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toll, if none be due by prescription, yet the owner is intitled to Stallage and Piccage, that is, to a compensation for placing a stall, and for any breaking up of the ground; and the remedy for this is trespass (a).
These franchises may be forfeited by non-user (b), (which would naturally induce the presumption of a surrender of them to the crown (c);) or by mis-user, so that should the grantee neglect to perform the terms prescribed by the patent, it might be repealed by writ of scire facias (d).
Free CHASE OR PARK (e). (Free Warren: Free Fishery, &c.) Although these subjects are in some degree connected with the preceding considerations on manorial franchises, I do not feel that they are of a nature to call for any lengthened commentary in the present treatise.
The reader, however, is reminded that Free Chases or Parks were tracts of land granted to a subject, under one or other of those names, or grounds converted by the owner into chases or parks, under a license from the crown, and were considered as smaller forests; but that they were not subject to the forest laws, the grantee having no power to appoint officers of the forest, or to hold courts ($):-It is also to be recol
(a) The Mayor, fc. of Northamp- (6) Leicester Forest case, Cro. ton v. Ward, ubi
And see Mo. Jac. 155. 474. 1 Barn. & Ald. 71, in Rex v. (c) Br. Franchise 10, 26. Cotterill. A table placed in an open (d) Ib. 14, 22. 12 Mod. 271. market is considered as a stall. The (e) A park consists of vert, veniMayor, fc. of Norwich v. Swan, 2 son, and inclosure, and a determina Sir W. Bl. 1116.
ation in either of these requisites Both Stallage and Piccage are de- amounts to a disparkment. Sir rived from the right to the soil. See Charles Howard's case, Cro. Car. 60. as to both, Com. Dig. Market (F.2). (f) 4 Inst. 314. But it appears 2 Roll. Abr. 123. 15 Vin. 244-5. that royal forests were sometimes
And the party intitled to stallage granted by the crown to a subject, may wave the tort and bring assump- with express authority for the adsit. Mayor, &c. of Newport v. Saun- ministration of justice there. Leicesders. 3 Barn. & Adolp. 411.
ter Forest case, sup.
lected that these franchises can only be claimed by grant, or by prescription (a).
And I am induced to avail myself of this opportunity of referring the student to Lord Coke's 4 Inst. [p. 289, et seq.] and to Mr. Justice Blackstone's Commentaries (vol. 2. c. 27), for a clear and interesting exposition of the forest laws, as they existed in the Saxon æra, and as new modelled
the Norman conquest; and the more so as it will be seen by the legal authorities adverted to, that the arbitrary and oppressive character of the forest laws, was maintained by the establishment of several courts (6), imitative of those ordained by our
(a) See Co. Lit. 114 b. 11 Co. most commonly four in each forest,) 87 b. Lord Coke, (4 Inst. 318) says, as judges of the court; and at this " And it is to be observed that a court the attachments of the forestman may
have a free chase as be- ers were presented, and the freelonging to his manor,
in his own
holders within the forest were to woods, as well as a warren or park appear and make inquests and juries; “ in his own grounds; for the chase, but the court did not follow
its warren, and park, are collateral
conviction by judgment: and 4. The “ inheritances, and not issuing ont court of the justice seat, holden be“ of the soil, as the common doth ; fore the chief justice of the forest, « and therefore if a man hath a chase called in the books justice in eyre, " in other men's grounds, and after and which could not be kept oftener “purchase the grounds, the chase than every third year; and only on “ remaineth."
forty days' summons, one writ of As to commonable rights and summons being directed to the sheriff other like privileges in chases or of the county. And at the sessions parks, (and which may also exist by of this justice in eyre he was to proprescription in forests,) see 4 Inst. ceed on the presentments made at 298–9, &c.
the Swainmote courts, before a jury. (6) The courts of the forest were, It should seem that a presentment or 1. The Woodmote court, or court of indictment of this court, previously attachments kept before the verderors found in the swainmote, was not every forty days, for the presentment traversable, but that an indictment and inrolment only of attachments de in the court of the justice seat, not viridi et venatione : 2. The court of found in the swainmote, might be survey or lawing of dogs, held every traversed, it having been presented third year:
3. The Swainmote Court but by one jury. 4 Inst. 291, cites 8 held thrice in the year by the stew- E. 3. Itinere Pickering, 147 a. 21 ard (who acted ministerially only) E. 3. 48. See further as to these before the verderors, (there being courts. Com. Dig. Chase (R). VOL. II.
Saxon ancestors, for the more substantial and legitimate objects of maintaining the good order of society, and the relative rights of its component members, and of which I propose to take particular notice in the introductory part of the next and concluding chapter (a).
FREE WARREN. - The franchise of free warren is to be claimed only by grant from the crown or by prescription, which supposes such a grant (6), and the effect of it is to vest in the grantee a property in such wild animals, or inferior species of game, as are deemed the beasts and fowls of warren (c).
If a person having a free warren alien the lands, the right of warren is extinct, nothing being reserved, and the land only being granted; but a reservation of the warren would be good (d).
