GAME LAWS. The term game, in a large sense, seems to comprehend all animals obtained by fowling and hunting, animals feroe naturoe, as contradistinguished to tame animals, such as horses, cows, sheep, and the like, which do not fly the dominion of man, but generally keep within the same pastures and closes; but in its stricter acceptation it applies only to those wild animals which the game laws and other arbitrary constitutions have distinguished by that appellation.

The view taken on this subject by Judge Blackstone is this: By the law of nature, says he, every man, from the prince to the peasant, has an equal right of pursuing and taking to his own use all such creatures as are Jera: natur<e, and therefore the property of nobody, but liable to be seized by the first occupant; and so it was held by the imperial law even so late as the time of Justinian. But this right, like others of the same kind, may be restrained by positive laws, and we find has been so restrained by the municipal laws of many nations. Yet however defensible these provisions may in general be, on the footing of reason, or justice, or civil policy, we roust notwithstanding acknowledge, that in their present shape they owe their immediate origin to slavery, having been introduced into Europe along with the féodal system. On the Norman conquest, the right of pursuing and taking such animals as were accounted game was held to belong to the king, or to such only as were authorized by him. And this, the learned commentator says, as well upon the principles of the féodal law, that the king is the ultimate proprietor of all the lands in the kingdom, as upon another maxim of the common law, that these animals are bona vocantia, and, having no other owner, belong to the king by his prerogative. Wherefore, he concludes, all persons, of what property or distinction so-

ever, who kill game without the king’s grant, are guilty of encroaching on the royal prerogative; and those persons who do so without having what is called a qualification, are guilty not only of the original offence, but also of the aggravations created by the statutes for preserving the game; which aggravations are so severely punished, and those punishments so implacably inflicted, that the offence against the king is seldom thought of, provided the miserable delinquent can make his peace with the lord of the manor.

The doctrine thus promulgated, novel and startling as it was, maintained itself long on the mere name and reputation of the author. It is now, however, admitted to be incorrect. The law of Canute, noticed by Blackstone, “quilibet homo dignus venatione sua, in sylva et in agris sibi propriis et in dominio suo,” was confirmed by many succeeding kings; and there is no instance, civil or criminal, in which a person has been sued or prosecuted on behalf of the king for taking game, unless he took it out of some privileged place. On the contrary, there is a current of dicta and decisions showing that owners of land have uniformly been considered as having a local property in game, and a right to take it whilst upon their own land.

However, the legislative provisions are in restraint of the common law right; and these provisions were till lately many and various, and not a little obscure and intricate. But in October 1831 an important act was passed to amend the laws of England relative to game, namely, 1 and 2 Gul. IV. c. 32, which repealed about thirty previous statutes on the subject, and, excepting as to game certificates, may be looked upon as containing nearly the whole law in relation to game.

