Fishing and Hunting (Auceps, Venatio, Piscatio)

FISHING AND HUNTING (Auceps, Venatio, Piscatio). - They are arts of conquest of game and aquatic animals which, living in their native freedom and therefore without an owner, can constitute an object of occupation (v.). H. and f. can be regarded simply as a healthy and exciting amusement, open to all, save for special restrictive laws, issued in the interest of the public good (under this aspect, v. AMUSEMENTS). Here they are considered exclusively as a means by which man exercises his native right to occupy material goods, and as such of interest to both morals and law.

From the objective side, h. and f. express a natural right of man, ordinarily regulated in the various civil laws, and directed to the acquisition of property over animals, fish or game, naturally free. From the subjective side, h. and f. consist in the faculty of pursuing and capturing the animals themselves, which, living in their natural freedom, withdrawn from man's control, are considered as a thing of no one (res nullius). This faculty, granted by natural law, which placed the lower creatures at the service of man, constituted one of the first forms of subsistence for man, especially if nomadic (Gen. 9:3; 27:3-4), and was among the subjects of legislation when, gathered into forms of higher civilized living, man organized his social life better also juridically. For the general concepts on the matter, v. occupation.

I. CIVIL LAWS IN GENERAL AND ITALIAN LEGISLATION IN PARTICULAR

Civil laws ordinarily restrict, by regulating it, the right of h. and f., in view especially of the interest that the wild and aquatic patrimony has for the whole community. Such restrictions ordinarily apply as to time and sometimes also as to place, and as to the instruments.

Italian legislation (Cod. civ., arts. 842, 924-26 and R. D. 5 June 1939, no. 1016, for f.; R. D. 8 Oct. 1931, no. 1604, and R. D. L. 11 Apr. 1938, no. 1183, for h.) concerns itself among other things with harmonizing h. and f. with the rights of third parties, to avoid damage to private property, as well as to the national fish and animal patrimony through devastating captures and killings. Thus: 1) protected resident game (formerly called noble) is distinguished from harmful game, and spawning and young fish from mature fish; 2) the exercise is subject to the granting of a license by the competent authorities; 3) means or weapons that can lead to destruction rather than to capture are excluded; likewise the use of dogs and decoy birds is restricted; 4) the prohibition of h. and f. is imposed in determined zones or zones reserved to those who hold the exclusive right (banned areas and reserves), as well as for determined species of game (swallows); 5) its exercise is limited to times in which no damage is caused to agricultural crops in progress or to the game itself; 6) the right to compensation for damages is fixed for those who have suffered them. However, the owner of a plot of land cannot prevent others from entering it to hunt, unless he regularly fences the plot or during times of crops subject to damage; the owner, on the other hand, of private waters has the exclusive right of f. in those same waters (Cod. civ. art. 842). On free terrain the game belongs to whoever kills or captures it; moreover it belongs to the hunter who has flushed it, as long as he does not abandon the pursuit, and that which is wounded to the one who wounded it (R. D. 5 June 1939, art. 2).

Swarms of bees that migrate may be pursued even onto another's land by the owner, provided he compensates the damages caused to the land; the owner of the land may take and retain them if the owner has ceased to pursue them for two days. The owner of domesticated animals that have fled has an equal right; only if the owner, within twenty days from when he learned of the place where they are, does not reclaim them, do they belong to whoever has taken possession of them. On the other hand, rabbits, fish, and non-carrier pigeons, which pass from one rabbit hutch or fish pond or dovecote to another, provided they have not been attracted there by art or fraud, pass immediately into the property of the owner of the rabbit hutch etc., where they have taken refuge (Cod. civ., arts. 924-26). Concealment so that the owner does not come to know the place where they are harms the good faith of whoever has taken possession of them. Annually the administrative authority fixes the time and the modalities of h. for the various species of game (Hunting Calendar).

II. ETHICAL VALUE OF THE LAWS ON FISHING AND HUNTING

The determination of the ethical value of the legal provisions in the matter is a subject of lively controversy among moralists. It is beyond dispute for everyone that once a judicial intervention has occurred to settle any disputes, in conformity with civil law, an obligation in conscience arises to respect the attribution of ownership of the game or its confiscation, the determination of damages to be compensated, or any penalties. This is by a principle of general order, because otherwise public order would be gravely compromised.

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

1) The laws that directly protect the reproduction and maintenance of species oblige in conscience (for Italy cf. T. U. arts. 12, 38, 43), because it is in everyone's interest that such a patrimony not be extinguished. 2) The laws that prohibit hunting in those places where its exercise can cause real damage to crops or to property also oblige in conscience (for Italy cf. T. U. art. 30). 3) The laws that attribute ownership of game to the first occupant and determine compensation for damages, being specifications of natural law, must be considered binding in conscience. All the others that regulate only the exercise (license, prohibition of weapons, concession in exclusive right, time for reclaiming bees or non-domesticated animals that have escaped), are generally considered merely penal. However: a) hunting of wild animals in enclosed restricted estates; b) the use of frauds in attracting rabbits, pigeons, fish into one's own rabbit hutch, etc.; c) resistance to gamekeepers, the attempt to bribe them, etc., are considered regulated by strictly moral laws. 4) In the case of reserved hunting or fishing, one must consider whether a kind of monopoly or privilege occurs (in such a hypothesis the restriction is only penal) or a true lease (and then the prohibition obliges in conscience with the burden of reparation). In the overall evaluation of all these norms, the judgment given locally by common opinion may also carry its weight.

In the field of canon law (can. 138): clerics are strictly forbidden the so-called clamorous hunting (that is, done by several persons with a great array of weapons and dogs); quiet hunting, on the other hand (practiced alone or by few), is not forbidden except by reason of excesses or other inconveniences in one's ministry. Taking part once or twice in clamorous hunting is not held, scandal aside, to be forbidden under grave sin; while the bishop cannot forbid quiet hunting, unless it exceeds the measure of discretion or is exercised to the detriment of the care of souls. For the p. there is no provision in common law;
and its exercise is therefore subject to the general principles and to the particular laws that may have been issued by local authorities.

Sisinio da Romallo