Common Law "right to hunt?"

[flytie]

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";

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A man may, lastly, have a qualified property in animals feræ naturæ, 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

 

[badbob]

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.

 

[flytie]

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

 

[Mac]

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.

 

[flytie]

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

 

[teabag_46]

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!)

 

[paul k]

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.

 

[paul k]

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.

 

[flytie]

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

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!)

 

[Labrat]

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.

 

[enfieldspares]

I think that you have misunderstood the quote IMHO.

What it is about is that you cannot OWN any wild animal. It is wild. It is not like a domestic dog, or horse, or sheep. Thus whilst you cannot own that animal...a pheasant, a grouse, a wild deer...you have the right to kill it AS IF YOU DID OWN IT to the exclusion of other people as long as they are on you property or probably more correctly land occupied by you on which you have the sporting rights or the right to take wild game. That is the meaning of "continue within his liberty".

But the very moment that pheasant, or grouse, or wild deer crosses the boundary or your property (or "liberty") you have no further right to kill it. Even if it has lived on your property from birth from an egg to a fully fledged pheasant or grouse. AS YOU CANNOT OWN LIVING WILD ANIMALS.

Thus the offence of poaching and not "theft". As because the landowner does not own the living wild game on his land then anyone taking it (any stranger that the property owner may "restrain from taking theirein")is poaching it and not "stealing" it.

Now...if the landowner goes and shoots a pheasant, or a deer, on his land by that very deed of killing it he reduces it to his property. So he now owns the carcass, the meat, the hide. So anyone now coming onto the land and carrying it away is NOW stealing it as it is now property!

So alive or dead if I carry off a farmer's domesticated sheep I an a thief. But if I kill and carry off the pheasants roosting in his woodlands I am poaching. However if I enter his game larder that same night and carry off the dead pheasants that he and his friends have previously shot that is theft.

No one owns living wild animals. But they may have "qualified property" in that they may prohibit any person without permission from entering the land that they own that the living wild animals are on and carrying them away or killing them and carrying them away....by committing "poaching".

BUT WHAT WE DID HAVE AND HAVE LOST WAS THE COMMON RIGHT TO WILDFOWL ON THE FORESHORE...THAT IS ANOTHER TOPIC ALTOGETHER...

A man may, lastly, have a qualified property in animals feræ naturæ, 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.

 

[old man]

Enfield, surely wild animals belong to the person who has the rights over the land they are on?

So for instance theft would be carried out by anyone else removing said animal?

Roadkill including deer on a public highway belong to the Local Authority?


PS, very interesting Simon.
K.

 

[enfieldspares]

Enfield, surely wild animals belong to the person who has the rights over the land they are on?

No. Because they are wild they don't belong to anyone (just as if a flock of seagulls land on your lawn they don't, whilst they are walking about on your lawn "belong" to you. The same with game). Otherwise they could be stolen and so the offence of theft...."dishonestly appropriating property belonging to another" would be the offence charged.

But as you can't own wild animals the offence isn't satisfied as there is no "property belonging to another" stolen. Thus the need for the offence of poaching which is basically the offence of unlawfully taking or destroying game on another man's land. And that is the important element that it has to be "on another man's land". So shooting pheasants out of season on your own land isn't poaching but again another offence instead!

Yes. If you wander over Lord Tom Noddy's moor the day after his grouse shoot and pick up a dead grouse then you have, as you rightly said "stolen" his Lordship's property...his dead grouse.

Roadkill is also the classic silly case where legally you are meant to ask the local authority if they want the carcass or if not can you keep it. That's a pretty widely known state of affairs in fact. Any wild beast or bird falling dead onto land belongs to the person onto whose land it has fallen dead. So if you shoot a boundary day and a bird is hit inside your property but flies on to fall dead on your neighbours it is, indeed, in law his bird and not yours.

 

[ELMER FUDD]

In a nutshell, if you own land you have the right to hunt on it. If you wanted to shoot on it then you would have to do it legally being a licensed firearm holder etc. Wild animals are just that,ie not belonging to anyone other than swans which belong to the crown, but you as the owner have the right to prevent any other person from removing any wild animal, flora or fauna, unless said land has protection on it and then even the land owner can not remove anything which is protected. I remember reading some of the by-laws for Ashdown forest and they have protection for just about everything which walks,flies, grows. Something I learnt recently is that people with dogs who enter open access land must keep their dogs on a leash of not more than 2 mtrs during the months of 1st March and 31st July.

