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 100l. 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 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.

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 game. 2 Wils. 387. Rogers v. Carter.

No lord of a manor can grant to another person the power of appointing a gamekeeper, without a conveyance also of the manor. A right to a manor cannot be tried in a penal action under the game-laws, 5 T. R. 19. 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, although his estate be a sufficient qualification to entitle him to follow the amusements of a sportsman.

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; 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.

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 observed in a former chapter, propter privilegium (10). And it must also be remembered,

(10) 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 pecu. liar 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 pre. ceding 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 concurrently with the king. But although no complaint can perhaps be made 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 maxim of the common law, which he says he has frequently

that such persons as may thus lawfully hunt, fish, or fowl, ratione privilegii, have (as has been said) only a qualified pro

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 vol. 299. n. 12. A persen might have acquired by occupancy, even in the last 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 honor 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, n. 17. 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 disaf

perty in these animals: it not being absolute or permanent, but lasting only so long as the creatures remain within the

forested and thrown open again; but besides the creation of new forests by the Norman kings, they had also made great additions and encroachments 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 grievance 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 a purlieu might hunt and kill game within the limits of the purlieu, as any other man might have done in his own grounds: and the authorities of lord Coke and Manwood con. cur, 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 property 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 is 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

limits of such respective franchise or liberty, and ceasing the instant they voluntarily pass out of it. It is held indeed, that if

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 "plaintiff was in fault for not paling, yet it was not lawful 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 pro"perty 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 license, for that is quodam modo to appropriate those crea"tures, which are feræ naturæ et nullius in bonis, to himself, and to "restrain them of their natural liberty, which he cannot do without "the king's license; but for hunting, hawking, &c. which are matters "of pastime, pleasure and recreation, there needs no license, 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 recognised and confirmed in Bro. Abr. tit. Propertie, and in Hale's Commentary to 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 la right to monopolize the