1902 Encyclopedia > Game Laws

Game Laws

GAME LAWS. This expression is applied in England to a series of statutes of modern date, establishing a peculiar kind of property in wild animals. These statutes, it is well known, are regarded with great dislike by a large and important section of the people—partly on account of their alleged injurious economic effects, and partly on account of their harsh and exceptional character. It will be well to state first the principles of the common law, and then to show how far they have been superseded byrecent legislation.

By the very nature of the case, wild animals cannot be made the subject of that absolute kind of ownership which is generally signified by the term property. The substan tial basis of the law of property is physical possession, the actual power of dealing with things as we see fit, and we can have no such power over animals in a state of nature. Accordingly, the common law recognized nothing like property in wild animals, until they had, as it were, been reduced into possession. Wild animals reclaimed or confined become property, but the moment they escape from confinement the property is gone, and the rights of the owner are lost. Even bees, which might well be described as domesticated and not wild animals, do not become property until they are hived. " Though a swarm lights on any tree," says Bracton, " I have no more property therein than I have in the birds which make their nests thereon." The owner of a confined animal which escapes does indeed retain his property while he is in pursuit of the fugitive; i.e., no other person can, in the meantime, establish a right of pro-perty against him by capturing the animal, just as a swarm of bees "which fly from and out of my hive are mine so long as I can keep them in sight, and have power to pursue them." Again, the law recognized a right in wild animals propter impotentiam, i.e., when they were young and unable to move from place to place. With these exceptions wild animals were res nullius, capable of being made the pro-perty of any person reducing them into possession. A prior right to acquire property in such animals was, however, allowed to the owner (or occupier) of the soil. Thus it is said that " if A starts a hare in the ground of B, and hunts it and kills it there, the property continues all the while in B." B is said to have a right of property in the wild animals on his land ratione soli. But " if A starts a hare on the ground of B, and hunts it into the ground of C and kills it there, the property is in A, and not in B or C." That is to say, the so-called property in wild animals ratione soli consists in this, that if one of them is started and killed by a trespasser it belongs to the owner (or occupier) of the soil. If the animal goes to another man's land this inchoate right is transferred to the other man. And the inchoate right of the owner becomes an actual right of pro-perty only when the animal is both started and killed by the trespasser on the same man's land. Such right as the owner has belongs to the occupier when the land is given without reserve to a tenant for a term.

These principles, it will be observed, apply to all wild animals, and no distinction is made between game and other animals. The laws of the forest, however, established in derogation of the common law a different kind of property in certain classes of wild animals, For an account of these see FOREST LAW (vol. ix. p. 408). The forest code affected definite districts of the country, and the right which they protected was the exclusive right of hunting the animals of the forest within those districts.

The game laws as above defined have virtually taken the place of the forest laws. The latter protected the privilege of the king and his favourites to hunt certain animals in certain districts; the former have extended and protected the right of an owner of the soil to the chase of certain ani-mals on his own estate. The means adopted have been to make trespass (in itself only a civil wrong) a criminal offence punishable with great severity, and to restrict, by a system of licences, the right as well of killing as of selling game. The principal Acts are 1 & 2 William IV. c. 32 (the Game Act), 9 Geo. IV. c. 69 (the Night Poaching Act), 23 & 24 Vict, c. 90 (Game Licences Act), and the Hares Killing Act, 11 & 12 Vict, c. 29. The Game Act repeals a large number of statutes on the subject, most of them passed in the 18th century. Game is defined to include " hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards," and the same definition is found in the Night Poaching Act. A close time is fixed for certain birds of game:—for partridges from 1st February to 1st September; pheasants, 1st February to 1st October; black game, 10th December to 20th August; grouse, 10th December to 12th August; bustard, 1st March to 1st September; and the possession of such game after 10 days in dealers, and 40 days in other persons, from the expiration of the season is made illegal. The Act makes no difference in the effect of a game certificate (now " game licence"); that is to say, the licence authorizes the holder to kill game, subject to the law of trespass as modified by this Act. A temporary section reversed, as to all existing leases, the presump-tion of law that the game, unless specially reserved, be-longs to the tenant; but the presumption remains as to all future leases. But when the game has been reserved to the landlord, or any assignee of his, then the occupier shall be punished for killing it, or for authorizing any other person to do so. This section no doubt was rendered necessary by the fact that the law of trespass, which is the pivot of the Game Act, could not be made to include the case of a farmer shooting game on his own ground; but it is open to the remark that in effect it converts a mere breach of contract into a crime. Persons holding game certificates (licences) may sell game to persons licensed to deal therein. Various sections of the Act define the penalties to which persons killing or selling game without a licence shall be subject, and it should be noticed that it is a punishable offence even to buy game except from a licensed dealer.

The section relating to trespass (§30 of the Game Act) enacts that, " if any person whatsoever shall commit any trespass by entering or being in the day time upon any land in search or pursuit of game, or woodcocks, snipes, quails, landrails, or conies,1 such person shall, on conviction thereof before a justice of the peace, forfeit and pay such sum of money, not exceeding two pounds, as to the justice shall seem meet, together with the costs of the conviction;" and that if any persons, to the number of five or more together, shall commit any trespass by entering or being in the day time upon any land in search of or pursuit of game or woodcocks, &c, " each shall, on conviction, forfeit a sum not exceeding five pounds. The leave of the occupier shall be no defence when the game belongs to the landlord or other persons ; and by § 31, trespassers in pursuit of game, <fec, may be required to leave the land, to tell their names and abodes, and if they refuse may be arrested. The owner of the right of shooting may take from them any game found in their possession. The sections against trespassers, however, do not include any person hunting or coursing upon any land with hounds or greyhounds." This act applies only to England.

