Fishing and Hunting (Auceps, Venatio, Piscatio)

PESCA e CACCIA (aucupium, venatio, piscatio). — They are arts of capturing game and aquatic animals which, living in their native freedom and therefore without an owner, occupation (v.). P. e c. may be regarded simply as a wholesome and exciting pastime, open to all, except where special restrictive laws have been enacted in the interest of the public good (in this respect, V. DIVERTIMENTI). Here they are considered exclusively as a means of implementing man’s native right to appropriate material goods, and as such as relevant both to morality and to law.

From the objective standpoint, p. e c. express a natural right of man, ordinarily regulated in the various civil laws, and directed toward acquiring ownership of animals, fish, or game that are naturally free. From the subjective standpoint, p. e c. consist in the faculty of pursuing and capturing these animals which, living in their natural freedom and removed from human control, are regarded as belonging to no one (res nullius). This faculty, granted by natural law, which placed inferior creatures at man’s service, constituted one of the earliest forms of subsistence for man, especially when nomadic (Gen. 9, 3; 27, 3-4), and was among the subjects of legislation when man, having gathered into more advanced forms of civilized life, also organized his social life more effectively in juridical terms. For the general concepts concerning this matter, V. occupazione.

I. CIVIL LAWS IN GENERAL AND ITALIAN LEGISLATION IN PARTICULAR

Italian legislation (Civil Code, arts. 842, 924–926, and R. D. 5 June 1939, no. 1016, for hunting; R. D. 8 October 1931, no. 1604, and R. D. L. 11 April 1938, no. 1183, for fishing) is concerned, among other things, with harmonizing fishing and hunting with the rights of third parties, in order to prevent damage to private property, as well as to the national fish and zoological heritage, through destructive captures and killings. Thus: 1) protected resident game (formerly called noble game) is distinguished from harmful species, and spawning and young fish from mature fish; 2) the exercise of these activities is made subject to the granting of a licence by the competent authorities; 3) means or weapons capable of causing destruction rather than capture are excluded, and the use of dogs and decoy birds is likewise restricted; 4) fishing and hunting are prohibited in certain areas or reserved to those who have exclusive rights thereto (closed areas and reserves), as well as in the case of certain species of game (swallows); 5) their exercise is limited to periods in which no damage is caused to standing agricultural crops or to the game itself; 6) the right to compensation is established for those who have suffered damage. Nevertheless, the owner of a plot of land may not prevent others from entering it to hunt, except by properly fencing the land or during periods when crops liable to damage are being cultivated; the owner of private waters, on the other hand, has the exclusive right to fish in those waters (Civil Code, art. 842). On open land, game belongs to whoever kills or captures it; nevertheless, it belongs to the hunter who has flushed it out until he abandons the pursuit, and wounded game belongs to the person who wounded it (R. D. 5 June 1939, art. 2).

Swarms of bees that migrate may be pursued by their owner even onto another person’s land, provided that he compensates the owner for any damage caused to the land; the owner of the land may capture and keep them if their owner has ceased pursuing them for two days. The same right belongs to the owner of escaped domesticated animals; only if the owner, within twenty days of learning where they are, fails to reclaim them do they belong to the person who has taken possession of them. Rabbits, fish, and non-migratory pigeons, on the other hand, when they pass from one rabbit hutch, fishpond, or dovecote to another, provided that they have not been attracted there by artifice or fraud, immediately become the property of the owner of the rabbit hutch, etc., in which they have taken refuge (Civil Code, arts. 924–926). Concealing their location so that the owner cannot discover it compromises the good faith of the person who has taken possession of them. Each year the administrative authority establishes the season and procedures for hunting the various species of game (Hunting Calendar).

II. ETHICAL VALUE OF THE LAWS ON FISHING AND HUNTING

PESARO, DIOCESE OF — Rocca Costanza, built according to a design by L. Laurana (1474–83).

It is beyond dispute for everyone that, when judicial intervention has taken place to settle any disputes in accordance with civil law, an obligation arises in conscience to respect the attribution of ownership of the game or its confiscation, the determination of the damages to be compensated, or any penalties. This follows from a general principle of order, since otherwise public order would be seriously compromised.

But apart from this concrete determination, the nature of the binding force in conscience of the laws on fishing and hunting is much debated. In practice, according to the most equitable position:

1) Laws that directly protect the reproduction and preservation of species bind in conscience (for Italy cf. T. U. arts. 12, 38, 43), because it is in everyone’s interest that such a patrimony not become extinct. 2) Laws prohibiting hunting in places where its practice may cause actual harm to crops or property likewise bind in conscience (for Italy cf. T. U. art. 30). 3) Laws assigning ownership of game to the first occupant and determining compensation for damages, being specifications of natural law, must be considered binding in conscience. All the others, which regulate only the practice of hunting (license, prohibition of weapons, concession as a monopoly, time limits for reclaiming bees or escaped undomesticated animals), are generally regarded as merely penal. However: a) hunting wild animals in small enclosed plots; b) the use of fraud to lure rabbits, pigeons, or fish into one’s own rabbit hutch, etc.; c) resisting game wardens, attempting to bribe them, etc., are considered to be regulated by strictly moral laws. 4) In the case of reserved fishing or hunting, it must be considered whether a kind of monopoly or privilege is involved (in which case the restriction is merely penal) or a genuine lease (in which case the prohibition binds in conscience, with the obligation of restitution). In the overall assessment of all these rules, some weight may also be given to the judgment expressed locally by common opinion.

In the sphere of canon law (can. 138), clerics are strictly forbidden to engage in so-called clamorous hunting (that is, hunting conducted by several persons with a great array of weapons and dogs); quiet hunting (practiced alone or by a few persons), however, is not forbidden except by reason of excesses or other inconveniences in the exercise of their ministry. Participating once or twice in clamorous hunting is not considered, apart from scandal, forbidden sub gravi; whereas a bishop may not forbid quiet hunting unless it exceeds the bounds of discretion or is practiced to the detriment of the care of souls. For the