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[duced and countenanced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner ; and where such things are found without any other owner, they for the most part belong to the sovereign, by virtue of the royal prerogative; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider.
1. Thus in the first place it hath been said, that anybody may seize to his own use such goods as belong to an alien enemy (d). For such enemies, not being looked upon as members of our society, are not entitled, during their state of enmity, to the benefit or protection of the laws; and therefore every man that has opportunity is permitted to seize upon their chattels without being compelled, as in other cases, to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must in reason and justice be restrained to such captors as are authorized by the public authority of the state, residing in the crown (e),] and, as regards inland seizures, [to such goods as are brought into this country by an alien enemy, after declaration of war, without a safe conduct or passport. And therefore it hath been holden (f), that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized;] and if a contract be made with a foreigner during peace, the right of action upon it is not absolutely forfeited by the occurrence of a war, though it is suspended (g). But where the circumstances of the case render the capture from an enemy legal, it is a title that will sometimes prevail, even against the claim of
a former British owner, from whom the goods may have been previously taken by the same enemy. For in such cases of recapture the law has been adjudged to be, that they become [indefeasibly vested in the recaptor, unless they be retaken on the same day that they were first taken, and the owner before sunset puts in his claim of property (h); which is agreeable to the law of nations, as understood in the time of Grotius (i), with regard to captures made at sea, which were held to be the property of the captors, after a possession of twenty-four hours ; though the modern authorities require (j), that, before the property can be changed, the goods must have been brought into port, and, have continued a night intra præsidia, in a place of safe custody, so that all hope of recovering them was lost.] And in order fully to vest the property of a captured vessel in the captors, so as to bar the original owner, it is also necessary, that it should have been condemned as prize, by legal sentence (k). In addition to which, we may remark, that as regards ships or goods taken and retaken at sea, and in questions arising thereon between the original British owner and a British recaptor, it is now established by several acts of parliament, that whatever period of time may have intervened, and whether sentence of condemnation may have been obtained or not, the property is to be restored to the original owners, on payment of salvage or money in lieu of salvage (?). The whole subject, however, of acquiring property in things personal, by capture from the enemy, is in general foreign to the province of the ordinary courts of law, and belongs to the jurisdiction of the
Prize Court, a court sitting under a particular commission from the crown (m).
2. [With regard likewise to animals feræ nature, all mankind had, by the original grant of the Creator, a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any, beast or reptile of the field; and this natural right still continues in every individual, unless when it is restrained by the civil laws of the country.] By the laws of this realm, accordingly, all persons may, on their own lands, or in the seas, in general exercise this right. And when a man has once seized animals of this description, they become, if reclaimed or confined, according to the doctrine laid down in a former chapter (n), his qualified property, or—if dead-absolutely his own; so that to steal them, or otherwise invade his property, is, according to the nature of the case, sometimes a criminal. offence, sometimes only a civil injury.
But in this country, as in many others, the right to take animals feræ naturæ is subject to some exception and restriction. For there are certain (royal fish, as whale and sturgeon, the taking of which is made the exclusive right of the prince], and those claiming under royal grant; and within particular limits, a qualified property, and right to exclude all strangers, is vested, as to the beasts and birds of forest, chase, or warren, in the persons in whom those franchises respectively reside; and as to all manner of fish, in those who have a franchise of free fishery (0). And besides these, certain other restrictions have been imposed by the legislature, with respect to all, such animals as fall under the denomination of game.
On this latter subject, there formerly existed (as every reader is aware) a system of a severe character, under which none were permitted to take or sell game unless duly qualified ; and the ordinary qualification was the ownership of lands or tenements in possession, for an estate of inheritance of the yearly value of 1001.; or for life, or ninety-nine years or upwards, of the yearly value of 1501. (p). But a person might be also qualified as the son and heir apparent of an esquire or other person of higher degree (g), or as the gamekeeper of the lord or lady of a manor (r); or he might be qualified within a forest, park, chase, or warren, as the owner or keeper thereof (s). This restraint, as to qualification, was imposed chiefly for the preservation of the different species of animals, and for the prevention of idleness and dissipation in the lower ranks; and with the same view, and for the benefit of the revenue, it was also made necessary for sportsmen to take out a yearly game certificate, attesting the payment of a certain amount of duty. The principle of requiring a qualification, however, being considered as unequal and arbitrary in its character, and productive of greater mischief than it had any tendency to prevent, has been abandoned, it being now provided in substance by 1 & 2 Will. IV. c. 32, (repealing the Qualification Act of 22 & 23 Car. II. c. 25, and indeed almost all the other acts relating to game (t),) that the right to kill game upon any land shall be vested in the owners of such land (mere occupiers of short terms excepted), or in any person who may have their grant or permission for the purpose (u). But this statute requires all persons killing or taking game to take out a yearly certificate of the due payment of certain duties (v), and all uncertificated persons selling it, a yearly licence (w); and it contains many penal provisions intended for the better preservation of game (x), and for the protection of land from unlawful trespasses in sporting (y). It is to be remarked, that, within the meaning of this act, “game” is defined as including hares, pheasants, partridges, grouse, heath or moor game, black game and bustards (2), though some of its provisions are also directed to woodcocks, snipes, quails, landrails and coneys (a). As to hares, however, it is now provided by 11 & 12 Vict. c. 29, that any person in the actual occupation of inclosed lands, or any owner thereof who has the right of killing game thereon, may, by himself or by any one person authorized by him in writing in such form as in the act provided, take, kill and destroy any hare on such inclosed land, without paying the said duties, or obtaining the said annual game certificate (6).
(P) 22 & 23 Car. 2, c. 25; Mal. lock v. Eastly, 7 Mod. 482.
(9) 22 & 23 Car. 2, c. 25.
(r) 5 Anne, c. 14, s. 4 ; 48 Geo.3, c. 93.
(s) 22 & 23 Car. 2, c. 25.
as to night poaching, is still in force,
(u) 1 & 2 Will. 4, c. 32, ss. 7–17.
As to the pursuit of animals fere nature in the chase, (the ordinary means of acquiring them by occupancy), the following distinctions have been laid down (c). If a man starts any such animal within his own grounds, and follows it into another's, and kills it there, the property remains in himself (d); but if he starts it on another's private ground
(v) 1 & 2 Will. 4, c. 32, s. 23. As to this certificate, see also 52 Geo. 3, c. 93; 54 Geo. 3, c. 141 ; 7 & 8 Geo. 4, c. 49; 2 & 3 Vict. c. 35; Jones v. Gurdon, 2 Gale & D. 133.
(w) 1 & 2 Will. 4, c. 32, s. 25.
(2) Sects. 3, 4, 24. Among these is a provision against the destruction of the eggs of game or of swans, wild ducks, teal or widgeon, by any person not entitled to kill game on the land. See as to the prosecution for penalties under this act, R. v. Boultbee, 4 A. & E. 498; Robinson v. Vaughan, 8 Car. & P. 252.
(y) 1 & 2 Will. 4, c. 32, s. 30, et seq. ; see The Queen v. Pratt, 4 Ell. & Bl. 860.
(2) 1 & 2 Will. 4, c. 32, s. 2.
(6) This act does not authorize the destruction of hares by poison or by using firearms by night, sect. 5; nor does it empower tenants for life or years to kill game on the land where they are bound by agreement not to kill game thereon, sect. 6.
(c) See 2 Bl. Com. 419.
(d) Keble v. Hickringill, 11 Mod. 75; Sutton v. Moody, 12 Mod. 145.