crown. And upon these two last principles combined, the exclusive right of printing the translation of the bible is founded. There still remains another species of prerogative pro- Game. perty, founded upon a very different principle from any that have been mentioned before; the property of such animals feræ naturæ, as are known by the denomination of game, with the right of pursuing, taking, and destroying them: which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery. This may lead us into an inquiry concerning the original of these franchises, or royalties, on which we touched a little in a former chapter (f): *the right itself being an incorporeal heredi- [ *411 ] tament, though the fruits and profits of it are of a personal nature. the taking of In the first place, then, we have already shown, and in- Restrictions on deed it cannot be denied, that by the law of nature every game. man, from the prince to the peasant, has an equal right of pursuing, and taking to his own use, all such creatures as are feræ naturæ, and therefore the property of nobody, but liable to be seized by the first occupant. And so it was held by the imperial law, even so late as Justinian's time: "feræ igitur bestia, et volucres, et omnia animalia quæ mari, cælo, et terra nascuntur, simul atque ab aliquo capta fue"rint, jure gentium statim illius esse incipiunt. Quod enim "nullius est, id naturali ratione occupanti conceditur" (g). But it follows, from the very end and constitution of society, that this natural right, as well as many others belonging to man as an individual, may be restrained by positive laws(7), enacted for reasons of state, or for the supposed benefit of the community. This restriction may be either with respect to the place in which this right may, or may not, be exercised; with respect to the animals that are the subject of this right; or with respect to the persons allowed or forbidden to exercise it. And, in consequence of this authority, we find that the municipal laws of many nations have exerted such power of restraint; have in general forbidden (g) Inst. 2, 1. 12. (f) Pag. 38, 39. (7) See ante, p. 8, with the note at the foot thereof. the entering on another man's grounds, for any cause without the owner's leave; have extended their protection to such particular animals as are usually the objects of pursuit; and have invested the prerogative of hunting and taking such animals in the sovereign of the state only, and such as he shall authorise (h). Many reasons have concurred for making these constitutions (8): as, 1. For the encouragement of agriculture and improvement of lands, by giving every man an exclusive dominion over his own soil. 2. For preservation of the several species of these animals, which would soon be extirpated by a general liberty. 3. For prevention of idleness and dissipation in husband[ * 412 ] men, artificers, and *others of lower rank; which would be the unavoidable consequence of universal license. 4. For prevention of popular insurrections and resistance to the government, by disarming the bulk of the people (i); which last is a reason oftener meant, than avowed, by the makers of forest or game laws (9). Nor, certainly, in these probi (h) Puff. L. N. l. 4, c. 6, s. 5. (8) See ante, pp. 15, 39, 403. The reasons assigned in the text are of very questionable validity. The destruction of agricultural produce in the neighbourhood of close preserves, is matter of notoriety. That game would soon be extirpated in our country, if the game laws were done away with, is a position which is incapable of proof à priori; game is no where more abundant than in many of those countries (some of them thickly inhabited, throughout the greater part of Asia for instance,) where game laws are, with the exception of the edict stated in the note to p. 414, unknown. Every day affords me lancholy proofs, that idleness and dissipation amongst the lower ranks are not prevented by the existence of the game laws; but, that perpetual breaches of those laws lead, by a seldom failing progression, to every description of profligacy and hardened crime and it is by no means clear, that, if the stimulus of prohibi tion were taken away, the passion for (i) Warburton's Alliance, 324. the pursuit of game might not be lessened. The fourth reason suggested by our author in support of the principle of the game laws, is answered by Mr. Christian, in the note of his which is retained below. And Blackstone, in the next page, candidly admits, that the game laws are relics of feudal slavery. Since this note was first published, the statute of 1 & 2 Gul. IV. c. 32, has been enacted for the purpose of amending the laws in England relative to game; whereby the sale of game is licensed, and every person who takes out a certificate is authorised to kill game, subject to the law of trespass. (9) Mr. Christian, in his note upon the passage in the text, says, "I am inclined to think that this reason did not operate upon the minds of those who framed the game laws of this country; for, in several ancient statutes, the avowed object is to encourage the use of the long bow, the most effective armour then in use.** bitions is there any natural injustice, as some have weakly enough supposed; since, as Puffendorf observes, the law does not hereby take from any man his present property, or what was already his own, but barely abridges him of one means of acquiring a future property, that of occupancy; which, indeed, the law of nature would allow him, but of which the laws of society have, in most instances, very justly and reasonably deprived him (10). law, no man hunt on ano Yet, however defensible these provisions in general may By the Roman be, on the footing of reason, or justice, or civil policy, we was permitted to must, notwithstanding, acknowledge, that, in their present ther's land. shape, they owe their immediate original to slavery. It is not till after the irruption of the northern nations into the Roman empire, that we read of any other prohibitions, than that natural one of not sporting on any private grounds without the owner's leave; and another of a more spiritual nature, which was rather a rule of ecclesiastical discipline, than a branch of municipal law. The Roman or civil law, though it knew no restriction as to persons or animals, so far regarded the article of place, that it allowed no man to hunt or sport upon another's ground, but by consent of the owner of the soil. "Qui alienum fundum ingreditur, ve"nandi aut aucupandi gratia, potest a domino prohiberi ne "ingrediatur” (k). For, if there can, by the law of nature, be any inchoate imperfect property supposed in wild animals before they are taken, it seems most reasonable to fix it in him upon whose land they are found. And as to the And hunting other restriction, which relates to persons and not to place, to clergymen. the pontifical or canon law (1) interdicts "venationes, et "sylvaticas vagationes cum canibus et accipitribus," to all was interdicted clergymen without distinction; grounded on *a saying of St. [413] (*) Inst. 2. 