Изображения страниц
PDF
EPUB
[ocr errors]

prietors of the soil the limits of their able to, and derived from, the crown. rights."

But in Scotland, at all events, there A reference to the proceedings of never existed any such exclusive the anti-game-law leaders will show system of forest laws as that which that the specimens we have given are grew up under the Norman kings, only fair samples of the factious spirit and which King Jobn was finally com-the querulous, yet bullying and pelled to renounce. The broad and vindictive tone, in which they have liberal principle out of which the conducted this controversy. No one Scotch game law has grown, is the can seriously believe that a hostility, maxim of the civil law-quod nullius directed not against these laws in est occupanti conceditur—that any one particular, but against the whole social may lawfully appropriate and enjoy and political system of our country, whatever belongs to no one elsea can be founded on a wise and deliber- maxim which must necessarily form ate review of the effects of the statutes the fountainhead of all property. All in question. Discontent with things wild animals, therefore, may be seized in general is a disease which admits by any one, and the law will defend of no remedy, and which any ordinary his possession of them. But out of treatment, by argument or concession, this very principle itself there natuwould only aggravate.

rally springs a most important restricThere are many, however, of more tion the common privilege of purmoderate views, who are interested suing game; for the possessor of in knowing to what extent the com- land, as well as the possessor of game, plaints they have heard are founded must be protected in the exclusive enon reason, and are capable of redress. joyment of what (though originally We purpose, for the present, to limit res nullius) he has made his own by our remarks principally to the opera- occupation or otherwise. It is evition of the Scotch law upon game, dent, then, that the contingent right both because agitation on this subject of the hunter to the animals he may has recently been most active on this succeed in seizing, can be exercised to side of the Tweed, and because we its full extent only in an unoccupied think the important differences in the and uncultivated country; and must game-laws of England and Scotland give way, wherever the soil has behave not been sufficiently attended come the subject of property, to the to, and have given rise to much popular prior and perfect right of the landmisapprehension.

owner. Accordingly, we find that in All the abolition orators begin by the Roman law the affirmation of the telling us that game laws are a rem- common right to hunt wild animals nant of the feudal system-that they is coupled with this important restricoriginated in the tyranny and oppres- tion, under the very same title—“Qui sion of the middle ages, and are, alienum fundum ingreditur, venandi therefore, wholly unsuited to our im- aut aucupandi gratiâ, potest a domino proved state of society. Such an prohiberi ne ingrediatur; ” and, notorigin, of course, condemns them at withstanding the perplexed and anoonce; for, in the popular mind, feudal malous nature of the tenure of land law is somehow synonymous with among the Romans, we find everyslavery, rape, robbery, and all that is where traces of a strict law of trespass, damnable. The truth is, however, from the Twelve Tables down to Justhat the game law of Scotland has tinian. And in this the civil law was no more connexion with the feudal followed by that of Scotland. Subject law than with the code of Lycurgus. to this inevitable restriction, and to a Even as regards England, there is few regulative enactments of less imgood ground for questioning Black- portance, the privilege continued open stone's doctrine that the right to pur- to all, without distinction, up to the sue and kill game is, in all cases, trace- year 1621.f About this time the tenor

* Address in Mr Welford's Influences of the Game Laus.

+ The statute of 1600, prohibiting hunting and hawking to those who had not " the revenues requisit in sik pastimes,” is plainly one of a sumptuary tenor, and not properly a game law.

