THIS very moderate qualification was fo far a limitation of the right of hunting, previously common to all. In France, the right of hunting was understood to belong to the forereign, other perfons having that right only in confequence of his permiffion. Hence it is, fays Pothier, "that in the different ordinances concerning hunting, the king always uses the term we permit." In Scotland, no fuch right was ever supposed to belong to the crown : our enactment, therefore, fpeaks prohibitively. THIS ftatute was ratified by the act 1685, c. 20*; and, i Droit Civil, &c. Ibid. p. 357k James VI, parl. 4. Amid fome fevere regulations, this act of James prohibited and discharged all perfons to have or use setting dogs, unless he be an heritor of 10001. of va lued rent, and have exprefs licence of the masters of our game within their feveral bounds, under the pain of 500 merks, toties quoties, in cafe of failzie; and we do hereby discharge all common fowlers and shooters of fowl, or any perfons, except they be domeftic fervants to noblemen or gentlemen who are heritors of 1000l. Scots of valued rent, to have or make use of fetting dogs or fowling pieces, under the pain of efcheat of fuch dogs or guns, and imprisonment of their perfons for the space of 6 weeks, toties quoties." Under this flatute, the juftices of peace having given judgment against a proprietor of more than a plowgate of land, but who had not 1oool. of valued rent, he appealed to the circuit court of jufticiary, at Edinburgh, which decided, "That, by the common law of Scotland, all men have right and privilege of the game on their own eftates or property, that by the act 1621, this right and privilege, or quali fication, was confined to perfons who had a ploughgate of land or more of property; that the act 1685 ratified and confirmed the general rule laid down in the faid act 1611, but introduced a new regulation re fpecting the particular mode of hunting with fowling pieces and fetting dogs, under an exception to thofe poffeffed of 102ol. Scots of valuation, and having licence from the master of the game: that no evidence had been laid before the court of the faid regulation and exemption ever having been in obfervance fince the Union, and that they are now in defuctude: that the appellant having more than a ploughgate of land in property, had a right, and was qualified by the law of Scotland to hunt, fubject to all the regulation of the game: that he was not liable to the fines impofed by the 13th of his prefent majefty; therefore they reverse the decree of the juftices of peace appealed from; but, in refpect of the circumstances of the cafe, find no expences due." 5 QUALIFI to this day, conftitutes the fole qualification in this country: The Scottish game-laws thus not only happily efcape judge CATION Blackstone's fevere remark, that, in England, there is "fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the fhire';" but, moreover, in the general fpirit of their regulations on this fubject, deviate lefs, indeed, from Roman jurisprudence and the law of nature, than almost any other code of feudal Europe. THE criterion felected divides not the nation invidioufly into two claffes; the rich and the poor, the noble and the ignoble. Neither the ampleft profeffional income, nor the largest fortune in money, in urban tenements, or even in heritable fecurities, nor the most valuable leafe of the longest endurance, on the one hand, nor rank, title, or pedigree, on the other, affords a qualification for killing game. In this particular the first peer of the realm and his children ftand on the fame footing with the meaneft plebeian; fo abhorrent has ever been the tenor of Scottish legiflation from that ariftocratical fpirit by which the game-laws (as frequently it is faid) have been almost everywhere dictated, and particularly in monarchical France; where nobility was almoft exclu- In France. fively the title for enjoying the pleasures of the chace. A perfon not noble, (un roturier), was not, indeed, prohib § 1. CATION. QUALIFI English jaw. ited from hunting on fuch property of his own as he held feudally (en fief); but he could neither hunt on any other perfon's eftate, though he had the permiffion of the proprietor ", nor even on his own allodial property: whereas a nobleman, (un gentilhomme), could hunt not only on his own ground, but on that of any other perfon who gave him liberty P. BETWEEN these two systems, our English neighbours ap'pear to have steered their course pretty equally: With both, they agree, in part; but, entirely, with neither: Like us, they confine the privilege to landed property; and deny it, in general, to rank or title. Yet, like the French, they fo far regard gentility, as to allow