The fiscal license, which was first required by the act 24th Geo. III. c. 43, cannot be justly regarded in the light of an infraction of the general principle of the Scotch law. Its direct object is not the limitation of the right of hunting, but the maintenance of the public revenue; and it will be readily admitted by all reasonable men that, on the one hand, there cannot be a less objectionable source of taxation than the privilege in question, and, on the other, that the duty is not excessive, when we find above 60,000 persons in Great Britain voluntarily subjecting themselves to it every year.
The two other principal enactments regarding the pursuit of game in Scotland, commonly known as the Night and the Day Trespass Acts, 9 Geo. IV. c. 69, and 2 and 3 Will. IV. c. 68, cannot here be criticised in detail. Their provisions contain one or two anomalies which we shall have occasion to notice below, in suggesting some practicable amendments on the present law. But as to their general spirit, we venture to affirm that they are most legitimate developments of the general principle above stated. In every class of injuries to the rights of others, there are some species of the offence which, from their frequency, or from their being difficult to detect, must necessarily be prevented by more stringent prohibitions than those attached to the genus in general; and in the same way that orchards for example, timber, salmon fisheries, and many other subjects are protected by special penalties, so has it been found requisite to amplify the common law of trespass, in its application to that particular manner of trespass which is confessedly the most frequent and annoying. If the penalties are unnecessarily stringent, let them by all means be modified; but their severity, in comparison with the punishment of ordinary trespass, is not inconsistent with justice, or the principles of wise legislation.
We have adverted, in this hasty sketch, only to the prominent features and growth of the law of Scotland; but a more detailed comparison with that of England and other countries of Europe, especially when recent statutes and decisions are taken into view, will fully justify the opinion of Hutcheson and other well qualified judges, that it is "the most liberal and enlightened of all laws as to game." It recognises, of course, no such thing as _property_ in game more than in any other animals of a wild nature. The proprietor of a manor has no right to the pheasant he has fed until he shall have actually brought it to bag, or at least disabled it from escaping; and the right which he then first acquires is quite independent of his ownership of the land.