Hares and justices, by the Larceny Act.39

conies in breeding grounds.

Suggestions.

Hares and rabbits in grounds used for breeding them are specially protected in England and Ireland by the same act. 40

In the Introduction (pp. 23-25) I have offered some suggestions for a measure to consolidate and amend the game laws (if that should be desired), by declaring game as well as birds not now protected by any statute law to be the property of the occupier, and making the taking of them or their eggs an offence punishable either as a larceny or summarily, and abolishing cumulative penalties.

39 24 & 25 Vict. c. 96, ss. 12-16, Chap. XIV. In Scotland it is theft; and the 2 & 3 Will. 4, c. 68, s. 1, applies to trespasses after deer there.

40 24 & 25 Vict. c. 96, s. 17, Chap. XV.

CHAPTER II.

OF FREE WARRENS, forests, MANORS, &C.; AND
THE PRIVILEGES, &C. OF THEIR OWNERS.

Provisions of

THE following epitome will give the legal description and title to the privileged places known in England and Ireland (for in Scotland, we have seen, ante, p. 35, they are not recognized) as free warren, forest, purlieu, chase, and park, as well as the principal powers and liabilities of their owners, as well as of manors and other localities—matters which are referred to in other parts of this work, but could not conveniently be placed in the notes. The Game Act, 1 & 2 Will. 4, c. 32, s. 8, pro- 1 & 2 Will. 4, vides that it is not to prejudice the rights of any c. 32. lord or owner of any forest, chase, or warren; nor do its provisions as to trespassers apply to any person bonâ fide claiming and exercising any right or reputed right of free warren (s. 35), nor does it affect her Majesty's forest rights, &c. (s. 9), nor the titles of lords of manors to game on the wastes (s. 10), who also have powers, besides these here stated, to appoint gamekeepers, grant deputations, &c. (ss. 13-16), Chap. IV.

rens.1

A free warren is a place privileged by prescrip- Free wartion or grant of the king for the preservation of the beasts and fowl of the warren, viz., hares, roes, conies, partridges, rails, quails, woodcocks, herons, and pheasants, but not grouse. A franchise of free warren is of great antiquity, and very singular in its nature. It gives a property in the wild animals

1 See Woolrych, G. L. 25-42; Paterson, G. L. 20.

Hare and rabbit war

rens.

Forest.

3

named, and that property may be claimed in the
land of another, to the exclusion of the owner of
the lands. A grant of free warren is in general
confined to the lands in the hands of the grantee;
but it has sometimes been granted over lands in the
hands of the crown, in which case it is a warren in
gross; and although it is not parcel of a manor, it
may be appendant or appurtenant to it, and can
then exist only by prescription. The lands may
be alienated, and the free warren reserved. The
right of free warren is an incorporeal hereditament,
and therefore can only be conveyed by deed. The
owner of a free
warren, and also his gamekeeper or
warrener, is entitled to kill a dog which is used to
haunt the warren, though not at the time doing
mischief." He may also sue a trespasser for hunt-
ing in the warren, though the land is not his own,
for that is a breach or disturbance of warren, and
though no game be taken. Hares and rabbit
warrens, not being free warrens, have not any
peculiar privileges as to game or rabbits, except
those given by statute, and when the animals are
within it.8

As to her Majesty's forests, parks, or chases, see 1 & 2 Will. 4, c. 32, s. 9, Chap. IV. and note thereto of other acts; and as to trespassing there,

2 Duke of Devonshire v. Lodge, 7 B. & C. 39; 9 D. & R. 875; see ante, p. 31, Chap. I.

3 Attorney-General v. Parsons, 2 Cr. & J. 279; Morris v. Dimes, 1 Ad. & E. 667; 2 & 3 Will. 4, c. 71, s. 1; Bealey v. Shaw, 6 East, 215; Pickering v. Noyes, 4 B. & C. 639; 7 D. & R. 39; Pannell v. Mill, 3 C. B. 625; 16 L. J., C. P. 97. Bro. Abr. "Warren," 3; Dyer, 30 b., pl. 209.

5 Bird v. Higginson, 2 A. & E. 696; 6 A. & E. 824; Duke of Somerset v. Fogwell, 5 B. & C. 883.

6 Wadhurst v. Damone, Cro. Jac. 45; Wright v. Ramscot, 1 Saund. 84, n. 3; Vere v. Lord Cawdor, 11 East, 568; Protheroe v. Matthew, 5 C. & P. 581.

