the rest, are not properly qualifications, but exemptions. And these persons, so exempted from the penalties of the game statutes, are not only liable to actions of trespass by the owners of the land; but also, if they kill game within the limits of any royal franchise, they are liable to the actions of such who may have the right of chase or free warren therein. [*419] *Upon the whole it appears, that the king, by his prerogative, and such persons as have, under his authority, the royal franchises of chase, park, free warren, or free fishery, are the only persons who may acquire any property, however fugitive and transitory, in these animals ferae naturae, while living; which is said to be vested in them, as was observed in a former chapter, propter privilegium (9). And it must (9) It has been considered expedient to retain the following learned note of Mr. Christian, in opposition to the doctrine in the text. "The learned Judge has frequently, and even zealously, inculcated the position, that the common law has vested the sole property of all the game in England in the king alone, and of consequence that no man, let his rank and fortune be what they may, is qualified to kill game, or is exempt from the original penalties unless he possesses some peculiar privilege derived from the king. This doctrine, enforced by so celebrated an author, apparently the result of mature deliberation, and which has been so long acquiesced in, the Editor should have questioned with diffidence, if he had not been fully persuaded that it was unsupported by any prior authority, and that the authorities to the contrary were numerous and irresistible. till it is taken, is every where said to be nullius in bonis. But I am inclined to think that the very reverse of the maxim is true, and that bona vacanta, belong to the first occupant er fortunate finder, except in those instances particularly specified by the law, and in which they are expressly given to the king. See 1 book, 299. n. 20. "A person might have acquired by occu pancy, even in the sixteenth century, an estate in real property. See p. 258. ante. If a pearl should be found in an oyster, no lawyer I think would say, that it was the property of the king. If all wild animals had belonged to the crown, it would have been superfluous to have specified whales, sturgeons, and swans. Lord Coke tells us, that a swan is a royal fowl; and all those the property whereof is not known, de belong to the king by his prerogative: and so whales and sturgeons are royal fish, and belong to the king by his prerogative: Case of swans, 7 Co. 16. And the king may grant wild swans unmarked.' Ib. 18. But these are the only animals which our law has conferred this honour upon. "The learned Judge himself admits, that this is a novel doctrine to such as call them selves qualified sportsmen; yet he has referred to no preceding authority whatever in any part of the Commentaries; but in p. 415. he has deduced this doctrine from two general "It is true that our kings, prior to the carta principles. The first is, that the king is the de foresta, claimed and exercised the preroga. ultimate proprietor of all the lands in the king- tive of making forests wherever they pleased dom, and therefore he has the right of the uni- over the grounds of their subjects: within the versal soil, to enter thereon, and to chase and limits of these forests certain wild animals take such creatures at his pleasure. From the were preserved by severe laws, for the recrea king's right to the universal soil, it is not evi- tion of the sovereign. A district thus bounded dent why he should have a better right to take at the king's pleasure might have been grantsuch creatures than to take any other produced by the king to any of his subjects who ention of that soil. "And even if the king should have a right to enter in person all the lands in the kingdom in pursuit of game, this affords no inference that the land-owner may not enjoy this right concurrently with the king. But although no complaint can perhaps be made against the king for entering the lands of his subjects, it has been determined that this power cannot be given to his foresters and servants in a case in Keilway, which in the sequel of this note I shall have occasion to take notice of. "The other general principle relied upon by the learned Commentator is, another maxim of the common law, which he says he has frequently cited and illustrated, that these animais are bona vacantia, and, having no other owner, belong to the king by his prerogative. It has been determined, that fish, not confined as in a trunk, cannot be called bona et catalla; and so game, But joyed the exclusive privilege either of a forest, chase, park, or free warren, according to the extent of the jurisdiction and powers conferred by the royal grant; p. 38. ante. beyond the boundaries of these privileged places, neither the king nor any of his grantees claimed a property in the game: for, according to the law of king Canute, quilibet homo dignus venatione, sua in sylva, et in agris sibi propriis, et in dominio suo; which law Manwood declares was confirmed by many succeeding kings. Tit. For. pl. 3. If this were so, it cannot be correct, what the learned Commentator has advanced, that upon the Norman conquest a new doctrine took place. By the carta de feres ta all the new-made forests were disafforested and thrown open again; but besides the creation of new forests