Historical Background of the ESA

AuthorLawrence R. Liebesman/Rafe Petersen
Page 3
Chapter I
Historical Background of the ESA
The ESA has important roots based on the
historical antecedents of wildlife regulation,
an emerging awareness of the importance
of biodiversity and American natural resources, the
failure of prior legislative eorts to preserve those
resources, and the increasingly environmentally
sensitive political climate of the late 1960s and
early 1970s.
A. Historical Antecedents of Wildlife
Historically, wild animals occupied a unique status
within Western legal tradition.1 e law considered
wild animals in their natural state to be the prop-
erty of no one until captured or killed.2 Ancient
Romans placed only a single restriction on acquir-
ing wildlife as property by capture or kill, which
was that a private la ndowner had an exclusive
right to c apture or kill any wildlife located upon
his property.3 is single restriction was perhaps
more “a recognition of the rig ht of ownership in
land than an exercise by the state of its undoubted
authority to control the taking and use of that
which belonged to no one in particular, but was
common to all.”4
Government regulation of wildlife, however,
became more apparent in feudal Europe.5 Sir Wil-
liam Blackstone attributed the origins of wildlife
regulation to the desire of barons and kings to
retain the fruits of their conquest by keeping weap-
ons out of t he hands of the people they conquered.6
1. M J. B  M J. R, T E 
N W L 7-8 (1997).
2. Id. at 8.
3. Id.
4. Id. (citing Geer v. Connecticut, 161 U.S. 519, 523 (1896)).
5. Id.
6. Id. (citing 3 W B, C *413).
Blackstone observed that “[n]othing could do t his
more eectively than a prohibition of hunting and
sporting.” Accordingly, feudal rulers withheld the
right to hunt and the right to bear arms from the
general populace and those upon whom they had
not granted a specic right.7
Early wildlife protection via restrict ions on
hunting and land use detrimenta l to wildlife
soon spread from specic lands reserved to feudal
kings, known a s “royal forests,” to a more general
and exclusive royal authority to hunt applicable to
all lands within a kingdom.8 Feudal rulers could
and often did grant franchises to hunt and sh to
favored individuals; and by the 13th century, so
many franchises had been granted in England that
the Magna Carta of 1215 contained provisions lim-
iting the king’s ability to grant further franchises.9
is reduction in royal authority paved the way for
parliamentary control over w ildlife regulation as
the political system within England evolved.10
Although parlia mentary control over wildlife
regulation did not signal any great democratiza-
tion of the rights to manage wildlife, it d id set the
stage for the development of the primary features
of English wildlife law that were tra nsplanted to
the New World upon the establishment of colo-
nies in the early 1600s.11 e principal mechanism
for parliamentary control over wildlife was the
enactment of “qua lication st atutes.”12 ose stat-
utes prohibited the taking of game by anyone not
“qualied” by the ownership of a certain amount of
wealth or lands as prescribed by the statutes.13 Gen-
7. Id.
8. Id. at 8-9.
9. Id. at 9.
10. Id.
11. Id. at 10.
12. Id.
13. Id.

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