Reports from Her Majesty's Representatives Abroad, on the Laws and Regulations relative to the Protection of Game, and to Trespass. PART I. My Lord, Circular addressed to Her Majesty's Representatives abroad. Foreign Office, August 17, 1870. I HAVE to request you to instruct the Secretary of your Legation to draw up a Report on the Laws and Regulations relating to the Protection of Game and to Trespass in force in the country to which you are accredited. The Report should state clearly whether Game is recognized as the property of the State or of individuals. Answers to the preceding Circular. My Lord, No. 1. Mr. Petre to Lord A. Loftus, Berlin, February 6, 1871. I HAVE the honour to inclose to your Excellency, for transmission to Earl Granville, a Report which I have drawn up on the Prussian Game Laws, in conformity with the instructions contained in his Lordship's Circular Despatch, of the 17th of August last. Report by Mr. Petre on the Game Laws in Prussia. THE laws and usages by which, up to the year 1848 for many previous cent ues, the right of pursuing and killing game had been regulated and restricted in Ge rmny -a right which had hitherto belonged exclusively to the Princes, the Nobility, the Clergy, and in some instances to the Municipalities--had long been the object of strong popular animadversion, especially amongst the class of peasant proprietors, and were condemned as a vexatious anachronism by the political Reformers of 1848. The nobility were powerless at the time to resist what they considered to be an attack upon the rights of property, and the Game Laws were abolished throughout Germany by a Decree of the Frankfort Parliament. Up to the period above mentioned the right of killing game in Prussia, as in the rest of Germany, had been a distinct and alienable proprietary right, held quite independently of the ownership of the soil, and consequently empowering the holder to hunt and shoot exclusively over other lands than his own. This right was frequently held by more than one person in respect to the same property, and was divided into the "Hohe Jagd" and the "Nildero Jagd." The former included the right of killing red deer, fallow deer, wild boar, and capercailzie, and in some instances blackcock; and the latter, roe deer, hares, foxes, partridges, and all kinds of wild fowl. As these distinctions, however, have now lost all but historical interest, it is unnecessary for the purpose of this Report that I should do more than allude to them. It was left by the Frankfort Parliament to the Legislative Bodies of the different States of Germany to give immediate effect in their own way to the Decree abolishing the right of shooting as it had hitherto existed, and to establish in its stead the principle that the possession of the soil should henceforth carry with it the inalienable and exclusive right to pursue and kill game upon it. In some of the states, as for instance in Bavaria, Hanover, and, I believe, in Hesse, the owners of the manorial and other properties who were affected by the measure received what they considered to be, and what, in fact, if measured only by a pecuniary standard, undoubtedly was a most inadequate compensation for the sudden deprivation of a proprietary right which they had hitherto held by as incontestable a tenure as their own estates. But in Prussia even this feeble homage to the rights of property was dispensed with, and a law was passed by the Prussian Chambers in October 1848 (a full translation of which will be found in Appendix 1 to this Report), granting unconditionally to every landowner the exclusive right to kill game upon his own land. What was called the "Folgerecht," or right of following up wounded game upon another person's land, as well as all pro prietary rights at variance with the principle established by the new law, were at once abolished without compensation. The injurious consequences of such a sweeping measure, which allowed the smallest peasant proprietor, or any number of persons authorized by him, to kill game without restriction or safeguard of any kind, at all seasons of the year, in a country where land is so parcelled out and inclosures are so rare, soon made themselves apparent. It encouraged poaching to a great extent, gave rise to lawless abuses, and threatened within a very short time to exterminate game altogether. In the interest, therefore, of public order and security, and to prevent the permanent loss of an important article of human consumption, the necessity of setting some limits to a freedom which had quickly degenerated into license was felt and acknowledged even before the tide of political reaction had well set in. A law, entitled " A law, entitled "Jagd-Polizei Gesetz," passed through the Prussian Parliament, and received the Royal Assent on the 7th of August, 1850, in which the principle proclaimed in the previous law of 1848 was maintained, but very materially modified and restricted in its application. This law, of which I also annex a translation in full (Appendix 2), is the basis of all the rules and regulations at present in force in Prussia relating to game. Its most important provisions are those limiting the personal exercise of the right of killing game to owners of at least 200 English acres of land, rendering it obligatory on all persons who are entitled to kill game to provide themselves with a game certificate or shooting licence, and re-establishing the ordinances and regulations in respect to the seasons for killing game, which varied in different provinces and localities, and which the Game Act of 1848 had abrogated without providing any substitute. These latter are now, however, superseded by a special law, which was passed last year by the North German Parliament, and to which I shall refer later on. As the law now stands, therefore, any person in Prussia owning not less than 200 English acres of land lying together, and who procures annually a game certificate at a cost of 3s. (in Hanover it costs 6s. and in Hesse 9s.), has an unrestricted right to kill all game upon his own property, and the same right is extended to all inclosed lands of whatever extent they may be. Uninclosed properties of less than 200 acres do not entitle their owners to kill the game on their own lands; these revert, for all sporting purposes to the commune in which they are situated, and form a common shooting district. The communal authorities are bound either to appoint a gamekeeper to shoot over the district, or to let the shooting or to leave it in abeyance; in either of the two former cases the profits derived from it are divided between the owners of the lands which form the district. An exception to this rule is made in the case of properties of less than 200 acres which are situated in the midst of, or are partially surrounded by a forest of more than 2,000 acres in extent which is in the possession of a single owner. In such cases the owner of the land, instead of annexing it as he would be compelled to do under ordinary circumstances to the communal shooting district, is bound to let the shooting to the