The Poaching Acts are still more severe. The Night Poaching Act enacts that, " if any person shall, after the passing of this Act, by night unlawfully take or destroy any game or rabbits in any land, whether open or enclosed, or shall by night unlawfully enter or be on any land, whether open or enclosed, with any gun, net, engine, or other instrument for the purpose of destroying game, such offender shall, upon conviction thereof before two justices of the peace, be committed for the first offence to the common gaol or house of correction for any period not exceeding three calendar months, there to be kept to hard labour, and at the expiration of such period shall find sureties " for his not so offending again. For a second offence the punishment is six months with hard labour, &c, with one year's further imprisonment in default of sureties; a third offence is a misdemeanour, and the punishment is penal servitude for not more than seven years, or imprisonment for not more than two years. A later Act, 7 & 8 Vict. c. 29, §1, applies the penalties to the unlawful taking or destroying game on a highway by night. " Night " is declared to commence at the expiration of the first hour after sunset and to conclude at the beginning of the last hour before sunrise. Finally, the Poaching Prevention Act (25 & 26 Vict. c. 114) gives power to a constable, " on any highway, street, or public place, to search any person whom he may have good cause to suspect of coming from any land where he shall have been unlawfully in search or pursuit of game, or any per-sons aiding or abetting such person, and having in his possession any game unlawfully obtained, or any gun, part of gun, or nets or engines used for the killing or taking game; and also to stop and search any cart or other con-veyance in or upon which such constable or peace officer shall have good cause to suspect that any such game, or any such article or thing, is being carried by any such person." If any such thing be found the constable is to detain it, and apply for a summons against the offender, summoning him to appear before two justices, where, on conviction, he may be fined not more than £5, and shall forfeit the game, guns, &c, found in his possession. This Act is available by night as well as day. It should be noted in all cases where the unlawful taking or destroying of game is men-tioned, that such taking is made unlawful only by the pro-visions of the Acts relating to certificates, or by the law relating to trespass. A person provided with a certificate can still kill game where he pleases, unless he commits a trespass—the only exception being that of the tenant whose landlord has reserved the game in his lands. Thus it may be inferred that a poacher provided with a certificate could not be brought within the limits of the Act relating to poaching on highways.

Game certificates are now regulated by 23 & 24 Vict, c, 90. Section 4 enacts that "any person, before he shall in Great Britain take, kill, or pursue, or aid or assist in any manner in the taking, killing, or pursuing, by any means whatever, or use any dog, gun, net, or other engine for the purpose of taking, killing, or pursuing any game, or any woodcock, snipe, quail, landrail, or any coney, or any deer, shall take out a proper licence to kill game under this Act"—subject to a penalty of ¿£20. There are, however, certain excep-tions and exemptions. As to licences to deal in game, any person who shall have obtained a licence to deal in game from the justices of the peace under the provisions of 1 & 2 Will. IV. c. 32, and 2 & 3 Vict. c. 35, shall annually and during the continuance of such licence, and before he shall be empowered to deal in game under such licence, obtain a further licence to deal in game under this Act, and only those who have obtained licence from the justices shall be licensed under the Act, i.e., by the Inland Bevenue. By 11 & 12 Vict. c. 29 any occupier or owner having the right of killing game may, by himself or by any person author-ized by him in writing, kill hares without paying duty or taking out licence.

Most of the Acts cited above apply to Scotland as well as England, and when they do not there are special enactments for Scotland having substantially the same effect. The more important statutes specially affecting Scotland are the 13 Geo. III. c. 54, which fixes a close I time for killing, selling, buying, &c, muirfowl, heathfowl, partridge, and pheasant; the 2 & 3 Will. IV. c. 68 (the Tres-pass Act); the 11 & 12 Vict. c. 30 (Hares Killing Act); and the 40 & 41 Vict. c. 28. The last is to some extent a departure from the general policy of the game laws, being an attempt to provide compensation to tenants for damage caused by game. In effect it will be found to belong to the class of " permissive " statutes. The important section is the 4th :-

'' Where, under any lease made subsequently to the commence-ment of this Act, or where, by presumption of common law, upon any land occupied under a lease made subsequently to the com-mencement of this Act, the lessor shall reserve or retain the sole right of hunting, killing, or taking rabbits, hares, or other game, or any of them, the lessee shall be entitled to compensation for the damage done to his crops in each year by the rabbits and hares, or other game, to which the lessor may have reserved or retained the whole right, in excess of such sum as may have been set forth in the lease as the amount of annual damage for which it is agreed no compensation shall be due; and if no such sum shall be set forth, then in excess of the sum of forty shillings."

Scotch law, differing in this respect from English law, infers that, when the lease contains no stipulations as to game, the landlord reserves the right of killing game to himself. The Act contains provisions for settling claims of damage either by arbitration or by action at law. Leases made before the Act are not to be affected thereby. The old Act of 1621, "aneut hunting and haulking, " is cited in the schedule of the last-mentioned Act; it " ordaines that no man hunt nor haulk at any time hereafter who hath not a plough of land in heritage, under the pain of £100." It is, of course, practically obsolete. (B. E.)


1 These animals, although not included in the statutory definition of game, are bv this section partially admitted to the benefit of the Act.

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