(a) It appears almost unnecessary tiff's land, by showing a grant of a to remind the student that by the free warren from the Crown. Pickercharter 9 H. 3, [carta de foresta,] ing v. Noyes, 4 Barn. & Cress. 639. (the immunities of which Mr. Jus- (c) See F. N. B. 86-7, and the tice Blackstone observes,
notes. Beasts and fowls of warren, • warmly contended for, and extorted are hares and rabbits, pheasants and from the King with as much diffi- partridges. Manw. 95. In Co. Lit.
culty, as those of magna carta itself,' (233 a.) a roe is also named as a 2 vol. Com. p. 416,) many forests beast of warren, and quail, rail, were disafforested, and the penalties woodcock, herne, mallard, &c. as of the forest laws greatly relaxed, fowls of warren. Grouse are not and that by many subsequent statutes birds of warren. The Duke of Deand long disuser,' this prerogative is vonshire v. Lodge, 7 Barn. & Cress. ' now become no longer a grievance 36. Beasts of park or chase are, to the subject.'
buck, doe, fox, martron, and roe. (6) 11 Co. 87 b. Co. Lit. 114 b. Manw. 94. Co. Lit. 233 a. 8 Co. Br. Warren. pl. 1, cites 3 H. 6. 12. 138 b. Beasts of forest or venary Manw. Warren. Forest. pl. 43. And are, hart, hind, hare, boar, and wolf. in trespass against the game-keeper Manw. 91. 8 Co. 138 b. of the lord of the manor, it lies upon (d) Br. Warren, pl. 3, cites 35 H. the defendant to prove a royalty in 6. 55. justification of theentry upon the plain
And if a person having a manor in which there is a free warren should enfeoff another of the manor, with the appurtenances, the warren would not pass (a), for a warren is not necessarily appurtenant to a manor, though it may be so by prescription (6).
The franchise of free warren implies a sole and exclusive (c) power of killing game within the ambit of the grant, on condition of preventing others from doing so, and therefore, as Sir William Blackstone says (d), “ A man that has the franchise of warren is in reality no more than a royal game-keeper."
Whether or not a person may have a property, ratione soli, in such feræ naturæ as are denominated game, or how far such possible right may be affected by any manorial privileges in lords of manors, emanating from the King and founded on principles of feudal tenure, does not appear to be a question so immediately connected with the subject of the present treatise, as to call for particular animadversion in this place (e); but
(a) Br. Warren, pl. 7. And see judgment on the controverted right ib. pl. 5, citing 14 H. 4. 6.
of lords of manors, to sport over the (6) Bowlston v. Hardy, Cro. Eliz. grounds of others within their re547. S. C. 5 Co. 104 a. By prescrip- spective seigniories, to Mr. Chitty's tion a person may have a warren in treatise on the game laws, and to a forest, but there must be an allow- Professor Christian's notes to the ance of it in eyre, that is in the court commentary of Mr. Justice Blackof the forest. Sir Richard Harrison's stone, [2 vol. Com. c. 27,] on the case, W. Jones 280.
right of property in such animals (c) But a free warren is not neces- feræ naturæ, as come under the desarily an exclusive right, for in one nomination of game, in which the case a prescription for the lord of the learned Professor opposes the docmanor, his tenants and farmers, to trine advanced by Sir W. Blackstone, fowl in the warren of another, was that the sole property of all the game held good upon demurrer. Davies's in England, and, as a consequence, case, 3 Mod. 246.
the exclusive right of taking and (d) 2 vol. Com. 39.
destroying it, is vested in the King, (e) I have pleasure, however, in as the ultimate proprietor of the soil. referring the reader for much use- The reader's particular attention is ful information on the character of also called to a useful work pubthe game laws of this country, and lished a few years since, intitled “ A for the means of forming his own “ treatise on the rights of manors as
assuming that a right of property may exist in this species of " deduced from the most ancient and own. 2 BI. Com. 39. Vide also the “ best authorities, with a report on above case of Pickering v. Noyes, in " the game laws, and comment,” the which the court of B. R. held that it author of which wholly dissents was for the defendant, upon the issue from the arguments of Professor joined, to prove first that he had Christian.
such a royalty, and secondly that at I am induced to express my as- the time in question he was in the sent to Sir Wm. Blackstone's posi- due exercise of it. tion, that the sole right of property It does not appear to me that the in all wild animals became vested in lord of a manor can claim any right the King, from the period, at least, of sporting over grounds not in his of the establishment of the feudal own possession, under the provisions system in this country ; and I con- of the several acts of parliament auceive that the right of the lord of a thorising lords of manors to appoint manor or other royalty, to take and game-keepers, and empowering such kill game within the confines of his keepers, for the preservation of game, seigniory, either as an exclusive right, to search for noxious animals and enor concurrently with the owners of gines of destruction, and also to kill the soil, is founded on the preroga- game for the use of the lord; I aptive title of the King. Whether the prehend, indeed, that the powers of right be exclusive or concurrent must game-keepers appointed under the depend on the words of the grant, or acts of parliament alluded to, would evidence of usage, for the right may be held to extend only (as far as they exist by prescription, which presup- may be protected by the provisions poses a grant. But an exercise for
of those acts against an action of several years of the right of sporting, trespass,) to such lands as should be which might be referrible to the te- in the lord's immediate possession, nant's acquiescence, will not induce and those perhaps belonging to others, the presumption of an ancient grant. over which the lord had a right to Pickering v. Noyes, 4 Barn. & Cress.
sport under an ancient grant from
the Crown, or by prescription. The It is clear that an ancient grant case of the Earl of Ailesbury v. Patfrom the Crown of the franchise of tison, Dougl. 28, clearly shows that taking and killing game within a li- the Courts of Law are disposed to mited district, would give the grantee circumscribe, as much as possible, the power of going over the grounds the
of the acts of 22 and 23 of others, without being considered Car. 2, and the 5th of Anne, and a trespasser. Such a grant would in other subsequent statutes, authorisfact vest the franchise of a free war- ing lords and ladies of manors to ren in the grantee, which alone can appoint game-keepers ; for in that justify a person's sporting on case Lord Mansfield held, that the other's soil, or, indeed, even on his words“ manors or other royalties,"