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in my opinion, would not be debarred from bringing an action at law, or from making an application

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to the Court of King's Bench for a mandamus, to order him to hear and try the merits of the information; which the magistrate would then readily obey.

The conclusion of this examination is, that no animals are now to be considered as falling under the denomination of Game, except only hares, pheasants, partridges, and grouse.

The remainder of this treatise shall therefore be confined to the investigation of the laws respecting these animals; except as far as I may be induced to introduce the laws upon other animals, in order to elucidate or corroborate the propositions which I may advance concerning hares, pheasants, partridges, and grouse. By this latter word are intended both Red Game and Black Game.

CHAP. II.

GAME DOES NOT BELONG TO THE KING.

SIR WILLIAM BLACKSTONE has frequently repeated, that all Game belongs to the King; and that no subject is qualified to kill it, unless he or his ancestors have had a special grant from the Crown.

A short time only after I had begun the study of the Law, I chanced to find an authority directly contrary to this doctrine: this led me to investigate the subject; and several years ago, I ventured to insert the following note in the Second Volume, p. 419, of my edition of the Commentaries.

"The learned judge has frequently, and even zealously, inculcated the position, that the Common Law has vested the sole property of all the Game in England in the King alone; and of consequence, that no man, let his rank and fortune be what they may, is qualified to kill Game, or is exempt from the original penalties, unless he possesses some

peculiar

peculiar privilege derived from the King. This doctrine, enforced by so celebrated an author, apparently the result of mature deliberation, and which has been so long acquiesced in, the Editor should have questioned with diffidence, if he had not been fully persuaded that it was unsupported by any prior authority, and that the authorities to the contrary were numerous and irresistible.

"The learned judge himself admits, that this is a novel doctrine to such as call themselves qualified sportsmen; yet he has referred to no preceding authority whatever in any part of the Commentaries ; but in Vol. II. p. 415, he has deduced this doctrine from two general principles; viz. that the King is the ultimate proprietor of all the lands in, the kingdom, and therefore he has the right of the universal soil to enter thereon, and to chase and take such creatures at his pleasure. From the King's right to the universal soil, it is not evident why he should have a better right to take such creatures than to take any other production of that soil*.

"And

*

According to the principles of the Feudal System, all land is held either mediately or immediately of the King. That is, every subject either holds of the King as his immediate lord; or he holds of a subject, who holds in like manner

either

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"And even if his Majesty should have a right to enter all the lands of the kingdom in pursuit of Game, this affords no inference that the land-owner may not enjoy this right concurrently with the King. But, although no complaint can perhaps be made against the King for entering the lands of his subjects, it has been determined that this power cannot be given to his foresters and servants, in a case in Keilway, which I shall presently have occasion to take notice of.

"The other general principle relied upon by the learned Commentator is, another maxim of the Common Law, which he says he has frequently cited and illustrated, that these animals are bona vacantia, and, having no other owner, belong to the King by his prerogative. It has been determined, that fish, if not confined, as in a trunk, cannot be called bona et catalla; and so Game, till it is taken,

is

either immediately of the King, or of another subject between him and the King. And the land of every one, for want of an heir (propter defectum hæredum), will escheat to his immediate lord. The King is therefore the ultimus hæres of all the land of the kingdom. This prerogative of the Crown furnishes no inference whatever with respect to the King's right to living creatures upon the land.

is everywhere said to be nullius in bonis. But I am inclined to think that the very reverse of the maxim is true, and that bona vacantia belong to the first occupant or fortunate finder, except in those instances particularly specified by the Law, and in which they are expressly given to the King*.

"A person

* Treasure-trove, or trésor-trouvé, which has been concealed under the earth, belongs to the King by his prerogative; but whatever is found upon the surface of the earth belongs to the finder, against all the world, except the rightful owner, who has lost it, and not abandoned it. If he has abandoned it, then it becomes the absolute property of the fortunate finder.

The following remarkable case, though only at Nisi Prius, has established the law upon the subject for ever; which I will cite from the report at length.

ARMORY V. DELAMIRIE.

In Middlesex, coram Pratt, C. J. the 28th Geo. I. The plaintiff, being a chimney-sweeper's boy, found a jewel, and carried it to the defendant's shop (who was a goldsmith), to know what it was, and delivered it into the hands of the apprentice, who, under pretence of weighing it, took out the stones; and calling to the master to let him know it came to three halfpence, the master offered the boy the money; who refused to take it, and insisted to have the thing again : whereupon the apprentice delivered him back the socket, without the stones. And now, in trover against the master, these points were ruled:

1. That the finder of a jewel, though he does not, by such finding,

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