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may not have a concurrent right Enough has already been said, with him, and consequently a con- perhaps, to justify a difference of current property in the game ? opinion from that expressed in the
If then this principle will not passage cited from the Commensupport the doctrine of the learned taries. But far stronger authorities Commentator, let us see if the remain to shew, that there is not maxim of bona vacantia, to which in the King any such exclusive he secondly refers, will be more right to all game as is there coneffective.
tended for. It is elsewhere admitted by the It is admitted, that, from the learned writer himself, that, by the time of the Conquest, all lands are laws of nature, bona vacantia belong to be considered as holden of the to the first occupant. With re- King as the ultimate proprietor. gard to inanimate things, he has It is admitted also, that when the also told us (vol. I, p. 295), " that earlier Kings held a very large any thing found in the sea or upon proportion of the lands of the the earth doth not belong to the kingdom in their own hands, prinKing, but to the finder.” And cipally consisting, as they then did; this position is confirmed by a case of desarts, and woods, and waste which is to be found in Strange's grounds, they had power to make Reports, p. 505, where a chimney- forests over any part of those lands. sweeper's boy recovered damages They made forests accordingly; from a goldsmith, in respect of a and in them they had of course the diamond which he had found; and it exclusive right to game. Not was held, that the finder of a jewel satisfied with this, they were accushas such a property as will enable tomed, in the exercise of an arbi. him to keep it against all but the trary aud despotic tyranny, to aprightful owner. It may well be propriate to themselves the lands asked, How is this to be reconciled of their subjects for the purpose of with the opinion expressed in the making new forests; and to increase passage cited above
the extent of the old-established Again, with regard to animals, it forests, by including within their is to be observed that certain wild boundaries lands, the private proanimals are declared by law to be perty of individuals, that happened long to the King by virtue of his pre- to lie contiguous. It was one of rogative.. Wild swans are specified the main objects of our ancestors, as Royal fowl. Whales and stur- in struggling for the Charter of geons are also particularly in- Forests, not only to put an end to cluded in the number. Now, cer- similar acts of oppression, but also tainly, it were not a little strange, to procure the restoration, or, as it if all wild animals belong, as bona is usually termed, the disafforestavacantia and by virtue of his pre- tion of these lands. They were rogative, to the King, that some disafforested; and the grounds so two or three should be exclusively included as being near to old foenumerated. The very circum- rests were, after disafforestation, stance of naming some, seems to put called “purlieus.” Now, Sir Eda negative upon the generality of ward Coke, whom the lawyers look the position, as including all others; up to as the highest authority for “ expressio unius exclusio alte- upon all points of law, says, when rius est."
speaking of these purlieus in the page of his Institutes before referred Brooke, in his Abridgment, under to, “We find no authority in law the title of “ property,” has col. that we remember against our opi- lected many old authorities, and nion herein: therefore we proceed tells us in the law language of the and do held, that in any purlieu a day, which may be thus translated, man may as lawfully hunt to all in- “ When the wild beasts of the tents and purposes within the pur- King go out of the forest, the prolieu within his own grounds, as perty is out of the King. The any other owner may do on his King has property in them whilst grounds that never were afforested they are in the forest, for the soil at all.” He afterwards speaks of makes the property of such beasts." the wild beasts belonging to the Finding then, as we do, a species purlieu man ratione soli, so long of property acknowledged by our as they remain on his grounds, laws before the Conquest to have and of his right to kill them; and then existed in game; finding the he adds, “ If he chase them with same property again recognised as greyhounds, and the beasts of the existing after the Conquest ; can forest do flee towards the forest we hesitate in looking at the nofor their safety, if the owner pur. tion conveyed by the passage cited sue them to the bounds of the above, from Sir Wm. Blackstone, forest, and then call back his dogs, as a fallacious one, when it speaks and do his endeavour to call them of a new doctrine” having been again from the pursuit, although then introduced, by which the the dogs follow the chase in the rights of individuals
are now to be forest, and kill the King's deer governed? Can we hesitate to conthere, this is no offence, so as the clude that there is not, in the preowner enter not into the forest, sent day, any exclusive right to nor meddle with the deer so killed. game in the King; and that, unless But if the dogs fasten upon the in so far as it may have been varied deer before he recover the forest, by legislative enactment, there and the deer drag the dogs into the may be at this day the same qualiforest, there the purlieu man may fied property as existed before the follow the dogs and take the deer.” Conquest ?
