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may not have a concurrent right with him, and consequently a concurrent property in the game?
If then this principle will not support the doctrine of the learned Commentator, let us see if the maxim of bona vacantia, to which he secondly refers, will be more effective.
It is elsewhere admitted by the learned writer himself, that, by the laws of nature, bona vacantia belong to the first occupant. With regard to inanimate things, he has also told us (vol. 1, p. 295), "that any thing found in the sea or upon the earth doth not belong to the King, but to the finder." And this position is confirmed by a case which is to be found in Strange's Reports, p. 505, where a chimneysweeper's boy recovered damages from a goldsmith, in respect of a diamond which he had found; and it was held, that the finder of a jewel has such a property as will enable him to keep it against all but the rightful owner. It may well be asked, How is this to be reconciled with the opinion expressed in the passage cited above?
Again, with regard to animals, it is to be observed that certain wild animals are declared by law to belong to the King by virtue of his prerogative. Wild swans are specified as Royal fowl. Whales and sturgeons are also particularly in cluded in the number. Now, certainly, it were not a little strange, if all wild animals belong, as bona vacantia and by virtue of his prerogative, to the King, that some two or three should be exclusively enumerated. The very circumstance of naming some, seems to put a negative upon the generality of the position, as including all others; for expressio unius exclusio alte
Enough has already been said, perhaps, to justify a difference of opinion from that expressed in the passage cited from the Commentaries. But far stronger authorities remain to shew, that there is not in the King any such exclusive right to all game as is there contended for.
It is admitted, that, from the time of the Conquest, all lands are to be considered as holden of the King as the ultimate proprietor. It is admitted also, that when the earlier Kings held a very large proportion of the lands of the kingdom in their own hands, principally consisting, as they then did; of desarts, and woods, and waste grounds, they had power to make forests over any part of those lands. They made forests accordingly ; and in them they had of course the exclusive right to game. Not satisfied with this, they were accustomed, in the exercise of an arbitrary and despotic tyranny, to appropriate to themselves the lands of their subjects for the purpose of making new forests; and to increase the extent of the old-established forests, by including within their boundaries lands, the private property of individuals, that happened to lie contiguous. It was one of the main objects of our ancestors, in struggling for the Charter of Forests, not only to put an end to similar acts of oppression, but also to procure the restoration, or, as it is usually termed, the disafforestation of these lands. They were disafforested; and the grounds so included as being near to old forests were, after disafforestation, called "purlieus." Now, Sir Edward Coke, whom the lawyers look up to as the highest authority upon all points of law, says, when speaking of these purlieus in the
page of his Institutes before referred to, "We find no authority in law that we remember against our opinion herein: therefore we proceed and do hold, that in any purlieu a man may as lawfully hunt to all intents and purposes within the purlieu within his own grounds, as any other owner may do on his grounds that never were afforested at all." He afterwards speaks of the wild beasts belonging to the purlieu man ratione soli, so long as they remain on his grounds, and of his right to kill them; and he adds, "If he chase them with greyhounds, and the beasts of the forest do flee towards the forest for their safety, if the owner pursue them to the bounds of the forest, and then call back his dogs, and do his endeavour to call them again from the pursuit, although the dogs follow the chase in the forest, and kill the King's deer there, this is no offence, so as the owner enter not into the forest, nor meddle with the deer so killed. But if the dogs fasten upon the deer before he recover the forest, and the deer drag the dogs into the forest, there the purlieu man may follow the dogs and take the deer."
Here then we have a distinct declaration, not only that a man had a right to pursue game on his own ground, long after the restriction supposed to have been introduced by the Norman Conquest, but also that the King himself, in whose favour this restriction is alleged, ceased to have any property in the game even of his own forest, from the moment it had quitted that forest for the grounds of a private individual. Nor is this position without abundant support, although it seems superfluous to cite cases in which it has been approved of and acted upon.
VOL. XXII. N. S.-No. 128.
Brooke, in his Abridgment, under the title of "property," has collected many old authorities, and tells us in the law language of the day, which may be thus translated, "When the wild beasts of the King go out of the forest, the property is out of the King. The King has property in them whilst they are in the forest, for the soil makes the property of such beasts."
