If all wild animals belonged to the King, he would be entitled to all wild geese, wild-ducks, widgeons, and teals; which probably would be a much more valuable species of property than wild swans. The history of the subject abundantly proves that the King never claimed any property in this valua ble animal. It is very curious, and also important : I shall state it here concisely. In the 25th Hen. VIII. c. 2. anno 1535, an Act was passed, intituled "To avoid destroying of wildfowl." The preamble states, "Where before this time there hath been within this realm great plenty of wild-fowl, as ducks, mallards, widgeons, teals, wild-geese, and divers other kinds of wild-fowl, whereby not only the King's most honourable household, and all the houses of the noblemen and prelates of this realm, have been furnished for the necessary expenses of the same houses at convenient prices, but also all the markets of the same realm were sufficiently furnished with wild-fowl, then to be sold in such wise, that such as were meet to make provision of the same for their houses might, at reasonable prices, at the same markets be thereof provided." The The statute then enacts, that "if any one shall take with a net or engine any wild-fowl in the moulting season, he shall forfeit 4d. for each bird. Gentlemen, who had 40s. a year freehold, might take with spaniels and a long-bow only." of But this statute was repealed 14 years afterwards, by the 3d and 4th Ed. VI. c. 7; the preamble of which is very curious: "Whereas in the five-andtwentieth year of the reign of your Majesty's father, of most famous memory, King Henry the Eighth, an Act was made, &c. and that no manner of common commodity is sithen perceived to be grown the same, being notably, by daily experience, found and known that there is, at this present, less plenty of fowl brought into the markets than was before the making of the said Act, which is taken to come of the punishment of God, whose benefit was thereby taken away from the poor people that were wont to live by their skill in taking of the said fowl, &c." The former statute is therefore repealed. By the 2d Jac. I. c. 27: "No one whatever shall kill with a gun any mallard, teal, or widgeon, under a penalty of 20s. for each bird." This part of the statute has never been repealed. But a poor fen-man, who who had killed ten or twenty at one shot, would be much astonished if he were afterwards called upon to pay so many pounds for his well-directed aim. By the 9 Ann. c. 2. and 10 Geo. II. c. 32. "if any one shall take wild-ducks or wild-fowl with nets, whilst they are moulting, between the first day of June and the first day of October, he shall forfeit five shillings for each bird so taken." I have shortly traced this subject, to shew that the King never claimed any interest in these valuable birds by his prerogative; but the owner of every pond or marsh has the same property in them as the owner of a decoy. I have very little doubt, if they were maliciously driven from my premises which they haunted, I could have the same action as the owner of an antient decoy. CHAP. III. THE GAME BELONGS TO THE OWNER OF THE LAND UPON WHICH IT IS FOUND. LORD ERSKINE, when he was at the Bar, had a case laid before him, requesting his opinion, whether the lord of a manor could prevent a land-owner from killing Game upon a common, where he had a right of common of pasture; and not having answered it before he was promoted to the Great Seal, and a reference being made to Mr. Christian's Notes to Blackstone's Commentaries, he sent it to Mr. Christian, who in consequence collected the following authorities upon the subject. He sent them to the Lord Chancellor, who expressed his approbation of them. "It appears, both from principles and authorities, that a land-owner within a manor, who has nothing more than a right of common upon the waste, although he may have a qualification to kill Game, has has no right to kill Game upon the waste or common; but that where the commoners have only common of pasture, the lord of the manor has the exclusive right to the Game upon the commons and waste within the manor. "A tenant of a manor or a landholder may have a right of hunting or fishing upon the waste, as he has a right of pasturage; but they are distinct and independent rights; they must each be proved and supported, either by an existing grant, or by prescription, which presumes an original grant from the lord to whom the soil and the whole interest attached to it still belongs, except what has been so granted to the commoners. 66 Fleta makes the distinction in lib. iv. c. 23, 24, & 26. In c. 23 de admens. past. he says: Illis autem, qui communiam tantùm habent in fundo alicujus, aliud remedium non competit nisi admensuratio,' sect. 2. In c. 24, he calls communia pasturæ, 'jus pascendi.' In c. 26, he says: : 'Item poterit quis communiam cum alio et jus fodiendi, sicut jus pascendi et jus venandi, piscandi, potandi, hauriendi, et alia plura, quæ infinita sunt, faciendi cum libero accessu et recessu secundùm quod ad dictam communiam pasturæ pertinet.' The tenant may have jus venandi et piscandi; but these rights are |