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there had been no previous prohi. of light and air, without his perbition; and considered the wilfule mission. Much more might be ness or inadvertence of the tres- said, but it is hardly necessary to passer, in estimating the damages accumulate arguments against the to be awarded.
already refuted notions of these What, then, do these advocates wholesale abolitionists ; notions, for the universal right of travers. however, which have been too ing the grounds of others say to boldly and too generally put forthis? It is not the law of quali- ward to be passed over without fications only that is in their way;
refutation. they must abolish the Law of Tres In my former communication I pass, as well as that law, before trust I succeeded in shewing that they can derive any advantage originally, by the law of nature, from their favorite maxims, even every individual had the right of if those maxims were capable of pursuing and appropriating to him. being supported in argument. self all animals fer& nature. The Surely they will not extend their advance of cultivation soon led to notion of " common property" to that right being restricted in land! That, at least, may be the point of place : and, although subject of occupation, of appropri- every one was still privileged to ation, of continued possession, of pursue and kill game, he was proexclusive use : it has every qua, hibited from entering upon the lity about it that can be required grounds of another in the pursuit, to constitute the existence of pro- without the permission of that perty. The law of nature and of other. Such was the law, as we reason sanctions, as we have seen, have seen, before the Conquest ; not only the possession, but the and such it continued to be until exclusive possession of it: and he the reign of Richard the Second. who would contend for the unli- The period of arbitrary and opmited right of walking over the pressive encroachment upon the lands of another at his pleasure, rights of the subject, in matters must be no less prepared to admit relating to game, which to his own parlour every traveller menced with the Norman Conwho should fancy its conveniences quest, and lasted till the reign of rather than the discomforts of an King John, may, perhaps, be exinn, and to open his kitchen to cepted. At least, such was the every passing vagrant who should right of the subject as to the purprefer its bright and warming fire suit of game before the excepted to the cold benches of the public period, when every one was held house. They may talk for ever dignus venatione sua,” and such that game should be as common to it was still acknowledged to be all as light or air; but the action after it. of trespass, sanctioned alike by Now it is well laid down by law and reason, will of itself form Archdeacon Paley*, that “ to do a conclusive answer. Light and what we will is natural liberty: air nay, indeed, in a certain sense, to do what we will, consistently be said to be open to all; but no with the interest of the commuone can enter the lands of ano- nity to which we belong, is civil ther, to obtain the enjoyment even liberty-that is to say, the only
* Moral Philosophy, vol. ii, page 162,
liberty to be desired in a state of hunt but they which have a sufficivil society."
cient living." The preamble speaks “ The definition of civil liberty of “ divers artificers, labourers, above laid down," he continues, and servants, and grooms keeping “imports that the laws of a free greyhounds and other dogs, who people impose no restraints upon the holy days when good the private will of the subject, Christian people are at Church which do not conduce in a greater hearing Divine Service, go huntdegree to the public happiness; ing in parks, warrens, and conniby which it is intimated : first, grees of lords and others, to the very that restraint itself is an evil; great destruction of the same, and secondly, that this evil ought to be sometime under such colour make overbalanced by some public advan- their assemblies conferences and tage; thirdly, that the proof of conspiracies for to rise and disthis advantage lies upon the Legis- obey their allegiance." lature ; fourthly, that a law being Several Acts followed, which in. found to produce no sensible good cidentally regulated the restriceffects is a sufficient reason for re- tion, by varying the amount of pealing it, as adverse and injuris qualification ; but they do not apous to the rights of a free citizen, pear to have been made for the exwithout demanding specific evi- press purpose. dence of its bad effects. This Then came that of Charles the maxim might be remembered with Second, “ for the better preservaadvantage in a revision of many tion of game, &c.; the preamble laws of this country, especially of which informs us, that in those of the Game Laws," &c.
