Hunting, Shooting and Fishing
| Author | Christopher Jessel |
| Pages | 225-243 |
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Chapter 12
Hunting, Shooting and Fishing
warrens … fishings, fisheries, fowlings
12.1 SPORTING AND WILD ANIMALS
Many manors carry with them sporting rights not only over the demesne, but also over the waste and other land. Throughout history, hunting and taking game have been major sports. In the eighteenth century sporting was so significant in general speech that in Jane Austen’s novels, when a character referred to ‘the manor’, he meant the shooting rights. The Hunting Act 2004 has now rendered some hunting unlawful. Controversy surrounding the subject has delayed reforms of other aspects of the law on sporting which are long overdue. Furthermore, the existence of rights to shoot over common land used as grouse moors was one of the main reasons why some landowners opposed reforms of the law, because they anticipated that unlimited public access would interfere with the shooting. As a consequence much of the general law on this topic is complex and inconsistent. This account is primarily about the law so far as it affects manors, which is particularly confused, but it is also necessary to look at related topics in the general law of sporting.1
Wild animals roam freely in the countryside (zoos and menageries raise different issues) and do not respect property boundaries. In relation to fishing rights, no single owner controls a whole river from source to mouth. Therefore, unlike domestic animals which are chattels, wild animals are not treated as being owned until they are dead.2Ownership is meaningless in this context. In Blades v Higgs3Lord Westbury LC referred to:
1 For sporting franchises generally, see Chitty, J, A Treatise on the Law of the Prerogatives of the
Crown and the Relative Rights and Duties of the Subject (1820) 133 ff.
2 Bracton, Sir Henry, De legibus et consuetudinibus angliae (c 1257) f 8, 8b.
3 (1865) 20 CBR (NS) 214, 144 ER 1087 also at 11 HL Cas 621, 11 ER 1474 where the speech is reported in different words.
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a qualified or special right of property in game, that is in animals ferae naturae which are fit for the food of man, whilst they continue in their wild state, I apprehend that the word ‘property’ can mean no more than the exclusive right to catch, kill and appropriate such animals which is sometimes called by the law a reduction of them into possession ... Property ratione soli is the common law right which every owner of land has to kill and take all such animals ferae naturae as may from time to time be found on his land, and as soon as this right is exercised the animal so killed or caught becomes the absolute property of the owner of the soil.
Some animals which are considered wild by nature can be treated as owned if they adopt the habit of coming back to the same place (animus revertendi) and some beasts of warren, especially rabbits in rabbit warrens and deer in parks, can be confined, but even then they are not owned in the sense of being chattels. It follows that rights to land, whether an estate of thousands of acres, a strip in an open field, a close of the tenant or the boundaries of a manor, do not automatically carry ownership of wild animals in them. The rights may include an exclusive or shared right to kill, but that is not the same.
A traditional distinction, although of little current relevance, divides animals and birds into three categories – beasts of forest, beasts of chase or park, and beasts of warren. These are not mutually exclusive and some animals fall into more than one. Beasts of forest are hart, hind, hare, boar and wolf. Wild boar and wolf are now extinct in England. (Some farmers are now raising wild boar for food and wolves are kept in zoos but neither is relevant for the purposes of this discussion.) Hares are also beasts of warren. Beasts of chase or park are buck, doe, fox, marten and roe. Foxes are also vermin. Buck and doe with roe and hart and hind are deer. As explained below the distinction between beasts of forest and beasts of chase is artificial since one derives from the other.
Beasts and fowls of warren include rabbits, hares, pheasants, partridges, roe, quail, rail, woodcock, herne and mallard, but not grouse. They probably include fox, wildcat (now only found in Scotland), badger, marten, otter and squirrel (possibly the red squirrel not the grey). In Lord Fitzhardinge v Purcell4the court considered that wild duck were probably birds of warren. That case related (among other things) to a claimed customary right to shoot duck on part of the River Severn which lay within Lord Fitzhardinge’s manors of Slimbridge, Hinton and Ham but the decision was that the right claimed would amount to a profit and for the reasons set out in 4.4 could not be exercised by custom.