of the statutes shows that game of all regarding the pursuit of game in Scotkinds had become exceedingly scarce; land, commonly known as the Night and it was probably with a view of and the Day Trespass Acts, 9 Geo. preventing its extirpation, as well as IV. c. 69, and 2 and 3 Will. IV. c. of discouraging trespass, which, from 68, cannot here be criticised in dethe increase of the population, had tail. Their provisions contain one or increased in frequency, that, in the two anomalies which we shall have above-mentioned year, an act was in- occasion to notice below, in sugtroduced which was, without doubt, a gesting some practicable amenddecided violation of the principle on ments on the present law. But as to which the system was originally their general spirit, we venture to founded. The act 1621 prohibited affirm that they are most legitimate every one from hunting or hawking developments of the general prinwho had not “ a plough of land in ciple above stated. In every class heritage;" and subsequent statutes ex- of injuries to the rights of others, tended this prohibition to the sale and there are some species of the offence purchase, and even to the possession which, from their frequency, or from of game, by persons not thus qualified their being difficult to detect, must This, we repeat, was a direct depar necessarily be prevented by more ture from the leading maxim of the stringent prohibitions than those atlaw, as it stood previously; and we tached to the genus in general; and can see no reason whatever for now in the same way that orchards for retaining it on the statute-book. It example, timber, salmon fisheries, is notorious, however, that, practi- and many other subjects are protected cally, these statutes have now fallen by special penalties, so has it been into desuetude, and that the mere found requisite to amplify the comwant of the heritable qualification mon law of trespass, in its application has not, for a long period, been made to that particular manner of trespass a ground for prosecution. In fact, which is confessedly the most frequent the privilege is open to any one pro- and annoying. If the penalties are vided with the landlord's permission, unnecessarily stringent, let them by and who has paid the tax demanded all means be modified; but their seby the Exchequer, though he may not verity, in comparison with the punpossess a foot of land. When, then, ishment of ordinary trespass, is not we find the orators of Edinburgh com

inconsistent with justice, or the prinplaining of the harsh and intolerable ciples of wise legislation. operation of the qualification statutes, We have adverted, in this hasty it affords the most complete evidence sketch, only to the prominent feaeither of their utter ignorance of the tures and growth of the law of Scotactual state of the law, or of the land ; but a more detailed comparison weakness of a cause that needs such with that of England and other disingenuous advocacy.

countries of Europe, especially when The fiscal license, which was first recent statutes and decisions are required by the act 24th Geo. III. c. taken into view, will fully justify the 43, cannot be justly regarded in the opinion of Hutcheson and other well light of an infraction of the general qualified judges, that it is the most principle of the Scotch law. Its liberal and enlightened of all laws direct object is not the limitation of as to game." It recognises, of course, the right of hunting, but the main- no such thing as property in game tenance of the public revenue; and it more than in any other animals of a will be readily admitted by all rea- wild nature. The proprietor of a manor sonable men that, on the one hand, has no right to the pheasant he has there cannot be a less objectionable fed until he shall have actually source of taxation than the privilege brought it to bag, or at least disabled in question, and, on the other, that it from escaping; and the right which the duty is not excessive, when we he then first acquires is quite indefind above 60,000 persons in Great pendent of his ownership of the land. Britain voluntarily subjecting them- To many the distinction thus selves to it every year.

