THE BEASTS AND BIRDS OF THE LAW.

OUR old law-books contain for the curious a store of quaint and pleasant learning as to animals. We are inclined to think of all animals, as regards our rights over them and in them, in much the same manner. This was not the way with our forefathers, who recognised a complete hierarchy among the birds, beasts, and fishes. Minute points of law relating to them were serious matters, and Lord Coke, far too great a man, not only in force of intellect but in power of style and literary skill, to be dismissed as a mere pedant; thought it not below the dignity of his Reports to devote six pages to the elaboration of the law in regard to swans. Of all Lord Coke's fine and subtle legal disquisitions, "The Case of Swans" (7 Rep.) stands easily first for charm and entertainment. A true pastoral in the law, its idyllic pleadings and arguments are a mine of strange and delightful knowledge to any student who is not afraid to tolerate what is useless and picturesque. The very title of the Reports reads like a record from fairyland,—" The Case of Swans, between the Queen and the Lady Joan Young." As intro- duction to the case, we are told how, upon the verdict of a Jury, there were found in the mere at Abbotsbnry, in the County of Dorset (the mere being one in which the great sea ebbed and flowed), to be 500 swans, of which 410 were white, and 90 were cygnets ; how a writ was directed to seize all the white swans that were not marked; and how the Sheriff returned that he had seized 400 white swans. We must pass over the later pleadings, in which the Lady Joan showed her title through the Abbot of Abbotsbury "to a game of white swans" " haunting " the mere or fleet, and get to what was resolved by the Court, which was that, since "a swan is a royal fowl," "all white swans not marked, which have gained their natural liberty, and are swim- ming in an open and common river, might be seized to the King's use by his prerogative." In the judgment, another case of swans seems to have been quoted from the Year-book, where two further very important points were resolved, namely, "that he who bath a game of swans may prescribe that his swans may swim within the manor of another," and "that a swan may be an estray, and so cannot any other fowl." Proud bird ! he alone, of flying things, can be led off by the waywarden, or the head-borough or constable, and lodged within the village pound. Yet another case is mentioned from the old Reports,—that of "The Lord Strange and Sir John Charleton against three," in which we are told how one of the defendants, fully alive to the idyllic and pastoral possibilities of the situation, began his pleadings by a count "that the water of the Thames runs through the whole realm." With such a gallant style of getting to an issue, Lord Coke, of course, must have been in full sympathy ; to help the weaker brethren, however, he naively remarks,—" And in the same case, it is said that the truth of the matter was that the Lord Strange had certain swans which were cocks, and Sir John Charleton certain swans which were hens, and they had cygnets between them." Therefore, we are told, they joined in one action for the cygnets, since by the Common Law they belonged to them equally. It must be remembered that this would not have been the case with any other animals, since in all other cases our law, following the Roman Law, makes the offspring of animals belong solely to the owner of the mother. "And the law thereof," Lord Coke proceeds, "is founded on a reason in Nature ; for the cock- swan is an emblem or representation of an affectionate and true husband to his wife above all other fowls; for the cock- swan holdeth himself to one female only, and for this cause Nature hath conferred on him a gift beyond all others ; that is, to die so joyfully that he sings sweetly when he dies; and, therefore, this case of the swan doth differ from the case of kine or other brute beasts." The concluding obserVations of the case affect animals generally, and notice the punishment for one who steals a marked swan out of an open and common river,— a form of punishment which we shall have to treat of more at length below.

To find another case of birds thus eloquently argued and adjudicated on, we must come to comparatively modern times, In the year 1824, at Westminster, the case of " Hannam v. Mockett " (2 B. C., and 936) was tried before Bayley, J. An older reporter would undoubtedly have termed it "The Case of Rooks." The pleadings, if not quite so idyllic as in "The Case of Swans," are not unworthy of the subject, especially in so degenerate an age as the reign of George IV. The declaration shows how the

plaintiff had had a close of land with trees growing in it, and how "divers great numbers of rooks had been and were used and accustomed to resort there ;" how the de- fendants, wrongfully and maliciously intending to drive away the

