GAM E. 
206 
GAME,/". \_Av.cupiai Lat. {toxa. maps, aucvpis, i. e. 
avium captio.'\ Birds, or prey, got by fowling and hunt¬ 
ing. Froju the commencement of time, the taking of 
venifon, or game, formed one-of tlie mod: favourite pur- 
fuits of man. In the eai ly (fate of things, this mufi na¬ 
turally have been the cafe in e_very country upon the 
furface of the globe, becaufe it was one of the molt ob¬ 
vious and ready means of procuring food. In all thofe 
remote and uncultivated regions where the inhabitants 
y^et remain in a date of nature, we find tliis pradtice is 
dill in full force ; and that every wild animal is conil- 
dered as the abfolute property of the individual who 
can take it, let his lituation in rank or life be v.’hat it 
may. We might even look up to the books of the ia- 
cred fcriptures,—to the command of Jacob to his fon 
Efau,—for this priineval riglu of individuals to take ai. .1 
feize game wherever cluy can find it at large, allowing 
game to conull of, what it certainly does, both in the 
am ir nt and modern acceptation, all he-dili,/era nature, 
' hit are fir for food,”—for Inch “ are given to man, and 
J ^;. ;/' be food for /lim.” — Genfis. 
■, > ills principle of reafoning, the early judicature 
of I'iis country with refpedt to game, appears to have 
b.eeii founded. Tame animals, which fly not the domi¬ 
nion oi man, but arc domedicated and reared in his fields 
or inclofiires, are not fera nalura, but his own proper 
goods and chattels, which no man can take or drive 
away,'witiiout committing felony. Wild animals, on 
the contrary, wliich by flight or fwiftnefs of foot, avoid 
the dominion of man, and lurk and hide in uncultivated 
wades and foreds, are thofe over which, by the common 
law of the land, no individual could claim an exclufive 
light, until he had firll taken, feized, or reclaimed them, 
and had them in his pod’cllion. For as property in a 
thing means tlie power which a man hath over it for his 
own life, and the ability he liaMt of applying it to the 
fudentation of his exidence ; lo when that power ceafeth, 
his property in it ceafelh alfo; and hence if an animal 
of this kind, after feizure, efcapes again into the wild 
common of nature, and aflerts its freedom or liberty by 
its fwiftnefs and fubtilty, it remains no longer his, any 
more than a wild creature in the defert; becaufe he has 
it not within his power, nor at his difpofal. 
When Caefar invaded Britain, he obferved the hardy 
natives were fond of the chace, and found that venifon 
condituled a great portion of their food. Yet he alferts, 
Bel. Gal. lib. 6, that “ the Britons did noteat the flelliot 
hares, notwithdanding the illand abounded with them.” 
This, he adds, proceeded from a principle of religion, 
whicii, as among the Jews, prohibited the ufe of that 
animal as food. The Saxons and Danes, who after¬ 
wards I'ubjugated the country, were alike prone to the 
piirfiiits of game, withjharp-fanted dogs andcoflly hawksf 
yet it no where appears that even the commoned among 
the people were then redrained from killing the game in 
i\ ilds and foreds, and converting it to their own ufe as 
food. It feems to have been relerved forking Canute, 
about the year 1025, to be the fird generalpreferver of the 
game in England : he impofed feveral redrictions, not 
only upon the common people, but upon the nobles like- 
wil'e, forbidding them to hunt or kill the game, except 
upon their own edates ; and he inflidted various fines and 
piinidinients, which, as they were novel and unprecedent¬ 
ed, were deemed the more unjud and tyrannical. But 
it was to William furnamed the Conqueror, about the 
year 1070, upon the introdudlion of the feudal law, that 
we arc to date the commencement of the mod arbitrary 
redridtions and prohibitions refpedling the game in this 
country. From that era the fubjedt has been taken up, 
and mod ably difeufled, by fir William Blackdone, in 
his “Commentaries on the Laws of England;” and 
which for greater corredlnefs and precillon, we fliall 
liate hi the learned commentator’s own words: 
“In the Saxon times, though no man was allowed to 
kill or cliafe thedeer, yet he might diirt any gamC; 
purfue, and kill it, in the wilds, and on his own edate. 
