In the progress of time, as husbandry advanced, wild animals were to a considerable extent driven out of lands which belonged to private persons and were under cultivation, into waste lands and woods. These for the most part not being held by any person, were deemed to belong to the crown, and thus royal forests existed in Saxon times. The practice of the first Norman kings of creating immense forests extending over the lands of private persons, was a novelty in England, and as is well known, was one of the greatest grievances which the English people suffered as a result of the conquest. The claim was made by William and his successors to the sole right of hunting throughout the realm (i), and they introduced for the purpose of protecting their forests the cruel laws called forest laws, under which the most barbarous punishments were inflicted for transgressing against the rights so claimed (k). The cruel and insupportable hardships which these forest laws created to the subject, occasioned our ancestors to be as zealous for their reformation, as for the relaxation of the feudal rigours, and *the other exactions introduced by the Norman family; and accordingly we find the immunities of carta de [* 103] forestá as warmly contended for, and extorted from the king with as much difficulty, as those of magna carta itself. By this charter, confirmed in parliament (7), all the lands that had been afforested by Henry II., Richard I., and John, except the proper demesnes of the crown, were disafforested and freed from the forest laws, so far as extended to the owners. They remained however subject to that law with respect to the rest of the world, and acquired the name of purlieus (m). Many regulations were also made by the same statute in reference to those royal forests which were allowed to remain, greatly mitigating the rigour of the forest law, particularly (n) killing the king's deer was made no longer a capital offence, but only punished by a fine, imprisonment, or abjuration of the realm. And by a variety of subsequent statutes, together with the long acquiescence of the crown without exerting these laws, this prerogative is now become no longer a grievance to the subject. They may be considered as never having taken root so as to constitute part of the law of the land, and to have fallen together with the arbitrary and tyrannous power which first introduced and alone supported them.

It is worthy of remark that the same king who in later times attempted to establish the absolute irresponsibility of monarchy, also endeavoured to restore the jurisdiction of courts of Eyre to their former authority. Courts were held by the chief justice of Eyre under the direction of Charles I., with a view of re-establishing the forestal rights of the crown, but the temper of those times. was not calculated to permit such a proceeding, and it was abandoned (o).

*Although, according to the better opinion, it may be held that by law a man might always kill game on his own land, yet it is without [104] question that it was an established principle of law that animals feræ naturæ while living could not be the property of a private individual, and consequently they were considered to be, if not the property of the crown, still under the

(2) Omnem ferarum venationem totius Angliæ sibi peculiarem vindicavit, et vix pau. cis nobilioribus ac familiaribus privilegium in propriis saltibus venandi permisit." Ordericus Vitalus, speaking of Henry I. Rex Anglorum Johannes ad natale Domini fuit apud Bristolum et ibi capturam avium per totam Angliam interdixit. Matt. Paris.

(k) See 2 Hallam, Mid. Ages, 426; 1 Reeve's Hist. of English Law, 201.

(1) 9 Hen. 3.; 25 Ed. 1, c. 1; 28 Ed. 1, c. 1. (m) 4 Inst. 303, 304; Com. Dig. Chase, 1; Manw. Purlieu.

(n) C. 10.

(0) See 16 Chas. 1, c. 16; 2 Hall. Const. Hist. 13.

special protection of the royal authority (p). So that a private person might not take measures to appropriate them and restrain them of their natural liberty, in order to increase the enjoyment which he might derive from the chase (y).

The theory we have mentioned, when taken in connection with the much larger claims to the exclusive right of sporting set up by the Norman kings (who often were well able to make men, outwardly at all events, respect their pretensions), seems sufficient to account for the practice which certainly has existed of granting the franchises of forest, chase, park, and warren. It is unquestionable that they have been granted from the time of the conquest, and the form which these grants assumed, as might be expected, seems to proceed upon the idea that without such a grant the rights of a subject to sporting would be of small value (r).

forest.

The franchise of a forest, then, is a grant of the *assumed royal [*105] right to devote a certain territory to the keeping of wild beasts and Franchise of a fowls of forest, with the liberty of freely hunting and killing them, together with the right of protecting it by the aid of the forest law. There have been several cases where forests have been thus granted to lords (s). But commonly, when royal forests have been granted to subjects, the grant has not included the jurisdiction of forest law, in which case the forest in no respect differs from a chase, and trespassers must be proceeded against at common law (t). Beasts of forest are specially hart, hind, boar, wolf, and hare, but all beasts of venery are equally protected, since the right of forest has always included those of a chase, a park, and free warren.

Chase.

