Definition
A right held by one person to take wild fowl — such as ducks, geese, or other wildfowl — from the land of another. Common of fowling is one of the lesser-known profits à prendre under English common law, a category of incorporeal hereditaments that permitted a right-holder to enter another's land and take something from it. Unlike ordinary hunting rights, which might be reserved to the landowner or the Crown, common of fowling was a specifically recognized entitlement that could, in certain localities, attach to particular parcels of land or be held by custom. It is closely analogous to common of piscary (the right to fish) and common of hunting or common of coney-catching, all of which involve the taking of animals from another's land as a matter of legal right rather than license or trespass.
The right was recognized in practice in particular regions of England where wetland, marsh, or fenland made wildfowling economically significant to local communities. Like other commons, it could exist by grant, prescription, or local custom.
Common Confusion
Common of fowling is easily confused with a mere hunting license or sporting easement, but the distinction matters. A license to hunt or shoot is personal and revocable; it confers no property right. Common of fowling, as a profit à prendre, is a property right in land — capable of running with the dominant tenement, being conveyed, and surviving the licensor's change of mind. It is also distinct from the broader right of common of pasture and from the several fishery, which is an exclusive right rather than a shared one. Researchers should not conflate these rights when reading older English land records or conveyances.
Recognized Forms
/SUBTYPES
Common of fowling sits within the broader taxonomy of profits à prendre, which includes:
- Common of pasture (right to graze animals)
- Common of piscary (right to fish)
- Common of estovers (right to take wood)
- Common of turbary (right to cut peat or turf)
- Common of hunting / common of coney-catching (right to take game animals, including rabbits)
- Common of fowling (right to take wildfowl)
These are distinct rights and should not be collapsed into a generic "right of common."
Why It Matters in Research
Researchers will encounter common of fowling almost exclusively in English legal history, conveyancing records, and treatises on incorporeal hereditaments. It has virtually no independent American legal history: the corpus of U.S. case law and statute makes no meaningful home for it, and American property law never replicated the granular English system of profits à prendre tied to specific local customs and tenements. If you encounter the term in an American source, it will almost certainly be in a treatise borrowing from English authority, or in a passage discussing the common law baseline before colonial or state modification.
In English sources, the key research trap is chronology. Pre-enclosure materials treat common of fowling as a living, practically significant right in fenland and coastal districts. Post-enclosure Act materials (broadly, after the Parliamentary enclosure movement of the eighteenth and nineteenth centuries) increasingly treat such rights as extinguished or commuted. The Commons Registration Act 1965 and related twentieth-century legislation further altered the landscape. A source's date will heavily determine whether it describes common of fowling as a viable right or a historical curiosity.
The Elton treatise cited in Black's (Charles Isaac Elton, A Treatise on Commons and Waste Lands, 1868) is a reliable Victorian-era source on this area and can serve as a secondary anchor for researchers navigating older English materials.
Historical Dictionary Support
Black's Law Dictionary provides a compact but accurate treatment, quoting Elton to establish that common of fowling is the right to take wildfowl from another's land, analogous to the right of taking conies (rabbits). Black's situates the right correctly within the broader class of rights over another's land rather than treating it as a mere custom or license.
The historical dictionaries do not develop the right in detail, which reflects its status as a narrowly applicable, regionally specific entitlement rather than a doctrine with broad general application. Researchers should not expect deep doctrinal elaboration in any of the standard legal dictionaries; the treatise literature on incorporeal hereditaments and profits à prendre — Elton, and earlier Blackstone's Commentaries Book II — is the more productive research path.
Jurisdictional Note
Common of fowling is an English common law concept with no significant independent development in American jurisdictions. Researchers working in U.S. property law will not find it operative, though the broader category of profits à prendre does appear in American law in modified form. In England and Wales, such rights are subject to registration requirements and statutory modification under twentieth-century commons legislation.