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there had been no previous prohibition; and considered the wilfulness or inadvertence of the trespasser, in estimating the damages to be awarded.
What, then, do these advocates for the universal right of traversing the grounds of others say to this? It is not the law of qualifications only that is in their way; they must abolish the Law of Trespass, as well as that law, before they can derive any advantage from their favorite maxims, even if those maxims were capable of being supported in argument. Surely they will not extend their notion of "common property" to land! That, at least, may be the subject of occupation, of appropriation, of continued possession, of exclusive use it has every quality about it that can be required to constitute the existence of property. The law of nature and of reason sanctions, as we have seen, not only the possession, but the exclusive possession of it: and he who would contend for the unlimited right of walking over the lands of another at his pleasure, must be no less prepared to admit to his own parlour every traveller who should fancy its conveniences rather than the discomforts of an inn, and to open his kitchen to every passing vagrant, who should prefer its bright and warming fire to the cold benches of the public house. They may talk for ever that game should be as common to all as light or air; but the action of trespass, sanctioned alike by law and reason, will of itself form a conclusive answer. Light and air may, indeed, in a certain sense, be said to be open to all; but no one can enter the lands of another, to obtain the enjoyment even
of light and air, without his permission. Much more might be said, but it is hardly necessary to accumulate arguments against the already refuted notions of these wholesale abolitionists; notions, however, which have been too boldly and too generally put forward to be passed over without refutation.
In my former communication I trust I succeeded in shewing that originally, by the law of nature, every individual had the right of pursuing and appropriating to himself all animals fera natura. The
advance of cultivation soon led to that right being restricted in point of place: and, although every one was still privileged to pursue and kill game, he was prohibited from entering upon the grounds of another in the pursuit, without the permission of that other. Such was the law, as we have seen, before the Conquest; and such it continued to be until the reign of Richard the Second. The period of arbitrary and oppressive encroachment upon the rights of the subject, in matters relating to game, which commenced with the Norman Conquest, and lasted till the reign of King John, may, perhaps, be excepted. At least, such was the right of the subject as to the pursuit of game before the excepted period, when every one was held
dignus venatione sua," and such it was still acknowledged to be after it.
Now it is well laid down by Archdeacon Paley*, that "to do what we will is natural liberty: to do what we will, consistently with the interest of the community to which we belong, is civil liberty-that is to say, the only
* Moral Philosophy, vol. ii, page 162.
liberty to be desired in a state of civil society."
"The definition of civil liberty above laid down," he continues, "imports that the laws of a free people impose no restraints upon the private will of the subject, which do not conduce in a greater degree to the public happiness; by which it is intimated: first, that restraint itself is an evil; secondly, that this evil ought to be overbalanced by some public advantage; thirdly, that the proof of this advantage lies upon the Legislature; fourthly, that a law being found to produce no sensible good effects is a sufficient reason for repealing it, as adverse and injuri ous to the rights of a free citizen, without demanding specific evidence of its bad effects. This maxim might be remembered with advantage in a revision of many laws of this country, especially of the Game Laws," &c.
It is singular enough, that the Archdeacon should have mentioned, as one fit instance for the application of his maxims, the very system of laws now under discussion. Let us see how far the restrictions which have been from time to time imposed by the Legislature upon the universal right to kill game, the existence of which we have already traced, as well as its sanction by the law of England, will stand the test of the application of the rules to be drawn from those maxims. Was the public advantage which these restrictions were to produce sufficient to overbalance the private evil of the restraint they were to impose? And do they now produce sensible good effects?
The first Act imposing any restriction, the Act of Richard the Second, has for its title, "None shall
hunt but they which have a suffieient living." The preamble speaks of "divers artificers, labourers, and servants, and grooms keeping greyhounds and other dogs, who on the holy days when good Christian people are at Church hearing Divine Service, go hunting in parks, warrens, and connigrees of lords and others, to the very great destruction of the same, and sometime under such colour make their assemblies conferences and conspiracies for to rise and disobey their allegiance."
Several Acts followed, which incidentally regulated the restriction, by varying the amount of qualification; but they do not appear to have been made for the express purpose.
