amount to a civil injury, and be redreſſed by a civil action[1]. Yet to ſteal a reclaimed hawk is felony both by common law and ſtatute[2]; which ſeems to be a relic of the tyranny of our antient ſportſmen. And, among our elder anceſtors the antient Britons, another ſpecies of reclaimed animals, viz. cats, were looked upon as creatures of intrinſic value; and the killing or ſtealing one was a grievous crime, and ſubjected the offender to a fine; eſpecially if it belonged to the king's houſhold, and were the cuſtos horrei regii, for which there was a very peculiar forfeiture[3]. And thus much of qualified property in wild animals, reclaimed per induſtriam.
2. A qualified property may alſo ſubſiſt with relation to animals ferae naturae, ratione impotentiae, on account of their own inability. As when hawks, herons, or other birds build in my trees, or coneys or other creatures make their neſts or burrows in my land, and have young ones there; I have a qualified property in thoſe young ones, till ſuch time as they can fly, or run away, and then my property expires[4]: but, till then, it is in ſome caſes treſpaſs, and in others felony, for a ſtranger to take them away[5]. For here, as the owner of the land has it in his power to do what he pleaſes with them, the law therefore veſts a property in him of the young ones, in the ſame manner as it does of the old ones if reclaimed and confined: for theſe cannot through weakneſs, any more than the others through reſtraint, uſe their natural liberty and forſake him.
3. A man may, laſtly, have a qualified property in animals ferae naturae, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in excluſion of other
- ↑ Bro. Abr. tit. Treſpaſs. 407.
- ↑ 1 Hal. P. C. 512. 1 Hawk. P. C. c. 33.
- ↑ Si quis felem, horrei regii cuſtodem, occiderit vel furto abſtulerit, felis ſumma cauda ſuſpendatur, capite aream attingente, et in eam grana tritici effundantur, uſquedum ſummitas caudae tritico co-operiatur." Wotton. LL. Wall. l. 3. c. 5. §. 5. An amercement ſimilar to which, ſir Edward Coke tells us (7 Rep. 18.) there antiently was for ſtealing ſwans; only ſuſpending them by the beak, inſtead of the tail.
- ↑ Carta de foreſt. 9 Hen. III. c. 13.
- ↑ 7 Rep. 17. Lamb. Eiren. 274.
