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Jieu-men ratione soli, so long as they remain in his grounds he may kill them, for the property ratione soli is in him. In 11 Coke's Reports, p. 876, it is laid down, that for hawking, hunting, &c. there needeth not any licence, but every one may, in his own land, use them at his pleasure, without any restraint to be made, if not by parliament, as appears by the statutes 11 Hen. VII. c. 17, 23 Eliz. c. 10, and 3 James I. c. 13.
In Sutton and Moody's 5 Modern Reports, p. 375, Holt, C. Justice, says, the conies are as much his, in his ground, as if they were in a warren, and the property is ratione soli. So in the Year-book, 12 Hen. VIII. pl. 10, if a man start a hare in his own ground, he has a property in it ratione soli.
In limitation, and to a certain degree in derogation of the common law, a variety of statutes has subjected to penalties persons who, not having certain qualifications, shall even upon their own lands kill any of those wild animals which come under the denomination of game.
By the 13 Richard II. stat. 1, c. 13, laymen not having 40s. per annum, and priests not having 101. per annum, are prohibited from taking or destroying conies, hares, &c. under pain of a year's imprisonment (this statute appears to be the first introduction of a qualification to kill game.) By the 32 Henry VIII. c. 8, a penalty upon selling game was first enacted, but this was a tem porary law, which was suffered to expire, and the sale of game was not again restrained till the 1st James I. c. 27. By the 3d
James I. c. 13, the qualification to kill game was increased to 40l. in land, and 2001. in personal property.
By the 22d and 23d C. II. cap. 25. lords of manors, not under the degree of esquire, may by writing under their hands and seals appoint gamekeepers within their respective manors, who may kill conies, hares, &c. and other game, and by the warrant of a justice may search houses of persons prohibited to kill game.
It appears to your committee, that the statute 22 and 23 C. II.is the first instance, either in our statutes, reports, or law treatises, in which lords of manors are distinguished from other landowners, in regard to game.
The same statute, section 3, confines the qualification to kill game to persons having lands of inheritance of 1001. per annum, or leases of 1501. (to which are added other descriptions of personal qualifications;) and persons not having such qualifications are declared to be persons not allowed to have or keep game-dogs, &c.
The 22 and 23 C. II. c. 25, was followed by 4 and 5 W. and M. c. 23, and the 28 Geo. II. c. 12, which enacted penalties against unqualified, and, finally, against qualified persons, who shall buy, sell, or offer to sell, any hare, pheasant, partridge, &c. Similar penalties are therein enacted against unqualified persons having game in their possession.
Such appears to your committee to be the state of the laws respecting game, as they at present stand. The various and numberless statutes which have been enacted upon the subject, and to
which your committee have not thought it requisite to allude, have not been unobserved by them; but seeing that they are merely supplementary to those to which your committee has made reference, they have not felt it important to enter into a detail of their enactments.
Your committee cannot but conclude, that by the common law, every possessor of land has an exclusive right ratione soli to all the animals feræ naturæ found upon his land; and that he may pursue and kill them himself, or authorize any other person to pursue or kill them; and that he may now by the common law, which in so far continues unrestrained by any subsequent statute, support an action against any person who shall take, kill, or chase them.
The statutes to which your committee have referred have, in limitation of the common law, subjected to penalties persons, who, not having certain qualifications, shall exercise their common law right; but they have not divested the possessor of his right, nor have they given power to any other person to exercise that right without the consent of the pos
It appears to your committee, that the 22 and 23 C. II. has merely the effect of exempting from those liabilities, which were previously enacted against unqualified persons, such gamekeepers as shall receive exemption from them by the lords of manors (and which exemption the said lords of manors are thereby empowered to give), but that the restraints upon the sale of game
equally affect the entire community.
Your committee conceive, that in the present state of society there is little probability that the laws above referred to can continue adequate to the object for which they originally were enacted. The commercial prosperity of the country, the immense accumulation of personal property, and the consequent habits of luxury and indulgence, operate as a constant excitement to their infraction, which no legislative interference that your committee could recommend appears likely to counteract.
It appears, that under the present system, those possessors of land who fall within the statutable disqualiscations, feel little or no interest in the preservation of the game; and that they are less active in repressing the haneful practice of poaching than if they remained entitled to kill and enjoy the game found upon their own lands. Nor is it unnatural suppose, that the injury done to the crops in those situations where game is superabundant. may induce the possessors of land thus circumstanced, rather to encourage than to suppress illegal modes of destroying it.
The expediency of the present restraints upon the possessors of land appears further to your committee extremely problematical. The game is maintained by the produce of the land, and your committee is not aware of any valid grounds for continuing to withhold from the possessors of land the enjoyment of that property which has appeared by the common law to belong to them.
The present system of game laws produces the effect of encouraging its illegal and irregular destruction by poachers, in whom an interest is thereby created to obtain a livelihood by systematic and habitual infractions of the law. It can hardly be necessary for your committee to point out the mischievous influence of such a state upon the moral conduct of those who addict themselves to such practices; to them may be readily traced many of the irregularities, and most of the crimes, which are prevalent among the lower orders in agricultural districts.
Your committee hesitate to recommend, at this late period of the session, the introduction of an immediate measure upon a subject which affects a variety of interests; but they cannot abstain from expressing a sanguine expectation, that by the future adoption of some ineasure, founded upon the principle recognized, as your committee conceive, by the common law, much of the evils originating in the present system of the game laws may be ultimately removed.
Upon mature consideration of the premises, your committee have come to the following resolution :
Resolved-That it is the opinion of this committee, that all game should be the property of the person upon whose lands such game should be found.
Report from the Select Committee of the House of Commons on the Earl of Elgin's Collection of Sculptured Marbles.