But foon after the Norman conqued, a new dodtrine took, 
place; and the right of purfuing and taking ail beads 
of chafe or venary, and fuch other animals as were ac¬ 
counted game, was then held to belong to the king, or to 
fuch only as were authorifed under him. And this, as 
w'ell upon the principles of thefeodal law, that the king 
is the ultimate proprietor of all the lands in the king¬ 
dom, they being all held of him as the chief lord, or lord 
paramount of the fee ; and that therefore he has the right 
of the univerfal foil, to enter thereon, and to chafe and 
take fuch creatures at his pleafure : as allb upon ano¬ 
ther maxim of the common law, viz. that thefe animals 
are bona vacantia, and, having no other owner, belong lo 
the king by his prerogative. As therefore the former rca-. 
fon was held to veil in the king a right to purfue and 
take them any where ; the latter was I'uppofed to give 
the king, and inch as he fliould authorize, a foie and 
exclufive right. 
“ This righ.t, thus newly veded in the crown, was ex¬ 
erted with the utmoll rigor, at and after the time of the 
Norman edablillinientnot only in the ancient foreds, 
but in the new ones which the conqueror made, by lav¬ 
ing together vad tracls of country, depopulated for that 
purpol'c, and relerved folely for the king’s royal diver- 
lion ; in which were exercifed the mod horrid tyrannies 
and oppreflions, under colour of forejl law, for the fake 
of preferving the beads of chafe ; to kill any of which, 
witliin the limits of the fored, was as penal as the death of 
a man. And, in purfuance of the fame principle, king 
John laid a total interdict upon the winged as well as the 
fourfooted creation : “ capturam avium per totam Angliam in. 
terdixit. The cruel and infupportable hardfliips, which 
thefe fored laws created to the fubjeft, occalioned our 
ancedors to be as zealous for their reformation, as for 
the relaxation of the feodal rigors, and the other exac¬ 
tions introduced by the Norman family ; and accordingly 
we find the immunilies of Charta de Forefla as W'armly 
contended for, and extorted from the king with as much 
difficulty, as thofe of Magna Charta itfelf. By this char¬ 
ter, confirmed in parliament, many foreds were clifaffo- 
reded, or dripped of their opprellive privileges, and re¬ 
gulations were made in the regimen of fuch as remained ; 
particularly killing the king’s deer was made no longer 
a capital offence, but only puniflied by a fine, impril'on- 
ment, or abjuration of the realm. And by a variety of 
fubfequent datutes, together with a long acquielcenCe 
of the crown without exerting the fored laws, this pre¬ 
rogative is now become no longer a grievance to the 
fiibjeiil.—See the article Forest, vol, vii. p. 565. 
“ As the king referved to himlelf ihtforejis for his own 
exclufive diverfion, fo he granted out from time to time 
other traiSls of land to his fubjedls, under the names of. 
chafes or parks, or gave them licence to make fuch in their 
own grounds ; which indeed are fmaller foreds, in the 
hands of a fubjedt, but not governed by the fored laws ; 
and by the common law no perfon is at liberty to take 
or kill any bealts of chafe, but fuch as hath an ancient 
chafe or park; unlefs they be alfo beads of prey. As 
to all inferior fpecies of game, called beads and fowls of 
warren, the liberty of taking or kilUng them is another 
franchife or royalty, derived likewife from the crown, 
and called free warren-, a ivord, which fignines preler- 
vation or cudody : as the exclufive liberty of taking and 
killing fifli in a public dream or river is called ■o.jree 
fifliery-, of which however no new franchile can at pre- 
I'ent be granted, by the exprefs provifion of Magna 
Charta, c. id. See the article Fishert, vol. vii. 
p.. 406. The principal intention of granting to any one 
thel'e franchiles or liberties, was in order to protedt the 
game, by giving the grantee a foie and exclufive power 
of killing it himfelf, provided he prevented other per- 
fons. And no man, but he who has a chafe or free war¬ 
ren, by grant from the crown, or prefeription which 
fuppoi'^^ canjtidify iuuUing or fporling upon an- 
I other 