Here then we have a distinct My Lord Suffield, who in his declaration, not only that a man pamphlet has taken much pains had a right to pursue game on his with this part of his subject, seems own ground, long after
the restric- to rely much upon the restoration tion supposed to have been intro- by Henry the First of the laws of duced by the Norman Conquest, King Edward the Confessor; and but also that the King himself
, in infers, that, amongst others, the whose favour this restriction is law which sanctioned a right of alleged, ceased to have any pro- property in game, and which was perty in the game even of his own to the same effect with that of Caforest, from the moment it had nute before cited, must have been quitted that forest for the grounds included. But the restoration alof a private individual. Nor is luded to was too inconsiderable and this position without abundant partial to admit of this inference support, although it seems super- without more particular proof. Infuous to cite cases in which it has deed, when the restoration of the been approved of and acted upon. Saxon Laws is spoken of, it is raVOL. XXII. N. S.-No.128.
ther the spirit of those laws which reference to the Statute of the 2d is intended as having been restored, of James the First, chap. 27, which and by fresh enactments, than the alludes to them, and prohibits the whole body of the laws themselves. use of guns, bows, setting-dogs,
The first legislative enactment nets, and snares, for that purpose. interfering with the property ca- The object of the prohibition was pable of being acquired in game probably to favour hawking, then ratione soli, was in the reign of the most usual course pursued by Richard the Second. But it will the sportsman, and to protect him be more convenient perhaps to in his sport. As to shooting bares, adopt an arrangement, in the dis- that Act has since been repealed; it cussion, founded upon the nature may be doubted indeed, whether it of the interference, than to follow is not to be considered as virtually the strict succession of dates. The repealed as to shooting the other positive regulations which have game enumerated in it. Lord Suffrom time to time received the field thinks not: I own I think sanction of the Legislature upon that it is. Soaring hares is forthis subject, may be considered -as bidden also by a later Act in the they regard the time and mode of reign of Charles Second. killing game, the right of buying Tracking them in snow was forbidand selling it, and the qualifications den in more early times. To these required or disqualifications created also no objection is considered to by them.
exist : unless indeed it be thought With respect to the season of the prudent, to clear up all doubt as to year during which game may be the liberty of shooting erery species killed, there have been at different of game. times various restrictions. Those The buying and selling of game now in force are too well known was, as has been already seen, proamongst sportsmen to require par- hibited as far back as in the reign ticular mention. There are also of Henry the Eighth. The 32d of certain days upon which it is for- that King, chapter 8, subjected bidden to pursue game, as Sunday every person who sold or bought and Christmas day. And several any pheasant or partridge, unless Acts have been passed for the pur- he were an officer of the Royal pose of preventing the pursuit of Household, to certain penalties. game in the night. These regula- The 2d of James the First, chapter tions, however, have from time to 27, increased those penalties to time taken place, mainly with the every person who sold or bought to view of protecting the sportsman sell again any deer, hare, partridge, in the fair exercise of his rights, and or pheasant, except partridges and preventing the wanton destruction pheasants reared and brought up in
houses, or brought from beyond the I am not aware that any objec- seas. Other Acts followed. The tion has been raised to them; at 4th and 5th of William and any rate none has been made to the Mary, “ for the more easy discoprinciple upon which they are very and conviction of such as founded.
should destroy game;" the 5th of As to the mode of killing game, Anne, a temporary Act, "for the it appears that there have been seve- better preservation of it;" the 9th ral restrictions, as may be seen by of that Queen, to make the former
Act perpetual and more effectual; finally raised to one hundred pounds the 28th of George the Second, to per annum.
