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consulted, whatever difference of opinion may be entertained as to who should be entitled to the game, they would be unanimous, or nearly so, as to the expediency of having it protected, especially by night, by a rural police, and the fact that poaching may be the beginning of a criminal career, and that murderous fights occasionally are caused by the preservation of game, ought not to be allowed to be set up against the right to have the property of farmers and others resident in unprotected homesteads protected effectually. In this respect, the night poaching Act has been most beneficial,* and it would be improper to repeal it.
The conclusion then derived from the foregoing observations appears to be that jurisprudentially it is right and expedient to enact and maintain game laws, but that those at present in existence ought to be amended, by founding them in part on the principle of property, viz., by declaring that all animals in Class 1, before mentioned, whilst on or over cultivated land, should be the private property of the proprietor, and that the unlawful pursuit of such animals should be a penal trespass, and the unlawful capture of them a criminal offence; and as regards all the animals enumerated in Class 2, that the unlawful pursuit of them should be protected by a law of trespass, and as regards all the animals enumerated in Class 3, that the preservation of them should be secured by making it a penal offence unlawfully to pursue them, especially during the breeding season, but they should not be preserved under the principle of a trespass, because no capital has been expended on the land where they are found.
As regards the private sale of game, notwithstanding the importance of the subject, it is not a question of a jurisprudential nature. The only remaining question is in whom the property, proposed to be created in game, should be vested, with reference to which it may be observed that the first principle should be to leave co-partners on the soil to enter into any contract they please; secondly, that in the
* 26 & 27 Vict.. c. 114.
absence of any agreement to the contrary, the property in game ought to belong to the person or persons by whose labour and capital it is sustained. Upou this principle, if any exclusive property is to be created, it should, if there be a plurality of persons whose capital is so expended, be vested in them in proportional shares, as far as is practicable. Here a difficulty of very considerable magnitude arises, which can only be reduced into law by a compromise. Bearing in mind that, as the law is at present, the tenant occupier contracts only for the use of the soil for farming purposes, his landlord being entitled, as against him and every other person, to kill and preserve the game upon it, if the law of contract be strictly regarded, the law ought to vest the game in such cases exclusively in the landlord; but as the effect of that would be to enable the landlord to get, as already demonstrated, two rents from the land at the expense of his tenant, it would seem to be a fair compromise and highly expedient, if the tenant had vested in him the property of all wild graminivorous animals, the property in all granivorous game being vested in the landlord. The result would be that hares and rabbits would be the property of the tenant cultivator; pheasants, partridges, quails, and landrails the property of the landlord; and as regards the killing of larks, woodcocks, snipe, wildfowl, &c., the right to pursue and kill them might be left to the law of contract.
It should be finally remarked that a law of trespass would be utterly nugatory for the preservation of wild animals. A law of trespass confers a right of action only, and most of those who would be engaged in the unlawful pursuit of game would be unable to pay the legal expenses of an action. A law of arrest, especially by night, is, therefore, essential for the preservation of game. Where it is, notwithstanding its migrations from farm to farm, in truth and in fact sustained on the same food as live stock fatted for market, the law ought to afford the same protection, as far as is possible, to
those at whose expense game is in existence; but there is an unreasonable demand for the abolition of all game laws; let this demand be met by placing before the public the simple principles of natural justice. Natural justice requires that they who, by the expenditure of capital, produce a marketable article would participate in the profits. Let, then, in cases where there is no agreement to the contrary, the ground or graminivorous animals be declared by law to be the property of the tenant, the winged game the property of the landlord. Should this just and reasonable principle not soon be acted upon, it may be that there will be soon no game laws at all. Matters of trespass and police, with a view to any enactments concerning them, are not considered on the present occasion, they not being strictly jurisprudential subjects. It is sufficient to observe with regard to them, that in every highly civilized and well-governed State, there is no difficulty in framing laws for the protection of rights created by its Legislature, and if and when necessary in enforcing the observance of them.