the privilege to eldeft fons and heirs apparent of efquires, or of perfons of fuperior degree. In England, fathers, thus, by virtue of their blood, communicate to their offspring rights not belonging to themfelves. For this peculiarity an English judge apologizes, by obferving, that "the game laws are to be confidered as po เ that of Charles VI, in the year 1366, while it abfolutely forbids all perfons not noble either to hunt, or to have for that purpose dogs, furthi, cordes, &c. fpecially excepts bourgeois vivan de leur poffeffions et rentes, c'est a dire, fays Pothier, ceux qui n'exertent aucun • En franc aleu, that is, held by art mechanique_ni profession illiberale. no feudal tenure. P Pothier, ibid. 359. 4 The ftatute 1 James c. 27, §3, required either an estate of 10l. a-year, or 2001. in money. The ftatute 23 Cha. II, c. 25, repealed the perfonal qualification, leaving no other but land: So, too, the earlieft of the French ordinances touching the game, (Tom. iv, p. 356); which privilege was referved entire by Francis I and Henry IV, but afterwards abolished, and the right, as already mentioned, limited to noblemen; a progrefs very natural in France; but very much the reverse in England, where commerce and the monied intereft were daily growing in importance. QUALIFI fitive rules, rather than as founded on reafon; therefore, it § I. is fafer to adopt what they have actually faid, than to fup- CATION. pose what they meant to say '." and all THERE is required one general qualification merely, with- The fame qualificaout any minute distinctions as to the kinds of game or the tion for all manner of killing it, or whether the qualified perfon kills it game, himself or by a gamekeeper, or whether the latter hunts in his mafter's prefence or abfence; while none of the lieges modes of are forbid the keeping either of dogs or guns, but the il- hunting. legal ufe only: To this moderation in our fyftem of game laws, we owe our efcape from many teafing and troublefome questions with which the reports of our neighbours abound s. IN Scotland, then, it is only fuch proprietors as have a Judge Afhhurst, in the cafe Jones . Smart, M. 26, Geo. III, I. v. 44. In England, any perfon not qualified is punishable" who fhall keep or use any grey hounds, fetting dogs, hays, lurchers, tunnels, or any other engine to kill and deftroy the game, and shall be thereof convicted." The expreffion of the previous ftatute 23 Cha. II, c. 25, is still more general. By it an unqualified perfon " is not allowed to have or keep for himfelf, or any other perfon, any guns, bows, greyhounds, fetting dogs, ferrets, coney dogs, lurchers, hays, nets, lowbels, harepipes, gins, fuares, or other engines for the taking and killing of game." Lord Macclesfield, who was a member of the parliament which pafled this, is reported to have faid, that he objected or to the infertion of the word gun in 81.. QUALIFI CATION... TY. plowgate of land, and those who have regular deputations from them as their game-keepers, that are qualified to kill game. -PENAL-THE penalty is pool. Scots by the ftatute 1621, c. 30, which " ordainis his majefty to have the one half of the penalty of the contraveners of this present act, and the dila tor to have the other half of the faid penalty." -JURIS DICTION OF British ftat utes. Muft not in their poffeffion. THE jurifdiction of the juftices, in profecutions upon this act, has been always acknowledged and admitted in prac tice, and feems to fall under the exprefs words of the general statutes, empowering them to punish the ufers of unlawful games with lying or fetting dogs." the justices have no legal power to mitigate. The act contains no limitation as to the time within which the action is to be brought. This penalty BUT British statutes have gone ftill farther; making it punishable for unqualified perfons even to have game in have game their poffeffion, without first obtaining the leave of a quali fied perfon. By the 13th of the king, c. 54, 93, it is provided, "that every person whatsoever, not qualified to kill game in Scotland, who fhall have in his or her cuftody, or carry at any time of the year, upon any pretence whatsoever, any hares, patridges, pheafants, muirfowl, tarmargans, heathfowl, fnipes, or quails, without the leave or order of a perfon qualified to kill game in Scotland, for carrying such hares or other game, or for having the fame in his or her cuftody, fhall, for the firft offence, forfeit and pay the fum of 20s. fterling; and for the fecond, and every other fubfequent offence, the fum of 40s. fterling; and, in case of not paying the fum decreed within the space of to days, after Offence defcribed. Penalty. Second offence. 2 App. I, pages xviii, xxxvi, liv. |