Sunday, February 4, 2018

Digital library I: A New Treatise on the Laws for Preservation of the Game (1766)

So (as Ann Wilson sang), the first post in the digital library of historical environmental law series is on A New Treatise on the Laws for Preservation of the Game, first published in 1764; the second edition, available online, was printed in London in 1766 by His Majesty's Law Printers.

The title page gives the author as "a Gentleman of the Middle-Temple"; said gentleman was apparently one Timothy Cunningham, a prolific author of law books in eighteenth century Britain.

The title of "Gentleman" may have been about more than manners or class, as the long title of the treatise has this explanation (Oklahoma!, anyone?): "Containing All the Statutes, Cases at Large, Arguments, Resolutions and Judgments concerning it; equally useful to the Gentleman and Farmer; as the Gentleman may learn how far his Privilege extends, and the Farmer may be enabled to know when the Gentleman exceeds the Limits prescribed by Law, and the proper Methods of Redress." So the author must have been something of a "sporting gentleman" (as he puts it on in the "Advertisement") himself, not simply a disinterested scholar.

(As an aside, the celebrity of Lord Mansfield in his own day is evident in the second edition's title page, advertising that the work includes "the Addition of the law Fish-Act, several Cases on the Game-Acts determined in the King's Bench since the time of Lord Mansfield's coming to preside in that Court", and more.)

The treatise largely reproduces English legislation on the subject, legislation that is striking for its quantity and the thickness of the regulation it imposed. For instance (p. 264), a statute of 1389 (13 Ric 2 c 13) declared:
FORASMUCH as divers artificers, labourers, and servants, and grooms, keep greyhounds and other dogs, and on the holy-days when good christian people be at church, hearing divine service, they go hunting in parks, warrens, and conigries of lords and others, to the very great destruction of the same, and sometime under such colour they make their assemblies, conferences, and conspiracies for to rise and disobey their allegiance: it is ordained and assented, that no manner of artificer, labourer, nor other layman, which hath not lands or tenements to the value of forty shillings by year, nor any priest, nor other clerk, if he be not advanced to the value of ten pounds by year, shall have or keep from henceforth any greyhound, hound, nor other dog to hunt; nor shall they use fyrets, hays, nets, harepipes, nor cords, nor other engines for to take or destroy deer, hares, nor conies, nor other gentlemens game, upon pain of one year’s imprisonment...
A much later statute (p. 231) of 1761-62 (2 Geo 3 c 15) regulated the fish business down to the level of how many of each kind of fish could be sold together at market, and included rules (sec. 5) the like of which we still have today:
And, for the more expeditious conveyance of fish by land carriage, be it also enacted by the authority aforesaid, That every carriage which shall be used for the conveyance of such fish as aforesaid, shall only carry fish,… with the necessary package and implements which shall belong to such carriage; and shall be marked on the outside Fish Machine Only; and shall have the name or names, and place or places of abode, of the respective owner or owners thereof, entered at the office of the commissioners for licensing hackney coaches; and for every such entry, only one shilling shall be paid to the clerk there; and the said commissioners are hereby  required to receive every such respective entry, and to cause the same to be registered the said office; and afterwards the respective number of every such respective carriage shall be marked on some conspicuous part of the outside  thereof, in large figures, painted, or else shall be put on lead or other metal, and shall be fixed in the front, or on one of the shafts, or some other conspicuous part of every such respective carriage…
There's lots more historical game and fish law in this treatise, but that's all for this week. If anyone knows what fyrets, hays, and so on are, please comment.


  1. This digital library project is fascinating and most welcome. And I'm delighted that you begin it with an item on wildlife law. The prohibition in the 1390 Game Law on the use of "fyrets, hays, nets, harepipes, cords, [or] other engines" was as much an effort at social control as it was an attempt to manage wildlife in medieval England. Conigries were rabbit warrens. Fyrets were ferrets. Hays were nets used to catch rabbits. And harepipes were snares (the making and deployment of which is even now the subject of a YouTube movie). The devices were used by poachers, whose assembly (covinage) on the edges of private lands, especially on Sundays when landowners were in church, was seen as a sign of potential social unrest. This Game Law, which spelled the end of commonalty hunting on unenclosed land in England, was one of the qualification statutes aimed at restricting hunting to certain social classes. In fact, its property restriction wasn't terribly exclusive and, after 1390, the law was almost never enforced, perhaps because poaching was an activity that all social classes enjoyed in medieval England. See also, Richard Almond, MEDIEVAL HUNTING (2003); William Perry Marvin, "Slaughter and Romance: Hunting Reserves in Late Medieval England," 224-252 in MEDIEVAL CRIME AND SOCIAL CONTROL (Barbara Hanawalt & David Wallace eds. 1999); William Perry Marvin, HUNTING LAW AND RITUAL IN MEDIEVAL ENGLISH LITERATURE (2006).

    1. Thanks for the explanations and the references!