1. THE KINGS WILDLIFE

Ancient Times and Genghis Khan

The concept of conserving wildlife dates back to ancient times with restrictions on taking wildlife recounted in scripture and other writings.[3] On the steppes of Asia in the early 1200s, Mongol emperor Genghis Khan forbade the hunting of animals between March and October. This action was intended to provide a reliable food source for the Mongol tribes during the winter by protecting game animals during their breeding seasons. The Khan’s laws also directed how animals were to be hunted and butchered to prevent waste and directed that hunters limit their harvest to what was needed for food and no more.[4] Such foresight was short-lived, however, and faded largely from sight in Eurasia with the demise of the Mongol Empire.

Feudal Law

The origins of wildlife regulation in Europe emerged hand-in-hand with feudal law. To hunt and capture game required some form of weapon, snare or trap. Feudal kings seeking to hold onto their lands and power endeavored to keep weapons out of the hands of their subjects. Sir William Blackstone, leading English law scholar, observed:

“Nothing could [control who had weapons] more effectually than a prohibition of hunting and sporting; and therefore it was the policy of the conqueror to reserve this right to himself and such on whom he should bestow it; which were only his capital feudatories or greater barons. And accordingly, we find in the feudal constitutions, one and the same law prohibiting the rustici [5] in general from carrying arms, and also proscribing the use of nets, snares, or other engines for destroying the game.”[6]

The Saxon invasion of England (c. 450 AD), the Norman conquest of Britain (1066 AD), and other upheavals marked a period of conquest and struggle for domination. But regardless of the winners, laws were enacted and enforced to reserve the privilege of property and access to fish and game for the noble classes.

Magna Carta and Fishing Nets

But enacted laws also addressed the practical. For example, by the 13th century, the English Crown had granted so many rights to access fisheries that the sheer number of fish nets and weirs placed in England’s rivers was impeding navigation. This proved a big enough issue that the Magna Carta (1215 AD), which promised such things as the protection of church rights and limitations on feudal payments to the Crown, also directed the removal of obstructing weirs and nets. Many of the promises contained in the Magna Carta soon disappeared but the prohibition against weirs obstructing navigation endured.[7]

Robin Hood had Cause

Overall, fish and game in England was owned by the Crown and could only be harvested with the Crown’s permission. Game was defined as whatever the Crown declared it to be, including “royal” species like deer, falcons, sturgeon, and other animals that had commercial and/or sport value. Large areas of land were proclaimed royal forests and set apart for the Crown’s exclusive use. Poaching and other violations brought stiff penalties. Tales and lore of ‘Robin Hood’ make regular and ongoing appearances in the history of medieval England. Most commonly cast as a noble outlaw rebelling against the oppression of the ruling class, Robin Hood steals from the rich to give to the poor – be it deer poached from the royal forest or coins taken from upper class travelers.  

Over time, law-making transitioned from king to Parliament. This transition, however, did not signal greater access to wildlife for the common people. Rather, Parliament continued to reinforce the status quo by enacting a series of “qualification statutes” which permitted the taking of game only by those “qualified” to do so. And being qualified meant having a requisite level of wealth and land. Parliament continued to perpetuate the “pervasive system of class discrimination and at the same time kept weapons out of the hands of those considered unfriendly, or potentially so, to those in power.”[8]

SIDEBAR- Izaak Walton and the Compleat Angler

 2. EUROPEAN SETTLEMENT AND REVOLUTION

“… what could they see but a hideous and desolate wilderness full of wild beasts and wild men?” Journal of William Bradford, 1620.

A Scary New World

For the first European explorers and settlers the ‘New World’ seemed a hideous and desolate wilderness. In fact, many expeditions resulted in disaster, as evidenced by Ponce de León’s failed settlement in Florida (1521), the failed Huguenot settlement in South Carolina (1562), and the “Lost Colony” on Roanoke Island, Virginia (1585).

But the land was the well-known home to the First Peoples of North America who hunted and fished it, burned it, and farmed it. To the Wampanoag, Narragansett, Nanticoke, Powhatan, and dozens of other tribes who first faced the European settlers, the land was the “Old World,” and it was not unoccupied, nor was it as untamed as many later overly romantic accounts would portray it. [much more on this in Chapter 5, First Nations and Public Lands] 

European settlers came from countries where fish and fowl were owned by kings and royal families. They came from lands where common people were routinely arrested for killing one of the King’s deer or attempting to feed a family with salmon from a nearby stream. Witness the Black Act of 1725 where anyone found armed and disguised, such as with a blackened face, or simply found in a forest, chase, down or Royal Park could be sentenced to death.[9]

SIDEBAR- The Black Act, 1725

No More Kings!