by the Norman kings, they had also made great encroachments and additions to the ancient Saxon forests; these en also be remembered, that such persons as may thus lawfully hunt, fish, or fowl, ratione privilegii, have (as has been said) only a qualified property in these animals; it not being absolute or permanent, but lasting only so long croachments were called purlieus, and as these were the same grievance to the owners of the land as the new forests, they also were disafforested, but with this distinction, that as the grievance extended only to the land-owner, he was allowed to enjoy his lands in as full a manner as he had done before the encroachment but they still continued with respect to the rest of the world under the forest-law jurisdiction. Hence it followed as a consequence, that the owner of a purlieu might hunt and kill game within the limits of the purlieu, as any other man might have done in his own grounds: and the authorities of lord Coke and Manwood concur, if deer come out of the forest into the purlieu, the purlieu-man may hunt and kill them, provided he does it fairly and without forestalling. And this distinction is made; if a stag can recover the filum foresta, the border of the forest, before the purlieu-man's dogs fasten upon him, he then belongs to the king or to the owner of the forest, and the purlieu-man must call his dogs back; but if they fasten upon him before he gains the forest, and he drags them into it, he belongs to the owner of the purlieu, who may enter the forest and carry him away. 4 Inst. 303. Manw. Purlieu. This alone is decisive, but there are various authorities to the same effect. In the year book 12 Hen. VIII. fo. 10. it is held, if a man drive a stag out of a forest and kill him, he shall gain no property in him, because he shall derive no advantage from his own wrongful act; yet if the stag comes of himself beyond the limits of the forest, then any one (if qualified) may kill and take him, for they are animals feræ naturæ, et nullius in bonis; and the maxim, as the judges declared, was, capiat qui capere potest, i. e. catch that catch can. "That the king has no property in deer or other game when they are out of a forest, was determined also in a case reported by Keilway, 30. and copied by Manwood, 202. In that case an action of trespass was brought for entering the plaintiff's close; the defendant pleaded, that the place in which the trespass was supposed to be committed was adjoining to the king's forest, and that the plaintiff was bound to impale the said forest, and that for want of paling four deer escaped out of the forest into the plaintiff's land, and that he the defendant entered by the command of the forester to drive them back to the forest. The court held that this plea was not good; 'for though the plaintiff was in fault for not paling, yet it was not law for the forester or any person to drive the deer out of the ground, or to take them; and the reason was, because the king had no property in them; and this was different from the case of tame cattle, where the property still remains in the owner though they are out of his ground, for which reason he may retake them wherever he finds them; but it is not so when the beasts are wild.' "The learned Judge frequently intimates that no person is exempt from the original penalties; but I am inclined to think that no authority whatever can be found, that any penalties were ever inflicted for killing game out of privileged grounds, except those which have been introduced by modern game laws, or the qualification acts. Lord Coke reports that the court held in the case of monopolies, 11 Co. 87. that, it is true that none can make a park, chase, or warren without the king's license, for that is quodam modo to appropriate those creatures, which are feræ naturæ et nullius in bonis, to himself, and to restrain them of their natural liberty, which he cannot do without the king's license; but for hunting, hawking, &c. which are matters of pastime, pleasure, and recreation, there needs no license, but every one may in his own land use them at his pleasure without any restraint to be made unless by parliament, as appears by the statutes of 11 Hen. VII. c. 17, 23 Eliz. c. 10, and 3 Jac. I. c. 13.' "These authorities are also recognized and confirmed in Bro. Abr. tit. Propertie, and in Hale's Commentary on F. N. B. 197. "The following may serve as a specimen of the authorities collected by Brook : quant beastes savages le roye aler hors del forrest, le property est hors del roy; and again, silz sount hors del parke capienti conceditur. "In a great case which was brought in 1791 from the courts of Scotland before the house of lords, the question was, whether by the law of Scotland the proprietor of an estate has a right to monopolize the game upon that estate, for the use of himself, and particular friends, authorized by his license, and to exclude all gentlemen, legally qualified, from following that amusement over his waste and other grounds, not specially protected by any particular statute? The printed cases of the appellant and respondent contain much curious learning upon the Scotch game laws; but no idea was suggested that the game in Scotland belonged to the king. For the appellant, who insisted that he had a right to enter as a sportsman upon the respondent's estate, the authority of president Balfour in his Practics was chiefly relied upon; viz. 