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Thread: Common Law "right to hunt?"

  1. #1

    Question Common Law "right to hunt?"

    While in discussion with a fellow stalker he told me that in English Common Law that there is a "Right To Hunt." Hunting in this instance not being anything to do with dogs, hounds or red coats, but a pusuit of food.

    I have tried researching this, even having read through all of Blackstones books on the history of English Common Law, and I can find nothing that relates to it, the nearest I have found is a "qualified priviliege" to "Hunt, Take or Kill";


    3.
    A man may, lastly, have a qualified property in animals ferę naturę, propter privilegium: that is, he may have the privilege of hunting, taking, and killing them, in **395]exclusion of other persons. Here he has a transient property in these animals, usually called game, so long as they continue within his liberty;(z) and may restrain any stranger from taking them therein: but the instant they depart into another liberty, this qualified property ceases.

    If anyone can advise me if there really is a "Common Law" right to hunt (for food) in England, and if so where to find the relevant law in print, I would be most grateful.

    I will be equally as grateful if it can be proved that this claim is hogwash.

    Yours hopefully, Simon
    Blindness to suffering is an inherent consequence of natural selection. Nature is neither kind nor cruel but fiercely indifferent.

  2. #2
    Even pre Norman it was the landowners privilege to hunt
    I believe there is a right to forage but not hunt.
    This right was included in the Theft Act 1968,
    this allowed for collection for non commercial use
    flowers, fruit or foliage from a plant growing wild on any land
    as not being theft.(includes fungi)

    The Norman Conquest introduced the Forest Laws,
    pretty draconian.
    Victorian Game Laws were pretty tough too.

    in 2015 no-one seems to bother about poaching any more.

  3. #3
    Bob, Your understanding of this subject seems to be the same as mine, even as regarding poaching in 2015 ;-)

    Blackstone was the first person to draw together all the roots of Common Law, and I thought that if I could find an answer to this question it would have been in there, but I can't. And he goes back to from Roman law, Anglo Saxon udal law, as well as Norman feudal law. The right to harvest wild animals belonged to the landowner (king) or tennants (lords & ladies) or their agents, pretty much the same as now. Only the penalties for poaching were a little more stringent in past times.

    Is the law different in Scotland? Or were the Scots inflicted with the same laws as us upon the Act of Union taking place?

    Simon

    I would love to know more about this subject
    Blindness to suffering is an inherent consequence of natural selection. Nature is neither kind nor cruel but fiercely indifferent.

  4. #4
    I would think the "within his liberty" roughly translates to where he has permission to hunt. The second reference states "but the instance they depart in to another liberty, this qualified property ceases" meaning that once they leave the ground over which you have permission, they are no longer your property and you have no right to hunt them.

  5. #5
    Exactly my reading of the law too. But that does not explain this all pervading attempt by some people to stop calling our chosen pastimes by their separate names, shooting, stalking and fishing etc. etc. and instead to refer to it as "HUNTING."

    The reason given to me for this Americanisation of our sport was that it is being done because it is easier to defend our sports because there is a (supposed) "right to hunt" in common law.

    I have tried researching this, reading many law books, the "Act of Union" and all references to "right to hunt" that I can find. And nowhere, repeat nowhere, can I find any reference to a Common Law right to hunt (ie. to find food).

    But being a bear of very little brain, and knowing that there are some very wise people on this forum, I thought I would ask and see if anyone could give me a definitive answer.

    Simon
    Blindness to suffering is an inherent consequence of natural selection. Nature is neither kind nor cruel but fiercely indifferent.

  6. #6
    I think that describing them by their separate names is simply due to specialisation - in a similar way to other trades (builders: brickies, roofers, tilers etc.)

    According to google, there were around 6 million anglers in the UK in 2014! If those anglers were to join with stalkers, ferreters, BOP enthusiasts etc. then, that would be a massive voice all saying the same thing.

    Whilst each separate part of hunting is defined on its own, it may be easier to defend that particular technique, but it also allows people to attack each technique separately too, eroding each method one at a time.

    Until all hunters (of whatever technique) join together with one voice, we will all be an endangered species!

    (Sorry if I have gone slightly off topic!)

  7. #7
    No matter what the right to hunt there is no consequent right of trespass and in fact hunting without permission probably results in "armed trespass" which is a serious criminal offence as opposed to the civil tort of trespass.

  8. #8
    Quote Originally Posted by teabag_46 View Post
    I think that describing them by their separate names is simply due to specialisation - in a similar way to other trades (builders: brickies, roofers, tilers etc.)

    According to google, there were around 6 million anglers in the UK in 2014! If those anglers were to join with stalkers, ferreters, BOP enthusiasts etc. then, that would be a massive voice all saying the same thing.

    Whilst each separate part of hunting is defined on its own, it may be easier to defend that particular technique, but it also allows people to attack each technique separately too, eroding each method one at a time.

    Until all hunters (of whatever technique) join together with one voice, we will all be an endangered species!

    (Sorry if I have gone slightly off topic!)
    I used to think the same but when I was told not to mention I was a stalker in the bar when staying in a pub in Devon & Somerset Staghound territory I changed my mind about us all pulling for each other.

    The proportion of the 6 million anglers based or fishing in Wales have been fighting a battle over the past few years to prevent the Welsh a Government giving a few hundred thousand canoeists the right to trespass on their fisheries under a presumed (incorrectly) ancient right to navigate all rivers.

  9. #9
    While I agree with your sentiment, it would be wonderful if all the component fieldsports could join together to protect the whole, I fear that will never happen, but we can live in hope.

    However I am still interested in the "right to hunt" argument. If there was such a thing enshrined in Common Law it would make for a powerful argument for the possession of firearms, but I can find no such article. I am hoping that somewhere on the forum is a legal eagle who can set my mind at rest.

    Simon

    Quote Originally Posted by teabag_46 View Post
    I think that describing them by their separate names is simply due to specialisation - in a similar way to other trades (builders: brickies, roofers, tilers etc.)

    According to google, there were around 6 million anglers in the UK in 2014! If those anglers were to join with stalkers, ferreters, BOP enthusiasts etc. then, that would be a massive voice all saying the same thing.

    Whilst each separate part of hunting is defined on its own, it may be easier to defend that particular technique, but it also allows people to attack each technique separately too, eroding each method one at a time.

    Until all hunters (of whatever technique) join together with one voice, we will all be an endangered species!

    (Sorry if I have gone slightly off topic!)
    Blindness to suffering is an inherent consequence of natural selection. Nature is neither kind nor cruel but fiercely indifferent.

  10. #10
    I suspect he was referring to clause eleven in Charta Foresta

    [11]Any archbishop, bishop, earl or baron whatever who passes through our forest shall be allowed to take one or two beasts under the supervision of the forester, if he is to hand; but if not, let him have the horn blown, lest he seem to be doing it furtively.

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