A chase is a franchise of keeping certain kinds of wild animals within a particular district, with the exclusive right of hunting them; it is therefore similar to a forest in all respects, except that there are no laws peculiar to it. Beasts of chase are buck, doe, fox, martin, and roe; the property of these is in the owner of the chase. A chase when belonging to a subject, must have been created by royal grant. But except in the early times of the Norman kings, a chase could not be created even by the sovereign over lands of a subject (u).

A park is an inclosed chase extending only over the grounds of the owner of the park. It differs from a chase in this respect, that a man cannot have a park over another man's grounds. It must also be [* 106] inclosed by *palings, wall or hedge (2) and it must also

Park.

(p) Bract. lib. 2, c. 24, says, Habet enim (rex) de jure gentium in manu suá quæ de jure naturali deberunt esse communia, sicut feras bestias et aves non domesticas.

(q) Case of Monopolies, 11 Rep. 87. (r) In the charter of foundation of Battle Abbey are the following words: "Warrennam proprian in ipsá leugá habeat ecclesia; et in omnibus maneriis suis." The following is the common form of a grant of warren. "Quod ipse et hæredes sui imperpetuum habeant liberam warrennam in omnibus dominicis terris de N. in Com. E. dum tamen terra illæ non sint infra metas foresta nostra, ita quod nullus intret terras illas ad fugandum in eis, vel aliquid capiendum quod ad warrennam pertinet sine licentia et voluntate ipsius E. vel

hæredum suorum sub forisfactura decem librorum." Cruise, Tit. xxvii. pl. 20.

(8) Case of Leicester Forest, 12 Rep. 22; Cro. Jac. 155; Manw. pl. 77, 88.

(t) Manw. pl. 67; 4 Inst. 314. As to the rights of owners of land within the limits of a forest, see 4 Inst. 297, 298. Case of Leices ter Forest, 12 Rep. 22; s. c. Cro. Jac. 155; and as to the present incorporeal right which the crown has in a forest, A.-G. v. Hallett, 1 Exch. 211; 5 Dowl. & L. P. C. 87.

(u) 4 Inst. 301; and see 31 Hen. 8, c. 5, an act passed for the purpose of making a chase about the palace at Hampton Court in which the rights of landowners were fully recognised and provided for.

(a) The primary signification of the word "park" is an inclosure.

contain beasts of park, such as buck, doe, &c., which must be in a wild state unreclaimed (y).

To constitute a park, therefore, there are three requisites, a grant from the crown, inclosure, and beasts of park, and if any of these be wanting, it is no park. By the statute Westminster 1, c. 20, severe punishments were inflicted upon trespassers in parks, but in other respects they are subject only to the common law.

A free warren is a franchise to have and keep certain wild beasts and fowls within the limits of a specified district, commonly those of a manor (z). The owner of a free warren has an exclusive power of killing game, so

Warren.

far as his warren extends, and also of preserving the game by the medium of gamekeepers or warreners, who are justified in destroying any dogs or other animals which injure the game (a). It does not seem that the crown ever claimed the right of granting free warren to a man over the lands of another (b), but merely the right over his own lands. A man might have a free warren over the lands of another; if, for instance, a lord of a manor had free warren over the whole lands of the manor before there were any freeholders, on the creation of their estates he might retain the warren (c), or on a common conveyance of land a man might reserve the free warren (d).

The beasts of warren are hares and rabbits, the fowls are pheasants and partridges (e). The word warren now, *since the real or seeming

privileges conferred by a free warren have ceased to be of value, is [*107] commonly used merely to denote grounds set apart for breeding hares and rabbits.*

The franchise was doubtless invented to favour the idea of a royal protection to game, and also in order to facilitate the preservation of game, which effect it certainly produced; it seems not uncommonly to have been thought that without the grant of a free warren a person could not by common law justify sporting, even on his own land (f).

Free fishery.

A free fishery or exclusive right of fishing in a public, i. e. a navigable (g) river, or an arm of the sea (h), is also a royal franchise, which is, like other franchises when vested in a private person, held under a grant from the crown either express, or, when prescribed for, presumed. The claim of royalty to this right seems to have been admitted in all countries where the feudal polity has prevailed (i), and was probably introduced into England by the Normans. The making grants of this right was prohibited for the future by king John's Magna Charta, and the rivers that had been fenced in his time were directed to be laid open, as well as the forests to be

(y) See Ford v. Tynte, 2 J. & H. 150, following Morgan v. Abergavenny, 8 C. B. 768. (2) Spelman, Gloss. voc. Warrenna, thinks that warrens were entirely new in England at the time of the Norman conquest.

