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or from immemorial usage, which supposes a royal grant.
S 52. Lord Coke says, that beasts of chase are pro. 1 Inst. 233 4. perly buck, doe, hart, hind, roe, fox, martin, hare, boar, and wolf; but, legally, all wild beasts of venary.
S 53. It is probable, that a chase was never granted over any grounds but those, 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 demesne lands of the grantee. But Sir William Blackstone observes, that there are many instances of a Comm. 39. keen sportsmen, in antient times, who have sold their estates, reserving their right of chase to themselves; by which means it comes to pass, that a man and his heirs have sometimes a right of chase over another's ground.
S 54. Where the king granted a forest, or any part Manw. 159. of a forest, to a subject, by the name of a forest, but 4 Inst. 314. without the words enabling him to hold courts, the grantee held it only as a chase.
S 55. The difference, therefore, between a chase Manw. 49. and a forest, is, that a chase has no laws peculiar to it ; and, therefore, all offenders in chases are punishable by the common law, and not by the laws of the forest.
. $ 56–59. S 56. It was resolved 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 so much, that there is not sufficient for covert, and to maintain the game of the king, he shall be punished at the suit of the king. And so, if a common person hath a chafe in another's foil, the owner of the soil cannot destroy all the covert, but ought to leave sufficient covert and broufe wood as hath been accuftomed.
S 57. A park is an inclosed chase, extending only over a person's own grounds, and is privileged for beasts of venary and other wild beasts of the forest and chase, tam silvestres quam campestres.
S 58. No person can erect a park without a licence from the king; and to a park three things are required. First, a grant or licence from the king : secondly, inclosures by pale, wall, or hedge: thirdly, beasts of a park, such as buck, doe, &c. And, where all the
deer are destroyed, it shall no more be accounted a Cro. Car. 60. park: for a park consists of vert, venison, and inclo
sure ; and, if it is determined in any of them, it is a total disparking.
§ 59. Manwood says that, in many forests, there are parks which the owners claim, either by grant from the king, or by prescription. And, if a subject is owner of a forest, he may give licence to another to make and inclofe a park within the meers of his forest; and to hold the same so inclosed with all such venison
grantee shall put in, to him and his heirs. And this was adjudged a good licence in a claim made in eyre : but, if such park is so slightly inclosed and fenced, that the wild beasts of the forest do enter, the lord of the forest may, in such case, enter and hunt there, at his pleasure.
$ 60. Parks, as well as chases, are subject to the 4 Inst. 314. common law, and are not to be governed by the forest laws.
$ 61. A warren is extremely similar to a chase, A Free and is usually united with it; being a place privileged
Manw. 362, for the keeping of beasts and fowls of warren.
į Inst. 233 a.
$ 62. Beasts 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 Bro. Abr. grant of the king or by prescription ; but such a right War. Pl. 1.
2 Roll. Ab. may extend over another's land : and Bracton men- 812. Dyer 30. tions a case, from which it appears, that the king Salk. 637. might grant a right of free warren over another's lands. Brac. 566. No man, however, can make a warren without the consent of the crown: for he cannot appropriate those animals, which are feræ nature and in nullius bonis, 11 Rep. 87 b.
1 Salk, 637. to himself, and to restrain them of their natural liberty, without the king's licence.
Fowler v. 5 64. Where a person claims warren by charter in Seagrave, 2 Bullt. 254. all his demesne lands, he cannot extend this to the
lands of the freeholders : for, where a person claims warren by charter, he is confined to the words of the
charter ; otherwise, where he claims the warren by Rex v. Tal- prescription and immemorial usage. And, in a case, bot, Cro. Car.311.
which arose in 9 Cha. 1., Rolle said, that a prescription Samford v.
to have a free warren in a person's own manor was Havel, Godb. 184. good, as well in the lands of the freeholders as in the
lord's demesnes. For, being by prescription, it would be intended, that this liberty was before the creation of the freeholders, whose estates were extracted out of the demesnes of the manor, after the beginning of this prescription.
$ 65. It appears from Dugdale's Baronage, that almost all those, who had writs of summons to parliament in antient times, obtained grants from the king of free warren in their demesne lands,
$ 66. Lord Coke says, 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 issuing out of the soil, as common does. And, therefore, if a man hath a chase in other men's grounds, and after purchase the grounds, the chase remaineth.
SC7. A person may have a warren by prescription in a forest; but, in such case, there must be an ale lowance of it in eyre, and then a grant is supposed.
Thus, where Sir R. Harrison claimed a warren in Windfor forest, at the justice-seat ; but, it not being allowed in eyre, he was fined ten fillings, and the warren was ordered to be destroyed.
$ 68. A free fishery, or exclusive right of fishing in A Free
Fistery. a public river, is a royal franchise; which is now fre. quently vested in private persons, either by a grant from the crown, or by prescription.
$ 69. This right was, probably, first claimed by the crown, upon the establishment of the Normans, and was deemed an usurpation 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 should be laid open. And, in the charter of Hen. 3. c. 16., it is enacted, that " no banks shall be 2 Inft. 29. “ defended from henceforth, but such as were in de« fence in the time of king Henry our grandfather, “ by the same places and the same bounds, as they “ were wont to be in his time.” And, although it is said in the " Mirror," that this statute is out of ase, yet Sir William Blackstone observes, that, in con. 2 Comm. 39. sequence of this statute, 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 soil ; in which respect it differs from a several fishery: and, from its being an exclufive right, ît follows that the owner of a free fifhery has a pro perty
in the filh, before they are caught.