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king ever lose his right in any instance; but where they interfere, he is always preferred. If one of two joint owners of a bond assigns his part to the king or forfeits it to the crown, the king shall have the entire debt.
Other Property of the King. There are certain other instances of title by prerogative, in which chattels are vested in the crown without transfer or assignment, such as in wrecks, treasure trove, waifs, estrays, royal fish and swans. There is also a prerogative copyright in certain books, as the published acts of parliament, proclamations and orders of council, also all liturgies and books of divine service. The king has a right by purchase to such law books, grammars, etc., compiled or translated at the expense of the crown; also the right of printing the translation of the Bible.
Game. There exists a prerogative property in such animals ferae naturae as are known by the appellation of game, with the right of pursuing, taking and destroying them, which is vested in the king alone, and by him granted to certain of his subjects. This right is an incorporeal hereditament, though the profits of it are of a personal nature. By the law of nature, every man may take to his own use any animal ferae naturae, as it is the property of the first occupant. This was so held by the imperial law up to the time of Justinian. But this right may be restrained by positive laws for the benefit of the community. This restriction may be either with respect to the place in which this right may be exercised; or with respect to the ani. mals, that are the subject of the right, or the persons allowed or forbidden to exercise it.
Object of the Game Laws. Many reasons exist for enacting these restraining statutes. 1. To encourage agriculture, by giving every man an exclusive dominion over his own soil. 2. To prevent the extirpation of the animals. 3. To check idleness and dissipation among working men, the result of universal license. 4. To prevent popular insurrections, by disarming the bulk of the people.
Change in Game Laws. The law does not thereby take from a man his present property, but only abridges the means of acquiring a future property by occupancy. However defensible these provisions may be, they owe their origin to slavery. The Roman law, though it knew no restrictions as to persons or animals, respected the privacy of place, and allowed no man, without permission, to hunt or sport upon another's grounds. The canon law forbade clergymen from hunting, as such diversion was not indulged in by the saints or primitive fathers. The canons of our Saxon church enjoined the same prohibition, though after the conquest, our secular laws dispensed with this canonical impediment, and spiritual persons were allowed to hunt for recreation, in order to render them inore fit for the performance of their duties. To this day, it is a branch of the king's prerogative, at the death of every bishop, to possess his kennel of hounds, or a composition in lieu thereof.
History of Game Laws. All civil prohibitions of this nature, entitled forest or game laws, were introduced into Europe coeval with the feudal system, when the swarms of northern barbarians founded the most of the present kingdoms of Europe on the ruins of the western empire. For when a conquering general divided a country among his soldiers or feudatories, it behooved him, in order to secure his new acquisitions, to keep the natives in as low a condition as possible, and to prohibit the use by them of arms. Nothing could effect this better, than to prevent them from hunting, and to reserve the right of conducting such sport to himself and his feudatories.
Where most Effective. It is remarkable, that in those nations, where the feudal policy remains most uncorrupted, the forest or game laws continue in their highest rigor. In some parts of Germany, it is death for a peasant to be found hunting in the woods of the nobility.
In Early England. In England, hunting has ever been esteemed a princely diversion. In the time of the Britons, the island was filled with all sorts of game, and the inhabitants derived partial subsistence from the chase. But when under the Saxon government, lands began to be cultivated and enclosed, the beasts fled into the forests, and hence were held to belong to the crown, though every freeholder had full liberty of sporting upon his own territory.
King's Forests. Upon the Norman conquest, a new doctrine prevailed, and the right of taking all beasts of chase or venary, and such other animals, as were accounted game, was then held to belong to the king, and to those authorized by him. The king, as lord paramount of the fee, had the right of the universal soil, and could enter thereon, and take the animals at his pleasure, they being bona vacantia, having no owner. This right, thus vested in the crown, was exerted with the utmost rigor, and ancient forests, and vast tracts of country, depopulated for that purpose, were reserved solely for the king's diversion. Oppression existed, under color of forest law, for the sake of preserving the beasts of chase; to kill any of which, within the limits of such forests, was as penal as to cause the death of a man.
Carta de Foresta. King John laid a total interdict upon the winged as well as the four-footed creation. The cruel hardships which these forest laws occasioned the subject, made our ancestors as jealous for their reformation, as for the relaxation of the feudal rigors and other Norman exactions, and hence they contended as warmly for the immunities of the carta de foresta as for the magna carta itself. This prerogative is now no longer a grievance to the subject.
