It has not yet been so decided, and perhaps it never will; and until there is such a decision, perhaps the action of trover in such a case cannot be maintained.

But if a stranger were to take or kill any wild animal upon another's land; if the owner of the land could possess himself of it, the stranger, I am of opinion, could not bring an action of trover to recover it and even if it were taken from him by force, his only action would be for an assault, and not for the privation of his property. The law in that case, I conceive, would be precisely the same, whether the animal was wild or tame. But I am obliged to hazard this opinion as the result of legal reasoning, and a deduction from general principles of law, not yet supported by judicial decisions.

Sir William Blackstone is reported to have said upon the Bench, in the Court of Common Pleas, that Game in a Free-warren is personal property: but that he must have said inadvertently; a moment's consideration would have corrected the error. The Free-warren is an estate of inheritance: if the executor were to take the Game, the estate of the heir would be annihilated; it is the sine quâ non, or that without which the inheritance cannot exist.

This is one of those errors which a professional man is unfortunate in falling into: but it is unfortunate for science, that they should be perpetuated by publication. I had read the proposition many times, before the fallacy of it presented itself to my mind. See ante, Chapter IV. p. 57, Free-warren.

1.

CHAP. VII.

THE CAUSES OF THE CONFUSION RESPECTING GAME.

BESIDES the error that Sir William Blackstone has fallen into, that all the Game originally belonged to the King; and that it still does belong to him, except as far as he has granted it to others, being usually the lords of manors; there are no less than three other great sources of error respecting Game: one is, by confounding the civil law with the law of England; the second, by attributing the Game Laws to the Feudal System, with which they have had no connection; and the third is, by referring the right to Game, or wild animals, to very false conceptions of natural law or moral justice.

The Civil or Roman Law has been called the perfection of reason; but upon this subject I think it will be found far inferior to the Law of England.

In

In that law, upon every occasion, a wild animal is given to him who can catch it, even upon another's land*.

This law is one great cause of the confusion in England: we have taken the description from the Latin language, as fera, or animalia fera natura; and this has led many erroneously to think that we have also adopted, with the language, the law upon the subject.

But

* The following is the Civil or Roman Law respecting Game, "De Occupatione Ferarum.-Feræ igitur bestia, et volucres, et pisces, et omnia animalia, quæ mari, cœlo, et terrâ nascuntur, simul atque ab alioque capta fuerint, jure gentium statim illius esse incipiunt; quod enim ante nullius est, id naturali ratione occupanti conceditur: nec interest, feras bestias et volucres utrum in suo fundo quis capiat, an in alieno. Plane qui alienum fundum ingreditur venandi aut occupandi gratiâ, potest a domino, si is præviderit, prohiberi ne ingrediatur.

"De Apibus.-Apium quoque fera natura est; itaque apes, quæ in arbore tua constituerint, antequam a te alveo includantur, non magis tuæ intelliguntur esse, quam volucres quæ in arbore tua nidum fecerint: adeoque, si alius eos incluserit, is earum dominus erit." Justinian's Inst. lib. ii. tit. 1. sect. 12, 14.

All this is thus neatly translated by Harris, in his edition: "Wild beasts, birds, fish, and all the animals which are bred either in the sea, the air, or upon the earth, do, as soon as they are taken, become instantly, by the law of nations, the property

of

But the whole current of authorities, from the first judgment upon the subject to the present day, prove that the antient law of Rome was never the law of England upon Game or wild animals.

Another great error that many fall into is, that they attribute the Game Laws to the Feudal System+t.

It

of the captor: for it is agreeable to natural reason, that those things which have no owner, should become the property of the first occupant: and it is not material whether they are taken by a man upon his own ground, or upon the ground of another. But yet it is certain, that whoever hath entered into the ground of another for the sake of hunting or fowling, might have been prohibited from entering by the proprietor of the ground, if he had foreseen the intent.

"Bees also are wild; and therefore, although they swarm upon a tree which is yours, they are not reputed, until they are hived by you, to be more your property than the birds which have nests there; and therefore, if any other person shall inclose them in a hive, he then becomes their proprietor." This has been strangely mixed up with the Law of England; but it never formed any part of it.

The Law of England upon this subject is far more agreeable to natural reason, and consonant to eternal wisdom and justice.

+ This is an error which, unfortunately, has been encouraged by Sir William Blackstone, who has advanced, that, "with regard to the rise and origin of our present civil prohibitions,