Forest and Stream. 



A Weekly Journal of the Rod and Gun. 



NEW YORK, AUGUST 16, 1883. 



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CONTENTS. 



Editorial. 



The Property in Game. 



Okoboji Lakes. 



The Team at Home. 

 The Spohtsmak Tourist. 



The Cruise of I he Main Gamp. 



Naturae History. 



American i n-ti-.t unionists' Union 



A New Reptile House. 

 Camp Fire Flickerisos. 



i h: ■■ . ■ . ' , . , I' ,-,'! 



Game Bad and Gen. 



The Outlook in Kentucky. 



Prairie Chicken Grounds. 



Yellowstone Park Prices. 



Open Season for Fish and Game 

 Sea and Hives Fishing. 



Small and Large-Mouth Black 

 Bass. 



A Treating Trip. 



Ha' sat the St. Clair Flats. 



Black Bass at Plymouth. 



Fishing Chilis of Pittsburgh. 



The Kennel. 



The Dogs at the New York- 

 Show. 

 Darlington Dog Show. 

 The London Bench Show. 

 Kennel Notes. 

 Rifle and Trap Shooting. 

 Range and Gallery. 

 The Trap. 



The Lug Sail. 

 Yachting. 

 Hull Y. C. 

 New York Y. C. 

 Voyage in a One-Ton Cutter, 

 The Aileen at Chicago. 

 Belleville Open Race. 

 Chicago 1 . C. International 



Schooner Match. 

 Measurement for Time Allow- 



Gone to Toronto. 

 A Vindication of the Cutters. 

 Answers to Correspondents. 



THE PROPERTY IN GAME, 

 r piIE first question which naturally suggests itself to a 

 -*• person investigating the laws pertaining to game is as 

 to the ownership of, or property in, game— that is, what 

 rights of property in game are there and to whom do they 



' For an answer we must look to the common law. Munici- 

 pal law is a rule of civil conduct prescribed by the supreme 

 power of the State, and is composed of written and unwrit- 

 ten, that is, statute and common law. Statute law consists 

 of the acts of the Legislature. In this country there are 

 written constitutions defining the powers and duties of the 

 legislative department, and an act of Legislature maybe void 

 for violating the constitution. A statute of one of the States 

 must conform to the constitution of the United States and 

 also to that of the State where it is passed, for if it infringes 

 either it is so far void. The courts determine the constitu- 

 tionality of a statute. Common law is announced by the 

 judges in decisions of cases brought before them for deter- 

 mination, and includes those principles, usages and rules of 

 actions applicable to the government and security of person 

 and property, which do not rest for their authority upon any 

 express and positive declaration of the will of the Legislature. 

 The origin of the common law is said to be custom in Eng- 

 land. By a legal fiction the common law is presumed to be 

 already known, on the principle that law is a science and 

 that a new rule is deduced from principles previously known. 

 The English statutes passed before the emigration of our an- 

 cestors and applicable to our condition form a. part of the 

 common law of the United States. While, as will subse- 

 quently appear, the Legislature has a general power to regu- 

 late the time and manner of taking game, still the property 

 rights in game, in their broadest sense, are to be determined 

 from well known common law principles. 



The design of this article is to plainly state just what the 

 common law is, not to express opinions of our own. 



ONLY A QUALIFIED PROPERTY CAN HE HAD IN LIVING GAME. 



Wild animals are termed by the law/«-<8 naUirw (of a wild 

 nature), and include wild fowl, fish and insects, Game has 

 been defined asferce natural which arc fit for food. It is 

 important to distinguish the kind or quality of, property and 

 ownership, which can be had in these animals, from that 

 which can be had in ordinary goods or merchandise. While 

 a man may hold the same absolute property in tame or 



domestic animals, doniita: natures (of a. domestic nature), as 

 in coin or an article of furniture, he can have no absolute 

 property in those of a wild nature while they are alive, 

 They are either not objects of property at all, or else of a 

 qualified, limited, special property, which is not in .its 

 nature permanent, but may sometimes subsist, and at other 

 times not subsist. The reason why the ownership of re- 

 claimed wilt] animals is qualified is because of their tendency 

 to return to their original wild disposition. If they escape 

 and return to that condition the property in them is lost, 

 unless they arc freshly pursued; whereas, if a domestic 

 animal strays away, or if a household chattt I is lost, the 

 title still remains in the owner, who can el im it wherever 

 found, because in these things he has absolute property. 

