lowed to kill or chase the king’s deer, yet he might start any game, pursue, and kill it upon his own estate. But the rigour of these new constitutions vested the sole property of all the game in England in the king alone; and no man was entitled to disturb any fowl of the air, or any beast of the field, of such kinds as were specially reserved for the royal amusement of the sovereign, without express licence from the king, by a grant of a chase of free warren; and these franchises were granted as much with a view to preserve the breed of animals, as to indulge the subject. From a similar principle to which, though the laws are now mitigated, and, by degrees, grown entirely obsolete; yet from this root has sprung a bastard slip, known by the name of game law, now arrived to, and wantoning in its highest vigour, both founded upon the same unreasonable notions og permanent property in wild creatures, and both productive of the same tyranny to the commons; but with this difference, that the forest laws established only one mighty hunter throughout the landh the game laws have raised a little Nimrod in every manor: and in one respect the ancient law was much less unreasonable than the modern, for the king’s grantee of a chase or free warren might kill game in every part of his franchise; but now, though a freeholder of less than 100l. a year is forbidden to kill a partridge upon his own estate, yet nobody else (not even the lord of the manor, unless he hath m grant of free warren,) can do it without committing a trespass, and subjecting himself an action.—4. Black. Com. c. 33.
It will not here be improper to say something as to the property which may be had in beasts and animals.
Animals have in law one general division: 1. Tame animals.— 2. Wild animals.— 1. Tame animals.—These are horses, oxen, sheep, &c. &c.: and they are considered in every point of view as part of a man’s personal property, and an action of trespass may be brought for injuries done them. So domestic fowls, as hens, chickens. peacocks, turkeys, and the like, are considered as personal property.—Rol. Abr. 5. 18. H. 8.
And so are dogs ; and a man may justify an assault in defence of his dog, Rast. Ent. 611.—And by the stat. 10 Geo. 111. c 18. s. 1. 2. if a person shall steal any dog whatsoever, or sell, buy, receive, harbour, detain, or keep any such he. shall he subject to certain pecuniary penalties.
2. Wild animals.—These are deer, hares, foxes, &c. &c.; all sorts of wild birds: and in these, by reason of their ferocious natures, and aptness to fly the immediate dominion of man, no property can be had at common law; unless, 1. where they are taken and killed; or, 2. where they are taken and tamed: and then whilst they are possessed by him, they are his absolute property; but as soon as they escape, and whilst they enjoy their natural liberty, the property ceases. And, 3. where they are inclosed; for by the inclosure a property is gained in them, so that they can be no more taken and carried away than any other profits of the land; and he hath an independent right in every animal: but in this
