Page images

Nothing, however, but what is mere matter of incidental criticism, with reference to the accomplishment of the great object of the statute. In case it is destined to fail, we are satisfied that no part of the discredit of the failure will be fairly attributable to any thing wrong, either in its principle or detail. But unfortunately this measure is one which, least of all, can exe

provided for manorial trespassers. In the trespass clause, the lords of manors have hitched in for themselves and their keepers a distinction, by way of privilege, altogether inexcusable. They made no pretence to any thing of the sort even under the late system of usurpation : much more is it in utter variance with that equality in the right of property, and of protection to property, which it is the peculiar object of the present measure to establish. By section thirty-five, the lord and his keeper are expressly excepted within their manor from the penalty which the act imposes upon every other trespasser in pursuit of game. The freeholder is left in this case to the old and nugatory remedy of an action only. Nothing can be more unjust. They are perhaps the only trespassers who can never by any possibility be trespassing in ignorance. Somehow or other the English Parliament does not usually appear to advantage in its legislation between landlord and tenant. We are not therefore surprised to see that it grasps at too much, and grasps too coarsely in the present instance. Landlord and tenant should have been allowed to settle their respective interests in game, as well as in other things, after their own way. In case the landlord kept the right of sporting in his own hands, they might agree to fix the penalties for encroachment on the landlord's right, by a scale of liquidated damages, ascending up to a forfeiture of the lease. The statutory fines, which are suspended over a tenant by section twelve, are far too unreasonable for a general provision. In whatever instance a landlord were insane enough to gratify a pique by enforcing them, he would sign the death-warrant of every head of game upon the farm, and at once throw the farmer back into the arms of the poacher. The extravagance of the fine becomes a flagrant injustice in the case of those tenants who, by the legal effect of their leases, had already a vested interest in the game upon their farms. This was the fact, wherever the landlord had omitted to reserve the exclusive right of sporting to himself. It happens that the English rule in this respect was more liberal to the tenant than that of either France or Scotland. By an arrêt of 1812, the court of Paris held that le bail d'un domaine' did not carry with it the right of sporting, unless it were expressly granted by the proprietor. So, by Scottish decisions of 1804 and 1808, it is a privilege, for the exercise of which a tenant must have the landlord's direct permission, and from the exercise of which over his farm he cannot exclude his landlord. The English law, on the contrary, gave the tenant the benefit of the presumption, where the lease was silent. It is true, that, under the late state of statutory restraints, the right thus bestowed upon the tenant, would be, in most cases, a

cute itself. It is dependent for its success on the aid of many of those who have received it with a bitterness and distrust which may seem to prognosticate its fate. Unless the great game proprietors can be prevailed on to make some apparent sacrifice (for the sacrifice would be apparent only), and can be induced to relinquish so much of their exclusive prejudices and amusements as may be necessary, in order to bring to market a sufficient supply of unpoached game on reasonable terms, their shortsightedness and selfishness will be mainly answerable for the disappointment of our hopes. It will be no satisfaction to us, we most honestly assure them, to think that the worst consequences of this failure they or their descendants will have principally to bear.

Two causes have combined to keep the principle, that property in game arises ratione soli, too much in the background in

nominal one only. The sentence of deprivation passed upon an unqualified tenant, under the statute of Charles II., operated in favour of the landlord, as efficiently as an express prohibitory clause inserted in the lease. In the case of a qualified tenant even, as long as amusement only, and not profit, was to be had in game, the landlord, on one hand, might not apprehend any abuse of the power of sporting; whilst, on the other hand, the qualified tenant, and much more the unqualified one, could not feel that the landlords were obtaining a pecuniary advantage at their expense. The effect of the bill, as it was prepared by Ministers, would have, in some cases, undoubtedly worked a great change in the future relative position of the parties under these circumstances. But the only question is, whether there is any thing in the nature of the present measure sufficiently peculiar to take it out of the ordinary rule? The ordinary rule is, (as, in the case of pecuniary contracts, to whatever degree they may be affected by an alteration in the currency,) parties take their chance according to the new character which the public law may impress on their private engagements. The present measure furnishes, as far as we can see, no ground of reasonable distinction. At all events, their former right ought to have been preserved to all tenants who were already qualified according to the old law, or who might become so during the currency of their lease. It is instructive to observe (notwithstanding all their declamation in behalf of vested rights, political, municipal, or ecclesiastical) the conduct of the House of Lords. The bill, as sent up by the Commons, left landlord and tenant in respective possession of their legal rights. That assembly of noble landlords introduced and insisted on a confiscation of private interests, derived from and guaranteed by their own leases, (very different interests, be it observed, from political franchises held in trust only for the state,) as the purchase-money of their consent to the suppression of an acknowledged public evil.

books of law. In the first place, it has not been so exclusively at all periods the only principle which reason could countenance, as it is at present. Next, other principles, in point of fact, have been made supreme, by the positive legislation of some states, and have been admitted to a greater or less participation perhaps in all. In most feudal kingdoms, the sovereign, partly in the character of chief and ultimate proprietor, partly in that of trustee for the public, was honoured with a prerogative authority over the chase. This branch of royalty introduced the doctrine of privilege and franchise. On the other hand, the rule of the Institutes is occupancy;-as of things which, at the first general appropriation, were left, and still remained, in common. Occupanti conceditur: nec interest quod ad feras bestias et volucres attinet utrum in suo fundo, aliquis capiat an in alieno. The consecration of this barbarous title in the imperial code, gives one but a sorry idea of the agriculture of the Lower Empire. But no wonder that the comparative barbarians of the middle ages, finding it there, conveyed it reverentially into their own piecemeal jurisprudence; without enquiring very curiously, how far it was founded in reason, or whether it harmonized with the corresponding portion of their indigenous policy.