rooks, "caused divers guns" to be discharged near the said close ; how "with the noise of the discharging of the said guns and the smell of the said gunpowder" the defendant drove away

the rooks "insomuch that divers, to wit 1,000, rooks, which before that time had been used and accustomed to resort, em., flew away

and abandoned the said close and trees and the nests built therein, and wholly forsook the same, and divers, to wit 1,000, other rooks which were then about to resort to and settle in and upon the said close and trees, were thereby prevented from so doing." Then follows a second account, in which "the smell of the said gunpowder" is omitted, and the rookery is termed "a vivary," and a few other trifling alterations are made; butin which the thousand rooks which flew away and the thousand that were intending to have come, figure again in all the pomp and circum- stance of special pleading. The judgment of Bayley, J., is ex- haustive and conclusive, though, unfortunately, against the rooks. Not only does it appear that it is allowable to frighten them with "the smell of gunpowder," but it is therein shown that no less than three statutes of the realm have been directed to their destruc- tion. In the Preamble of the Statute 24 Henry VIII., cap. 10, an Act to destroy choughs, crows, and rooks," the very hardest things are said against them (among others that they are noyous fowls) ;" and by the Statute 8 Elizabeth, cap. 15, the villages are obliged to raise a sum of money for the purpose of destroying them, id. being required to be paid for "the heads of 3 old crows, chonghs, pies, or rooks, or of 6 young ones or for 6 eggs." But the birds by no means exhaust the law's resources of information as to the animal world. It has much to tell us as to the beasts of forest, of warren, and of chase,—so much, indeed, that the subject demands a_ special study. Still, we cannot omit the delightful description of a forest from Manwood's "Forest Laws," as "a certain Territory or Circuit of woody Grounds and Pastures known in its Bounds and privileges, for the peaceable being and abiding of wild Beasts, and Fowls of Forest, Chase, and Warren, to be under the King's Protection for his Princely delight; replenished with Beasts of Venary or Chase, and great Coverts of Vert for Succour of the said Beasts." All subtleties of law connected with the deer and the lawing of dogs —mastiffs and tumblers (a dog so called because he was trained to tumble down and appear to be dead, in order to let the smaller game of the forest come within his reach)—must, how- -aver, be passed unnoticed here.

There is a case, " Grymes v. Shock," reported in Cro. Jac. I., 262, which, as is the manner of those tantalising Reports, leaves a great deal too much to the imagination. The head-note, how- ever, is delightfully suggestive, and opens up a long and enticing vista. "Au action for trover and conversion of one hundred mask-cats and sixty monkies." If the property in dispute had been brought into Court, the monkies and musk-cats caparisoned in scarlet and led in couples, the effect would indeed have been picturesque. The Courts seem to have been much occupied at this time in dealing with what Blackstone calls "beasts which are kept for pleasure, curiosity, or whim, as dogs, bears, cats, apes, parrots, and singing-birds" (a series which recalls the

'famous "bears and other singing-birds" of the Cambridge Statutes); and we find in Hale's "Pleas of the Crown "a notice of the liability of the owners for such beasts. Hale has been treating of dangerous beasts in general, and how an ox that killed a man was itself executed, and he goes on to say,- " Though he have no particular notice that he did any such thing before, yet if it be a beast that is ferce naturcr3, as a lion, bear, or wolf, yea, an ape or monkey, if be get loose and do harm to any person the owner is liable to an action for damages, and so I knew it adjudged in Andrew Baker's case, whose child was bit by a monkey that broke his chain and got loose." Those who had the privilege of listening to Mr. Frederick Pollock's delightful lectures on Torts in the Hall of the Inner Temple, will not fail to remember how he used this remark of Hale's, and another fragment of such lore concerning "the reasonable pig" to instruct and chain his class. The "reasonable pig" figures in a very amusing case, that .sof "Child v. Hearn," reported in 9 Exh., 176,—a case which two centuries ago would infallibly have won the name of "The Case of Swine." In this case, as in "The Case of Swans," the learned Judge, though, as only natural in these degenerate

