particular to remain unaltered; though by a distinction introduced in comparatively modern times, some kinds of animals feræ naturæ, such as deer, rabbits, and the like, may be lawfully kept by any person in an inclosed place, if preserved as property, and not merely for the purpose of the chase (). But the practice of keeping up animals in a wild state for mere diversion, though forbidden to the subject, has been at all times permissible, as a matter of prerogative, to the sovereign. For we find, that even among the Saxons there were woody and desert tracts called the forests, which, [having never been disposed of in the first distribution of lands, were held therefore to belong to the crown;] and that [these were filled with great plenty of game, which our royal sportsmen reserved for their own diversion, on pain of a pecuniary forfeiture for such as interfered with their sovereign. But every freeholder had the full liberty of sporting upon his own territories, provided he abstained from the king's forests, as is fully explained in the laws of Canute (m); which indeed was the antient law of the Scandinavian continent (n), from whence Canute probably derived it (o).] Afterwards, upon the Conquest, the Norman race of sovereigns exceeded even their predecessors in the eager enjoyment of this branch of the prerogative; for not only did they extend the limits of the antient forests, by encroachment on the lands of their subjects, and lay out new ones at their pleasure, without regard to the rights of private property (p); but they established a particular system of forest law (q), under colour of which [the most (1) See Davies v. Powell, Willes, 48; Morgan v. Abergavenny, 8 C. B. 768. (m) Wilk. Leg. Angl. Sax. LL. Can. c. 77. (n) "Cuique in proprio fundo quamlibet feram quoquo modo venari per [horrid tyrannies and oppressions] were exercised (r): so that our ancestors at length became [as zealous for its reformation, as for the relaxation of the feudal rigours and other exactions introduced by the Norman family;] and struggled for the Charta de Forestâ, as strenuously as for the Great Charter itself (s). By this forest charter, confirmed in parliament in the ninth year of Henry the third (t), many forests unlawfully made (or at least many precincts added by unlawful encroachment to the antient. ones) were disafforested, so as to remit to the former owners their rights (u),—though in the case of such precincts, called thenceforward purlieus, the crown still continued to exercise some of its privileges (x),-while in the forests that remained entire many abuses were reformed or mitigated. And owing to the variety of statutes afterwards made for amelioration of the forest laws, and above all to the entire disuse of them for centuries past by our sovereigns (y), this branch of the prerogative has long ceased to be a grievance to the subject (z). Some of the (r) "The penalty for killing a "stag or boar was loss of eyes-for "William loved the great game," says the Saxon Chronicles, " as if he "had been their father."-- Hallam's Mid. Ages, vol. ii. p. 426, 7th edit. (s) 2 Bl. Com. 416. (t) Its clauses had been previously incorporated in the Great Charter of John, granted at Runnymede. Hallam's Mid. Ages, vol. iii. p. 222, n. 7th edit. (u) Reeves's Hist. of Eng. Law, vol. i. p. 254. This charter is considered by Lord Coke as only a declaratory law; and he holds that the king could never make forests in the land of his subjects, without their consent. (4 Inst. 300.) (x) 4 Inst. 303, 304; Com. Dig. Chase, 1. Purlieu is variously derived from pur lieu (exempt place), 4 Inst. ubi sup. ; or pourallée, perambulation, Com. Dig. Chase, (I. 1.) (y) An attempt to revive them was made by Charles the first, and courts were held by the chief justice in (z) 2 Bl. Com. 416. royal forests however still exist (a); and with some few exceptions, such as the New Forest in Hampshire, founded by the Conqueror, that of Windsor by Henry the eighth, and that of Richmond by Charles the first (b), are of such remote antiquity, that no trace is said to remain in history of their first creation (c). Though a forest is in general a royal possession, we are nevertheless to observe that it is capable of being vested in a subject (d); for if the sovereign grant a forest to a private person, with words expressly authorizing the administration of forest law there, the grantee will have that franchise to its full extent, with all the appropriate courts and officers (e). It is also to be remarked, that a forest is. a right which the owner thereof (whether sovereign or subject) may have either in his own lands or the lands of another (f): and in this respect it differs from a right of common, and the other incorporeal hereditaments above described; for these, as they issue out of the soil, cannot exist in the same man who is general owner of the soil itself, (the latter title superseding all inferior claims like (a) See 12 & 13 Vict. c. 81, authorizing a commission to inquire into rights or