(a) Keil. 149 b (temp. Edw. 3); Wadhurst v. Dunne, Cro. Jac. 45; and see 21 Edw. 1, st. 2. De Malefactoribus in Parcis; Smith v. Kemp, Salk. 637.

(b) Year Book, 34 Hen. 6, p. 28.

(c) R. v. Talbot, Cro. Car. 311; Fowler v. Seagrave, Bulst. 254.

(d) Bro. Ab. tit. "Warren," 3; Dyer. 30 b, pl. 209.

(e) Manw. For. pl. 20, Warren. Duke of Devonshire v. Lodge, 7 B. & Cr. 36, where it was decided that grouse were not fowls of warren.

66

(f) Smith v. Kemp, Salk. 637, where the rights of free warren and free fishery were discussed. Free warren being defined as a liberty to hunt in one's own or another's ground, exclusive of all others."

(g) Carter v. Murcott, 4 Burr. 2162.
(h) 4 T. R. 439; 1 Camp. 312.

(i) See Seld. Mar. Claus. i. 24; Dufresne, v. 503; Crag. de Jur. feod. ii. 8, 15.

* See Earl Beauchamp v. Wynn, L. R. Ch. 562.

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disafforested (k). This opening was extended by the second (1) and third (m) charters of Henry III. to all rivers that were not in defence in the time of Henry II., and the defence of these was limited to the extent that existed in his time; so that a franchise of free fishery must be at least as old as the reign of Henry II. (n). It is to be observed that a navigable river *is a public [*108] highway, and this is the primary character which it bears, consequently the right of the crown and of those claiming under the crown is subject to the public right of passage (0), and so also the general right of fishing in a public river common to all subjects of the realm, must therefore be exercised only in such manner as will not prejudice the right of passage when the latter right is used in a reasonable manner (p).

The franchise of free fishery seems to be such as we have described but the word free fishery has not been confined to fishing in public waters: and much discussion has taken place concerning it. It is certain that the rights and distinctions of free fishery, several fishery, and common of piscary, have been much confounded in our law books. C. J. Holt distinguished them by saying that he that had a several fishery must also be (or at least derive his right from) the owner of the soil, which was not requisite with a free fishery (q), and next that the owner of a free fishery has an exclusive right even against the owner of a soil, which was not the case with common of piscary (r). If in the learned judge's distinction between a free and a several fishery, he intends that a several fishery must have been created by grant express or presumed from the owner of the soil, this is probably correct. It is *now clear that a [*109] several fishery may be claimed by one over the soil of another, by grant or prescription (s), and it seems that trespass may be brought against any person infringing the right (t), although the old writs in cases of trespass against a several piscary seemed to state the several piscary in the owner's soil (u).

We may add that there are cases in which the opinion has been expressed that a free fishery is not necessarily exclusive (x), and that expression has been

(k) Cap. 47, edit. Oxon. (7) Cap. 20.

(m) 9 Hen. 3, c. 16.

(n) See Williams v. Wilcox, 8 A. & E. 314. (0) Mayor of Colchester v. Brooke, 7 Q. B. 339.

(p) See Mayor of Colchester v. Brooke, 7 Q. B. 339; Young v. Hichens, 6 Q. B. 606.

(9) Citing M. 17 Edw. 4, 16; P. 18 Edw. 4, 4: T. 10 Hen. 7, 24, 26; Smith v. Kemp, Salk. 637, in which last case C.-J. Holt distinguishes three sorts of fisheries-1. Separalis piscaria, where he who had the fishery was owner of the soil; 2. Libera piscaria, which gave the property in the fish to the grantee; 3. Communis piscaria; and he disallowed the dictum of Lord Coke, 1 Inst. 122, " that man may prescribe to have separalem piscariam in such a water, and the owner of the soil shall not fish there; but if he claim to have communem piscariam or liberam piscariam, the owner of the soil shall fish there." See Seymour v. Lord Courtenay, 5 Burr. 2814, where the court declined to give an opinion on the point.

(r) See Hargrave's note to Co. Litt. 122 a, where this opinion is discussed.

(8) Bract. fo. 208 b; Co. Litt. 4 d, where it is said that if a man seised of a river separalem piscariam, the soil shall not pass, although it may be presumed in the case of a lost grant of a piscary that it included the land. See Duke of Somerset v. Fogwell, 5 B. & C. 875; and Holford v. Bailey, 13 Q. B. 426, where the declaration stated the plaintiff's claim to be the "sole and exclusive fishery over the soil of P. F. This beng proved by the verdict, it was held that these words were equivalent to "several fishery," and denoted the incorporeal right commonly so called.

