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or from immemorial usage, which supposes a royal

grant.

$ 52. Lord Coke fays, that beafts of chafe are pro Inft.233. perly buck, doe, hart, hind, roe, fox, martin, hare, boar, and wolf; but, legally, all wild beafts of

venary.

§ 53. It is probable, that a chase was never granted over any grounds but thofe, whereof the grantee was himself seised; and most of the antient grants of free chase and warren, (of which, an infinite number are mentioned by Dugdale in his Baronage), are confined to the demefne lands of the grantee. But Sir William Blackstone obferves, that there are many inftances of 2 Comm. 39. keen sportsmen, in antient times, who have fold their eftates, referving their right of chase to themselves; by which means it comes to pass, that a man and his heirs have fometimes a right of chase over another's ground.

$ 54. Where the king granted a foreft, or any part Manw. 159. of a foreft, to a fubject, by the name of a foreft, but 4 Inft. 314. without the words enabling him to hold courts, the

grantee held it only as a chase.

§ 55. The difference, therefore, between a chafe Manw. 49. and a forest, is, that a chafe has no laws peculiar to it; and, therefore, all offenders in chafes are punifhable by the common law, and not by the laws of the for eft.

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Cafe of
Forefts,
12 Rep. 22.
4 Inft. 298.

A Park.

1 Inft. 233 a.

§ 56. It was refolved by all the judges in 5 Jac., that in the case of a free chase, he who hath any freehold within them, may cut his timber and wood growing upon it, without the view or licence of any. But, if he cut fo much, that there is not fufficient for covert, and to maintain the game of the king, he fhall be punifhed at the fuit of the king. And fo, if a common perfon hath a chase in another's foil, the owner of the foil cannot deftroy all the covert, but ought to leave fufficient covert and broufe wood as hath been accuftomed.

§ 57. A park is an inclosed chase, extending only over a perfon's own grounds, and is privileged for beafts of venary and other wild beasts of the forest and chafe, tam filveftres quam campestres.

§ 58. No perfon can erect a park without a licence from the king; and to a park three things are required. Firft, a grant or licence from the king : fecondly, inclofures by pale, wall, or hedge : thirdly, beafts of a park, fuch as buck, doe, &c. And, where all the deer are destroyed, it fhall no more be accounted a Cro. Car. 6. park: for a park confifts of vert, venifon, and inclofure; and, if it is determined in any of them, it is a total difparking.

224.

$ 59. Manwood fays that, in many forefts, there are parks which the owners claim, either by grant from the king, or by prefcription. And, if a fubject is owner of a foreft, he may give licence to another to make and inclose a park within the meers of his forest; and to hold the fame fo inclofed with all fuch venifon

as

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as the grantee shall put in, to him and his heirs. And this was adjudged a good licence in a claim made in eyre but, if fuch park is fo flightly inclofed and fenced, that the wild beasts of the foreft do enter, the lord of the foreft may, in fuch case, enter and hunt there, at his pleasure.

§ 60. Parks, as well as chafes, are fubject to the 4 Inft. 314. common law, and are not to be governed by the forest

laws.

§ 61. A warren is extremely fimilar to a chase, and is usually united with it; being a place privileged for the keeping of beasts and fowls of warren.

A Free
Manw. 362.

Warren.

I Inft. 2334.

$62. Beafts and fowls of warren, are those which Manw. 363. may be taken with long-winged hawks; namely, hares, rabbits, roes, pheasants, partridges, quails, rails, woodcocks, mallards, and herons.

§ 63. A person cannot have a warren, unless by grant of the king or by prescription; but fuch a right may extend over another's land: and Bracton mentions a cafe, from which it appears, that the king might grant a right of free warren over another's lands. No man, however, can make a warren without the confent of the crown: for he cannot appropriate those animals, which are feræ naturæ and in nullius bonis, to himself, and to restrain them of their natural liberty, without the king's licence.

Bro. Abr.
War. Pl. 1.

2 Roll. Ab.

812. Dyer 30.

Salk. 637. Brac. 56 b.

p. 209.

11 Rep. 87 b. I Salk, 637.

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Fowler v.
Seagrave,

564. Where a person claims warren by charter in 2 Bulit. 254. all his demefne lands, he cannot extend this to the

Rex v. Talbot,

Cro. Car.311.

Samford v.

Havel,

lands of the freeholders: for, where a perfon claims warren by charter, he is confined to the words of the charter; otherwise, where he claims the warren by prescription and immemorial ufage. And, in a cafe, which arose in 9 Cha. 1., Rolle faid, that a prescription to have a free warren in a perfon's own manor was Godb. 184. good, as well in the lands of the freeholders as in the lord's demefnes. For, being by prescription, it would be intended, that this liberty was before the creation of the freeholders, whofe eftates were extracted out of the demesnes of the manor, after the beginning of this prescription.

4 Inft. 318.

Harrifon's
Cale,

W. Jones,280.

§ 65. It appears from Dugdale's Baronage, that almost all those, who had writs of fummons to parlia ment in antient times, obtained grants from the king of free warren in their demefne lands,

§ 66. Lord Coke fays, that a man may have a free chafe, as belonging to his manor, in his own woods, as well as a warren or park in his own grounds: for the chase, warren, and park, are collateral inheritances, and not iffuing out of the foil, as common does. And, therefore, if a man hath a chafe in other men's grounds, and after purchase the grounds, the chafe remaineth.

§ 7. A perfon may have a warren by prescription in a forest; but, in such case, there must be an allowance of it in eyre, and then a grant is fuppofed.

Thus,

Thus, where Sir R. Harrison claimed a warren in Windfor foreft, at the juftice-feat; but, it not being allowed in eyre, he was fined ten fhillings, and the warren was ordered to be destroyed.

§ 68. A free fifhery, or exclusive right of fishing in a public river, is a royal franchise; which is now fre quently vested in private perfons, either by a grant from the crown, or by prescription.

A Free

Fiskery.

§ 69. This right was, probably, firft claimed by the crown, upon the establishment of the Normans, and was deemed an ufurpation by the people: for, by king John's magna charta, it is enacted that, where the banks of rivers had been first defended in his time, they fhould be laid open. And, in the charter of Hen. 3. c. 16., it is enacted, that "no banks fhall be 2 Inft. 29: "defended from henceforth, but fuch as were in de"fence in the time of king Henry our grandfather, "by the fame places and the fame bounds, as they

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were wont to be in his time." And, although it

is faid in the "Mirror," that this ftatute is out of

afe, yet Sir William Blackstone obferves, that, in con- 2 Comm. 39. fequence of this ftatute, a franchise of free fishery ought now to be at least as old as the reign of Hen. 2.

S 70. A right of free fishery does not imply any property in the foil; in which refpect it differs from a feveral fishery: and, from its being an exclufive right, it follows that the owner of a free fifhery has a pro perty in the fish, before they are caught.

$ 71, Mr.

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