'It is leisome and permitted to all men to chase hares, foxes, and all other beistis, beand without forrestis, warrenis, parkis, or wardis.' But the judgment of the lords being for the respondent, this permission of courts must be confined to a man's own estate. Livingstone, esq. appellant, v. lord Breadalbane, respondent. This is precisely the same as the law of England; for neither a lord of a manor, nor his gamekeeper, can go into any part of the manor, which is the lord's own estate or waste, without being a trespasser like any other person." See further as to the king's right and that of the subject in relation to game, fish, &c. very learnedly discussed in Mr. Schultes's Aquatic Rights, 18, &c.; and see 1 Chitty's G. L. 1 to 13. as the creatures remain within the limits of such respective franchise or liberty, and ceasing the instant they voluntarily pass out of it. It is held indeed, that if a man starts any game within his own grounds, and follows it into another's, and kills it there, the property remains in himself (e). And this is grounded on reason and natural justice (d): for the property consists in the possession; which possession commences by the finding it in his own liberty, and is continued by the immediate pursuit. And so if a stranger starts game in one man's chase or free warren, and hunts it into another liberty, the property continues in the owner of the chase or warren; this property arising from privilege (e), and not being changed by the act of a mere stranger. Or if a man starts game on another's private grounds and kills it there, the property belongs to him in whose ground it was killed, because it was also started there (f); the property arising ratione soli. Whereas, if, after being started there, it is killed in the grounds of a third person, the property belongs not to the owner of the first ground, because the property is local; nor yet to the owner of the second, because it was not started in his soil; but it vests in the person who started and killed it (g), though guilty of a trespass against both the owners (10). [*420] *III. I proceed now to a third method, whereby a title to goods and chattels may be acquired and lost, viz. by forfeiture (11); as a punishment for some crime or misdemesnor in the party forfeiting, and as a compensation for the offence and injury committed against him to whom they are forfeited. Of forfeitures, considered as the means whereby real property might be lost and acquired, we treated in a former chapter (h). It remains therefore in this place only to mention by what means, or for what offences, goods and chattels become liable to forfeiture. In the variety of penal laws with which the subject is at present encumbered, it were a tedious and impracticable task to reckon up the various forfeitures, inflicted by special statutes, for particular crimes and misdemesnors; some of which are mala in se, or offences against the divine law, either natural or revealed; but by far the greatest part are mala prohibita, or such as derive their guilt merely from their prohibition by the laws of the land: such as is the forfeiture of 40s. per month by the statute 5 Eliz. c. 4. for exercising a trade without having served seven years as an apprentice thereto (12); and the forfeiture of 101. by 9 Ann. c. 23. (13) for printing an almanack without a stamp. I shall therefore confine myself to those offences only, by which all the goods and chattels of the offender are forfeited: referring the student for such, where pecuniary mulcts of different quantities are inflicted, to their several proper heads, under which very many of them have been or will be mentioned; or else to the collections of Hawkins, and Burn, and other laborious compilers. Indeed, as most of these forfeitures belong to the crown, they may seem as if they ought to have been referred to the preceding method of acquiring personal property, namely, by prerogative. But as, in the instance of partial forfeitures, a moiety often goes to the informer, the poor, or sometimes to other persons; and as one total forfeiture, namely, that by a bankrupt who is guilty of felony by concealing his effects, [421] accrues entirely to his creditors, I have therefore made it a distinct head of transferring property. Goods and chattels then are totally forfeited (14) by conviction of high treason or misprison of treason; of petit treason; of felony in general, and particularly of felony de se, and of manslaughter; nay, even by conviction of excusable homicide (i); by outlawry for treason of felony; by conviction of petit larceny; by flight, in treason or feolny, even though the party be acquitted of the fact; by standing mute, when arraigned of felony; by drawing a weapon on a judge, or striking any one in the presence of the king's courts; by praemunire; by pretended prophecies, upon a second conviction; by owling; by the residing abroad of artifices (15); and by challenging to fight on account of money won at gaming All these offences, as will more fully appear in the fourth book of these Commentaries, induce a total forfeiture of goods and chattels. And this forfeiture commences from the time of conviction, not the time of committing the fact, as in forfeitures of real property. For chattels are, of so vague and fluctuating a nature, that to affect them by any relation back, would be attended with more inconvenience than in the case of landed estates and part, if not the whole of them, must be expended in maintaining the delinquent, between the time of committing the fact and his conviction. Yet a fraudulent conveyance of them, to defeat the interest of the crown, is made void by statute 13 Eliz. c. 5. (16). CHAPTER XXVIII. OF TITLE BY CUSTOM. A FOURTH method of acquiring property in things personal, or chattels, is by custom whereby a right vests in some particular persons, either by the local usage of some particular place, or by the almost general and universal usage of the kingdom. It were endless should I attempt to enumerate all the several kinds of special customs (1), which may entitle a man to a chattel interest in different parts of the kingdom; I shall there (i) Co. Litt. 391. 