created, by considering all game as The two other principal enactments wild animals, appears too theoretical; and no doubt it is a question for game laws, nor materially obviate zoologists rather than for lawyers to any of the bad effects usually ascribed decide, whether there really be in ani- to them. mals any such permanent and inva- But it is time now to turn to those riable character as to justify such a alleged evils, and to form some judguniversal distinction. There is the ment as to whether they are in reality strongest presumption that all our so weighty and numerous, that nodomesticated animals were at one thing short of the total abolition of time feræ ; and it is rather a difficult the game laws can effectually check task to show reason for considering them. The abrogation of a law is some classes as indomitabiles," when no doubt an easy way of overcoming we see the reindeer, of a tribe natu- the difficulty of amending it-in the rally the most shy of man, living in the same way that the expedient of wear. hut of his Lapland master-and when ing no breeches will unquestionably werecollect that among birds, the duck, save you the cost of patching them; turkey, and peacock, with us the most and as a device for diminishing gamecivilised and familiar of poultry, are law offences, the total repeal of all elsewhere most indubitable feræ at game laws is perhaps as simple and this very moment. It has been argued efficacious a recipe as could well be that the commoner kinds of game, conceived. But let us first inquire under the system of rearing and feed- into the existence of the disease, being now so general, are scarcely more fore we resort to so summary a reshy or migratory in their habits than medy. those animals which the law contrasts There are three distinct parties who with them as mansuefacte, and there are said to be injured by the operation fore regards as property : that even of these laws—The community at large when straying in the fields, we may suffer chiefly by being deprived, it is as reasonably impute to them the alleged, of a very large proportion of animus revertendi-the instinct of re- the produce of the soil, which, if not turning to their haunts and coverts, consumed by game, would go to inas to pigeons and bees which the law crease the stock of human food-The for this reason retains under its pro- poacher has to bear the double injustection, though abroad from their tice of a law which first makes the cots or hives; that the common temptation, and then punishes the objection as to the difficulty of iden- transgression—The farmer finds, in the tifying game, is one which applies as protection given to game, a source of strongly to many other subjects re- constant annoyance, loss, and disapcognised as vested in an owner; and pointment. We shall take these comfinally, that, being now in reality plainants in their order. valuable articles of commerce, these The public, (we are told by the enclasses of animals should cease to be lightened commercial gentleman who viewed as incapable of becoming represents the metropolis of Scotland,) property. It is difficult to gainsay the public have a right to see that the premises on which this proposal none of the means for maintaining is built: and if we look to analogy, it human life are wasted--a great popucannot be doubted that the invariable lar principle popularly and broadly tendency of civilisation is towards stated. It is possible, however, that the restriction of the category of res Mr Cowan may not have contemnullius, and by art and culture to plated all the admirable results of his subject all products of the earth to principle. He may, perchance, not the use, and consequently to the pos- have seen that it sweeps away, not session of man. But, apart from this only every hare and pheasant, but speculative view of the subject--it every animal whatever that cannot be seems to us that, while common eaten or turned to profit in the ledger. opinion is unprepared for so funda- His carriage horses eat as much as mental a change in the law of Scot- would maintain six poor paper-makers land, the alteration proposed would and their families; the keep of his not in practice improve the position children's poney would board and of any of those classes who are affect- educate four orphans at the Ragged ed by the operation of the present Schools. But we are not yet done with him ; for he cannot stick his fork make up the sum collected from poorinto that tempting fowl before him rates from the whole lands of the until he can satisfy us, the public, empire." + Double the amount of that the grain it has consumed would poor-rates paid by land may be taken not have been more profitably applied roughly at some £9,000,000. But in fattening sheep or cattle. And what, there are others who think even this pray, is that array of plate on the too low an estimate, and throw into buffet behind him but so much capi- the scale (a million out or in is of no tal held back from the creation of importance) the county rate, highemployment and food for that starv- way rate, and all the other direct ing population, which he assures us burdens on land put together! Let (though every one but himself knows

us carry on the line of calculation a it is nonsense) is increasing at the step further: if game animals alone rate of 1000 per diem! Political consume all this, and if we allow a economy of this quality may do very fair proportion of voracity to the well for the Edinburgh Chamber of minor, but more numerous fere--rats, Commerce; but we really hope, for mice, rooks, wood-pigeons, &c.—it is the credit of the city he represents, clear as daylight that it is a mere dethat he will not expose himself on any lusion to think that a single quarter of other stage, nor consider it a necessary wheat can, by any possibility, escape part of his duties as a legislat to the universal devastation. There is prescribe the precise manner in which no lunatic so incurable as your ramcorn shall or shall not be used. pant arithmetician; and the only de