proprietor of the surrounding forest. Should the latter decline to avail himself of this right the landowner may kill the game himself, or, if they are unable to agree as to the terms of the lease, the Landrath is called in to arbitrate. The right of shooting upon all lands owned by corporations or by more than three joint proprietors must either be delegated to a gamekeeper or leased to a tenant. As regards compensation for damages caused by game, it will be seen by a reference to the 25th Section of the Law that no legal claim whatever can be preferred in Prussia for indemnity for any loss or injury incurred under this head. Under the old laws of Prussia, at a time when the right of shooting was separated from the possession of the soil, a landowner whose crops were damaged by the excessive preservation of game, was entitled to compensation for the injury inflicted, but this is now no longer the case, although the law sanctions or enjoins certain indirect means of counteracting, or rather of mitigating, the evil. The owners of properties exceeding 200 acres in extent and which are in their own occupation, have obviously the remedy in their own hands, whilst the lesser proprietors whose lands are formed into communal or common game districts, the shooting on which is let by the commune, have a power of inserting protecting clauses in the leases. The Game Law of 1850 contains also some other provisions introduced for the protection of those landed proprietors from whom it withdrew the right of shooting over their lands. (Clauses 21 to 24.) For instance, any landowner is allowed to prevent game, if he can, from coming upon his land by inclosing it with a fence or by frightening the game away by the use of rattles, scarecrows, &c., and he may employ ordinary house dogs to keep off red and fallow deer and wild boars, from the depredations of which agriculture in this country chiefly suffers. Any single proprietor of land which forms part of a communal shooting district may, if he thinks it his interest to do so, force the Communal Authorities to suspend the right which the law gives them of leaving the shooting in abeyance : that is to say, he may oblige them to let the shooting in order that the game may be kept down. In the case of lands forming part of a Communal shooting district in the neighbourhood of a forest, or of lands (under 200 acres in extent), surrounded by a forest where the proprietor of the forest has by law the right to rent the shooting, the Landrath, when clear proof of damages caused by the super-abundance of game is submitted to him by the owners of the aforesaid lands, is empowered to call upon the lessee of the shooting to keep down the game, and if he fails to do so, then the Landrath may give the landowners permission to take or shoot the game upon their respective properties, and a permission of this kind takes the place of a shooting license.. All game, however, taken or killed under such circumstances is the property of the person who rents the shooting and must be given up to him on payment of what is called the "Schussgeld" or gamekeeper's fee. The Landrath may also give leave to landowners of the class above referred to, who have not themselves the right of shooting, to take or shoot rabbits on their lands whenever they have multiplied to an extent injurious to agriculture. This would seem to presuppose that rabbits are included in the legal definition of "game;" such, however, is not the case. There is no universal law in force in the old provinces of Prussia, either defining rabbits to be game or, as is the case in Hanover, expressly excluding them. The question is determined entirely by local law and custom, but as a general rule rabbits are now not considered as game, and therefore, in the great majority of cases, a landowner, whether he is qualified to kill game or not, is free to take and destroy them on his land, although to shoot them he would require the permission of the Landrath, as otherwise he would come under the operation of § 368 of the Criminal Code. (Appendix 5.) The Game Law of 1848, as I have already observed, most unwisely abolished all restrictions upon killing game at all seasons of the year. The obvious and evil consequences of such crude legislation caused the reinstatement in the emendatory law of 1850 of all the various laws, ordinances, and regulations in respect of the fence periods which were in force previous to 1848. These periods were not fixed by any general law applicable to the whole country, but varied, not only in different provinces, but often in different districts of the same province, rendering it by no means easy, in the confused state of the law, for any one, even a jurist, to know whether he was rendering himself liable or not to penalties for shooting game at prohibited seasons. It is difficult to understand why the framers of the Law of 1850, instead of simply restoring the chaotic and often obsolete legislation which existed on this subject before 1848, did not accompany it by some simple and uniform law regulating the seasons for killing game, drawn up with a due regard to the preservation of game, on the one hand, and to the interests of agriculture, on the other. This, however, has now been accomplished by the law entitled "Gesetz über die Schonzeiten des Wildes," which was passed by the Prussian Parliament in February of last year, and which is applicable to the whole of the Prussian Monarchy. A translation of it will be found in Appendix 3. One of the most important provisions of this law is that which prohibits, under a penalty of 30 thalers, the sale of game from fourteen days after the expiration of the season during which such game may be lawfully killed. This prohibition applies equally to game imported from abroad-the importations from Bohemia being very considerable. One good effect of this will be not only to check poaching, but also to stop the sale and consumption of game at seasons of the year when it is not in a fit condition to be eaten. The fence seasons, as will be seen by a reference to the law, vary for almost every species of game, and for male and female. Curiously enough the badger, although denounced as an enemy to game, is protected in this law by the longest fence time, on the score of the services which he is supposed to render to agriculture by destroying noxious grubs, insects, &c.; there are only two months in the year, October and November, during which he may be killed. On the other hand, no period of grace whatever is allowed to the fox, and he is liable to be shot at any time of the year. In the course of the interesting debates which took place in the Prussian Parliament during the passage of the Bill, the utility of the measure was very generally admitted, but it was urged that a law should have been introduced at the same time, in the interest of agriculture, giving small landowners and occupiers a legal claim to compensation for damages caused by game. The Government admitted this in principle, and announced their intention of introducing at the earliest possible opportunity a new |
