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balanced by the interest the owner would take in the preservation of that which was thus become his own, until the proper season for killing it, whereas, at present, his interest lies in its secret and premature destruction. I would therefore suggest the expediency of enabling every freeholder and copyholder, whatever might be the quantity of his land, to kill game thereon.
3. To the third amendment proposed by "the country gentleman," that of subjecting qualified persons sporting on enclosed ground, after notice to abstain, to a penalty of five pounds, there is nothing to object except that it does not go far enough to have much influence on the evilst which it proposes to remedy. The parties are, at present, liable to actions of trespass, at the suit of the individual aggrieved, by the costs and damages in which they would probably incur a much severer penalty, than that proposed by the author. But to save the trouble and expense of that course, it might be desirable to adopt the regulation, but increasing the penalty, and making it a still higher penalty in the case of an unqualified person, and providing for the summary conviction of the offender..
In addition to these regulations we venture to suggest that it would be both a wise and equitable measure to make the taking game from inclosed lands in the night, a simple larceny. "The country gentleman," indeed boasts that all his alterations," have especially avoided the plausible expedient of making game the absolute property of the owner of the soil on which it is found," " which would, he conceives, lead to oppression by giving rise to perpetual indictments for larceny. But the proposition here submitted stops far short of such a measure. It applies only to nocturnal depredations, whose object is not sport, but plunder. It is founded on the principle which runs through the whole
+ P. 38.
law respecting theft, and which distinguishes it from mere trespass; the concealment, the time, the intention, all indicate the offence to partake morally of the nature of stealing. The sportsman who in open day pursues game on the ground of another, commits a trespass for which he is answerable in damages, but, by all his motions precludes the idea of baseness, or theft; while the poacher who enters a preserve in the night, to take away game, as clearly evinces a design to steal. He who could thus act, would take poultry, sheep, or horses, if he could as easily remove them. By a measure like this, crime would be checked in its first risings, and the laws would be delivered from the censure of tempting men to the habit of nocturnal aggression, which ends in the punishment of burglary or murder. There is no offence which may not be expected to arise from the habit of nocturnal outrage. And to crush this fatal propensity in its beginning, would be found the truest clemency, not only to society at large, but to those whom a lighter punishment may restrain from deeper guilt. Some of the recent provisions respecting deer and rabbits might with propriety be adopted. The entering a preserve or wood in the night, and killing or attempting to kill game, might for the first offence be punished with a year's imprisonment, with power to mitigate to six months; and the second offence with transportation, with power to mitigate to two years' imprisonment, and the third offence absolute transportation for seven years. And the entering other enclosed grounds in the night, where there is no footpath, for the like unlawful purpose, should be punishable for the first offence with three months' imprisonment, and the second and subsequent offences punishable like the 1st and other offence, in a preserve or wood. The offence of
42 Geo. 3. c. 107. 51 Geo. 3. c. 120. 25 Geo. 3. c. 14, s. 6. 22 and 23 Car. 2. c.
25, s. 24.
taking rabbits in the night time in any ground lawfully used for breeding or keeping them is punishable with seven years' transportation, with power to mitigate. There is no reason that the entering of preserves and woods in the night for the purpose of taking pheasants or other game, should not be equally punished: the offence is equally immoral and the commission of it equally leads to the perpetration of other crimes. If all these nocturnal depredations were punishable criminally in the first instance instead of merely subjecting the party to a pecuniary penalty, the beneficial result to the community would be immediate.
Since writing the above, I have seen the recent statute, 56 Geo. 3. c. 130, which subjects persons unlawfully entering any inclosed, or open land, in the night to kill game, to an indictment as for a misdemeanor, and to transportation for seven years, but the punishment is subject to discretionary mitigation. It would be more desirable to declare the offence to be larceny, and to make the punishment specific, and progressively increasing on repetition of offence.
Besides these more important alterations, there are some slighter changes which might be introduced, in compliment rather, to the taste than the discernment of the times. The errors in grammar so often charged as grave accusations might be removed without difficulty or danger. The construction so strongly reprobated by Mr. Cobbett, ' and others, that a privilege is given to the son, founded on the rank of his father, which is denied to the father himself, might, with great ease, be removed by legislative provi
Political Register, 13 vol. p. 650. This able, though preju diced writer, proposes that, "Game, like other things, should be made private property, the proof of proprietorship being that the animal was upon the land of the claimant, at the time of its being taken, killed, or found for pursuit." Id. ibid.
sion. But beyond these modifications, or others of the same nature, it is impossible to desire a change of system. That evils at present ascribed to the Game Laws would not be removed by their abolition, has, we think been suffi ciently shewn. Indeed their sources may better be traced to the deficiency of education, to ignorance, want and misery, than any particular provisions. It is a common and natural error to ascribe wretchedness as well as crime to the laws, and those who are charged with their execution; but a more philosophic attention will discover that they are, for the most part, of deeper origin, and are to be ascribed to the constitution of society itself, which must have its attendant evils like every thing human. The miseries
to the Game
ascribed by the "Country Gentleman " Laws, have all, in their turn, been attributed to the poor laws, to the taxes, and the existence of rotten boroughs, with quite as much eloquence, and probably with equal
The Game Laws are charged by Mr. Justice Blackstone and others, with having derived their origin from feudal tyranny. This hypothesis we have already shewn to be unfounded. But were it true, it would stamp them with no peculiar disgrace; since. Magna Charta itself was obtained by the same barons, who are supposed to have been the founders of these tyrannical provisions. At worst, therefore, they spring from as honourable a stock as the best and surest monuments of our ancient freedom.co.
The omission to authorize the esquire himself to kill game, when his eldest son is so qualified by the act, obviously was attributable to mistake. It was supposed to be very unlikely that a person who had acquired the rank of an esquire should not have property sufficient to qualify him in respect of such property, and therefore the ́esquire himself was not expressly qualified by the act.
The Alterations in the Game Laws, which it is submitted may be advisable to adopt, relate to
1st, The qualification to kill game. 2dly, The power to sell it.
3rdly, The power to buy it.
4thly, The punishment on unauthorized persons killing it in the day time.
5thly, The punishment for nocturnal offences relative to game, and
6thly, The encouragements in favor of its increase. i
1st, With respect to the qualifications, or authority to kill game, it has already been observed that the extensión of this power to occupiers of land, whether owners or tenants, subject to restraint by particular stipulation, would necessarily increase the interest to preserve the game, and consequently add to its general stock, and the amusement of the fair sportsman; and therefore it is proposed that instead of confining the power to persons having an estate of inheritance of £100 per annum, or an interest for life or a long term of years of the yearly value of £150, according to the existing regulations, it should be extended to all owners of land, whatever may be the quantity, and to all occupiers of land, exceeding twenty acres, not adjoining a preserve or wood of another person; and to authorize the owner or occupier of land to empower any person obtaining a stamped licence to sport over his land for a limited time. By this latter permission persons of opulence having no