is, "that the liberties be allowed (a);" if it be for the Crown, and the parties have continued possession of the franchise by wrong from the beginning, the judgment is, "that they be ousted;" but if they once had title, and lose it, the judgment is, "that the liberty be seized into the King's hands (b).” The prior judgment of seizure is called a judgment " quousque," this judgment, it hath been thought, would dissolve the corporation, if the parties did not come in and avoid it the same, or at the farthest, the next term, and that there was no use in a final judgment, but to shew that the King will take advantage of the forfeiture, which he may declare by the grant of a new charter (c). But this opinion was over-ruled in the House of Lords, where it was determined, that the effect of this judg ment was merely to lay the King's hands on the franchise of being a corporation, so that the corporation could not use its liberties, and the action of its vital powers was suspended; that in that situation the King might appoint a custos, and might introduce a new corporation by charter, to whom he might commit the custody; but that the old corporation were entitled to redeem their liberties, and remove the King's hands, upon which the power of the new corporation must necessarily cease, and the letters patent become void (d).

3. Of Game Franchises, and herein of the King's Preroga tive as to Game, and of Forests.

Before we consider the right of the King to grant forests, parks, chases, and warrens; the question whether or not the

(a) Co. Entr. 535, b.

(b) Yelv. 192, Co. Entr. tit. Quo Warranto.

(c) Rex v. Amery, 2 T. R. 515.

(d) 4 T. R. 122. Vide the judgment in Rex v. Amery in the House of Lords, in the account of that case in two vols. quarto, and 2 Kyd. 496., &c. 2 Bac. Ab. 31. tit. Corporation, G.-With respect to the form of a final judgment, it was determined in Sir James Smith's case, that the corporation of London was not dissolved by the judgment as recited in the act of 2 W. and M. stat. 1. c. 8. which that the liberty, was, franchise, and privilege of the city of

London, being a bodý politick, &c. should be seized," for the word of being omitted before the word being', the judgment was not against the corporate existence of the city, but against the franchises it enjoyed: and Holt said, "that a corporation might subsist after its franchises were taken away; for that these were not essential to it, but only a privilege appertaining to it; that the essence of a corporation was to make bye-laws, and govern their members, which a corporation might do, though their franchises were seized." 4 Mod. 52. Skin. 310. Carth. 217. 1 Show. 263.

exclusive

exclusive property in wild animals, or game, is vested in the Crown, is entitled to investigation.

By the law of nature and reason, wild beasts and undomesticated birds, are a species of usufructuary property, as freely the property of the first occupant as the air on which they fly. They form a part, and were formerly a most material part, of those resources which Providence has provided for the sustenance of man. Till an actual seizure of animals, feræ naturæ, be made, the property in them remains, by the law of nature, in a species of abeyance (a). Game is an object of pursuit ; it can only be acquired by exertion, and he who occupies his time, or exercises his ingenuity, in obtaining these animals, ought to possess them. And so it was held by the imperial law, even so late as Justinian's time: "Feræ igitur bestiæ, et volucres, et omnia animalia quæ mari, cœlo, et terra nascuntur, simul atque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt. Quod enim nullius est, id naturali ratione occupanti conceditur (b)." Before the Norman Conquest, a similar doctrine existed in this country. As observed by Sir William Blackstone (c), "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, and of Edward the Confessor: "Sit quilibet homo dignus venatione sua, in sylva, et in agris, sibi propriis, et in dominio suo; et abstineat omnis homo a venariis regiis, ubicumque pacem eis habere voluerit;" which, indeed, was the antient law of the Scandinavian Continent, from whence Canute probably derived it." Cuique enim in proprio fundo quamlibet feram quoquo modo venari permissum." The introduction of the feudal system into England at the time of the Conquest, vested in the Crown all the privileges and rights respecting game, which the principles of that system authorized. And it cannot be doubted, that the right of the Sovereign to reserve to himself, and confer on his subjects, certain peculiar and exclusive privileges respecting game, was part of the policy of the feudal constitution, for the purpose of keeping the people in a state of subordination, and preserving, for the exclusive enjoyment of the higher classes, a sport suited to the martial genius of the

(a) See 2 Bla. Com. 14 and 411.
(b) Inst. 2. 1, 12.

(c) 2 Bla. Com. 415.

age.

age (a). It became a principle of the English law, that from the Sovereign alone such exclusive rights can be claimed. It may even be admitted, that the feudal principles enabled the King to prohibit the destruction of game by those who did not possess a royal franchise. But it by no means necessarily follows, that the sole property in game vested either in the King or his grantee. Bracton and Fleta appear, indeed, to have drawn this inference. The former observes, "Habet etiam (Rex) de jure gentium in manu sua quæ de jure naturali deberent esse communia; sicut feras bestias, et aves non domesticas (b)." And Puffendorf, and other writers on general law, lay down the same principles. Sir William Blackstone subscribed to the general position, and zealously enforced the doctrine, that the property of all the game in England is in the King (c), He observes, that "upon the Norman Conquest a new doctrine took place, and the right of pursuing and taking all beasts of chase or venery, 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 feudal law, that the King is the ultimate proprietor of all the lands in the kingdom, 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, 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."

