the 1 to kill game within the manor, shall either be a qualified person, a domestic servant, et employed to kill for the sole use of the lord or lady of the manor. The only use of app qualified person a gamekeeper was, to give him the power as before described of seizing in 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 gamekawper, authority to kill game, may be any person whatever, qualified or unqualified, and was 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 m persons for killing game out of their respective manors, yet no one is justified in taking fre their dogs and guns, when they are out of the limits of their lord's manor, even in j gaine. 2 Wils. 387.

No lord of a manor can grant to another person the power of appointing a gamekeeper. out a conveyance also of the manor. If the gamekeeper kill, or shoot at, or beat for game the manor, he is liable to a penalty as if he had no deputation. 5 T. R. 19. 1 Chitty's Ra ht to a manor cannot, it is said, be tried in a penal action under the game laws, 5 TR

hat these game laws (of which we shall have occasion to speak again in the fourth book of these Commentaries) do indeed qualify nobody, 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 inflict 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 may be found offending in this particular. But it does not follow that persons, excused from these additional penalties, are therefore authorized to kill game. The circumstance of having 1001. per annum, and the rest, are not properly qualifications, but exemptions. And these persons, so exempted from the penalties of the game statutes, are not only liable to actions of trespass by the owners of

nor can the precise boundaries, when disputed, be tried in such an action. See cases cited, 4 T. R 681. 8 East, 170. But it was recently held, that in an action against a supposed gamekeeper for a penalty for using a gun to kill game without being qualified, evidence of the real title to the manor is admissible, for the purpose of negativing the existence of a colourable title in the person under whom the defendant claims to act 3 B & A. 341. This power of appointing a gamekeeper has, no doubt, introduced the very erroneous notion, that a lord of a manor has a peculiar night to the game, superior to that of any other land-owner within the manor, whereas in truth he has no such right, and may be sued as a trespasser for sporting over lands not in his own occupation

Gamekeepers, we have scen, were first created by 22 & 23 Car. II. c. 25; by the preceding qualification act, 7 Jac. I. c. 11, their power was given to the constable and headborough (resembling the present regulation in France, Code Penal, 28. 42.); and I apprehend it was transferred to the persons appointed by lords of manors, for no other reason than because it was probable they were the most interested in the preservation of the game, by having in general the tipast extensive range to pursue it in, viz. upon their own estates and wastes. And I conceive the 22 & 23 Car II. c. 25. is the first instance either in our statutes, reports, or law treatises, in which lords of manors are distinguished from other land-owners with regard to the game.

The 59 Geo. III c 102, for further regulating the appointment of gamekeepers in Wales, empowers lords and ladies of manors, and stewards of crown manors, to appoint gamekeepers of such divisions of their respective manors as they think fit, one only to each division, and to be subject to all enactments respecting gamekeepers, and provides, that every person seised in fee, or bene ɓcially entitled in his own right to any lands in the principality, of the clear annual rental of 5007., not within the bounds of any manor, unless entranchised, may appoint by writing under his hand a gunekeeper to preserve, course, kill, &c. over his own lands, or those of any other proprietor, who shall authorize such person in writing to appoint a gainekeeper, or other servant, to preserve or kill the game thereon. But the act is not to protect any person killing game without a game certificate.

The certificate under the 48 Geo. III. c. 55. and 32 Geo. III. c. 93. depends on the situation of the gamekeeper, whether he be a servant or not, being in effect in the first instance 11. 58. per annum, and in the second 34, 131 6d.

The lord of a hundred or wapentake cannot appoint a gamekeeper, Dougl. 28; but the owner of a free warnen may, 11 Mod. 74. The devisee of a manor in trust may, to preserve game. 7 Ves. J. 458. The lord need not be an esquire, see reasons and opinion of serj. Williams, 1 Chitty's G. L. 47, 8 A corporation may appoint a gamekeeper. 1 Campb. 457. 10 East, 413. Semble The owner of a manor may, though by defect of free suitors it may have ceased to be a manor in other respects. 10 East, 239

The depulation must, by the terms of the 22 & 23 Car II c. 25, s 2 be under the hand and seal of the lord, but it need not state for whose use the game is to be killed, I Campb. 457., but the deputation to kill game for a party's own use, or that of any other person, under 48 Geo. III. c. 93 is to state the authority accordingly, and whether or not the party be qualified. The name of a keeper to kill game must, by 9 Ann. c. 25, be entered with the clerk of the peace, or he will be fisble as if he had no deputation and the 25 Geo. III. c. 50 × 2. requires, that the deputation shall be registered with the clerk of the peace of the county in which the manor hes, and provides for a new deputation, and subjects the gamekeeper guilty of omission to 201. penalty.