(t) Holford v. Bailey, 13 Q. B. 426, where the declaration was thought to be in trespass, and

not in case.

(u) See Hargrave's note to Co. Litt. 122.

(x) Co. Litt. 122 m. Ante, note (q); and see the cases cited in Smith v. Kemp, Salk. 637; and in addition the following, where these questions have been discussed: Upton v. Dawkins, 3 Mod. 97; Peake v. Tucker, cited in Carth. 286; Child v. Greenhill, Cro. Car. 554; Pollexfen v. Crispin, 1 Vent. 122; Gipps v. Woollicot, Skinn. 677.

extended to all streams, private as well as public (y). A certain amount of obscurity therefore, notwithstanding the explanation which has been given by the judges, remains as to the true use and meaning of these expressions.

Certain fisheries, however, have been deemed of sufficient importance to deserve the attention of the legislature, for the regulation of the mode in which they should be carried on, and the right which particular individuals may enjoy concerning them. The law relating to these, therefore, must be sought in the statute book.

*Salmon fishing is one of these. As early as the time of Edward I. an act was passed imposing a penalty for taking salmon at certain [*110] times in the year (2), and various acts have been passed from Salmon fisheries. time to time down to the present day. The whole law is now comprised in two very recent acts (a).

In recent times, herring fisheries have received similar attention (b), and Herring and lastly, oyster and mussel fisheries have been dealt with by the other fisheries. like supreme power (c).

Franchises of

The various franchises of holding courts which we have above enumerated have so far gone into disuse, and those few which remain have been so far remodelled and regulated by modern legislation (d), that it would holding courts. be scarcely profitable to discuss them at length here. In ancient times it was different; before institution of justices of assize (e), few persons in the country could, by reason of the expense and delay attending the proceeding, resort to the King's Court at Westminster (f).

The right to exercise the judicial function was one *accompanied [*111] by considerable dignity and influence, and was consequently highly prized: the inconvenience attending the dependence of right upon local customs and rules, soon made the advantages of a uniform tribunal throughout the country apparent. This charge was also much promoted by the intellectual acuteness which distinguished Norman lawyers, leading them to the development of a system of law upon principles not unscientific, though not always tending to secure the freedom of the subject.

The franchise of holding a fair or market is one which is frequently annexed by grant from the crown to a manor: although it may be held by others

Franchise of fairs and markets.

than lords of manors. The value to the grantee consists in the tolls, which he is usually (g) entitled to demand. There are several restrictions upon the validity of such grants; thus it

(y) Fitz. N. Brev. 88, 9; Fitz. Abr. Ass. 422; 4 Edw. 4, 28; 17 Edw. 4, 6 b, 7 a ; 7 Hen. 7, 13 b; Child v. Greenhill, Cro. Car. 554; Pollexfen v. Crispin, 1 Vent. 122; Upton v. Dawkins, 3 Mod. 97.

(z) 13 Edw. 1, st. 1, c. 47.

(a) The Salmon Fisheries Acts, 1861 and 1865; 24 & 25 Vict. c. 109; and 28 & 29 Vict. c. 121. S. 5 of the latter act gives power to one of her Majesty's Secretaries of State to determine from time to time what rivers and parts of rivers shall be subject to the acts. As to Scotland, see The Salmon Fisheries (Scotland) Act, 1862; 25 & 26 Vict. c. 97.

(b) See 23 & 24 Vict. c. 92; 24 & 25 Vict. c. 72; 28 Vict. c. 22; 30 & 31 Vict. c. 52.

(c) See The Oyster and Mussel Fisheries Act, 1866 (29 & 30 Vict. c. 85), which provides for the establisment of beds, with the exclu

sive right of fishing thereon; and The Oyster Preservation Act, 1867 (30 & 31 Vict. c. 18), which relates to private oyster beds. Under these acts the oysters, &c., while still lying on their beds, are to be deemed to be in the possession of the owners of the beds, and when removed there from by any person, become the property of the owners of the beds.

(d) See Hellaroell v. Eastwood, 6 Exch. 295. (e) Which took place in the reign of Henry II. See Madox, History of the Exchequer, c. iii.; Lord Lyttelton's Hist. of Henry II. vol. ii. p. 206; Hallam's Hist. Mid. Ages, vol. iii. chap. 8, part 2.

(f) Omnis causa terminetur comitatu, vel hundredo, vel halimoto socam habentium. Leges Hen. 1, c. 9.

(g) 2 Inst. 19. Heddy v. Waterhouse, Cro. Eliz. 558.