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wild land, and the eggs of the birds in Class 1 when on wild land.
So far as the pursuit, or the pursuit and capture, of any of the foregoing creatures is restricted by law, the law is statutory, consisting of Acts of Parliament commonly known as the game laws, though to many that expression conveys an idea confined to the preservation, especially against night attacks, of certain specified animals; but as the jurisprudential principles, on which laws for the preservation of wild animals should be founded, are now alone intended for consideration, those Acts of Parliament are not enumerated, nor is it necessary to refer to their provisions, except for the purpose of observing that under the word "game," owing to the provisions of 1 & 2 Will. IV. c. 32, s. 2, hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards are commonly considered as included. Rabbits, therefore, are not strictly game.
There is at present no property in game. The words of Lord Chelmsford in the case of Blades v. Higgs and another (Law Journal, H.L.C., N.S., Vol. XXXIV., parts 2-4, p. 291), may be regarded as an unassailable declaration of the law. "With respect to wild and unreclaimed animals," observes his lordship," there can be no doubt that no property exists in them so long as they remain in a state of nature." And again, "Animals feræ naturæ, when killed, or reduced into possession by the owner of the land where they are found, or by his authority, become instantly his property." In this respect our law and the civil law are alike, for by the latter property existed only in animals capable of being identified.* Nevertheless our law prescribes when, where, and by whom game can be lawfully captured, and exacts obedience by severe penalties, some of them personal. To an infringement of the game laws a name of uncertain origin, and nɔt denoting any moral offence, is given, a name distinct from felony and all varieties of felony—that name is "poaching."
*Just. Inst., Lib. II., tit. 1, s. 12.
The game laws, therefore, do not prohibit what is wrong, nor, upon any jurisprudential principle, command what is right; but are simply laws of terror, which any subject may, without any moral offence, and therefore without any compunction, transgress. If all our laws were founded and
enforced on the same principle, we should be living under a military government, we should be in a state of servitude. Fortunately our game laws are the exception, for though it might be difficult, and even impossible, to prove that many of our laws are founded on natural justice, yet all, save the game laws, it is believed, are founded on some right of property, the result of custom, or conferred by the Legisla
The first question under the foregoing circumstances is, whether so long as there is no property in game recognised by law, it is jurisprudentially right, to have penal or any laws restricting the pursuit and capture of it? To this the answer must be in the negative. No wrong, for example, is done by a person taking possession of land which belongs to nobody,* and so long as he occupies the land of which he has so taken possession, it is his,† and provided he only manures the land it becomes his property.‡
The same principles apply to movable property ;§ possession being primâ facie evidence of ownership; and if, without any contract, labour be lawfully bestowed on movable property, so as to give it an unalterably new character or condition, that makes possession indisputable evidence of the ownership of it; for example, if wine be lawfully made with grapes by one of two persons to whom the grapes belonged, the wine is the property of him who makes it. Here, it may be asked, how game in a cultivated country is sustained? Can it be alleged truly that it is sustained on food produced by nature unaided by man? Certainly not; for if the
*Puffendorf, Book IV., c. 4, p. 387.
ground were not cultivated there would be comparatively no game. Cultivated land consists of arable, pasture, and meadow, each having been made artificially productive by an expenditure of capital, and each requiring a due course of husbandry. Game found on all farmed land, therefore, is propagated from, and exists on, the produce of capitalof capital expended under the sanction of the State. This being so, it is jurisprudentially wrong not to create a property in game on land so cultivated.