 When wild animals are dead they are also subjects of abso- 

 lute property. A qualified property in living animals fens 

 nalwras, may be acquired, for example, by reclaiming them 

 and making them tame by art, industry or education, or by 

 confining them within the owner's immediate power so that 

 they cannot escape and use their natural liberty. Aside 

 from special rights or property which may be had in game 

 it is said to be rmUivg bom*, that is, the property of no one, 

 or, what is the same thing, the common property of all. 

 These elementary principles, for which an authority need 

 hardly be cited, are laid down by Blackstone, Stephens, 

 Kent and other commentators, and are generally recognized 

 by legal decisions in England and America. 



THE KATDRAL RIGHT OF MANKIND TO TAKE GAME RE- 

 STRICTED BY LAW. 



Blackstone stated. that all mankind had, by original grant 

 of the Creator, a right to pursue and take any fowl or insect 

 of the air, any fish or inhabitant of the waters, and any 

 beast or reptile of the field; and that this natural right still 

 continues in every individual, unless where it is restrained 

 by the civil laws of the country; that, fira: natuae are, by 

 the laws of nature, the property of nobody, and liable to be 

 seized by the first occupant; that the right to take them, 

 however, may be restrained by positive laws, enacted for 

 reasons of State, or for the supposed benefit of the commu- 

 nity; that such restriction may be either with respect to the 

 place in which this right may or may not be exercised, with 

 respect to the animals that are the subject of this right, or 

 with respect to the persons allowed or forbidden to exercise 

 it; or, the commentator might have added, with respect to the 

 time during which the right might or might not be exercised, 

 Laws protecting game are not of recent origin, nor con- 

 fined to England and America. As long ago as 1205, Jenghis 

 Khan, founder of the Mogul and Tartarian Empire, prohib- 

 ited the killing of all game from March to October, so that 

 the soldiery might find plenty during their winter recess 

 from war, and our own game laws are largely restrictions 

 for specified periods of each year or entirely for a number of 

 years. 



BLACKSTONE'S THEORY THAT ALL GAME BELONGED TO 

 THE KING. 



Thus far Blackstone laid down general principles of the 

 common law which are not disputed. But we find him in 

 direct conflict with Chief Justice Christian on the important 

 primary question of the ownership of game in England. 

 Blackstone maintained that, although under the Saxons 

 every freeholder had the liberty of sporting upon his own 

 territories, provided he abstained from the King's forests, a 

 new doctrine was introduced at the Norman Conquest, by 

 which the right of taking all beasts of chase and game be- 

 longed lo the King, by virtue of his prerogative. He based 

 his opinion upon the feudal principle that the King is the 

 ultimate proprietor of all lands in his kingdom and there- 

 fore has the right to enter thereon and take such beasts and 

 fowl at his pleasure, and the doctrine of common law that 

 these animals are bena vacantia (property without an owner), 

 and, therefore, having no other owner, belong to the King hy 

 his prerogative. In accordance with this argument Black- 

 stone maintained that the sole right of taking and destroying 

 game belongs to the King and no one, by common law, is 

 entitled to take or kill beasts of chase or other game, except 

 by grant from the crown, or by prescriptive right, which is 

 the exercise of the right so long continued that a grant is 

 presumed. 



BLACKSTONE CONTROVERTED— BANE NOT THE KLNO's 

 PROPERTY, 



Professor Christian, in assailing Blackstonc's position, ar- 

 gued that it was not evident from the KiDg's right to the 

 universal soil, why he should have a better right to take 

 game than to take any other product of the soil. And even 

 if he could enter all lands iu puisuit of game, this afforded 

 no inference that the land-owner could not enjoy this 

 right concurrently with the King. He also reasoned that 



game could not be the King's property on the ground that it 

 is buna vacantia, because bona meantia belons' to the first oc- 

 cupant or fortunate finder, except in those instances particu- 

 larly specified by law, and in which they are expressly given 

 to the King. He said that "if a pearl should be found in an 

 oyster, no lawyer, I think, would say that. it. was the prop- 

 erty of the King. If all wild animals had belonged to the 

 King, it would have been superfluous to have specified 

 whales, sturgeons and swans, * * * which are the only 

 animals which our law has conferred this honor upon." 