Finding then, as we do, a species of property acknowledged by our laws before the Conquest to have then existed in game; finding the same property again recognised as existing after the Conquest; can we hesitate in looking at the notion conveyed by the passage cited above, from Sir Wm. Blackstone, as a fallacious one, when it speaks of a "new doctrine" having been then introduced, by which the rights of individuals are now to be governed? Can we hesitate to conclude that there is not, in the present day, any exclusive right to game in the King; and that, unless in so far as it may have been varied by legislative enactment, there may be at this day the same qualified property as existed before the Conquest?
My Lord Suffield, who in his pamphlet has taken much pains with this part of his subject, seems to rely much upon the restoration by Henry the First of the laws of King Edward the Confessor; and infers, that, amongst others, the law which sanctioned a right of property in game, and which was to the same effect with that of Canute before cited, must have been included. But the restoration alluded to was too inconsiderable and partial to admit of this inference without more particular proof. Indeed, when the restoration of the Saxon Laws is spoken of, it is ra
ther the spirit of those laws which is intended as having been restored, and by fresh enactments, than the whole body of the laws themselves. The first legislative enactment interfering with the property capable of being acquired in game ratione soli, was in the reign of Richard the Second. But it will be more convenient perhaps to adopt an arrangement, in the discussion, founded upon the nature of the interference, than to follow the strict succession of dates. The positive regulations which have from time to time received the sanction of the Legislature upon this subject, may be considered-as they regard the time and mode of killing game, the right of buying and selling it, and the qualifications required or disqualifications created by them.
With respect to the season of the year during which game may be killed, there have been at different times various restrictions. Those now in force are too well known amongst sportsmen to require particular mention. There are also certain days upon which it is forbidden to pursue game, as Sunday and Christmas day. And several Acts have been passed for the purpose of preventing the pursuit of game in the night. These regulations, however, have from time to time taken place, mainly with the view of protecting the sportsman in the fair exercise of his rights, and preventing the wanton destruction of game.
I am not aware that any objection has been raised to them; at any rate none has been made to the principle upon which they are founded.
As to the mode of killing game, it appears that there have been several restrictions, as may be seen by
reference to the Statute of the 2d of James the First, chap. 27, which alludes to them, and prohibits the use of guns, bows, setting-dogs, nets, and snares, for that purpose. The object of the prohibition was probably to favour hawking, then the most usual course pursued by the sportsman, and to protect him in his sport. As to shooting hares, that Act has since been repealed; it may be doubted indeed, whether it is not to be considered as virtually repealed as to shooting the other game enumerated in it. Lord Suffield thinks not: I own I think that it is. Snaring hares is forbidden also by a later Act in the reign of Charles the Second. Tracking them in snow was forbidden in more early times. To these also no objection is considered to exist unless indeed it be thought prudent, to clear up all doubt as to the liberty of shooting every species of game.
The buying and selling of game was, as has been already seen, prohibited as far back as in the reign of Henry the Eighth. The 32d of that King, chapter 8, subjected every person who sold or bought any pheasant or partridge, unless he were an officer of the Royal Household, to certain penalties. The 2d of James the First, chapter 27, increased those penalties to every person who sold or bought to sell again any deer, hare, partridge, or pheasant, except partridges and pheasants reared and brought up in houses, or brought from beyond the seas. Other Acts followed. The 4th and 5th of William and Mary, "for the more easy discovery and conviction of such as should destroy game;" the 5th of Anne, a temporary Act, "for the better preservation of it ;" the 9th of that Queen, to make the former
Act perpetual and more effectual; the 28th of George the Second, to explain and amend the last Act; and the 58th of the late King, "for the more effectual prevention of offences connected with the unlawful destruction and sale of game:" all contained prohibitory regulations on the same subject. These it is unnecessary to mention more particularly; their general effect will be the subject of examination in another communication.