Then came that of Charles the Second, for the better preservation of game," &c.; the preamble of which informs us, that in those times"divers disorderly persons, laying aside their lawful trades and employments, did betake themselves to the stealing, taking, and killing of conies, hares, pheasants, partridges, and other game, intended to be preserved by former laws, with guns, dogs, trammels, lowbels, hays, and other nets, snares, hare-pipes, and other engines, to the great damage of this realm, and prejudice of noblemen, gentlemen, and lords of manors, and others, owners of warrens.' Afterwards followed the Act of William and Mary, "for the more easy discovery and conviction of such as destroy game," which is the only other one that requires to be noticed; and which mentions the great mischiefs that ensue by inferior tradesmen, apprentices, and other dissolute persons, neglecting their trades and employments, and following hunting, fishing, and
Now it is pretty manifest, from the language of the different Acts thus cited, that the main objects which the Legislature has from time to time had in view, have been, in the first place to prevent persons not having sufficient means of support from wasting their time in idleness and sporting; and in the next, to put a stop to the unlawful destruction of game by trespassers upon the property of others. The prevention of treasonable conspiracies may be added as a farther object, and perhaps, also, the preservation of the different breeds of game within the realm. But, of these last, the prevention of conspiracies is now, happily for the country, no longer a subject for necessary precaution; nor do I feel much anxiety upon the subject of the fears of those who dread a total destruction of the breed of game. At any rate, if such fears were well founded, upon what principle can it be contended, that, because a property is not sufficient for myself and certain others who have a common interest with me in it, therefore I shall take the whole to myself, to the exclusion of those others? If, therefore, it is the increase of game that is to be promoted by legislation, other modes must in fairness be sought for to effect the purpose, than arbitrarily depriving whole classes of the right of shooting.
With regard to the first of the remaining and more material objects of the Legislature, it must be admitted that it is highly advantageous to the State, that such of its subjects as have not sufficient means of independence, with
out adopting some mode or another of providing for their support, should be led to give their time to some useful employment, rather than waste it in idleness, or following, with needless frequency, unprofitable sports. At the same time, it is not a little difficult to prescribe how much relaxation and amusement may be harmlessly taken from the more serious occupations of men who may be placed in this situation. To interfere by legislation on the subject, savours rather of those sumptuary laws which were adopted at an early period of civilization in this country, when it was thought not unworthy of the attention of Parliament to regulate the extravagances of dress. In other countries a similar feeling at one time seems to have prevailed. There is a Greek fragment on the subject extant, which has been translated, as I believe, but I speak and quote from memory, by Cumberland. The fragment is a curious morceau, and the translation most happy. begins-
We have a notable good law in Corinth, Where if an idle fellow outruns reason, Feasting and junketting at furious cost, And thus begins to sift him: "You live The sumptuary Proctor calls upon him, well,
But have you well to live? You squander freely; Have you the where-withal? Where are
the funds For these outgoings ?" And, if I mistake not, there is, at this moment, in this country-certainly there once was-a strict prohibition against our great dinnergivers entertaining their friends with more than two courses, unless upon particular high days and holidays, when a third is permitted.
How would a modern epicure relish such legislation? But, in truth, the days of sumptuary laws
are long since past; and states men have learnt, that it is at least doubtful, whether it be for the interest of the State to repress luxurious habits at all; whilst no doubt exists that it is impolitic and unjust wantonly to impose restraints, where no sensible advantage is to be derived.
A schoolmaster may lay down rules as to the quantum of idleness which a school-boy may enjoy; but it is a vain hope for the statesman to entertain, that he can make men industrious by act of parlia
Again: how very different is the state of civilisation and of the country, now, from what it was when those restrictions first commenced! Then, indeed, there were large tracks of land uninhabited, extensive woods and wastes uncultivated, in which no particular individual had, or at least took, any interest, and which afforded, from the game they contained, great temptation to the idle. Then, commerce not only existed not to any extent in the country, but foreign traders met with every discouragement from the law. Trade was confined to very few individuals, and as few subjects: and even that source of employment had its difficulties to encounter; for no one was permitted to bind his son an apprentice, unless he had twenty shillings a year in land. All were idle hangers-on upon the great Barons of the day.
