upon his own territories, provided he abstained from the king's forests: as is fully expressed in the laws of Canute, (u), and of Edward the Confessor: (v) "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. Cuique enim in propriofundo quamlibet feram quoquo modo venari permissum." (w) 66 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 priciples of the feudal law, that the king is the ultimate proprietor of all the lands in the kingdom, they being all held to 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 anywhere; the latter was supposed to give the king, and such as he should authorize, a sole and exclusive right. The 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, and reserved [*416 ] 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 fourfooted creation: "capturam avium per totam Angliam interdixit." (x) cruel and insupportable hardships which those forest laws created to the subject, occasioned our ancestors to be as zealous for their reformation, as for the relaxation of the feudal 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 regimen of such as remained; particularly (z) killing the king's deer was made no longer a capital offense, 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 land to his subjects, under the names of chases or parks, (a) or gave them license 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. *As to all inferior species of game, called beasts and fowls of warren, [*417] 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) (u) C. 77. (v) C. 36. (z) Cap. 10. (w) Stiernhook de jure Sueon. l. 2, c. 8. (x) M. Paris, 303. 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 qualified he *may vulgarly be esteemed, has a right to encroach on the [ *418 ] royal prerogative by the killing of game, unless he can show 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 and 23 Car. II, c. 25, which gave authority, so 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, or 801. for life or lives, or 4007. personal estate (and their servants), to take partridges and pheasants upon their own, or their master's free warren, inheritance, or freehold; the other by 5 Ann. c. 14, which empowers lords and ladies of manors to appoint game-keepers 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. The truth of the matter is, 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 game-keeper, 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 a 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. (5) (5) [The game laws were revised in 1831, by statute 1 and 2 William IV, c. 32, which allowed any person who purchased a certificate or license to kill game upon his own land, or on the land of any other person with his permission-thus doing away with the qualification of birth or estate. Persons sporting without license are still liable to a penalty, except that by statute 11 and 12 Vic. c. 29, and c. 30, the owner or occupier of enclosed grounds, having a right to kill game thereon, may kill hares, either in person or by any one authorized by him in writing, without taking out a game certificate. The law is very severe against persons not authorized, who take and destroy game by night, or are found in possession of any which appears to have been recently killed. A license is also required to entitle one to sell game.] *Upon the whole it appears, that the king, by his prerogative, and [*419 such persons as bave, 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 feræ naturæ, while living; which is said to be vested in them, as was observed in a former chapter, propter privilegium. (6) And it must also be remembered, 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 is grounded on reason and natural justice: (d) for the property consists in the possession; which possession commences by the finding it in his own liberty, and is continued by the immediate pursuit. And 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, (e) and not being changed by the act of a mere stranger. Or if a man starts game on another's private grounds and kills it there, the property belongs to him in whose ground it was killed, because it was also started there; (f) the property arising ratione soli. Whereas, if, after being started there, it is killed 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, (g) though guilty of a trespass against both the owners. (7) *III. I proceed now to a third method, whereby a title to goods and [*420] chattels may be acquired and lost, viz.: by forfeiture; as a punishment for some crime or misdemeanor in the party forfeiting, and as a compensation for the offence and injury committed against him to whom they are forfeited. Of forfeitures, considered as the means whereby real property might be lost and acquired, we treated in a former chapter. (h) It remains, therefore, in this place only to mention by what means or for what offences, goods and chattels become liable to forfeiture. In the variety of penal laws with which the subject is at present encumbered, it were a tedious and impracticable task to reckon up the various forfeitures, inflicted by special statutes, for particular crimes and misdemeanors; some of which are mala in se, or offences against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as is the forfeiture of 40s. per month by the statute 5 Eliz. c. 4, for exercising a trade without having served seven years as an apprentice thereto; and the forfeiture of 107. by 9 Ann. c. 23, for printing an almanack without a stamp. (8) I shall (c) 11 Mod. 75. (d) Puff. L. N. l. 4, c. 6. (e) Lord Raym. 251. (g) Farr. 18. Lord Raym. 251. (h) See page 267. In America no similar laws exist. There are laws prohibiting the destruction of game in the breeding season, or in seasons when it is unfit for market, but it is no part of their purpose to enforce discrimination against any class of persons, or to preserve game for any other purpose than the general benefit. (6) Mr. Christian controverts this doctrine-and Mr. Justice Coleridge thinks successfully—in a learned and somewhat lengthy note, but the importance of the subject does not appear sufficient to warrant its republication. Mr. Hovenden thinks the statute 1 and 2 Wm. IV, c. 32, in doing away with the qualification previously required, has recognized the correctness of Mr. Christian's position. (7) [These distinctions never could have existed, if the doctrine had been true that all the game was the property of the king for in that case the maxim, in æquali jure potior est conditio possidentis, must have prevailed.] (8) These forfeitures are now abolished. therefore, confine myself to those offences only, by which all the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulcts of different quantities are inflicted, to their several proper heads, under which very many of them have been or will be mentioned; or else to the collections of Hawkins, and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But as, in the instance of partial