The principal meaning of ‘game’ was found in the Game Acts, discussed below, but the word is also used in conveyances, transfers and leases. The meaning, as with any word used in a deed, depends on the context. In Inglewood Investment
4 [1908] 2 Ch 139.
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Co Ltd v Forestry Commissioners5the Court of Appeal held that a reservation of ‘game’ in a lease did not include deer.
12.2 FOREST, CHASE AND PARK
Forests in law were not areas of woodland but regions in which the Forest Laws applied. They were foris or beyond the scope of the normal laws. The Forest Laws and the status of forest were abolished by the Wild Creatures and Forest Laws Act 1971 but some of the old law still affects manorial rights.
Before 1066 Anglo-Saxon kings and the greater lords had wide rights of hunting. The Norman kings were particularly keen on hunting and William I and his successors designated large areas of the country as royal forests where special rules applied. The most famous (which still exist as forests in the modern sense of large wooded expanses) are the New Forest in Hampshire, which was largely created by William I, and the Forest of Dean, but there were many forests throughout the country. At its greatest the forest law applied to nearly a third of England. Hunting rights were restricted to the king and those he authorised, and special rules governed occupation of land, trees and undergrowth, and any other matter relevant to hunting. The soil of a forest was normally Crown land although it might fall within a manor held by a subject. Forests were distinguished by being under the jurisdiction of the special forest court, to the exclusion both of the manorial courts and of the regular courts of the land such as hundred and county courts. Royal courts had jurisdiction but upheld the royal forest law. These royal rights were much resented not just by the ordinary folk but also by the more powerful who saw them as an encroachment on their power over their own land. Controls were imposed on King John in Magna Carta 1215 and, after his death, in the Charter of the Forests of 1217, the guardians of his young son Henry III accepted that no new forests would be created. Over the centuries much land was disaforested. Thereafter Crown powers gradually declined, albeit slowly. Charles I enforced such forest laws as he could to raise revenue. Some forest laws were still enforced in the eighteenth century but by then they were largely seen as anachronistic.
The king could grant a forest to a lord but it would only stay as a forest if it was granted with the right to hold the forest court, which and this was rare. If it was granted without that right it became a chase. The king could also disaforest land while retaining it as part of the royal lands and, under political pressure, this
5 [1988] 1 WLR 1278.
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happened increasingly over the centuries. Many chases were held by subjects, often as parcel of a manor.
The king could also, as mentioned in 6.1, grant to a lord the right to enclose land within a paling to make a park. Within the park the lord had specific sporting rights. Even though the park was enclosed and the paling was so designed that wild animals could not get out they were not thereby made the subject of ownership but remained wild. If the park ceased to hold deer it lost its status as a park ‘for a park consisteth of vert, and venison, and enclosure: and if it be determined in any of them it is a total disparking’.6
12.3 WARREN
Apart from forests, chases and parks, which were special areas of land, the king also had certain sporting rights to kill beasts of warren by virtue of his prerogative. These were concurrent, that is the right of the king to kill, for example, partridge, anywhere in the country did not affect the right of the lord to do so on his own manor. Of course, if the king in person wished to hunt on his land the lord would take that as a sign of favour and would not wish or presume to interfere with the royal pleasure. However, he might not approve of someone else, perhaps a rival, being authorised by the king to hunt on his land. Accordingly lords often sought a grant of franchise of free warren, that is the exclusive right to take beasts of warren over their own land. Normally this related to the demesne but it could extend to copyhold.7Franchises included various types of sporting rights (16.6). The grant was free, not (like freehold land) because it was to a free man but because it was held free of the right of the king. It could be expensive to purchase.
The nature of free warren is important because of the effect of the 1971 Act which abolished it. Blackstone8considered that the origin of the royal right was in the nature of a reservation by the king when the lands were...
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