2 Inst. 316. 3 Inst. 320. (14) In New-York no conviction for any crime causes a forfeiture of goods, except upon an outlawry for treason. 2 R. S. 701, 22. (15) By the 5 Geo. IV. c. 97. all the laws relative to artificers going into foreign parts are repealed. (16) See cases, 1 Chitty's Crim. L. 730, &c. If, however, before conviction the personal property of a person about to be tried be conveyed away by deed, the grantee must distinctly prove that the transaction was bona fide, and for a sufficient valuable consideration. 1 Stark. Rep. 319. (1) These customs do not exist in the U. S. fore content myself with making some observations on three sorts of customary interests, which obtain pretty generally throughout most parts of the nation, and are therefore of more universal concern; viz. heriots, mortuaries, and heir-looms. 1. Heriots (2), which were slightly touched upon in a former chapter (a), are usually divided into two sorts, heriot-service, and heriot-custom. The former are such as are due upon a special reservation in a grant or lease of lands, and therefore amount to little more than a mere rent (¿): the latter arise upon no special reservation whatsoever, but depend merely upon immemorial usage and custom (c). Of these therefore we are here principally to speak: and they are defined to be a customary tribute of goods and chattels, payable to the lord of the fee on the decease of the owner of the land. [*423] *The first establishment, if not introduction, of compulsory heriots into England, was by the Danes and we find in the laws of king Canute (d) the several heregeates or heriots specified which were then exacted by the king on the death of divers of his subjects, according to their respective dignitaries; from the highest erole down to the most inferior thegne or landholder. These, for the most part, consisted in arms, horses, and habiliments of war; which the word itself, according to sir Henry Spelman (e), signifies (3). These were delivered up to the sovereign on the death of the vassal, who could no longer use them, to be put into other hands for the service and defence of the country. And upon the plan of this Danish establishment did William the Conqueror fashion his law of relief, as was formerly observed (ƒ); when he ascertained the precise relief to be taken of every tenant in chivalry, and, contrary to the feodal custou and the usage of his own duchy of Normandy, required arms and implements of war to be paid instead of money (g). The Danish compulsive heriots being thus transmuted into reliefs, underwent the same several vicissitudes as the feodal tenures, and in socage estates do frequently remain to this day in the shape of a double rent payable at the death of the tenant: the heriots which now continue among (a) Page 97. (b) 2 Saund. 166. (c) Co. Cop. 24. (d) c. 69. (2) As to heriot-service and custom in general, see Com. Dig. Copyhold, K. 18; Bac. Ab. Heriot; Watkins on Copyhold; 2 Saunders, index, Heriot. A heriot may be due to the lord upon alienation by his tenant, by custom. Com. Dig. tit. Copyhold, K. 18. 1 Scriven, 431. It is only payable on death of legal tenant. 1 Vern. 441. It was decided in the case of Attree v. Scutt, 6 East, Rep. 476, that if a copyhold (which upon being divided into several tenancies, entitled the lord to a heriot for each), became re-united in one, the tenant would be bound to render to the lord the sveral heriots; but this decision was overruled in the case of Garland v. Jekyll, 2 Bingh. Rep. 273. C. J. Best observing, that the authority which appeared to govern the court in the former case (Fitz. Ab. tit. Heriot, pl. 1.) ought to have no weight, because there is no such authority as that referred to by Fitzherbert, and no judges of the names given could be found to have existed at that time. His lordship further observes, "there is nothing in any book or in any modern treatise, that goes the length of shewing, that when the estates are again united, the several heriots continue to be paid." "We are to say, whether without any custom being found, it is the necessary legal consequence, that when an estate has been divided and again re-united, all the heriots are to be paid, after the re-union of the several estates, that were paid whilst it was divided, we say there is no such law, no such doctrine." 2 Bingh. Rep. 303. A custom for the homage to assess a compensation in lieu of heriot, to be paid by an incoming copyholder on surrender or alienation, is not good. If the lord set up a custom to have the best live or dead chattel as a heriot, quare if the tenant can modify that custom by pleading another, that the homage shall assess a compensation in lieu of the heriot. 1 B. & P. 282. (3) See derivation, Willes Rep. 194, 5. |