468 History of the English Landed Interest. 



perpetual heritage." ^ It is doubtful, however, whether such 

 rights of sporting were at this period more definite than other 

 communal claims, such as, for example, estovers : and we must 

 come down to mediaeval times before we can arrive at any 

 reliable definition of " property in game," It is, however, 

 evident that no variety of the brute creation is, in a state 

 of nature, the property of man ; and it is a tradition of the 

 Common Law that goods, of which no one can claim pro- 

 prietorship, belong to the king by his prerogative. Conse- 

 quently all animals ferm naturcB are styled in the statute book 

 " H. M.'s game." 2 



Such ownership (which, however, has not passed un- 

 challenged) carries with it the sovereign's right to alienate, 

 and consequently establishes, at any rate since the Conquest, 

 the seignorial monopoly of sporting on the manorial lands. 

 That monopoly is further confirmed whenever a landlord 

 seizes, captures or confines a wild animal, because it is another 

 maxim of our Common Law that an animal thus subjected 

 to human restrictions becomes private property until it 

 releases itself or is released from its unnatural surroundings. 

 Consequently we find that the enclosing of deer in forest or 

 park, and of rabbits in field or warren, constitutes an act of 

 ownership over these creatures as long as they remain thus 

 confined. Whenever, therefore, a freeholder found a pheasant 

 on his property, he was entitled to let fly his hawk, and by 

 reason of the first property, which he had in it rafione soli, to 

 enter the lands of others, follow up the quarry, and appro- 

 priate it when overtaken by his falcon. Yet the fact of 

 having found it on his own ground did not give him a right 

 to pursue it on that of another, and then to fly his hawk, nor 

 did it entitle him to recover it, if killed by his hawk, in any 

 privileged place for birds such as a warren.^ 



' Growth of English Industry and Commerce. Dr. Cunningham, Pr. 

 1, p. 61, Note 2. 1890. 



« Epitome of the Game Laws, from the 24th edition of Dr. Burns' 

 Justice of the Peace. Sir G. Chetwynd, p. 546. 1824. 



■'' The old law has been adapted to the circumstances of the present 

 day; for though a sportsman may lay aside his gun and collect his 