As the value of money explain and amend the last Act; decreased, the amount of qualifiand the 58th of the late King, "for cation seems to have increased ; the more effectual prevention of of, and as that advanced the penalty fences connected with the unlawful was lowered. At first, it was imdestruction and sale of game:" all prisonment for a year; then ten contained prohibitory regulations pounds; and lastly only five. It on the same subject. These it is may be noticed also, that at first unnecessary to mention more par- a freehold interest in land was reticularly; their general effect will quired; afterwards personal probe the subject of examination in perty was admitted as a qualificaanother communication.
tion; which again was finally suUpon the subject of qualifica- perseded, by exacting an interest tions or disqualifications, the first in real property. Act was that of Richard the Second, It is obvious that these various already referred to. It was fol- regulations, as to the time and mode lowed, at different times, by vari. of killing game, the qualifications ous other Statutes regulating the required to authorise the pursuit, qualification required. To
and the restrictions upon the sale through them particularly, and no- of it, do not in the least affect the tice the different changes they con- general principle, upon which it tain, would be found tedious. It has been argued that there may will probably be thought sufficient be in an individual a qualified speto observe, that the leading Act cies of property in game. They upon the subject is that of Charles have indeed affected that property the Second, and that the general to a certain extent; but they leave effect of the whole seems to be, that untouched the reasoning from those only are empowered to kill which it is deduced, that there is game who have an estate of inhe- not any colour of truth in the plea ritance, in real property, of the of those who call for the abolition clear yearly value of 1001., or an of all laws respecting game, on the estate for life, or for ninety-nine ground that it is common property, years or more, of the clear yearly and from its nature incapable of value of 1501. To these are to be being made the private property of added, sons and heirs apparent of any individual. Esquires, or of persons of higher This brings me to the second degree ; owners or keepers of cer- class of objectors. They are not tain franchises, as forests, parks, disposed to quarrel with the prechases, and free warrens, and lords sent system of the Game Laws, of manors.
farther than as it creates disqualiIt may be interesting, however, fications restrictive of the right to to observe, that at first the quali- kill game. These objectors confication required was forty shillings sist of two parties: those who are a year; that in the reign of James owners of a certain quantity of the First it was advanced to ten land, but not to a sufficient extent pounds a year; after that increased to constitute a qualification as the in some instances to forty; and in law now stands; and those who the reign of Charles the Second have not any land at all. A third class might, perhaps, be added, a common property in game, verconsisting of men who are merely ture much farther in their deoccupiers of land as tenants, and mands than either of the classes not as owners. But it is scarcely just named, and contend for a necessary to speak of these sepa- right to follow that “ common rately; as, even if all disqualifica- property,” as they term it, over tions were removed, their power the lands of any
indivi. of killing game might of course dual
dual at their pleasure. But even be made, from time to time, the if this their plea had not been fully subject of separate stipulation and refuted, and the fallacy of the restriction when their leases are notion clearly shewn, it might be granted to them:-a circumstance asked of these reasoners, “ Did which, if duly considered, at once they never hear of a certain head gets rid of certain complaints put of law, called the Law of Tresforward on their behalf, as to the pass?" We have already seen, frequent deterioration in value of ihat no sooner had a right of protheir crops by the superabundance perty in land been acquired, than of game ; inasmuch as the proba- it was found absolutely necessary bility, or even possibility, of such that such right should be exclua result might at all times be made sive ; and that the owner should a subject of previous inquiry, and, not only retain a continued posif necessary, of additional agree- session of the soil, but that he ment or stipulation on the part of should enjoy the sole use and ocany one proposing to become a cupation of it. Any interference tenant. Instances of such stipu. with that exclusive occupation, lations have frequently occurred. without the consent of the owner, I have heard of one case, where, was necessarily considered as an from a rent of five hundred pounds, injury. Accordingly, we find the one hundred was to be deducted laws of our country look upon by way of allowance on account of every entry upon the lands of anothe supposed injury by game. ther, without his leave, as a wrong
These parties differ in their de- done, and permit an action of tresmands, as they differ in their pro- pass to be brought for the satisperty: the one is satisfied that faction of it. The Civil Law viewed landowners only should be privi- it in the same light; though it leged to kill game, without wish. did not go quite so far as the law ing that privilege to be extended of England. It regarded the ento those who own no land: the try upon the lands of another as a other on the contrary, calls for a trespass, but only in those cases repea of all disqualifications restric- where that extrý had been pretive of the general right, which, it viously forbidden. Our own law, is contended, every individual pos- aimiug more directly at the presesses of pursuing game, either on vention of mischief, or eren inconhis own grounds or on the grounds venience, and contemplating that of any other
person whose previous much of both might be occasioned permission has been obtained. to the owner of the land before an
There are, indeed, certain per- opportunity of forbidding the insons who, defending theinselves trusion might be obtained, treated upon the plea already examined of the entry as a trespass, even when