With respect to the first principle from whence Sir William Blackstone has deduced this doctrine, it may be observed (as remarked by Mr. Christian), that it is not evident from the King's right to the universal soil, that he should have a better right to such creatures than to any other production of the soil (d).

The second reason relied upon by Sir Wm. Blackstone,

(a) See 2 Bla. Com. 413, &c.

(b) Lib. 2. c. 24. s. 1.

(c) See 2 Bla. Com. 14, 5; 391, 4;

413, 419; 4 vol. 174, 415.

(d) See 2 Bla. Com. 419, note 10.

that

that these animals belong to the King as bona vacantia, and as having no other owner, appears also very unsatisfactory. The general rule seems to be that bona vacantia only belong to the King in certain instances, particularly defined by the common law, and in which certain valuable and distinguished articles are expressly selected and set apart for the King, as worthy his acceptance and necessary to support, and especially suitable to his royal dignity: as in the case of swans, whales and sturgeons, gold and silver mines, treasure trove, waifs, estrays and wrecks, which will be particularly noticed hereafter. In cases in which the royal right to bona vacantia is not particularly pointed out, the first occupant or finder becomes entitled (a)...

It is also worthy of remark, that no judicial determination in favour of the King's exclusive property in game is to be met with: on the contrary there are various dicta and decisions sustaining the principle that game is common property (b). So universal a silence on such a point is by no means a weak argument against this royal claim to an exclu sive property: nor is it easily reconciled with the admitted doctrine that his subjects may acquire an exclusive right to wild animals by reclaiming them, &c. (c). If the King have this exclusive property there is no principle for holding that it may be divested by the wrongful act of a third person, to which the Crown is not a party. .

There seems to be no inconsistency in supposing that though the King may possess the right to go on his subjects' lands to kill game, and the power in some cases of enlarging and in others of restraining the exercise of the natural right to take it, still the subject may possess concurrently with the King the right of acquisition by reducing game into his possession. Most of the writers on the law of occupancy find a difficulty in reconciling the usurped appropriation of wild animals by any one exclusively, with the general freedom of manucaption, given by the laws of nature, and confirmed by the laws

(a) Strange, 505. 1 Bla. Com. 295, 298, 9, 2 Ibid. 259. 4 Burr. 2402.; But see Bro. ab Pierog. pl. 12.

(b) See the references in 1 Chitty on Game Laws, 3, note h. Year Book, 17 -Edw. 2. 538. Keilw. 30, 158. Manw.

202. Bro. Ab. tit. Propertie. F. N. B. 197. 11 Co. 87. 4 Inst. 303. 2 Bla. Com. 419, note 10, by Christian. Hawk. P. C. c. 33. s. 29.

(c) See 2 Bla. Com. 391.

of nations and of reason: and therefore, in respect to the exclusive propriety assumed by princes in animals feræ naturæ, they assert that the prince cannot be called the owner of such animals before he hath actually caught them: so that he who hunts contrary to a royal prohibition doth not commit theft, nor take away the goods of another; but only acquires a thing which another had a primitive or exclusive right of acquiring and therefore he may be punished; but as for the thing which he thus got into his possession, it ought not to be looked on as a matter of theft, or to be challenged accordingly (a).),

The better opinion seems therefore to be against Sir Wil liam Blackstone's doctrine, that the King has the exclusive property in game (b). He appears to possess it concurrently with his subjects; though from the civil or feudal laws he may derive and most certainly possesses the right to grant game franchises over his own or his grantee's lands. It will be collected from the limitations of the right of the Crown to grant such franchises, that little can be argued from the right in favor of this extended and exclusive property.

A forest is defined by Manwood (c) to be "a certain territory or circuit of woody grounds and pastures, known in its bounds and privileges, for the peaceable being and abiding of wild beasts and fowls of forest, chase and warren, to be under the King's protection, for his princely delight, replenished with beasts of venery and chase, and great coverts of vert, for succour of the said beasts, for preservation whereof, there are particulars, laws, privileges, and offices, belonging thereunto." The commencement of forests may be traced to the Norman usurpation, which introduced the feudal system; and in consequence thereof the first Kings of the Norman line not only reserved to themselves the sole and exclusive property of the antient forests, but also created others of greater extent, particularly the New Forest in Hampshire; and placed them under the jurisdiction of particular courts, and established a variety

(a) Gudelin de jure novissimo, lib. 2. cap. 2. Vinnius Comm. 2. lib. tit. 1. s. 13.

(b) See in general, Christian's note to 2 Bla. Com. 415. Selwyn, N. P. 118. tit. Game. Chitty, G. L. And in the

recent debates in the House of Commons, (Feb. and March 1819,) the general opinion on this subject seems to have been to this effect.

(c) Treat. of the Forest Laws, ed. 1717.

of