A gamekeeper by his deputation has no authority to seize game, or take it from an unqualified gerson. 1 Moore, 20. And he has no right to shoot the dog of a qualified person in pursuit of pame, nor any dog, was unless he illegally used at the time by some unqualified person. 11 East, 568 And a gamekeeper authorized by his deputation to seize greyhounds, setting dogs, ferrets, and to do ali things belonging to the office of gamekeeper, according to the directions of the acts of parlament, is not thereby authorized to seize hounds. 1 Bar & Aid. 134.

A gamekeeper may be discharged at pleasure, without any previous notice, unless there be an express contract to the contrary, and the occupation of any house he may be permitted to reside in, is merely an incident. Moore, 8 & 9. Litt. Rep. 139. 16 East, 33.

Chitty

the land; but also, if they kill game within the limits of any royal franchise, they are liable to the actions of such who may have the right of chase or free warren therein.

[419] Upon the whole it appears, that the king, by his prerogative, 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 ferae naturae, while living; which is said to be vested in them, as was ob served in a former chapter, propter privilegium. " And it must also be re

14

(14) It has been considered expedient to retain the following learned note of Mr. Christian, in opposition to the doctrine in the text.

The learned judge has frequently, and even zealously, inculcated the position, that the common law has vested the sole property of all the game in England in the king alone, and of consequence that no man, let his rank and fortune be what they may, is qualified to kill game, or is exempt from the original penalties, unless he possesses some peculiar privilege derived from the king. This doctrine, enforced by so celebrated an author, apparently the result of mature deliberation, and which has been so long acquiesced in, the Editor should have questioned with diffidence, if he had not been fully persuaded that it was unsupported by any prior authority, and that the authorities to the contrary were numerous and irresistible.

"The learned judge himself admits, that this is a novel doctrine to such as call themselves qualified sportsmen; yet he has referred to no preceding authority whatever in any part of the Commentaries; but in p. 415. he has deduced this doctrine from two general principles The first is, that the king is the ultimate proprietor of all the lands in the kingdom, and therefore he has the right of the universal soil, to enter thereon, and to chase and take such creatures at his pleasure. From the king's right to the universal soil, it is not evident why he should have a better right to take such creatures than to take any other production of that soil.

"And even if the king should have a right to enter in person all the lands in the kingdom in pursuit of game, this affords no inference that the land-owner may not enjoy this right concur rently with the king. But although no complaint can perhaps be inade against the king for entering the lands of his subjects, it has been determined that this power cannot be given to his foresters and servants in a case in Keilway, which in the sequel of this note I shall have occasion to take notice of.

"The other general principle relied upon by the learned Commentator is, another mazin of the common law, which he says he has frequently cited and illustrated, that these animals are bona vacantia, and, having no other owner, belong to the king by his prerogative. It has been determined, that fish, if not confined as in a trunk, cannot be called bona et catalla; and so game, till it is taken, is every where said to be nullius in bonis. But I am inclined to think that the very reverse of the maxim is true, and that bona vacantia belong to the first occupant or fortunate finder, except in those instances particularly specified by the law, and in which they are expressly given to the king. See 1 Book 299. n.

A person might have acquired by occupancy, even in the sixteenth century, an estate in real property. See p. 258. ante. If a pearl should be found in an oyster, no lawyer I think would say, that it was the property of the king. If all wild animals had belonged to the crown, it would have been superfluous to have specified whales, sturgeons, and swans. Lord Coke tells us, that a swan is a royal fowl; and all those the property whereof is not known, do belong to the king by his prerogative: and so whales and sturgeons are royal fish, and belong to the king by his prerogative: Case of swans, 7 Co. 16. And the king may grant wild swans unmarked."" Ib. 18. But these are the only animals which our law has conferred this honour upon.

"It is true that our kings, prior to the carta de foresta, claimed and exercised the prerogative of making forests wherever they pleased over the grounds of their subjects: within the limits of these forests certain wild animals were preserved by severe laws, for the recreation of the sovereign. A district thus bounded at the king's pleasure might have been granted by the king to any of his subjects who enjoyed the exclusive privilege either of a forest, chase, park, or free warren, according to the extent of the jurisdiction and powers conferred by the royal grant; p. 38. ante. But beyond the boundaries of these privileged places, neither the king nor any of his grantees claimed a property in the game: for, according to the law of king Canute, quilibet homo dignus venatione sua, in sylva, et in agris sibi propriis, et in dominio suo; which law Manwood declares was confirmed by many succeeding kings. Tit. For. pl. 3. If this were so, it cannot be correct, what the learned Commentator has advanced, that upon the Norman conquest a new doctrine took place. By the carta de foresta all the new-made forests were disafforested and thrown open again; but besides the creation of new forests by the Norman kings, they had also made great encroachments and additions to the ancient Saxon forests; these encroachments were called purlieus, and as these were the same grievance to the owners of the land as the new forests, they also were disafforested, but with this distinction, that as the griev ance extended only to the land-owner, he was allowed to enjoy his lands in as full a manner as he had done before the encroachment; but they still continued with respect to the rest of the world under the forest-law jurisdiction. Hence it followed as a consequence, that the owner of

membered, 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 it into another's, and kills it there, the property remains in himself. (c) And this

c 11 Mod. 75.