Upon the subject of qualifica tions or disqualifications, the first Act was that of Richard the Second, already referred to. It was followed, at different times, by various other Statutes regulating the qualification required. To go through them particularly, and notice the different changes they contain, would be found tedious. It will probably be thought sufficient to observe, that the leading Act upon the subject is that of Charles the Second, and that the general effect of the whole seems to be, that those only are empowered to kill game who have an estate of inheritance, in real property, of the clear yearly value of 1001., or an estate for life, or for ninety-nine years or more, of the clear yearly value of 1501. To these are to be added, sons and heirs apparent of Esquires, or of persons of higher degree; owners or keepers of certain franchises, as forests, parks, chases, and free warrens, and lords of manors.
It may be interesting, however, to observe, that at first the qualification required was forty shillings a year; that in the reign of James the First it was advanced to ten pounds a year; after that increased in some instances to forty; and in the reign of Charles the Second
finally raised to one hundred pounds per annum. As the value of money decreased, the amount of qualification seems to have increased; and as that advanced the penalty was lowered. At first, it was imprisonment for a year; then ten pounds; and lastly only five. It may be noticed also, that at first a freehold interest in land was required; afterwards personal property was admitted as a qualification; which again was finally superseded, by exacting an interest in real property.
It is obvious that these various regulations, as to the time and mode of killing game, the qualifications required to authorise the pursuit, and the restrictions upon the sale of it, do not in the least affect the general principle, upon which it has been argued that there may be in an individual a qualified species of property in game. They have indeed affected that property to a certain extent; but they leave untouched the reasoning from which it is deduced, that there is not any colour of truth in the plea of those who call for the abolition of all laws respecting game, on the ground that it is common property, and from its nature incapable of being made the private property of any individual.
This brings me to the second class of objectors. They are not disposed to quarrel with the present system of the Game Laws, farther than as it creates disqualifications restrictive of the right to kill game. These objectors consist of two parties: those who are owners of a certain quantity of land, but not to a sufficient extent to constitute a qualification as the law now stands; and those who have not any land at all. A third
class might, perhaps, be added, consisting of men who are merely occupiers of land as tenants, and not as owners. But it is scarcely necessary to speak of these separately; as, even if all disqualifications were removed, their power of killing game might of course be made, from time to time, the subject of separate stipulation and restriction when their leases are granted to them ::-a circumstance which, if duly considered, at once gets rid of certain complaints put forward on their behalf, as to the frequent deterioration in value of their crops by the superabundance of game; inasmuch as the probability, or even possibility, of such a result might at all times be made a subject of previous inquiry, and, if necessary, of additional agreement or stipulation on the part of any one proposing to become a tenant. Instances of such stipulations have frequently occurred. I have heard of one case, where, from a rent of five hundred pounds, one hundred was to be deducted by way of allowance on account of the supposed injury by game.
These parties differ in their demands, as they differ in their property: the one is satisfied that landowners only should be privileged to kill game, without wishing that privilege to be extended to those who own no land: the other on the contrary, calls for a repea of all disqualifications restrictive of the general right, which, it is contended, every individual possesses of pursuing game, either on his own grounds or on the grounds of any other person whose previous permission has been obtained.
There are, indeed, certain persons who, defending themselves upon the plea already examined of
a common property in game, venture much farther in their demands than either of the classes just named, and contend for a right to follow that "common property," as they term it, over the lands of any and every individual at their pleasure. But even if this their plea had not been fully refuted, and the fallacy of the notion clearly shewn, it might be asked of these reasoners, Did they never hear of a certain head of law, called the Law of Trespass?" We have already seen, that no sooner had a right of property in land been acquired, than it was found absolutely necessary that such right should be exclusive; and that the owner should not only retain a continued possession of the soil, but that he should enjoy the sole use and occupation of it. Any interference with that exclusive occupation, without the consent of the owner, was necessarily considered as an injury. Accordingly, we find the laws of our country look upon every entry upon the lands of another, without his leave, as a wrong done, and permit an action of trespass to be brought for the satisfaction of it. The Civil Law viewed it
in the same light; though it did not go quite so far as the law of England. It regarded the entry upon the lands of another as a trespass, but only in those cases where that extry had been previously forbidden. Our own law, aiming more directly at the prevention of mischief, or even inconvenience, and contemplating that much of both might be occasioned to the owner of the land before an opportunity of forbidding the intrusion might be obtained, treated the entry as a trespass, even when