claims over the New Forest and Waltham Forest; 14 & 15 Vict. c. 43, for disafforesting the forest of Hainault; 14 & 15 Vict. c. 76, 16 & 17 Vict. c. 19, and 17 & 18 Vict. c. 49, as to her Majesty's rights in the New Forest; 16 & 17 Vict. c. 36, and 19 & 20 Vict. c. 32, as to disafforesting the forest of Whichwood; 16 & 17 Vict. c. 42, as to disafforesting the forest of Whittlewood; 18 & 19 Vict. c. 46, as to disafforesting the forest of Woolmer; 19 & 20 Vict. c. 13, for management of lands of her Majesty within the late forest of Delamere; 21 & 22 Vict. c. 37, as to commonable lands within the forest of Hainault; 24 & 25 Vict. c. 40, as to the forest of Dean and the mines and quarries therein. (b) As to Richmond Park, see Hallam's Const. Hist. vol. ii. p. 14, n. 3rd edit. (c) See 4 Inst. 319, where it is said that the forests in England are in number sixty-nine; see also as to the antiquity of the forests, 4 Inst. 293, 294. (d) Co. Litt. 233 a. (e) Case of Leicester Forest, Cro. Jac. 155; see Coleridge's Blackstone, vol. ii. p. 38, n. (19). (f) 4 Inst. 301, 318; Lord Dacre v. Tebb, 2 Bl. Rep. 1151; Sutton v. Moody, Ld. Raym. 251. these,) and are consequently rights which a man can claim to exercise only in alieno solo (g); but a forest, and indeed all franchises in general, are inheritances collateral to the ownership of the land (h), and may be claimed by a man either in proprio solo or in alieno (i). The owner of a forest is also considered (notwithstanding the general rule that title cannot be made to things feræ naturæ) as having a qualified property in the wild animals of chase and venary there found, so long as they continue therein; and no other person can lawfully take them within those precincts, or chase them from thence and take them in other ground (j). But if a wild animal strays from the forest, it ceases to be the property of the owner of the franchise, and will belong to the first taker (k). A chase is a franchise granted by the crown to a subject, empowering the latter to keep for his diversion, within a certain precinct so called, the wild animals of chase, which in a legal sense are the same with those to which the right of forest extends(); but the franchise does not authorize the establishment of forest law within such precinct (m). A park properly signifies an inclosure, and is popularly applied to any ground which a gentleman chooses to surround with a wall or paling, and to stock with a herd of deer; but in the technical sense in which we now use the term, a park is nearly equivalent to a chase, being in effect no other than a chase inclosed (n). A free-warren (o) is a similar franchise, granted by the (g) See Lloyd v. Earl Powis, 4 El. & Bl. 485. (h) 4 Inst. 318. (j) Sutton v. Moody, Ld. Raym. 251; 2 Bl. Com. 394, 395, 419. (k) 12 Hen. 8, f. 10, cited 2 Chris tian's Black. 419, n. ; and see Keilw. 30; Sutton v. Moody, ubi sup. (4) Co. Litt. 233 a. (m) Manw. 52; see also 2 Bl. Com. 415, where a chase or a park is described as a smaller forest in "the hands of a subject, but not "governed by the forest laws." (n) Manw. 52; 2 Bl. Com. 38. (0) See Bro. Ab. tit. Warren ; Dyer, 30 b; Co. Litt. 2 a, 114 b; Keilw. 148, n.; Bowlston v. Hardy, crown to a subject, [for preservation or custody, as the word signifies, of beasts and fowls of warren ;] which, according to Lord Coke, are "hare, coney, roe," "partridge, 66 quail, rail, &c.," "pheasant, woodcock, &c.," "mallard, "heron, &c." (p). To this, as well as to chase and park, apply generally the principles which have been before noticed in respect of a forest; with this exception, however, as to a park, that it is incapable of being claimed in alieno solo, and can exist only in land belonging to the owner of the franchise himself (q). [A free-fishery (r), or exclusive right of fishing in a public river, is also a royal franchise (s).] As the bed or soil (t), so the right of fishing presumably belongs, in private rivers (viz. those not navigable), to the owners of the land on either side, and to them only (u). In those which are public that is, navigable (x),—the bed (so far at least as Cro. Eliz. 548; Wadhurst v. Damme, (p) Co. Litt. 233 a; where these &c.'s are left without explanation. Manwood, on the other hand, says, "There are only two beasts of war solo; and accounts for it by the fact, that antiently keen sportsmen, on selling their lands, often reserved to themselves and their heirs the freewarren that they had in them. (r) See Hale, de Jure Maris, part i. c. 4; Lord Fitzwalter's case, 1 Mod. 105; Warren v. Matthews, 1 Salk. 357; Smith v. Kemp, 2 Salk. 637; Carter v. Mercot, 4 Burr. 2162; Case of River Banne, Davies, 55. (s) Blackstone adds, (vol. ii. p. 39,) that it "is considered as such "in all countries where the feudal "polity has prevailed," and he cites Seld. Mar. Claus. i. 24; Dufresne, v. 503; Craig, de Jure Feod. II. 8, 15. See also Mannall v. Fisher, 5 C. B. (N. S.) 856. (t) Vide sup. p. 458. (u) Hale, de Jure Maris, pt. i. c. 4. (r) Ibid. pt. i. c. 1, 2. |