The supposed amount of destruc- lusion that could stand a comparison tion by game of cereal and other pro- with the above would be the attempt duce, has afforded a fine field for the to reason such men out of their abmore erudite of the game law op- surdities. ponents. Mr Gayford's celebrated But the actual waste of grain is calculation, that three hares eat as not, it seems, the only way in which much as a full-grown sheep, is gene- the public suffers. The annual cost rally assumed as the infallible basis of to the community of prosecutions untheir estimates, and the most astound- der the game acts is an enormous and ing results are evolved from it.* Mr annually increasing burden. This is Charles Stevenson thinks the destruc- proved, of course, by the same systion cannot be less than two bushels tem of statistics run mad as that of per acre over the whole kingdom, re- which we have just given some specipresenting a total of two hundred The game convictions in the thousand quarters. If it be the case,' county of Bedford, it is discovered, says Mr Chiene Shepherd, with a were, in the year 1843, 36 per cent of modest hesitation—"if it be the case, the total male summary convictions; that throughout this empire the and the lovers of the marvellous, who farmers, in general, suffer more loss listen to such statements, are quietly from game than they pay in the form left to infer, not only that this is of poor's tax (and I suppose it cannot usually the case in Bedfordshire, but be doubted that they do so—that in that a similar state of things prevails most parts they suffer more than double throughout England and Scotland the amount of their poor-rates,) then also. They are sagacious enough, howit follows, of course, that there is more ever, never to refer to general results. destruction from game than would They carefully avoid any mention of

mens.

* It is right to mention, that there is some discrepancy in the estimates of Mr Bright's authorities on this point, of whom Mr Gayford is comparatively moderate ; for we have others who, (upon, no doubt, equally sound data,) think two hares is the proper equivalent; and Mr Back of Norfolk is convinced that one hare is worse than a sheep ; in other words, that one hare will eat up a statute acre. On the other hand, Mr Berkeley weighed the full stomachs of a large hare, and an average Southdown sheep, and found them as one to fifty-five. So that, if the accounts of Mr Gayford and his confrères are right, we have arrived at a law in physiological science equally new and surprising—that the digestive powers of animals increase in a compound inverse ratio to the capacity of the digestive organs !

+ Scotsman, February 12, 1848.

[ocr errors]

the fact, (which, however, any one rare and aggravated cases. From
may learn for himself, by referring to these it appears that the whole num-
Mr Phillipps' tables,) that the average ber of game cases tried, or reported to
of the game convictions during the the authorities, in these five counties,
five years these tables include, was, during the years 1846 and 1847, was
for all England, not 36, but a frac- one hundred and forty-four, being
tion over 6 per cent of the whole. about 2.5 per cent of the whole. Fife-
Now, let us see how the case stands shire (which was selected to be shown
in Scotland. We have observed that up before Mr Bright's committee as
our northern orators always draw their an abyss of game-law abuses) had, in
illustrations from the south of the 1848, out of eight hundred and thirty
Tweed; and we have, therefore, look- offences, only three under the game
ed with some curiosity into the re- acts. As to the alleged progressive
cords of our Scotch county courts, increase of such cases, the subjoined
as affording some test of the real table of the numbers for the five years
extent of the grievance in this part of preceding 18487 proves that, whether
the empire. Unfortunately these re- it be true or not as respects isolated
cords are not preserved in a tabular districts of England, that the num-
form by all the counties; but we ber of game-law trials is every year
have been favoured with returns from becoming a heavier burden on the
five of the most important on the east public, it certainly is not true in four
coast, which we selected as being those of the largest and most game-keeping
in which the preservation of game is counties of Scotland.
notoriously carried to the greatest We have now to make a remark or
extent. An abstract of these returns two on the plea set up on behalf of
will be found below,* and will suffice the poacher against the present game
to show how false, in regard to Scot laws. What is it that makes a man
land, is the assertion that game pro- become a poacher? “ Temptation,"
secutions are alarmingly numerous; says Mr Bright, and temptation only.
while every one knows that the ex- How can you expect that the poor but
pense is borne, not by the public, but honest labourer, who, on his way home
by the private party, except in very from his daily toil, sees hares and

[blocks in formation]

Compare these facts with the preposterous statements which the latest orator of the league, Mr M. Crichton, has been repeating to listening zanies at Greenock, Glasgow, and Edinburgh, that "the commitments arising from game laws amount to ONEFOURTH of the whole crime of the country.

+ Return of game-law offences during the years 1843-7

[blocks in formation]
« ПредыдущаяПродолжить »