As regards, therefore, all indigenous graminivorous and granivorous animals, both winged and four-footed, throughout the cultivated parts of the United Kingdom, the law ought, so far as is possible, to give them to the producer of the food on which they live. Who is that producer, will be presently considered. Such a right of property might easily be created, and would be thoroughly intelligible, and easily made operative, if founded upon the maxim "cujus est solum ejus est usque ad cœlum," the proprietor having liberty to follow off his own soil, but for capture only, game wounded in the exercise of his proprietary right. As regards birds migratory over the sea, in so far as they are sustained on produce the result of capital, the same law of property should exist- therefore quails and landrails, and it may be some other birds, ought to be classed with the indigenous grain-consuming birds before referred to. As regards fish in confinement they ought to be by law, the same private property as is a bird in a cage. As regards birds not sustained on produce the result of capital, it is impossible, on any jurisprudential principle, to confer a property in them, and if, therefore, the natural right to pursue and capture them be restricted the restriction must be founded on a different principle. The principle is contained in the maxim "Sic utere tuo ut alienum non lædas." This is a moral obligation which the Legislature has a right to enforce, and which ought to be enforced whenever necessary. This principle is recognized by the Civil Law, for, whilst that law gives no property in wild animals, it recog
nizes a right in the cultivator of the soil to prevent the pursuit of them over cultivated land. Plane qui in alienum fundum ingreditur venandi aut aucupandi gratiâ potest a domino si is providerit prohiberi ne ingrediatur.*
The Legislature should, therefore, forthwith create a right of property in the animals enumerated in Class 1, by declaring the unlawful pursuit and capture of them a felonious offence, and the unlawful pursuit of them a criminal trespass, that is, a trespass with intent to acquire another person's property; but as regards the animals enumerated in Class 2, the unlawful pursuit of them should be punishable as a trespass only.
As regards feræ naturæ on land that has never been cultivated, (but on which they have been saved from extirpation by the laws at present in operation), that is, on wild land, such as moors and forests, there is more difficulty in arriving at any just law to restrain the natural right to pursue and capture them. Here the law of expediency, that is, purely arbitrary law, meets the jurist; but it by no means follows that such law ought not to exist; for all law that interferes with natural rights is founded on a restraint of natural liberty. Our land laws, for example, are laws of custom, and it would be impracticable to found territorial property on any other principle without recognising allodial titles, the operation of which in a very few generations would cause a division of the land per capita. This would not only destroy the progressive principles of government on which our constitution is founded, but would infect it with retrogression. A greater national calamity than a minute division of the soil could hardly happen. At present the exclusive property in wild and other land is derived directly or indirectly from the sovereign, who never has abandoned his right to the allegiance and duty owing to him as incident to the tenure of it. There is, therefore, no absolute and unqualified title to land, known to our laws,-no allodial
* Just. Inst., Lib. II., tit. 1, s. 12.
tenure. Hence, many persons are from Crown grants entitled to the exclusive enjoyment of wild land, without any labour or capital ever having been expended upon it, and those rights have been unquestioned and transmitted for many generations. It must, however, be admitted on jurisprudential principles, that those exclusive rights ought never to have existed, and that the maintenance of them can be justified only on the arbitrary principle of expediency. Ought they therefore to be abolished? The answer must be, certainly not. First, because it must be presumed that they have been lawfully obtained, that is, with the sanction of the State; and secondly, because the State would lose great advantages by the abolition of them. If, however, that exclusive title, which is founded essentially on what is wrong, can be modified without injury to the proprietor and without damage to the State, the Legislature ought forthwith to interfere. It being a great national advantage to be supplied with food from the graminivorous and ericavorous animals found only on wild land, it is lawful to preserve them from extirpation, and as the preservation of them for the national benefit can be effected, in no practicable way, except by conferring an exclusive private right to pursue and capture them, it follows that it is expedient and therefore proper to confer such a right, and to protect the enjoyment of it; but, beyond all question, that exclusive right should not be protected by any unnecessary laws. The State ought therefore to authorise the public to enjoy the natural right, except during the breeding season, of taking air and exercise over wild and forest land.
As to fish in the estuaries of rivers, it may be remarked that as no national damage can arise from an indiscriminate right to take them, there is no necessity to restrict that right, but as regards shell fish in artificially-constructed
* An estuary is a widening of the mouth of a river into an arm of the sea. See Worcester's A. D., word "Estuary." If it be in any estuary, probable entirely to intercept and capture fluvio-marine fish, the law should interfere to protect the fluvial proprietors.