ART. II. EARLY ENGLISH CODES.
(1.) THE MIRROR; (2.) leges HENRICI I.
T is proposed to discuss in the following article, the authenticity and the worth of certain ancient legal treatises, which have lately been cited as of great authority, and emphatically vouched to contain much trustworthy information, both as to the history of this country in remote times, and as to the sources of our Common Law.
Somewhat encrusted-over much perhaps-rubigine vetustatis, such treatises have nothing about them attractive
to the general reader, and but little that is useful even to the professional student, and yet, in the history of the development of our liberties, they may have an infinite importance as links in the long chain of our national records, as ancient title deeds of our present freedom, which may at least merit an occasional reference, and justify an endeavour to awaken a passing interest in the genuine, and to point out and displace the worthless.
It can hardly be rash to affirm that a critical examination of the early law books and judicial records, with a design to eliminate
should be the first object of the codifier, and that to set about re-arranging the practice and the functions of the judiciary, before we have obtained the scheme of the future Codewhich is the plan adopted by our highest legal officer—is very like beginning at the wrong end. But be this view right or wrong, it cannot but be necessary to the compilation of a reasonably satisfactory Digest to ascertain what are, and what are not, the pure sources of the law. With these observations we will proceed to discuss the treatises referred to, taking them in the order of their popularity.
The Mirror appears to stand first on the list. It received from Lord Coke (see preface to the 9th and 10th Reports) the most emphatic commendation, and it has recently been highly eulogised and abundantly cited by Mr. Finlason in his new edition of "Reeves' History of the Law,” and described by him as a work "more illustrative of our whole legal history for the period from the Saxon monarchy to the Great Charter than any other work extant.”* We may add that it was also cited in the recent case of Tatton v. Darke (5 H. & N., 647), and relied upon by the Court, the late Lord Chief Baron Pollock having been reported as saying that it was written in the time of King Alfred (see 29 Law Jour. Exch., p. 271).
* Reeves' Hist. C. L., Vol. I., note to preface. VOL. XXX.-NO. LX.
Unfortunately, the Mirror is one of the most questionable authorities extant, as we shall show. Meanwhile, a word as to Lord Coke's commendation. It must be remembered that in his time philosophical criticism, of either law, or history, or scientific writings, was practically unknown, and an almost blind reliance on precedent, (which even Lord Coke himself reprobates,*) was the confirmed habit of both Bar and Bench. Whether these precedents were genuine or not was rarely, if ever, considered; it sufficed that they were, or purported to be, ancient, and supported the opinions of the person citing them. Some curious instances of Lord Coke's lack of critical judgment will be seen by referring to the citations in the note below, and, we are afraid we must say, of his occasional recklessness in the use of records for the purpose of supporting his statements.† We ought nevertheless to add, quoad the references to certain of his works, that they were posthumous publications.
We shall now give some account of this ancient treatise.
The Mirror is what may be called an ambitious work, professing to be a Summa or abridgment of English law from the days of King Arthur to those of Edward I., and such as Vacarius and some of the most distinguished of the doctors of Bologna had previously compiled with reference to the civil law. It affects to give circumstantial accounts of particular ordinances and judgments of King Alfred (Mr. Finlason says that it contains his long-lost Dom-boc), it attributes to this monarch the institution of trial by jury, and narrates in chronicle-like style a strange story of his hanging forty-four judges, and many other curious facts which are not mentioned or referred to in the life of King Alfred by his cotemporary, Asser, or in any record of a trustworthy charIt further acquaints us with some details concerning the independence of the clergy of control by the secular *Preface, 10 Rep., xxi.
+ Co. Litt., 68, b., extract from Leg. Ed. Conf. Selden, tit. Hon., part 2, cap. 5, s. 26. Preface to 3 Rep. Per Anderson, C. J., 2 Sid. 200 per Cur. Cam. Scacc., Kel, 21; per Prynn, Brev. Part., Pref., 4 part.