207 
. G A 
otker man's foil 5 nor indeed, in tlioroiigh liriftnefs of 
common law, either hunting or Jporting at all. 
“However novel thisdoilrinemay feem to fiichascall 
themfelves qualified fportfmen, it is a regular confequen.ee 
from what has been before delivered ; that the Idle right 
of taking and deftroying game belongs exckifiv.idy to the 
king. This appears, as well from the hillorical deduc¬ 
tion here made, as betaufe he may grant to his fubjects 
an exclufive right of taking them ; wh.icli he could not 
' do, unlefs fuch a right was firfi: inherent in himfelf. 
And hence it will follow, that no perl'on whatever, but 
he who has fuch derivative right frojii the crown, is by 
common law entitled to take dr kill any beads of chafe, 
or other game whatfoever. It is true, that, by the ac- 
quiefcence of the crown, the frequent grants of free 
warren in ancient times, and the introdudtion of new pe¬ 
nalties of late by certain ftatutes for preferving tlie 
game, this exclufive prerogative of the king is little 
known or confidered ; every man, that is exempted from 
thefe modern penalties, looking upon himfelf as at li¬ 
berty to do what lie pleafes with the game : whereas tlie 
contrary is ltri6i;ly true, that no man, however well qua¬ 
lified he may vailgarly be efteemed, has a right to en¬ 
croach on tlie royal prerogative by the killing of game, 
unlefs he can fhew a particular grant of free warren ; or 
a prefeription, which prefumes a grant; or fome autlio- 
rity under an aft of parliament. As for the latter, (fays 
fir William Blackftone,) I recolleft but two indanies 
wherein an exprefs permiffion to kill game was ever 
given by datute; the one by i Jac. I. cap. 27. altered 
by 7 Jac. I. cap. ii. and virtually repealed by 22 & 23 
Car. II. c. 25. which gave authority, fo long as they 
remained in force, to the owners of free warren, to lords 
of manors, and to all freeholders having 40I. per" annum 
in lands of inheritance, or Sol. for life or lives, or 400I. 
perldnal edate, (and their fervants,) to take partridges 
and pheafants upon their own, or their mader’s, free 
warren, inheritance, or freehold : tlie other by 5 Ann. 
c. 14. which empowers lords and ladies of manors to ap¬ 
point gamekeepers to kill game for the ufe of fuch lord 
or lady ; which with lome alteration dill fubfids, and 
plainly fuppofes fuch power not to have been in them 
before. The truth of the matter is, that thefe game 
laws do indeed qualify nobody, except in the indance of 
a gamekeeper, to kill game : but only, to fave tlie trou¬ 
ble and formal procefs of an affion by the perfon in¬ 
jured, who perhaps too might remit the offence, thefe 
datutes inflitt additional penalties, to be recovered either 
in a regular or fummary way, by any of the king’s fub¬ 
jects, from certain perfons of inferior rank who may be 
found od'ending in this particular. But it does not fol¬ 
low that perfons, exculiid from thefe additional penal¬ 
ties, are xhertforo. authorifedio kill game. The circum- 
dance of having lool. per annum, and the red, are not 
properly qualifications, but exemptions. And thefe per- 
fons, fo exempted from the penalties of the game da¬ 
tutes, are not only liable to actions of trefpafs by the 
owners of tlie land; but alfo, if they kill game within 
thd limits of any royal franchife, they are liable to the 
actions of fucli who may have the right of chafe or free 
warren therein. 
“Upon the whole it appears, that the king, by his pre¬ 
rogative, and fuch perfons as have, under his authority, 
the royal franchifes of chafe, park, free warren, or free 
fiilliery, are the only perfons who may acquire any pro¬ 
perty, however fugitive and tranfuory, in tiiefe animals 
fera natura, while living; which is fal'd to be veded in 
them, propter privikgium. And.it mud alfo be remem¬ 
bered, that Inch perfons as may thus lawfully hunt, ddi, 
or iov/1, ratione privilegii, have only a qualified property 
in tliele annuals: it not being abfolute or permanent, 
but lading only fo long as the creatures remain within 
the limits of fucli relpective franchife or liberty', and 
ceafing the indant they voiuntanly pafs out of it.” 