In the 1770s Colonial America, opposition to a distant crown across the Atlantic would lead to a revolution, and the surprising victory of a hodgepodge of colonies in a fragile alliance against powerful England. This resistance to a tyrannical overlord would be an omni-present backdrop as the United States began to codify its relationship with fish and wildlife.

Fighting over a Fox

A seemingly trivial spat involving a single fox on an uninhabited beach delivered an early judicial ruling. The 1804 dispute arose with an individual, Lodowick Post, hunting on Long Island, NY, on "unpossessed" land, with his hounds in hot pursuit of a fox. Another man, Jesse Pierson, appears, kills the fox, and departs with his prize. The resulting kerfuffle resulted in angry words and a long, drawn-out legal wrestling match with the parties spending small fortunes (well over a $100,000 in today’s currency) hiring lawyers and litigating the case.[10]

The legal issue before the New York Supreme Court in Pierson v. Post (1805) was a narrow one—the rule of capture. The court found for Pierson since he physically ended up with the fox. Writing for the court's majority, Justice Daniel Tompkins found that no lesser act, such as hot pursuit, qualified as possession. But Justice Henry Brockholst Livingston, writing in dissent, sided with Post, seeing the key policy issue to be a one of fairness. As Freyfogle and Goble (2009) note, if the dispute had been submitted to the arbitration of sportsmen instead of a court, they would have branded Pierson an unethical cad and found for Post.[11]

In 1800, the right to hunt in England was clearly prescribed along with other property rights—the pursuit of fox was clearly reserved for those who held hunting rights from the Crown. But in the newly independent United State of America, the who, what, where, and when of hunting remained largely uncharted. Pierson v. Post raised some of these issues but settled few.

To Fowl and Hunt Upon the Land

It was a widely held precept in early America that citizens were free to take fish and game on all unenclosed lands, even if the land was privately owned. The 1683 Frame of Government of Pennsylvania, for example, set forth the right of its citizens “to fowl and hunt upon the land they hold, and all other lands therein not enclosed.”

Not surprisingly, unregulated access to fish, fowl, and game lead to diminished stocks of deer, beaver, oysters, salmon, and other sought-after species. As illustrated in Table 1, from the very outset of European colonization, heavy pressure was placed on species such as white-tail deer, beaver, and game birds. In the face of declines, game seasons were enacted and bounties on predators offered.

But efforts to regulate commercial take were few, far between, and largely unenforced. Commenting on his experience in southeastern Illinois around 1820, Englishman John Woods noted:

“The time of sporting lasts from the 1st of January to the last day of December, as every person has right of sporting, on all unenclosed land, for all sorts of wild animals and game, without any  license or qualifications as to property… [I]f you inform them, there is any country in the world where one order of men are allowed to kill and eat game, to the exclusion of all others [and that landowners] are frequently among this number, they lose all patience, and declare, they would not submit to be so imposed on.”[12]

As Woods’ statement alludes, there was growing tension between a general population who had no wish to be imposed upon and those who would restrict the harvest of fish and game. In the newly constituted United States of America of the late 1700s and early 1800s any suggestion of restricting free access to fish and game smacked of tyranny. This tension would grow and expand through the 19th century. The point of the spear for regulating access would be the “sportsman.”

___________________

ENDNOTES

[3] For example, “If you come across a bird's nest in any tree or on the ground, with young ones or eggs and the mother sitting on the young or on the eggs, you shall not take the mother with the young.” Deuteronomy 22:6.

[4] Jack Weatherford, Genghis Khan and the Making of the Modern World (Three Rivers Press, 2004), 69.

[5] Rustici: Lat. In feudal law. Natives of a conquered country. In old English law. Inferior country tenants, churls, or cliorls, who held cottages and lands by the services of plowing, and other labors of agriculture, for the lord.

[6] Michael Bean and Melanie J. Rowland, The Evolution of National Wildlife Law, 3rd Ed. (Praeger Publishers, Westport, CT, 1997), 8.

[7] Bean and Rowland, Evolution of National Wildlife Law, 10.

[8] Bean and Rowland, Evolution of National Wildlife Law, 10.

[9] Chase is a type of land reserved for hunting use by its owner (i.e., a Royal Chase would reserve hunting rights for members of the royal family). “Downs” were grassy plains used for horse racing and the like.

[10] Eric Freyfogle and Dale D. Goble, Wildlife Law, 37-38.

[11] Eric Freyfogle and Dale D. Goble, Wildlife Law, 38.

[12] Eric Freyfogle and Dale D. Goble, Wildlife Law, 44-45.