7 Lord Dacre v. Tebb, 2 W. Bl. 1151; Earl of Carnarvon v. Villebois, 3 M. & W. 313; Patrick v. Greenaway, Saund. 346 b.; 5 Taunt. 442.

824 & 25 Vict. c. 96, s. 17, Chap. XV.

see s. 33, Chap. VII. The privilege of forest is a
right attaching to certain lands; and most of the
forests in England with these privileges are sup-
posed to be vested in the Crown, though it is said.
a subject may hold them as grantee of the Crown,
There appear to be 69 forests in England; and
they contain beasts of the chase, and beasts and
fowls of warren, which are all privileged within the
forest. Not only are the forests privileged from
being hunted in by subjects, but it is as great an
offence to hunt the deer of the forest in the adjacent
highways, rivers, and inclosures. The beasts of
the forests are the hart, hind, hare, boar, and wolf,
and all wild beasts of venery.
One of its pecu-
liarities is that it has proper courts and officers for
punishing offences and protecting its privileges.

10

A purlieu is land adjoining a forest, and has Purlieu. many of the privileges of the forest itself, for the king's property in the beasts of the forest continues while they are in the purlieu; yet it is said that the owner of the soil may hunt as freely within the purlieu as any other owner.11

A chase is a privileged place for receipt of deer Chase. and beasts of the forest by royal grant or immemorial usage (and is usually claimed over other persons' grounds), and is of a middle nature between a forest and a park; the chief difference being that it is not inclosed, fewer recognized officers belong to it, and it has no peculiar courts or laws. The beasts of chase are, the buck, doe, fox, marten and roe; and, according to Lord Coke, all beasts of venery or hunting are beasts of chase.12

A park is an enclosed chase, extending over a Park. person's own grounds, privileged for beasts of venery,

9 Attorney-General v. Marquis of Downshire, 5 Price, 269; Manwood, P. 2, cc. 3, 4.

10 4 Inst. 330; Co. Litt. 233; Paterson, G. L. 18, 19; Woolrych, G. L. 3, 4, 86; Locke, G. L. xii.

11 Paterson, 19; Woolrych, 87; 4 Inst. 303; Locke, xxii. 12 Manwood, 49, 144, 147; Co. Litt. 233 a.; 2 Bl. Comm. 38; Locke, G. L. xxiv.

Manor.

and beasts of forests and chase, by the king's grant or prescription. Three things are necessary to a park: a grant from the crown, inclosure by pale, wall, or hedge, and beasts of park, which are buck, doe, fox, marten and roe. A park cannot be erected without the king's grant; and it is usually enjoyed over other persons' lands, the owner having the exclusive right to hunt and pursue the beasts there. One of its advantages, which also belongs to a forest and chase, is that the owner or keeper can shoot any dog chasing deer in it, which is not competent to ordinary owners of game preserves.13

Manors were formerly called baronies, as they still are lordships; and each lord or baron was empowered to hold a domestic court, called the court baron, for redressing misdemeanors and nuisances within the manor, and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor; and if the number of suitors should so fail as not to leave sufficient to make a jury or homage, i.e., two tenants at the least, the manor itself is lost. A "reputed " manor is one which has ceased to be a legal manor, by defect of tenants or suitors to the court, and exists only by reputation.14 A lord of a manor is entitled to seize by his gamekeeper, &c., dogs, nets, &c., used therein by unauthorized persons (see 1 & 2 Will. 4, c. 32, s. 13, p. 50), to apprehend night poachers (Chap. XIII.), and to demand to see the licences of trespassers on the manor (23 & 24 Vict. c. 90, s. 10, Chap. V.), but he has not as such any peculiar right to the game (except he also have a grant of free warren) superior to that of any other landowner within the manor; and he may be sued in an action at law only, as a trespasser for entering either to hunt or preserve the game on lands not in his own occupation, including lands of the copyhold

13 Paterson, 19; Locke, xxv., xxiv.; Co. Litt. 233; 2 Inst. 199.

14 Levinge, Ir. G. L. 14, 15; 2 Bla. Com. 90.