This statute of William begins by enacting that the word game shall, for all the purposes of the act, be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards. It then sets out the days and times during which game shall not be killed, declaring that if any person shall kill or take any game, or use any dog, gun, net, or other engine or instrument for the purpose of killing or taking any game on a Sunday or Christmas day, he shall, on conviction, forfeit and pay, for every such offence, such sum of money, not exceeding L-5, as to the justices shall seem meet, together with the costs of conviction; and prohibiting, under a penalty, the killing or taking any partridge between 1st February and 1st September; pheasant between 1st February and 1st October; black game (except in the county of Somerset or Devon, or in the new Forest of Southampton) between 10th December and 20th August, or in the above excepted places between 10th December and 1st September; grouse or red game between 10th December and 12th August, or any bustard between 1st March and 1st September; and it further declares, that if any person, with intent to destroy or injure any game, shall at any time put any poison or poisonous ingredient on any ground, whether open or enclosed, where game usually resort, or in any highway, every such person shall, on conviction, forfeit and pay such sum of money, not exceeding L.10, as to the justices shall seem meet, together with the costs of conviction; and further, that if any person licensed to deal in game shall buy or sell, or knowingly have in his house, shop, stall, possession, or control, any bird of game after the expiration of ten days (one inclusive and the other exclusive) from the respective days in each year on which it shall become unlawful to kill or take such birds of game respectively as aforesaid, or if any person not being licensed to deal in game, shall buy or sell any bird of game after the expiration of ten days from the respective days in each year on which it shall become unlawful to kill or take such birds of game respectively as aforesaid, or shall knowingly have in his house, possession, or control any bird of game (except[7:10:310] birds of game kept in a mew or breeding plaċe) after the expiration of forty days (one inclusive and the other exclusive) from the respective days in each year on which it shall become unlawful to kill or take such birds of game respectively as aforesaid, every such person shall, on conviction, forfeit and pay, for every head of game so bought or sold, or found in his house, shop, possession, or control, such sum of money, not exceeding L.l, as to the justices shall seem meet, together with the costs of conviction. The act then provides that the same, except as therein mentioned, shall not affect or alter the laws respecting game certificates ; and declares that all regulations and provisions contained in any act relative to game certificates, as far as they relate to gamekeepers of manors, and to the amount of duty for game certificates to be charged upon or in respect of gamekeepers of manors in the cases specified in such act, shall apply to all gamekeepers of lands appointed under this act; and it furtherdeclares, that every person who shall have obtained an annual game certificate shall be authorized to kill and take game, but subject to the law of trespass, and provided always that no game certificate on which a less duty than L.3.13s. 6d. is chargeable under the acts relating to game certificates shall authorize any gamekeeper to kill or take any game, or to use any dog, gun, net, or other engine or instrument, for the purpose of killing or taking game, except within the limits included in his appointment as gamekeeper; but that in any case where such gamekeeper shall kill or take any game, or use any dog, gun, net, or other engine or instrument, for the purpose of killing or taking game, beyond such limits, he may be proceeded against as if he had no game certificate whatsoever. Then follow certain clauses which determine the rights of landlords in relation to the game. The act declares, that in all cases where any person shall occupy any land under any lease or agreement made previously to the passing of the act, the lessor or landlord shall have the right of entering upon such land, or of authorizing any other person or persons who shall have obtained an annual game certificate to enter upon such land, for the purpose of killing or taking the game thereon; and no person occupying any land, under any lease or agreement, either for life or for years, made previously to the passing of this act, shall have the tight to kill or take the game on such land, except where the right of killing the game has been expressly allowed to such person by the lease or agreement, or except where, upon the original granting or removal of the same, a fine shall have been taken, or except where, in the case of a term for years, the lease or agreement shall have been made for a term exceeding twenty-one years; provided always that nothing contained in the act shall authorize any person seised or possessed of land to kill or take the game, or to permit any other to do so, where, by any deed, grant, lease, or any written or parole demise or contract, a right of entry on such land for the purpose of killing or taking the game has been or shall be reserved or retrieved by, or given or allowed to, the granter or other person whatsoever; nor shall the act affect any reservation or agreement already made in relation to game, nor in any manner prejudice the rights of manor, forest, chase, or warren, nor any of his majesty’s forest rights, nor the rights of any grantee of the crown; nor shall the act be deemed to give to any owner of cattlegates, or rights of common, upon or over any wastes or commons, any interest or privilege which he had not before, nor authorize him to pursue or kill the game found on such wastes or commons, nor defeat or diminish the rights and privileges of any lord, or of any steward of the crown, of any manor, lordship, or royalty, in or over such wastes or commons; but that the lord or steward of the crown, of any manor, &c. shall have the right to pursue and kill the game upon the wastes or commons therein, and to authorize any other person who shall have obtained an annual game certificate to enter upon such wastes or commons for the purpose of pursuing and killing game thereon. And it is further enacted, that where the lessor or landlord shall have reserved to himself the right of killing the game upon any land, it shall be lawful for him to authorize any other person who shall have obtained an annual game certificate, to enter upon such land for the purpose of pursuing and killing game thereon; and also, that where the right of killing game is by the act given to any lessor or landlord, in exclusion of the right of the occupier of the land, or where such exclusive right has been or shall be specially reserved by or granted to, or does or shall belong to, the lessor, landlord, or any person whatsoever, other than the occupier of such land, then and in every such case the occupier, if he shall pursue, kill, or take any game upon the land, or give permission to any other person so to do, without the authority of the lessor, landlord, or other person having the right of killing the game, shall on conviction forfeit and pay for such pursuit, such a sum of money, not exceeding L.2, and for every head of game so killed or taken, such a sum of money, not exceeding L.l, as the justices shall be pleased to award, together with the costs of conviction. Then follow certain provisions allowing lords of manors and stewards of the crown-manors to appoint one or more gamekeepers to preserve or kill the game, and with power to seize dogs, guns, nets, and other engines and instruments used within the limits by uncer-tiĥcated persons, and also allowing lords of manors and stewards of crown-manors to grant deputations to persons as gamekeepers; and, after particular regulations respecting appointments of gamekeepers in Wales, the act declares that no appointment or deputation of a gamekeeper shall be valid, unless registered with the clerk of the peace.