times “ divers disorderly persons, It is singular enough, that the laying aside their lawful trades Archdeacon should have mention- and employments, did betake ed, as one fit instance for the ap- themselves to the stealing, taking, plication of his maxims, the very and killing of conies, hares, pheasystem of laws now under discus- sants, partridges, and other game, sion. Let us see how far the re intended to be preserved by former strictions which have been from laws, with guns, dogs, trammels, time to time imposed by the Le- lowbels, hays, and other nets, gislature upon the universal right snares, hare-pipes, and other en to kill game, the existence of gines, to the great damage of this which we have already traced, as realm, and prejudice of noblemen, well as its sanction by the law of gentlemen, and lords of manors, England, will stand the test of the and others, owners of warrens. application of the rules to be drawn Afterwards followed the Act of from those maxims. Was the pub- William and Mary, “ for the more lic advantage which these restric- easy discovery and conviction of tions were to produce sufficient to such as destroy game,” which is overbalance the private evil of the the only other one that requires to restraint they were to impose? be noticed; and which mentions the And do they now produce sensible great mischiefs that ensue by ingood effects?
ferior tradesmen, apprentices, and The first Act imposing any re- other dissolute persons, neglecting striction, the Act of Richard the Se- their trades and employments, and cond, has for its title, “None shall following hunting, fishing, and
other game, to the rain of them, out adopting some mode or anoselves and damage of their neigh, ther of providing for their support, bours.
should be led to give their time to Now it is pretty manifest, from some useful employment, rather the language of the different Acts than waste it in idleness, or followthus cited, that the main objects ing, with needless frequency, unwhich the Legislature has from profitable sports. At the same time to time had in view, have time, it is not a little difficult to been, in the first place to prevent prescribe how much relaxation and persons not having sufficient means amusement may be harmlessly of support from wasting their taken from the more serious occutime in idleness and sporting; and pations of men who may be placed in the next, to put a stop to the in this situation. To interfere by unlawful destruction of game by legislation on the subject, savours trespassers upon the property of rather of those sumptuary laws others. The prevention of trea- which were adopted at an early pesonable conspiracies may be added riod of civilization in this country, as a farther object, and perhaps, when it was thought not unwor. also, the preservation of the diffe- thy of the attention of Parliament rent breeds of game within the to regulate the extravagances of realm. But, of these last, the pre- dress. In other countries a simivention of conspiracies is now, hap- lar feeling at one time seems to pily for the country, no longer a have prevailed. There is a Greek subject for necessary precaution; fragment on the subject extant, nor do I feel much anxiety upon which has been translated, as I bethe subject of the fears of those lieve, but I speak and quote from who dread a total destruction of memory, by Cumberland. The the breed of game. At any rate, fragment is a curious morceau, and if such fears were well founded, the translation most happy. It upon what principle can it be con- begins-tended, that, because a property is We have a notable good law in Corinth, not sufficient for myself and cer Where if an idle fellow outruns reason, tain others who have a common in- Feasting and junketting at furious cost, terest with me in it, therefore I
The sumptuary Proctor calls upon him,
And thus begins to sift him: “ You live shall take the whole to myself, to well, the exclusion of those others ? If, But have you well to live? You squantherefore, it is the increase of Have you the where-withal ? Where are game that is to be promoted by the funds legislation, other modes must in For these outgoings ?” fairness be sought for to effect the And, if I mistake not, there is, at purpose, than arbitrarily depriving this moment, in this country-cerwhole classes of the right of tainly there once was—a strict proshooting
hibition against our great dinnerWith regard to the first of the givers entertaining their friends remaining and more material ob- with more than two courses, unless jects of the Legislature, it must upon particular high days and holibe admitted that it is highly ad- days, when a third is permitted. vantageous to the State, that such How would a modern epicure of its subjects as have not suffi- relish such legislation ? But, in cient means of independence, with truth, the days of sumptuary laws
are long since past; and states. remains for the iudulgence of that men have learnt, that it is at least idleness in the mannerthen guarded doubtful, whether it be for the in- against the pursuit of game. terest of the State to repress luxu Farther: when the first qualifirious babits at all ; whilst no doubt cation was required to be in land, exists that it is impolitic and un
land was the only subject of projust wantonly to impose restraints, perty in this country. The nume. where no sensible advantage is to rous varieties of wealth which may be derived.
now be accumulated, and which A schoolmaster may lay down are known as personalty, then had rules as to the quantum of idleness no existence. But in the present which a school-boy may enjoy; day, if we are to look only to the but it is a vain hope for the states sufficiency of means to support the man to entertain, that he can make individual before we permit him men industrious by act of parlia to shoot, upon what plea shall the ment.