 

[flytie]

Blackstone is quite clear that wild animals have no owner, and only become "property" after their death, and the right to take or kill them resides with the person who owns (or leases) the sporting rights.

But this gets me no further forward on the continued useage of the word "hunting" to describe shooting, stalking and other fieldsports. Even an assistant director of a certain sporting organisation has told me of this Common Law "right to hunt", but when I pressed him for proof of the matter none was forthcoming, which is annoying.

I remain unaware of any such Common Law right to hunt, but I will keep reading and researching. The only thing I can think of is that Scottish common law must vary from the English common law and that this has lead to their assertions, but I can find no proof of the matter one way or the other. Unfortunately!

Simon.

 

[countrryboy]

Not sure if i've picked this thread up wrong? Are u talking about the right ot hunt on 'common' land?
Just some of the talk about landowners/shooting rights has confused me, i thought on common land it belonged to the locals

I know a couple of areas that are common land and folk just wander about shooting things (to be honest not sure how legal it is) not that many folk really use it now just the 1 group of mates that hae lived in that village all there lives (mostly in 50's+ now). Was used more 30 od years ago by the locals. That area has free fishing rights too
We used to go on to do the fox dens as keepered nearby

 

[paul k]

Blackstone is quite clear that wild animals have no owner, and only become "property" after their death, and the right to take or kill them resides with the person who owns (or leases) the sporting rights.

But this gets me no further forward on the continued useage of the word "hunting" to describe shooting, stalking and other fieldsports. Even an assistant director of a certain sporting organisation has told me of this Common Law "right to hunt", but when I pressed him for proof of the matter none was forthcoming, which is annoying.

I remain unaware of any such Common Law right to hunt, but I will keep reading and researching. The only thing I can think of is that Scottish common law must vary from the English common law and that this has lead to their assertions, but I can find no proof of the matter one way or the other. Unfortunately!

Simon.

I take your point, I think we've had a very good explanation(s) on the status of wild game in terms of ownership, or to be more accurate non-ownership, but to answer your original query seems a challenge, all I can offer is that Scottish law is different to the laws of England and Wales and the answer may indeed lie there.

 

[enfieldspares]

What used to be the case was that as the foreshore belonged to the Crown then members of WAGBI (now BASC) by a derogation had the right to "hunt" there for wildfowl. I did telephone BASC some years ago and ask if that privilege was still existing. They said that it wasn't.

 

[flytie]

Not sure if i've picked this thread up wrong? Are u talking about the right ot hunt on 'common' land?
Just some of the talk about landowners/shooting rights has confused me, i thought on common land it belonged to the locals

I know a couple of areas that are common land and folk just wander about shooting things (to be honest not sure how legal it is) not that many folk really use it now just the 1 group of mates that hae lived in that village all there lives (mostly in 50's+ now). Was used more 30 od years ago by the locals. That area has free fishing rights too
We used to go on to do the fox dens as keepered nearby

According to my reading of Blackstone's works, the right to hunt, kill or take game on "common" land resides with the Lord of the Manor. Even after the Enclosures Act, the main landowner in the country was still held to be the king, and the rights to hunt, kill or take game was the priviliege of the Crown or their agent.

The common man, in England, unless he was a landowner and or wealthy, had very few rights indeed, and this state of affairs lasted in a relatively unchanged state until the vote became available to everyone, not just those favoured few of the "landed gentry."

Unlike the Americans who have a Bill Of Rights, our law is based upon case law and how it has changed the "Common Law," we have very few "rights." And I cannot find a "right to hunt", hunting in this case being used in its loosest form of wording, to mean the providing of food for sustenance.

It has been argued, to me by two people, that we have a "right" to provide food for ourselves and families, and this right comes from English Common Law, but I can find no reference to this in any legal text.

Being as this is a complex area, and I am in no way a legal specialist, I will keep researching this subject. But i would love to be helped by a legal minded person, someone who can tell me that this is indeed a valid argument or not, and (more importantly to me) why?

Simon

 

[ELMER FUDD]

Try this link, makes good reading

The Law | Fergus The Forager