1. s. 12. (7) Decretal, 1. 5, tit. 24, c. 2. (10) Mr. Christian says, "I can by no means accede even to the combined authority of Puffendorf and the learned Judge, that there is not any natural injustice in abridging a person of the means of acquiring a future property. The right of acquiring future property may be more valuable than the right of retaining the present possession of property. A right of Jerome (m)(11), that it never is recorded that these diversions were used by the saints, or primitive fathers. And the canons of our Saxon church, published in the reign of king Edgar (n), concur in the same prohibition: though our secular laws, at least after the conquest, did, even in the times of popery, dispense with this canonical impediment ; and spiritual persons were allowed by the common law to hunt for their recreation, in order to render them fitter for the performance of their duty: as a confirmation whereof, we may observe, that it is to this day a branch of the king's prerogative, at the death of every bishop, to have his kennel of hounds, or a composition in lieu thereof (o) (12). Origin of the But, with regard to the rise and original of our present prohibitions respe ting game. civil prohibitions, it will be found that all forest and game laws were introduced into Europe at the same time, and by the same policy, as gave birth to the feodal system; when those swarms of barbarians issued from their northern hive, and laid the foundation of most of the present kingdoms of Europe on the ruins of the western empire. For, when a conquering general came to settle the economy of a vanquished country, and to part it out among his soldiers or feudatories, who were to render him military service for such donations; it behoved him, in order to secure his new acquisitions, to keep the rustici or natives of the country, and all who were not his military tenants, in as low a condition as possible, and especially to prohibit them the use (0) 4 Inst. 309, [post, p. 427.] (m) Decret. part 1, dist. 34, 1. 1. (11) Viz. Venatorem nunquam legimus sanctum.-CH. (12) Mr. Christian observes, that "when Archbishop Abbot, by an unfortunate accident, had killed a parkkeeper, in shooting at a deer with a cross-bow, though it was allowed no blame could be imputed to the archbishop but from the nature of the diversion, yet it was thought to bring such scandal upon the church, than an apology was published upon the occasion, which was warmly and learnedly answered by Sir Henry Spelman, who maintained that the archbishop was in the exercise of an act prohibited by the canons and ordinances of the church, and that he was even disqualified from exercising his spiritual functions. The king referred the consideration of the subject to the lord keeper and several of the judges and bishops, who recommended it to his majesty to grant his grace a dispensation in majorem cautelam, si qua forte sit irregularitas; which was done accordingly. See Reliquiæ, Spelm. 107." of arms. Nothing could do this more effectually than a prohibition of hunting and sporting; and therefore it was the policy of the conqueror to reserve this right to himself, and such on whom he should bestow it; which were only his capital feudatories, or greater barons. And accordingly we find, in the feudal constitutions (p), one and the same law prohibiting the rustici in general from carrying arms, and also proscribing the use of nets, snares, or other engines for destroying the game. *This exclusive privilege well [414] suited the martial genius of the conquering troops, who delighted in a sport (q) which in its pursuit and slaughter bore some resemblance to war. Vita omnis (says Cæsar, speak ing of the ancient Germans,) in venationibus atque in studiis rei militaris consistit (r). And Tacitus in like manner observes, that quoties bella non ineunt, multum venatibus, plus per otium transigunt (s). And indeed, like some of their modern successors, they had no other amusement to entertain their vacant hours; despising all arts as effeminate, and having no other learning than was couched in such rude ditties as were sung at the solemn carousals which succeeded these ancient huntings. And it is remarkable that, in those nations where the feodal policy remains the most uncorrupted, the forest or game laws continue in their highest rigour. In France, all game is properly the king's; and in some parts of Germany it is death for a peasant to be found hunting in the woods of the nobility (t). forests. With us in England also, hunting has ever been esteemed The king's a most princely diversion and exercise. The whole island was replenished with all sorts of game in the times of the Britons; who lived in a wild and pastoral manner, without inclosing or improving their grounds, and derived much of their subsistence from the chase, which they all enjoyed in common. But, when husbandry took place under the Saxon government, and lands began to be cultivated, improved, and enclosed, the beasts naturally fled into the woody and (p) Feud. 1. 2, tit. 27, s. 5. (q) In the laws of Jenghiz Khan, founder of the Mogul and Tartarian empire, published A. D. 1205, there is one which prohibits the killing of all game from March to October; that the court and soldiery might find plenty enough in the winter, during (r) De Bell. Gall. 1. 6, c. 20. (t) Mattheus de Crimin. c. 3, tit. 1; |