wealthy merchant, who possesses Again: how very different is the unlimited thousands of annual instate of civilisation and of the come, be excluded ? country, pow, from what it was If, then, an individual bave sufwhen those restrictions first com ficient income to support himself menced! Then, indeed, there without following any particular Jarge tracks of land uninhabited, employment, it does not seem to extensive woods and wastes uncul. have been within the scope of the tivated, in which no particular in- views of the Legislature to prevent dividual had, or at least took, any him from pursuing game. Bat interest, and which afforded, from even if he have not sufficient inthe game they contained, great come without following some emtemptation to the idle. Then, ployment for his support; yet, if commerce not only existed not to during the occasional intervals of any extent in the country, but relaxation from his labours, he obforeign traders met with every dis- tain permission to shoot upon the couragement from the law. İrade grounds of some landed proprietor, was confined to very few indivi- what good does the State derive by duals, and as few subjects: and restraining him from so doing? Í even that source of employment need hardly say, that I must not had its difficulties to encounter; be understood as alluding to those for no one was permitted to bind who call upon the State for support his son an apprentice, unless he by requiring parish relief, and had twenty shillings a year iu land. whom the State is therefore enAll were idle hangers-on upon the titled to set to work; nor to those great Barons of the day.
who have no residence, or visible Now, on the contrary, almost means of obtaining a livelihood : all waste lands are inclosed and they come under a different decultivated; commerce flourishes ; signation. I am speaking only of trade thrives and is encouraged; those whose course of life does not and the various modes of profitable render them, in any manner, ameemployment are so numerous, and nable to the laws of their country. so open to all, that scarcely any of If they trespass not upon the prothe temptation to idleness which perty of others, why should they then existed is left, whilst no space not be permitted to shoot?
But it will be said, in answer, which all are satisfied is wrong in they may be tempted to trespass, itself, and not for that which many if they be not disqualified from view as no offence at all, and alshooting: and this is the second most all regard as a most excusable object which the Legislature ap- one. pears to have had in view. Punish But it may well be doubted, them then for the trespass which whether the removal of all disquathey commit; and in the same lifications would tend to increase manner, if you please, in which the number of trespasses. In what you would now punish them for class of society would that increase the act of shooting. The offence take place ? Among the higher oris the trespass; it is a malum in se: ders, nothing is more clear than the act of shooting is only a malum that the law of qualifications is prohibitum. Now nothing can be disregarded every day; and those more settled, in the present ad- who, as the law now stands, are vanced state of legislation as a not justified in shooting at all, science, than the principle, that it shoot constantly over the lands of is impolitic unnecessarily to mul- their relations and friends. And tiply the number of mala prohibita. why should they not? no harm In punishing that which is malum accrues from it. But what increase in se, public opinion goes with the of temptation to trespass would law; but it requires much to lead there be to them, by permitting the generality of men to concur them to do that lawfully which in the propriety of punishing that they now do unlawfully? The which is only a malum prohibitum. yeomanry who own land in the They must be first satisfied that game counties, I can speak from the general good absolutely calls experience, pursue the same course: for the creation of the offence. As they shoot, though their other avoto shooting being made a malum cations only permit them to do so prohibitum against any class of so- occasionally, whether qualified or ciety, even a greater difficulty oc The same question may
be curs; for how can we hope to con asked as to them. If they do not vince the lower orders that it is trespass upon the property of others wrong in them to do that, which what injury is committed ? if they they are told it is not wrong in do, make them liable to the same their superiors to do, and which punishment for the trespass, as they see them practising every they are now liable to in respect day? The act, for which punish of the disqualification: and what ment is inflicted, is in reality com- increased temptation is there held pounded of the shooting and of out to them? Then, is it the the trespass ; but how can it sig- poorer classes who will be more nify to the punisher, so long as the tempted? But it must be rememsame punishment is inflicted forbered, that to commit the trespass, the compound act, whether that they must leave the employment punishment be inflicted for the upon which alone they depend for trespass or for the shooting? So their daily bread; they must exfar as sound principles of legisla- pose themselves to the consequences tion and due regard to the feelings of not having a certificate, (for of of the public at large are concerned, course they could pot afford to pay it is important that the punish- for one,) as well as to those of the ment should be inflicted for that trespass they commit. And what VOL. XXII. N. S.-No.128.