CHRISTIAN CONTENDS THAT THE KING DOES NOT OWN THE 



GAME. 



Christian then proceeded to demonstrate that a new doctrine 

 did not arise at the Norman Conquest. Although prior to 

 the carta deforesta Kings claimed and exercised the right 

 of making forests wherever they pleased over the grounds 

 of their subjects. 



•beyond the boundaries of these privileged places neither the King 

 tior any of his grantees claimed a property in the game, for accord- 

 ing to King Canute, quilibet homo dignmi renatione sua, insylva, et 

 grh sibi propn'is, et in dominio sua, which law- Manwood declares 

 confirmed by many succeeding kings." The Norman kings made 

 great additions to the ancient Saxon forests, which additions were 

 called purlieus. '-As these were the same grievanee 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 laud- 

 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 re» 

 spent 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 clone on his own grounds, and the authorities 

 of Lord Coke and Man wood 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 filiian forestce, the border of the 

 forest, before the purlieu man's dogs fasten upon him, he then be- 

 longs 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 

 reaches the forest and he drags them into it, he belongs to the owner 

 of the purlieu, who may enter the forest and take him away. 4 

 Inst. 303. JIanw, Purlieu. 



"This is alone decisive, but there are various authorities to the 

 same effect. In the yearbook IS Hen. VIII., p. 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 gain no advantage from his own wrongful act, 

 yet i£ 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 

 ferw nature, et ntdli us bonis, and the niaxim is, copi<tt <]<>i capere 

 2>otest, i. e., catch that catch can." 



Christian further called attention to the fact that Black- 

 stone failed to cite any authority' in support of his opinion j 

 and to show that the King has no. property in game outside 

 of the King's forests, Christian refers to a case reported by 

 Keilway, 30, and copied by Manwood, 302, which was an 

 action for trespass for entering the plaintiff's close. The de- 

 fendant pleaded that the place of the alleged trespass ad- 

 joined the King's forest, and that the plaintiff was bound to 

 impale (fence) the said forest, but by reason of his failure so 

 to do, four deer escaped from the forest into the plaintiff's 

 land, and the defendant entered by command of the forester 

 to drive them back to the forest. This plea was held to be 

 not good "for although the plaintiff was in fault in not pal- 

 ing, yet. it was not lawful 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," the 

 property of the King ceasing when the animals leave his 

 ground. 



Authorities fail to show that penalties were ever inflicted 

 for killing game outside of privileged grounds, except under 

 modern game laws or the qualification acts. Lord Coke re- 

 ports, in the case of Monopolies, 11 Co. 87, that "for hunt- 

 ing, hareing, etc., which are matters of pastime, pleasure 

 and recreation, there needs no license, but every one may in 

 his own loud use them at his pleasure, without any restraint 

 to be made, unless by Parliament." Christian also refers to 

 the significant fact that in a great case brought in 1791 from 

 the courts of Scotland to the House of Lords, where the 

 question was whether the proprietor of an estate has a right, 

 to monopolize the game upon the estate and exclude all gen- 

 tlemen Irom following that amusement over his waste and 

 other grounds, not specially protected by statute, although 

 the. case was fully argued, no suggestion was made that the 

 game in Scotland belonged to the King. The appellant insisted 

 that he had a right to enter as a sportsman upon the re- 

 spondent's estate, and cited from Balfour in his Praetirs, 

 "It is liesome and permitted toallmen to chaise hare?, foxes, 

 and all other beistis, bcaiid without forrestis, warrenis, parkis 

 or wardis." But the judgment of the lords being for the 

 respondent, this permission must be confined to a man's own 

 estate. 



In treating of this subject Blackstone states that if a man 

 Starts any game within his own grounds, and follows it Into 



