203 
G A 
law of king' Canute, quilihel homo-dignm'venationofua infylva, 
et in agrisfihipropri/s, el in dominio fuo ; which law Manwood 
declares was confirmed by many fiicceeding kings. Tit. 
For. pi. 3. If tins w'ere fo, it cannot be correct wdiat the 
learned commentator lias advanced, that upon the Norman 
conquejl a neiu doilrine took place. By tlie carta deforejla ail 
the new-made forefts were difafforefted and thrown open 
again ; but belides the creation of new forefts by the 
Norman kings, they had alfo made great additions and 
encroachments to the ancient Saxon forefts; thefe cn- 
croacliments were called purlieus, and as thefe were the 
fame grievance to the owners of the land as the new 
forefts, they alfotvere difaftbrefted, but with this diftinc- 
tion, that as the grievance extended only to tlie land¬ 
owner, he was allowed to enjoy his lands in as full a 
manner as he had done before the encroachment; but 
they ftill continued with refpect; to the reft of the world 
under tlie foreft law jurifdiction. Hence it followed as 
a coniequence, that the owner of a purlieu might hunt 
and kill game wdthin the limits of the purlieu, as any 
otlier man might have done in his owm grounds ; and the 
authorities of lord Coke and Manwood concur, if deer 
-come out of the foreft into the purlieu, the purlieu-man 
may hunt and kill them, provided he does it fairly and 
without forejlalling. And this dillimition is made; if a 
Itag can recover x'ixc.jilumforcjlit, the border of the foreft, ■ 
before the purlieu-man's dogs faften tipon him, he then 
belongs to the king, or to the owner of the foreft, and 
the purlieu-man muft call his dogs back; but if they 
faften upon him before he gains the foreft, and he drags 
them into it, he belongs to the owner of the purlieu, 
who may enter the foreft and carry him away. 4 Injl. 
303. Manw. Purlieu, d his alone is decifive ; but there 
are various authorities to the fame eft'ect. In tlie Year- 
.book, 12 Hen. VIII. fo. 10. it is held, if a man drive a 
ftag out of a foreft and kill him, he ihall gain no pro¬ 
perty in liim, becaufe he (hall derive no advantage from 
his own wrongful aef ; yet if the ftag comes of himielf 
beyond the limits of the foreft, then any one (if qualified) 
it'.ay kill and take him, for they are animals fera naturct, 
ct nullius in bonis ; and the maxim is capiat quicapere potejl, 
i. e. catch that catch can. 
“ I'hat the king has no property in deer or other game, 
when they are out of a foreft, was determined alfo in a 
cafe reported by Keilway, 30, and copied by Manwood, 
302 . In that cafe an action of trefpafs was brought for 
entering the plaintiif’s clofe; the defendant pleaded, 
that the place in which the trefpafs was fuppofed to be 
committed was adjoining to the king’s foreff, and that 
the plaintiff was bound to impale the laid foreft, and that 
for want of paling four deer efcaped out of the foreft into 
the plaintiif’s land, and that he ilie defendant entered 
by the command of the forefter to drive them back to 
the foreft. d he court held that this plea was not good ; 
“ for though the plaintiff was in fault for not paling, yet 
“ it was not lawful for the forefter, or any perfon, to 
“ drive the deer out of the ground, or to take them; 
“ and the reafonwas, becaufe the king had no property in ihem\ 
“ and this was different from the cafe of tame cattle, 
“ where the property ftill remains in the owner though 
“ they are out of his ground, for which reafon he may 
“ retake them -wherever he finds them; but it is not fo 
“ when the beafts are wild.” 
“ The learned judge frequently intimates that no per- 
fbn is exempt from the original penalties; but I am in¬ 
clined to think that no authority whatever can be found 
that any penalties were ever infliited for killing game 
cut of privileged grounds, except thole which have been 
introduced by modern game lav.-s, or the qualification 
aits. Lord Coke reports that the court held in the cafe 
of monopolies, ii Co. 87, that “ it is true that none can 
make a park, chaie, or warren, without the king’s 
“ licence, for that is quodam modo to appropriate thofe 
■“ creatures, wliich are ferx natures et nullius in bonist to 
IM E. 