Royal Grants. But as the king reserved to himself the forests for his exclusive diversion, so he granted from time to time other tracts of land to his subjects as chasts or parks, or gave them license for such in their own grounds, which indeed are smaller forests, but not governed by forest laws. As to all inferior species of game, called beasts and fowls of warren, the liberty of taking or killing them is another franchise of royalty, termed free warren, a word which signifies preservation or custody, as the exclusive liberty of taking fish in a public stream is called a free fishery. The granting of any of these franchises or liberties was to protect the game, by giving the grantee an exclusive power of killing it himself, provided he prevented other persons.
Game in the Grounds of Another. Hence the sole right of taking and destroying game belongs to the king, or to one who derives his right from the crown, propter privilegium. If a man starts game within his own grounds, and follows it into another's, and kills it there, the property remains in himself. But 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 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. Whereas, if after being started there, it is killed in the grounds of a third person, the property vests in the person who started and killed it, "ough guilty of a trespass against both the owners.
TITLE BY FORFEITURE.
Punishment for Crime. This is the third method by which a title to goods and chattels may be acquired and lost, as a punishment for some crime, and as a compensation for the offence or injury against him to whom they are forfeited. Some forfeitures are for offences mala in se, against the divine law, natural or revealed, but the greater part are mala prohibita, or acts which derive their guilt, solely from their prohibition by the law of the land. Most of these forfeitures go to the crown, but in the case of partial forfeitures, a moiety often goes to the informer or the poor. In the instance of one total forfeiture, viz., that by a bankrupt, who is guilty of felony by concealing his effects, the forfeiture accrues entirely to his creditors.
For what Causes. Goods are totally forfeited by conviction of high treason or misprision of treason; of petit treason; of felony in general, and particularly of felony de se, and of manslaughter, nay even by conviction of excusable homicide ; by outlawry for treason or felony; by conviction of petit larceny; by flight in treason or felony, even if the party be acquitted; 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 praemunire; by pretended prophecies, upon a second conviction; by owling, and by challenging to fight on account of money won at gaming.
Date of Forfeiture. This forfeiture commences from the time of conviction, not from the time of committing the act, as in forfeitures of real property, yet a fraudulent transfer of goods to defeat the interests of the crown is made void by statute.
CHAPTER XXVIII.— TITLE BY CUSTOM.
Defined. This is where a right vests in some particular persons, either by the local usage of some particular place, or by the almost universal usage of the kingdom. It would be an endless task to enumerate all the special customs of the kingdom, but we will refer to three sorts of customary interests, which obtain somewhat generally through England, viz., heriots, mortuaries, and heir-looms.
1. Heriots. These are usually divided into heriot-service and heriot-custom. The former are due upon a special reservation in a grant or lease of lands, and hence amount to little more than rents; the latter arise upon no special reservation whatever, but depend merely upon immemorial usage. 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.
Origin and History. The first establishment of compulsory heriots in England was by the Danes. These, for the most part, consisted of arms, horses and habiliments of war, which were delivered up to the sovereign on the death of the vassal, to be placed in other hands for the service and defence of the country. Under William the Norman, heriots were transmitted into reliefs. 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 is the only instance, where custom has favored the lord. For this payment was originally a donation or gratuitous legacy of the tenant, and custom has established this discretional act of gratitude into a permanent duty. A heriot may also appertain to free land, that is held by service and suit of court.
The Article Itself. The heriot is sometimes the best live beast of which the tenant dies possessed, or the best inanimate thing, as a jewel or piece of plate, but it is always a personal chattel, which on the death of the tenant its owner, being ascertained at the option of the lord, becomes vested in him, and is no charge on lands. On the death of a feme covert, no heriot can be taken, for she can have no property in things personal. In some places there is a customary composition in money.
2. Mortuaries. A mortuary is a sort of ecclesiastical heriot, being a customary gift due the minister in many parishes, on the death of a parishioner. Originally it was a voluntary bequest to the church, being intended as an expiation for personal tithes, which the party in life might have neglected to pay. The second best chattel was reserved to the church as a mortuary. Centuries ago in France, every man who died without bequeathing a part of his estate to the church was deprived of christian burial. If he died intestate, his relations and the bishop appointed arbitrators, to determine what he should have given the church, had he made a will.
Originally a Voluntary Donation. Anciently the mortu