days, somewhat half-heartedly, laid down from the Bench certain dicta as to the habits and moral qualities of pigs. The facts were simple enough. Certain pigs, described as "25 s. pigs," trespassed on a railway, having broken through the fence, and while on the line upset a platelayer's trolly and injured the platelayer. Lord Bramwell, then one of the Barone of the Ex- chequer, at one point in his judgment approached the subject of "reasonable pigs" with an earnestness of purpose almost worthy of the subject. For instance, when he lays it down that "the strength of swine is such that they would break through almost any fence if there were a sufficient inducement on the other side," and proceeds to give what is a binding definition of the pig, which must reasonably be fenced against as "a pig not of a. peculiarly wandering disposition nor under any excessive temp- tation," we feel that a distinct contribution is being made to our knowledge of beasts from authoritative sources. It is curious to notice that in "The Case of Swine," as in "The Case of Swans," poetical quotation is made use of to support legal doctrine,—as to pigs from Ben Jonson, and as to swans from the Georgics.

In the case of "Gnash v. Mynns " (Oro. Jac. I., 321), we have some light thrown on the way in which the law regards a badger.

The action was for trespass, and the defendant justified that

"upon a report that a vermin called a badger was found there, ad damnum inhabitantium, by reason whereof he uncoupled his

hounds and hunted there, and found the badger, and chased

him until he unearthed him in the place where, and thereupon dragged the ground, and took the badger and killed him, and

afterwards stopped up the earth again." The Court said, in giving judgment, that since the Common Law "warrants the hunting of such ravenous beasts of prey in another man's lands," the hunting of the badger was good ; but that the digging him out was quite another matter and illegal, and so the plaintiff had judgment on his demurrer.

If our readers wish to refer to the oases themselves at length, and to find the beasts of the law in fresh pastures, they have only to look up the cases that deal with spot and hunting, with heriots and the taking of the best beast, with what are "com- monable beasts," and with what are "levant and couchant," and they will find full occupation for their leisure. Let us draw attention also to the fact that a special study of the position of the cat in our law is a work that calls loudly for the student. The cat, as we know him now, is little better than a sort of common third party, sought to be joined by the housemaid or lodging-house- keeper in all domestic actions concerning the breaking of china or the loss of "coals, umbrellas, brandy," tea, or legs of mutton. In our ancient law very different was his position. "Among our elder ancestors the Antient Britons," says Blackstone (" Corn.," IL,

4) "cats were looked upon as creatures of intrinsic value, and the killing or stealing of one was a grievous crime, and sub- jected the offender to a fine, especially if it belonged to the King's household, and was the cuetoe hor.rei regii, for which there was a peculiar forfeiture." The fortunate cat that held. the office of Warden of the Royal Barn was thus protected by the law,—" If any one shall kill or bear away by theft the cat which is Warden of the Royal Barn, it shall be hung up by the tip of its tail, its head touching the floor, and over it shall be poured out grains of wheat until the last hairs of its tail shall be covered by the grain." This curious amercement is the same as that which, in "The Case of Swans," was still held to be by law the proper punishment for any one who stole a swan. This custom goes very far back indeed; perhaps it is a primitive Ayrian custom. Our readers will doubtless remember that it is on this custom that in the Volsang Saga turns the whole story of the doom of the gold. When the Ances killed Otter, his father Rodmar demanded as a Wergild enough gold to cover his son's body hung up by the tail in the same way. To get this gold, Loki had finally to rob the dwarf Andwari of all his hoard, and thus brought down a doom upon all possessors of the gold, which had. been cursed by its last owner. Alas ! the cat in our own day has fallen from his high estate. He is not the subject of larceny at Common Law, and his stealing can only be punished under a very recent statute. This, however, he has left him,—" The master of a ship freighted with goods which are the subject of depredation by rats is bound to have cats on board, or he cannot charge the insurer." Let us remind our readers, before parting with them, of that description of those "qualities of the elephant which every Parliament man ought to have," which, first noticed in the Rolls of Parliament, was quoted in the House of Commons by Cardinal Beaufort; commented on and amplified by Lord Coke by the suggestion of two other qualities; and finally

enshrined by the Bishop of Chester in that great work which, when the aroma of its learning has faded, will still keep its place in historical literature because of the noble and enduring qualities of its style.