forfeitures, a moiety often goes to the informer, the poor, or sometimes to other persons; and as one total forfeiture, namely, that by a bankrupt who is guilty of felony by *concealing his effects, accrues entirely to his creditors, I have therefore made it a distinct head of transferring property. [ *421] Goods and chattels, then, are totalty forfeited by conviction of high treason or misprision of treason; (9) of petit treason; (10) of felony in general, and particularly of felony de se, and of manslaughter; nay, even by conviction of excusable homicide; (i) by outlawry for treason or felony; by conviction of petit larceny; (11) by flight, in treason or felony, even though the party be acquitted of the fact; (12) by standing mute, when arraigned of felony; by drawing a weapon on a judge, or striking any one in the presence of the king's courts; by præmunire; by pretended prophecies, upon a second conviction; by owling; by the residing abroad of artificers; (13) and by challenging to fight on account of money won at gaming. All these offences, as will more fully appear in the fourth book of these Commentaries, induce a total forfeiture of goods and chattels. And this forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeiture of real property. For chattels are of so vague and fluctuating a nature, that to affect them by any relation back, would be attended with more inconvenience than in the case of landed estates: and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5. (14) CHAPTER XXVIII. OF TITLE BY CUSTOM. A FOURTH method of acquiring property in things personal, or chattels, is by custom whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of (f) Co. Litt. 391. 2 Inst. 316. 3 Inst. 320. (9) [This forfeiture extends to all the offenders personal property, including chattels real, whether legal or equitable, in possession or in action. Cro. Jac. 513; 2 B. and Ål. 258; 2 C. M. and R. 416; with the exception of contingent interests. 1 Keen, 145. The goods vest in the crown immediately upon conviction; and, as a felon who is transported is not restored to his civil rights until he is pardoned, or the term expires, all personal property accruing to him in the interval is forfeited to the crown. 2 B. and Al. 258; 1 Myl. and K. 752.] (10) Petit treason is now unknown to the law. (11) [The distinction between grand and petit larceny is abolished. Statute 7 and 8 Geo. IV c. 29, s. 2. (12) [By statute 7 and 8 Geo. IV, c. 28, s. 5, on indictments for felony, the jury is no longer to be charged to inquire concerning the prisoner's land or goods, or whether he fled for the offence.] (13) [Owling is no longer an offence: 5 Geo. IV, c. 47. By the 5 Geo. IV, c. 97, all the laws relating to artificers or colliers going into foreign parts are repealed.] (14) [A bona fide sale of goods and chattels by the offender, for good consideration, after the offence and before conviction, is good. 8 Rep. 171. See Skin. 357; 1 Stark. 319; 6 Car. and P. 145.] VOL. I.-77 609 the kingdom. It were endless should I attempt to enumerate all the several kinds of special customs, which may entitle a man to a chattel interest in different parts of the kingdom; I shall, therefore, content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz., heriots, mortuaries, and heir-looms. 1. Heriots, which were slightly touched upon in a former chapter, (a) are usually divided into two sorts, heriot-service, and heriot-custom. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent: (b) the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom. (c) Of these, therefore, we are here principally to speak: and they are defined to be a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land. *The first establishment, if not introduction, of compulsory heriots [*423] into England, was by the Danes: and we find in the laws of King Canute (d) the several heregeates or heriots specified which were then exacted by the king on the death of divers of his subjects, according to their respective dignities; from the highest earle down to the most inferior thegne or landholder. These, for the most part, consisted in arms, horses, and habiliments of war; which the word itself, according to Sir Henry Spelman, (e) signifies. These were delivered up to the sovereign on the death of the vassal, who could no longer use them, to be put into other hands for the service and defence of the country. And upon the plan of this Danish establishment did William the Conqueror fashion his law of relief, as was formerly observed; (f) when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to the feudal custom and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of money. (g) The Danish compulsive heriots being thus transmuted into reliefs, underwent the same several vicissitudes as the feudal tenures, and in socage estates do frequently remain to this day in the shape of a double rent payable at the death of the tenant: the heriots which now continue among us, and preserve that name, seeming rather to be of Saxon parentage, and at first to have been merely discretionary. (h) These are now for the most part confined to copyhold tenures, and are due by custom only, which is the life of all estates by copy; and perhaps are the only instance where custom has favoured the lord. For this payment was originally a voluntary donation, or gratuitous legacy of the tenant; perhaps in acknowledgment of his having been raised a degree above villeinage, when all his goods and chattels were quite at the mercy of the lord; and *custom, which has on the one hand confirmed the tenant's interest [*424] in exclusion of the lord's will, has on the other hand established this discretional piece of gratitude into a permanent duty. An heriot may also appertain to free land, that is held by service and suit of court; in which case it is most commonly a copyhold enfranchised, whereupon the heriot is still due by custom. Bracton (i) speaks of heriots as frequently due on the death of both species of tenants: "est quidem alia præstatio que nominatur herriettum; ubi tenens, liber vel servus, in morte sua, dominum suum, de quo tenuerit, respicit de meliori averio suo, vel de secundo meliori, secundum diversam, locorum consuetudinem." And this he adds, "magis fit de gratia quam de jure; in which Fleta (k) and Britton (1) agree: thereby plainly intimating the original of this custom to have been merely voluntary, as a legacy from the tenant; though now the immemorial usage has established it as of right in the lord. This heriot is sometimes the best live beast, or averium, which the tenant dies possessed of (which is particularly denominated the villein's relief in the twentyninth law of King William the Conqueror), sometimes the best inanimate good, under which a jewel or piece of plate may be included: but it is always a per (a) Page 97. (f) Page 65. (i) l. 2, c. 36, § 9. (b) 2 Saund, 166. (d) C. 69. (e) Of Fends, c. 18. (h) Lambard, Peramb. of Kent, 492. |