These provisions are followed by a series of important clauses in regard to the possession, purchase, and sale of game. The act declares, that every person who shall have obtained an annual game certificate, shall have power to sell game to any person licensed to deal in game, provided always that no game certificate on which a less duty than L.3. 13s. 6d. is chargeable, shall authorize any gamekeeper to sell game, except on the account and with the written authority of the master whose gamekeeper he is; and the act appoints special sessions of the peace, to be holden in the month of July yearly, for the purpose of granting licenses to persons therein pointed out to deal in game; and every person so licensed shall annually, and during the continuance of his license, and before he shall be empowered to deal in game under his license, take out a certificate, with a duty of L.2, to be paid to the collector of assessed taxes for the district, under a penalty of L.20. And further, the act declares, that if any person licensed to deal in game shall, during the period of license, be convicted of any offence whatever against the act, his license shall thereupon become null and void. Other clauses which follow create penalties for killing or taking game, or using any dog, gun, or other engine, for the purpose of searching for or killing or taking game without a game certificate; for destroying or taking the eggs of any bird of game, or of any swan, wild duck, teal, or widgeon, without having right to kill the game, or permission from the person having such right; for selling or offering to sale any game, without a game certificate or license, or to unlicensed persons, excepting always innkeepers or tavern-keepers, who, without license to deal in game, may sell game for consumption in their own houses, such game having been procured from some person licensed to deal in game; for buying game without a license from unlicensed persons; lastly, on licensed dealers for buying game from uncertificated or unlicensed persons, or for [7:10:311]not having up a sign-board, and on unlicensed persons assuming or pretending to be licensed; and the whole is closed by a proviso as to the purchase and sale of game by the servants of licensed dealers. Then follows the 30th section, with this preamble: “And whereas, after the commencement of this act, game will become an article which may be legally bought and sold, and it is therefore just and reasonable to. provide some more summary means than now by law exist for protecting the same from trespassers ;” whereupon various regulations are made respecting trespass in search or pursuit of game. These, however, we shall hereafter specify, because they are substantially the same with those contained in an act since passed for Scotland, to which kingdom the unrepealed act 9 Geo. IV. c. 69, also extends.

In this country there was originally, as in England, no restraint on the taking of game within one’s own land. It is particularly noticed, that in the time of King Alexander it was not defended nor forbidden to any man to hunt nor to chase the hare and fox, and other wild beasts, without forests and warrens, wheresoever they were found ÍM. T. C. c. 52); and as late as the time of King James II. an act was passed (1474, c. 60), declaring that it should not be lawful to hunt or destroy game “in vtheris closes or parkes,” without the owner’s leave. In the following century the idea of game as the subject of gentlemen’s pastime appears; and the act 1551, c. 9, was passed, to restrain certain modes of detroying birds then commonly practised, “quhairthrow the noblemen of the realme can get na pastime of halking and hunting, like as hes beene had in times bypast." In the beginning of the seventeenth century the principle of the first English qualification act (13 Rich. II. c. 13), the title of which is, “None shall hunt but they who have a sufficient living,” was adopted by the Scottish legislature in the act 1600, c. 23; and upon that principle, no doubt, soon followed the statute 1621, c. 31, which enacts “that no man hunt or hawk at any time hereafter, who hath not a plough of land in heritage, under the pain of L.100 Scots, half to the king and half to the prosecutor.” This is the substantive Game Qualification Act of Scotland; and under it the courts have held, that a qualified person may communicate the right of shooting to any individual over the lands of the former; and that a qualified landlord may hunt on his ground in the hands of tenants, paying damage; but that neither a servitude of pasturage nor a lease of land carry a right to kill game, nor yet a lease of game, as against singular successors; nor can a qualified person hunt on the property of another without the owner’s leave.

To the qualification required by the act 1621 has been added, by subsequent statutes, that of a game certificate, as in England. To make the privilege valuable, various penalties have also been enacted against poachers ; and lately the act of 9 Geo. IV. c. 69, was passed, applicable to both England and Scotland, to prevent persons going armed by night for the destruction of game and rabbits. To all these is now to be added the act above alluded to, namely, 2 and 3 Gul. IV. c. 68, which, though limited to Scotland, is, as already mentioned, nearly a transcript of the 30th and following sections of the late English game act. It enacts and declares, that if any person shall commit any trespass, by entering or being in the daytime upon any land without leave of the proprietor, in search or pursuit of game, or of deer, roe, woodcocks, snipes, quails, landrails, wild ducks, or conies, such person shall forfeit and pay a penalty not exceeding L.2, which is enlarged in the case of the trespass being by a person having his face blackened, coloured, or disfigured, for the purpose of disguise, or by persons to the number of five or more together; and it further declares, that such trespassers may be required to quit the land, and give their names and abodes, and, on their refusal so to do, may be arrested. But it is provided, that the act shall not extend against persons hunting or coursing with hounds or greyhounds, and being in fresh pursuit of any deer, hare, or fox already started upon any other land on which such persons were entitled to hunt or course. The act also declares, that game may be taken from trespassers not delivering the same up when lawfully demanded; and it provides a summary means for ensuring the conviction and punishment of offenders; declaring also, that all penalties created by the statute shall go to the poor of the parish. (u. u. u.)