“ himfelf, and to reftrain them of their natural liberty, 
“ which he cannot do without the king’s licence; but 
“ for hunting, hawking, &c. which are matters of paf- 
“ time, pleafurc, and recreation, there needs no licence, 
“ but every one may in his ow-n land ufe them at his 
‘ ‘ pleafurf^ without any refraint to be made unlefs by parliament, 
“ as appears by rhe (tatutes of ii Hen. VII. c. 17. 23 
“ Eliz. c. 10. and 3 Jac. I. c. 13.” Thefe authorities 
are alfo recognized and confirmed in Bro. Abr. tit. Proper- 
tic, and in Hales’s Commentary to F. N. B. 197. And 
the following may ferveas.a fpecimenof the authorities 
collected by Brooke : quant beafes favages le rove aler hors 
d: Iforref, le property ef hors del roy ; and again,jf/2' fount hors 
del parke capient conceditur. 
“ In a great cafe whicli w-as brought in 1791 from the 
courts of Scotland before the houfe of lords, the queltion 
was, whether by the law of Scotland the proprietor of 
an eftate has a right to monopolize the game upon that 
eftate, for the ufe of himfelf and particular friends, au¬ 
thorized by his licence, and to exclude all gentlemen, 
legally qualified, from following- that amufement over 
his wafte and other grounds, not fpecially protected by 
any particular ftatute ? The printed cafes of the appel¬ 
lant and refpondent contain much curious learning upon 
the Scotcli game-laws : but no idea was fuggefted that 
the game in Scotland belonged to the king. For the 
appellant, who infifted that he had a right to enter as a 
fportfman upon the refpondent’s eftate, the authority of 
pirefident Balfour in his PraCtics, w-as chiefly relied 
upon; viz. “it is leifome and permitted to all men to 
“ chafe hares, foxes, and all other beiftis, beand with- 
“ out foreftis, warreni.s, parkis, or wardis.” But the 
judgment of the lords being for the refpondent, this 
permifiion of courfe muft be confined to a man’s own 
eftate. Livingstone, appellant, v. Lord Breadalbane, refpon¬ 
dent.'’ 
To thefe remarks w-e might add, that the learned com- 
mentator appears to have overlooked entirely the rights 
of allodial eftates in England, and to have confined his 
obfervations chiefly to the feodal tenure eftablifhed bv 
the conqueror, and to the right of the king as lord paramount 
of the fee. But over allodial property, and the ancient ec- 
clefialtical tenures, where thereis nofee, this claim could not 
exift; and therefore, uponthofe lands, nofuperiorlord, or 
owner of free warren, or purlieu, have claimed to exer- 
cife the right of purfuing or killing the game ; nor can 
it be done without incurring the penalties of the law in 
an atfion of trefpafs. Allodial eftates are thofe pure 
freeholds, w hich during the feodal government, were 
holden by the poflclfors, without being fubjefted to mi¬ 
litary fervice, fine, or fee; and, according to Dr. Stuart, 
in his “View of Society,” 4to. edit. p. 211, “allodial 
proprietors, to avoid military fervice or fee, deviled the 
fraud of alligning their lands to the church, and of hold¬ 
ing them under its exemptions and immunities. Thofe 
who held polfellions purely allodial, could only be called 
out in foreign wars; and as they held of no fuperior, or 
lord of a manor, fo they had no part in the feodal affo- 
ciations, were lubjeft to no homage, nor liable to any 
fuit or fervice at the manerial courts.” Overfuch land, 
therefore, no perfon can claim to purfue the game, but 
by licence of the owner. 
Of what constitutes GAME in ENGLAND. 
The animals which conftitute game, in England, or 
fuch at leaft as are under the protection of xht gmne-laws, 
are as follow : viz. the four-footed, include red or fal¬ 
low deer, hares, and conies: the winged are, fwans, 
partridges, pheafants, pigeons, wild-ducks, wild-geefe, 
and other, water-fowl, groufe (commonly called red- 
game), moor-birds or heath-fowl (commonly called black 
game), buftards, and herons. Fi(h, in ponds, and in pri¬ 
vate or manerial fiiheries, are alfo protected by the game- 
laws, as bath been already noticed under the article 
Fishery, 