The Select Committee appointed to inquire whether it be expedient that the Collection mentioned in the Earl of Elgin's Petition, presented to the House on the 15th day of February last, should be purchased on behalf of the Public, and if so, what Price it may be reasonable to allow for the same,
Consider the subject referred to them, as divided into four principal heads;
The first of which relates to the authority by which this collection was acquired:
The second to the circumstances under which that authority was granted:
The third to the merit of the marbles as works of sculpture, and the importance of making them public property, for the purpose of proinoting the study of the fine arts in Great Britain; -and
The fourth to their value as objects of sale; which includes the consideration of the expense which has attended the removing, transporting, and bringing them to England.
To these will be added some general observations upon what is to be found, in various authors, relating to these marbles.
I. When the Earl of Elgin quitted England upon his mission to the Ottoman Porte, it was his original intention to make that appointment beneficial to the progress of the fine arts in Great Britain, by procuring accurate drawings and casts of the valuable remains of sculpture and architecture scattered throughout Greece, and particularly concentrated at Athens.
With this view he engaged Signor Lusieri, a painter of reputation, who was then in the service of the King of the Two Sicilies, together with two architects, two modellers, and a figure painter, whom, Mr. Hamilton (now Under Secretary of State) engaged at Rome, and despatched with Lusieri, in the summer of 1800, from Constantinople to Athens.
They were employed there about nine months, from August 1800 to May 1801, without having any sort of facility or accommodation afforded to them: nor was the Acropolis accessible to them, even for the purpose of taking drawings, except by the payment of a large fee, which was exacted daily.
The other five artists were withdrawn from Athens in Janu1803, but Lusieri has continued there ever since, excepting during the short period of our hostilities with the Ottoman Porte.
During the year 1800, Egypt was in the power of the French: and that sort of contempt and dislike which has always characterized the Turkish government and people in their behaviour towards every denomination of Christians, prevailed in full force.
The success of the British arms in Egypt, and the expected restitution of that province to the Porte, wrought a wonderful and instantaneous change in the disposition of all ranks and descriptions of people towards our nation.
Universal benevolence and good-will appeared to take place of suspicion and aversion. Nothing was refused which was asked; and Lord Elgin availing himself of this favourable and unex
pected alteration, obtained, in the summer of 1801, access to the Acropolis for general purposes, with permission to draw, model, and remove; to which was added a special licence to excavate in a particular place. Lord Elgin mentions in his evidence, that he was obliged to send from Athens to Constantinople for leave to remove a house; at the same time remarking, that, in point of fact, all permissions issuing from the Porte to any distant provinces, are little better than authorities to make the best bargain that can be made with the local magistracies. The applications upon this subject, passed in verbal conversations; but the warrants or fermauns were granted in writing, addressed to the chief authorities resident at Athens, to whom they were delivered, and in whose hands they remained: so that your Committee had no opportunity of learning from Lord Elgin himself their exact tenor, or of ascertaining in what terms they noticed, or allowed, the displacing, or carrying away of these Marbles. But Dr. Hunt, who accompanied Lord Elgin as chaplain to the embassy, has preserved, and has now in his possession, a translation of the second fermaun, which extended the powers of the first; but as he had it not with him in London, to produce before your committee, he stated the substance, according to his recollection, which was, "That in order to show their particular respect to the ambassador of Great Britain, the august ally of the Porte, with whom they were now and had long been in the strictest alliance, they gave to his Excel
lency and to his secretary, and the artists employed by him, the most extensive permission to view, draw, and model the ancient temples of the Idols, and the sculp tures upon them, and to make excavations, and to take away any stones that might appear in teresting to them." He stated further, that no remonstrance was at any time made, nor any displeasure shown by the Turkish government, either at Constantinople or at Athens, against the extensive interpre ation which was put upon this fermaun; and although the work of taking down and removing, was going on for months, and even years, and was conducted in the most public manner, numbers of native labourers, to the amount of some hundreds, being frequently employed, not the least obstruction was ever interposed, nor the smallest uneasiness shown after the granting of this second fermaun. Among the Greek population and inhabitants of Athens, it occasioned no sort of dissatisfaction; but, as Mr. Hamil on, an eye-witness, expresses it, so far from exciting any unpleasant sensation, the people seemed to feel it as the means of bringing foreigners into their country, and of having money spent among them. The Turks showed a total indifference and apathy as to the preservation of these remains, except when in a fit of wanton destruction, they sometimes carried their disregard so far as to do mischief by firing at them. The numerous travellers and ad mirers of the arts committed greater waste, from a very differ ent motive; for many of those
who visited the Acropolis, tempted the soldiers and other people about the fortress to bring them down heads, legs, or arms, or whatever other pieces they could carry off.
A translation of the fermaun itself has since been forwarded by Dr. Hunt, which is printed in the appendix.
II. Upon the second division, it must be premised, that antecedently to Lord Elgin's departure for Constantinople, he communicated his intentions of bringing home casts and drawings from Athens, for the benefit and advancement of the fine arts in this country, to Mr. Pitt. Lord Grenville and Mr. Dundas, suggesting to them the propriety of considering it as a national object, fit to be undertaken, and carried into effect at the public expense; but that this recommendation was in no degree encouraged, either at that time or afterwards.
It is evident, from a letter of Lord Elgin to the Secretary of State, 13 January, 1803, that he considered himself as having no sort of claim for his disbursements in the prosecution of these pursuits, though he stated, in the same despatch, the heavy expenses in which they had involved him, so as to make it extremely inconvenient for him to forego any of the usual allowances to which ambassadors at other courts were entitled. It cannot, therefore, be doubted, that he looked upon himself in this respect as acting in a character entirely distinct from his official situation. But whether the Government from whom he obtained permission did, or could so consider him, is a question