Now, on the contrary, almost all waste lands are inclosed and cultivated; commerce flourishes; trade thrives and is encouraged; and the various modes of profitable employment are so numerous, and so open to all, that scarcely any of the temptation to idleness which then existed is left, whilst no space
remains for the iudulgence of that idleness in the manner then guarded against the pursuit of game.
Farther: when the first qualification was required to be in land, land was the only subject of property in this country. The numerous varieties of wealth which may now be accumulated, and which are known as personalty, then had no existence. But in the present day, if we are to look only to the sufficiency of means to support the individual before we permit him to shoot, upon what plea shall the wealthy merchant, who possesses unlimited thousands of annual income, be excluded ?
If, then, an individual have sufficient income to support himself without following any particular employment, it does not seem to have been within the scope of the views of the Legislature to prevent him from pursuing game. But even if he have not sufficient income without following some employment for his support; yet, if during the occasional intervals of relaxation from his labours, he obtain permission to shoot upon the grounds of some landed proprietor, what good does the State derive by restraining him from so doing? I need hardly say, that I must not be understood as alluding to those who call upon the State for support by requiring parish relief, and whom the State is therefore entitled to set to work; nor to those who have no residence, or visible means of obtaining a livelihood: they come under a different designation. I am speaking only of those whose course of life does not render them, in any manner, amenable to the laws of their country. If they trespass not upon the property of others, why should they not be permitted to shoot?
But it will be said, in answer, they may be tempted to trespass, if they be not disqualified from shooting and this is the second object which the Legislature appears to have had in view. Punish them then for the trespass which they commit; and in the same manner, if you please, in which you would now punish them for the act of shooting. The offence is the trespass; it is a malum in se: the act of shooting is only a malum prohibitum. Now nothing can be more settled, in the present advanced state of legislation as a science, than the principle, that it is impolitic unnecessarily to multiply the number of mala prohibita. In punishing that which is malum in se, public opinion goes with the law; but it requires much to lead the generality of men to concur in the propriety of punishing that which is only a malum prohibitum. They must be first satisfied that the general good absolutely calls for the creation of the offence. As to shooting being made a malum prohibitum against any class of society, even a greater difficulty occurs; for how can we hope to convince the lower orders that it is wrong in them to do that, which they are told it is not wrong in their superiors to do, and which they see them practising every day? The act, for which punishment is inflicted, is in reality compounded of the shooting and of the trespass; but how can it signify to the punisher, so long as the same punishment is inflicted for the compound act, whether that punishment be inflicted for the trespass or for the shooting? So far as sound principles of legislation and due regard to the feelings of the public at large are concerned, it is important that the punish ment should be inflicted for that VOL. XXII. N. S.-No. 128.
which all are satisfied is wrong in itself, and not for that which many view as no offence at all, and almost all regard as a most excusable one.
But it may well be doubted, whether the removal of all disqualifications would tend to increase the number of trespasses. In what class of society would that increase take place? Among the higher orders, nothing is more clear than that the law of qualifications is disregarded every day; and those who, as the law now stands, are not justified in shooting at all, shoot constantly over the lands of their relations and friends. And why should they not? no harm accrues from it. But what increase of temptation to trespass would there be to them, by permitting them to do that lawfully which they now do unlawfully? The yeomanry who own land in the game counties, I can speak from experience, pursue the same course: they shoot, though their other avocations only permit them to do so occasionally, whether qualified or not. not. The same question may be asked as to them. If they do not trespass upon the property of others what injury is committed? if they do, make them liable to the same punishment for the trespass, as they are now liable to in respect of the disqualification: and what increased temptation is there held out to them? Then, is it the poorer classes who will be more tempted? But it must be remembered, that to commit the trespass, they must leave the employment upon which alone they depend for their daily bread; they must expose themselves to the consequences of not having a certificate, (for of course they could not afford to pay for one,) as well as to those of the trespass they commit. And what I