Most European systems continue to be embarrassed by apparent contradictions between these ill defined and clashing titles. The German jurists have wisely limited the absolute occupancy of the Institutes in fundo alieno, by the condition modo non prohibeamur ingressu fundi à domino. (Heineccius Elem. Jur. Civ., and also Pand.) Now this can scarcely be called right of occupancy; since it assumes a precedent, although latent power of property ratione soli, incompatible with the strict notion of res nullius. This limitation leaves the public nothing beyond the benefit of a primâ facie presumption, by which, in intendment of law, the owner of the soil, as long as he is silent, is understood not to insist upon his right.

The attempt to transmit the traditional language, and to transfer, in some degree, the principle of occupancy from the civil law into a code, which, upon similar, and even in the selfsame subjects, recognises the principle and the consequences of property, has plunged this part of the French law in a state of inextricable confusion. Toullier complains (and the remedy for the evil is only to be found in the adoption of a consistency in their rule) of the uncertainty which pervades the French regulations concerning goods without an owner. By the notes subjoined to the Code de la chasse et de la pêche, it appears that the right of sporting, being now nothing but a right of property, may be so far separated from the entire ownership as to be

leased out, and become a servitude reelle. The dread of falling back into divided rights, as embarrassing as their old feudal claims, has induced them to take the precaution of providing that this severance shall be temporary only. With this view, the right of sporting is so far identified with, and made inherent in the land, that it cannot be permanently alienated to another, without alienating the soil also. Nevertheless, the fruits of this right, the game itself, are refused the name and protection of property in the plainest of all cases. From the silence of the penal law concerning game, the poacher is allowed to acquire, by occupation, the ownership of it to all intents and purposes.

In case the picture as drawn by Mr Justice Blackstone, and copied by most succeeding writers, had been a true representation of it, the English law would be in a still worse condition. According to his account, it originally collected prerogative, occupancy, and the right ratione soli into one heterogeneous and undistinguished mass of title. This was the sort of heap, upon and over which its modern disqualification statutes have been supposed to sit umpire, and, like chaos, to complete and embroil the fray. The English public, it must be admitted, has on this subject considerable excuse for the diversity of opinions, which branch off, according to the supposed interest of the parties, into so many heretical articles of faith. It ought to have been uniformly told that the common law recognised a general property in game ratione soli; and that any other title could arise as a peculiarity only, either by way of privileged franchise in certain places and persons, or by way of occupancy, on some contingency, where the right ratione soli might happen technically to fail. Instead of this, these peculiarities and exceptions have been frequently stated to be simultaneous portions of a common rule. Mr Leigh, we perceive, makes no attempt to reconcile the inconsistency of his general expressions, by these or similar distinctions. His first page informs the reader that the title to game, by the common law, is occupancy; the twelfth, that it is solely derived from franchise; the third and fifteenth, that in private grounds it is an incident to the soil. This indiscriminate confusion, transferred from our earlier law books to essays prepared for the current shooting season, might have answered the purpose of mystification, so often imputed to the profession of the law. But the country gentlemen had little to gain by mere absurdity. A new and stronger ingredient, that of injustice, was wanting in their behalf. With this view, legislators from time to time brought into play further and yet more startling anomalies of their own. The notion that game was not property, became a favourite pretext in support

of statutes, by which the man who otherwise must have been admitted to be the owner of it, had been forbid either to kill or sell it. These anomalies contradicted every principle and feeling which made property in other subjects sacred. Their effect could not but be most disastrous. They have been mysterious enough to perplex the understandings, and, at the same time, so palpably extravagant as to revolt the consciences, of the middling and lower orders.

Amidst all this contrariety of nominal authority, the reason of the thing directs us to property ratione soli, as to the natural and proper title. All that is really important in the line of argument, by which the necessity of private property in land is supposed to be established, applies pro tanto to an article like game. The things which the common interest of mankind requires to be left in common, are such things only as appear to be in their nature inexhaustible;-such things as live at no man's cost; in which, after every man has taken what he wants, enough and as good remains for those who come behind. Whilst one nation prohibits another from sharing in the fisheries on its coast, an individual proprietor may well insist, that the occupation-jurist should distinguish the case of a stubble-field from that of salt water, and a covey of partridges from a shoal of herrings. From the moment it is acknowledged that private property ought to be recognised in game, it will, by a similar train of reasoning, follow, that the property in it ought to be concurrent and identified with the property in the soil. To vest it in a third person, is to establish the partnership of the drone and the bee, and to quarter an idle partner on the labour of an industrious one. Such an exception tends to undo, or disappoint, the institution of private property in land to the whole extent of the exception.

Fortunately common sense was on this point also common law. We can only spare a sentence to the crotchet, which some writers have invented, and upon which some visionary squires still plume themselves, under the dream of privilege. When this dream is put to flight, it will leave our heads clear for the separate consideration of the only remaining observations of a strictly technical nature, on which an English reader can want the opinion of his lawyer. That is, what has been really the paramount title concerning game, under the common law of England; and how it has happened that there ever came to be a difference of opinion upon the point.

The only prerogative over game as a matter of personal enjoyment ever exercised by a King of England, arose under the Forest Law. However obsolete, and limited within narrow

« PreviousContinue »