Thus lar we have dated the authority of lir William 
M E. 
Blackdone. But E. Chridian, efq. profelTor of tlie 
laws of England in tlie iiniverfity of Cambridge, in his 
“ Notes on the Commentaries,” has with great judgment 
and candour pointed out the infulTiciency offeveral parts 
of that authority. He obferves, that “tlie learned judge 
has frequently, and even zealoufly, inculcated the po- 
fition, that tlie common law has vejled the foie property of all 
the game in England in the king alone-, and of confequence 
that no man, let his rank and fortune be what they may, 
is qualified to kill game, or is exempt from the original 
penalties, unlefs he podeifes fome peculiar privilege de¬ 
rived front the king. This dodtrine, enforced by fo cele¬ 
brated an author, apparently tiie refult of mature deli¬ 
beration, and which has been fo long acqniefced in, he 
(Mr. Chriltian) would have quedioned ivith diffidence, 
if lie had not been fully perfuaded that it was unfup- 
ported by any prior authority, and that tlie authorities 
to the contrary w^ere numerous and irrefidilde. 
“ Tlie learned judge himfelf admits, that tliis is a novel 
dodtrine to fuch as call themfelves qualified I'portfmen ; 
yet he has referred to no preceding authority whatever in 
any part of the Commenttiries; but in p. 415. vol. ii. he 
has deduced this doctrine from two general principles,viz. 
that the king is the ultimate proprietor 0/' A L L the lands in the 
kingdom, and therefore he has the right of the univerjdl foil to 
enter thereon, and to chafe and take fuch creatures at his pleafure. 
From the king’s right to the univerfal I'oil, it is not evi¬ 
dent why he diould have a better riglit to take fuch crea¬ 
tures, than to take any other produdtion of tliat foil. 
And even, if tlie king’s majedy ffiould liave a right to 
enter-all the lands of the kingdom in purfuit of game, 
tliis affords no inference that the land-owner may not en¬ 
joy this right concurrently with the king. But although 
no complaint can perhaps be made againd the king for 
entering the lands of his fubjedls, it has been determined 
that this power cannot be given to his foreders and fer¬ 
vants. 
“ The other general principle relied upon by tlie learned 
commentator is, another maxim of the common law, which he 
fays he has frequently cited and illujirated, that thefe animals are 
bona vacantia, and having no other owner, belong to the king by 
his prerogative. It has been determined, that fiffi, if not 
confined as in a trunk, cannot be called bona et catalla ; 
and fo game, till it is taken, - is every where faid to be 
nidlius in bonis. But I am inclined to think that the very 
reverfe of the maxim is true, and that bona vacantia be¬ 
long to the JirJl occupant or finder, except in thofe in¬ 
dances particularly fpecified by the law, and in which 
they are exprefsly given to the king. A perfon might 
have acquired-by occupancy, even in the lad century, an 
edate in real property. If a pearl fliould be found in an 
oyder, no lawyer would fay, that it was the property of 
the king. If all wild animals had belonged to the crown, 
it -would have been fuperfl nous to liave fpecified whales, 
durgeons, and fwans. Lord Coke tells us, that “ a 
“ fwan is a royal fowl; and all thofe the property 
“ whereof « not known, do belong to the king by his pre- 
“ rogative : and fo whales and durgeons are royal fiih, 
“ and belong to the king by his prerogative.” Cafe of 
fwans, 7 Co. 16. And the king may grant wild fwans 
unmarked, ib. 18. But thefe are the only animals -vvhicli 
our lav/ has conferred this honour upon. 
“ It is true that our kings, prior to tiie carta deforejla, 
claimed and exercifed the prerogative of making foreds 
wherever they pleafed over the grounds of their fub¬ 
jects within the limits of thefe foreds certain wild ani¬ 
mals were preferved, by fevere laws, for the recreation 
of the fovereign. A didriCt thus bounded at thC king’s 
pleafure, miglat have been granted by the king to any of 
his fiibjeC'ts, who enjoyed tlie exclufive privilege either 
of a fored, chafe, park, or free warren, according to the 
extent of the jurildiction and powers conferred by the 
royal grant; but beyond the boundaries of thefe privi. 
leged places neither the king, nor any of his grantees, 
claimed a property in the giime; for, according to the 
