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THE Game Laws have recently become the subject of considerable enquiry and discussion. The return of peace has directed the attention of the legislature to questions of domestic policy, and it was not to be expected that these provisions should pass without notice. The attention of the humane has been powerfully aroused by the alarming increase of crime; and exertions have been made with a view to ascertain, and, if possible, to remove its causes.
Some have attributed many outrages and crimes to a supposed severity in the Game Laws, and have insisted that the whole system is most arbitrary and unfit for the regulation of a free country; whilst others have urged, that more efficiently to protect Game, and especially to destroy nocturnal poaching, (the forerunner of most crimes) severer regulations for the protection of Game should be introduced."
The subject of the Game Laws, in whatever light it is considered, is one of no common importance. The property which they protect is viewed with peculiar jealousy, both by those who are precluded from taking it, and those to whom its enjoyment is secured. The former consider it as a common right of which they are unjustly deprived; the latter as more sacred than any other class of property, on account, not only of its intrinsic value, but of the amuse
ment which it affords them. These opposite feelings are continually called into exercise, not only by their immediate object, but by all the local disputes and antipathies with which they mingle. An impartial examination of the subject, therefore, may be of some service in removing those mistakes respecting it, which the best intentions for the improvement of legislation will sometimes produce. For this purpose, we will shortly enquire into the origin of the Game Laws, sketch out their history to the present time, and examine the principal arguments advanced, respecting the right of framing them, their political tendencies, and the policy of repealing or modifying their provisions, and then suggest some alterations which it may be expedient to introduce.
It seems to have been the opinion of Mr. Justice Blackstone, or at least is expressed as such in one part of his Commentaries, that, by the Common Law the sole property in all the game of England is vested in the king alone.' And we frequently hear the opposers of the existing regulations respecting it, brand them as relics of the feudal tenures, and as so many vestiges of the degrading authority formerly exercised by the barons over their vassals. The first of these suppositions has been already refuted in the first volume. And in the recent report of the House of Commons, it appears to be successfully contended to have been, at Common Law, the right of all owners of soil to take and kill game found on their own premises. As early as the time of Canute, we find the following language: "Prætereà autem concedo ut in propriis ipsis prædiis quisque tam in agris quam in sylvis excitetque agitetque feras; autem meas ne venetur cum pœnâ præcipio." This doctrine is further confirmed by the
12 Blackstone's Commentaries, 413, 4, 5, &c.
1 vol. Treatise on Game, pp. 3, 4, 5.
34 Inst. 320.
preamble of 11 Hen. 7. c. 17. which recites that " divers persons, having little substance to live upon, use many times as well by nets, snares, or other engines, to take and destroy fesants and partridges upon the Lordships, manors, lands, and tenements of divers owners and possessioners of the same without the licence, consent, or agreement of the same owners or possessioners, by the which the said owners and possessioners leese not only their pleasure and disport that they, their friends, and servants should have about hawking, hunting, and taking of the same, but also they leese the profit and avail that, by that occasion, should grow to their household, to the great hurt of all lords and gentlemen, and other having any great livelihood within this realm." It is also laid down by Lord Coke, "that seeing the wild beasts do belong to the purlieu man ratione soli, so long as they remain in his grounds he may kill them, for the property ratione soli is in him."' Even Mr. Justice Blackstone, who maintains the right of killing game to be exclusively a prerogative of the Crown, admits that in the earliest periods every freeholder had the full liberty of sporting upon his own territories, provided he abstained from the king's forests, both by the laws of Canute, and those of Edward the Confessor."
In the earliest periods of civilization game was the property, as it formed the subsistence, of any who could reduce it into possession. It was a necessary of life before it became one of its luxuries. When the far larger part of the country was uncultivated, the forests and waste lands almost supplied the food of the scanty population which was scattered among them. As indeed, many of the animals were of a dangerous nature, it was considered in the highest degree meritorious to pursue and destroy them. The first sovereigns of the world, as in the instance of the
4 Inst. 304.
2 Blackst. Com. 415.
founder of the Assyrian monarchy, have been "mighty hunters." What the more daring spirits achieved for the gratification of their desires of enterprize and fame, the humbler practised on less formidable prey, to supply the necessities of nature. The sovereign neither was nor could be actual possessor of the wild animals within his dominions, except in so much as he might require the services of his subjects to offer them to him as a tribute. The ideas of sovereignty and property, even when despotism is most complete, are essentially distinct from each other. By a figure of speech, the monarch may be said to command the purses as well as the lives of his subjects; he may possess the power of seizing on their persons as well as their possessions; but while he abstains from the exercise of his authority he cannot be said to be the owner of any thing, over which an individual has, under his sanction, an entire controul. There is, indeed, an instance in sacred history, of a monarch becoming the absolute owner of all his kingdom; where the king of Egypt having secured a large store of corn during years of plenty, sold it to his subjects in time of famine, till they exchanged all their property, both real and personal, for the sustenance of their families.' But this instance only confirms the distinction; since had the estates of his subjects been already his own, it would have been unnecessary in him to purchase them.
When the inclosure of lands became more general, the places in which game might be taken became proportionally narrowed; since when occupation and improvement gave a property in the soil, no stranger could have a right to enter, for the purpose of destroying game, so as to injure the inclosures, or encroach on the pleasures of the owner. At the same time, as agriculture improved, and population increased, the attention of the lower orders was necessarily
Genesis, ch. 47, v. 20.
directed to the improvement of the soil, and hunting and fishing, which, in ruder times, were the means of subsistence to the people, became amusements naturally appropriated to the higher classes, who alone had leisure to enjoy them. The royal forests, of the soil of which the king was usually the proprietor, were guarded with peculiar strictness, and after the Norman conquest, became so numerous as to occasion great and extensive oppression. But still each man seems to have retained the right of killing game on his own estates, although not allowed to follow them into the domains of the Crown.' The modern system of the Game Laws is therefore, partly in support, and partly in restriction of the right thus naturally invested in the possessors of landed estate.
The principal object of these positive regulations is to secure the power of killing, and having in possession, game, to persons enjoying a certain interest in the soil, and to prevent its unfair and untimely destruction. For the first of these purposes, the 13 Rich. 2. c. 13. prohibits all laymen not having forty shillings a year in land, and all clergymen not advanced to the value of 10l. a year, from keeping dogs for hunting, or using engines for destroying game, on pain of imprisonment for a year. This appears to be the first statute requiring a qualification to sport. It was followed by 22 Edw. 4. c. 6. respecting the possession of swans, which requires every person who shall keep them to have five marks in land, or the birds will be liable to forfeiture. The 32 Hen. 8. c. S. is the first act which makes it penal to sell or buy pheasants or partridges, making the forfeiture, on disobedience, six shillings and eight pence for each of the former, and three shillings and. four pence for each of the latter. The 33 Hen. 8. c. 6. prohibits all who have not 100 per annum, in lands,
See 4 Inst. 304.