a purlieu might hunt and kill game within the limits of the purlicu, as any other man might have done in his own grounds: and the authorities of lord Coke and Manwood concur, if deer come out of the forest into the purlieu, the purlieu-man may hunt and kill them. provided he does it fairly and without forestalling. And this distinction is made; if a stag can recover the filum foresta, the border of the forest, before the purlieu-man's dogs fasten upon him, he then belongs to the king or to the owner of the forest, and the purlieu-man must call his dogs back; but if they fasten upon him before he gains the forest, and he drags them into it, he belongs to the owner of the purlieu, who may enter the forest and carry him away. 4 Inst. 303. Manw. Purlieu. This alone is decisive, but there are various authorities to the same effect. In the year-book 12 Hen. VIII. fo. 10. it is held, if a man drive a stag out of a forest and kill him, he shall gain no proper ty in him, because he shall derive no advantage from his own wrongful act; yet if the stag comes of himself beyond the limits of the forest, then any one (if qualified) may kill and take him, for they are animals feræ naturæ, et nullius in bonis; and the maxim, as the judges declared, was, capiat qui capere potest, i. e. catch that catch can.

"That the king has no property in deer or other game when they are out of a forest, was determined also in a case reported by Keilway, 30. and copied by Manwood, 202. In that case an action of trespass was brought for entering the plaintiff's close; the defendant pleaded, that the place in which the trespass was supposed to be committed was adjoining to the king's forest, and that the plaintiff was bound to impale the said forest, and that for want of paling four deer escaped out of the forest into the plaintiff's land, and that he the defendant entered by the command of the forester to drive them back to the forest. The court held that this plea was not good; for though the plaintif was in fault for not paling, yet it was not law for the forester or any person to drive the deer out of the ground, or to take them; and the reason was, because the king had no property in them; and this was different from the case of tame cattle, where the property still remains in the owner though they are out of his ground, for which reason he may retake them wherever he finds them; but it is not so when the beasts are wild.'

"The learned judge frequently intimates that no person is exempt from the original penalties ; but I am inclined to think that no authority whatever can be found that any penalties were ever inflicted for killing game out of privileged grounds, except those which have been introduced by modern game laws, or the qualification acts. Lord Coke reports that the court held in the case of monopolies, 11 Co. 87. that, it is true that none can make a park, chase, or warren without the king's licence, for that is quodam modo to appropriate those creatures, which are fera natura et nullius in bonis, to himself, and to restrain them of their natural liberty, which he cannot do without the king's licence; but for hunting, hawking, &c. which are matters of pastime, pleasure, and recreation, there needs no licence, but every one may in his own land use them at his pleasure without any restraint to be made unless by parliament, as appears by the statutes of 11 Hen. VII. c. 17., 23 Eliz. c. 10., and 3 Jac. I. c. 13.'

"These authorities are also recognized and confirmed in Bro. Abr. tit. Propertie, and in Hale's Commentary on F. N. B. 197.

"The following may serve as a specimen of the authorities collected by Brooke: quant beastes savages le roye aler hors del forrest, le property est hors del roy; and again, silz sount hors del parke capienti conceditur.

"In a great case which was brought in 1791 from the courts of Scotland before the house of lords, the question was, whether by the law of Scotland the proprietor of an estate has a right to monopolize the game upon that estate, for the use of himself, and particular friends, authoriz ed by his licence, and to exclude all gentlemen, legally qualified, from following that amusement over his waste and other grounds, not specially protected by any particular statute? The printed cases of the appellant and respondent contain much curious learning upon the Scotch game laws; but no idea was suggested that the game in Scotland belonged to the king. For the appellant, who insisted that he had a right to enter as a sportsman upon the respondent's estate, the authority of president Balfour in his Practics was chiefly relied upon; viz. It is leisome and permitted to all men to chase hares, foxes, and all other beistis, beand without forrestis, warrenis, parkis, or wardis.' But the judgment of the lords being for the respondent, this permission of courts must be confined to a man's own estate. Livingstone esq. appellant, v. lord Breadalbane, respondent. This is precisely the same as the law of England; for neither a lord of a manor, nor his gamekeeper, can go into any part of the manor, which is the lord's own estate or waste, without being a trespasser like any other person."-End of Mr. Christian's note. See further as to the king's right and that of the subject in relation to game, fish, &c. very learn. edly discussed in Mr. Schultes Aquatic Rights, 18, &c.; and see 1 Chitty's G. L. 1 to 13.

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