the Week of Proper 28 / Ordinary 33
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Bible Encyclopedias
Game Laws
1911 Encyclopedia Britannica
or This title in English law is applied to the statutes which regulate the right to pursue and take or kill certain kinds of wild animals (see above). The existence of these statutes is due to the rules of the common law as to the nature of property, and the interest of the Norman sovereigns and of feudal superiors in the pleasures of sport or the chase. The substantial basis of the law of property is physical possession of things and the power to deal with them as we see fit. By the common law wild animals are regarded as res nullius, and as not being the subject of private property until reduced into possession by being killed or captured. A bird in the hand is owned: a bird in the bush is not. Even bees do not become property until hived. "Though a swarm lights in my tree," says Bracton, "I have no more property therein than I have in the birds which make their nests thereon." If reclaimed or confined they become property. If they escape, the rights of the owner continue only while he is in pursuit of the fugitive, i.e. no other person can in the meantime establish a right of property against him by capturing the animal. A swarm of bees "which fly out of my hive are mine so long as I can keep them in sight and have power to pursue them." But the right of recapture does not entitle the owner to follow his animals on to the lands of another, and the only case in which any right to follow wild animals on to the lands of others is now expressly recognized is when deer or hares are hunted with hounds or greyhounds. This recognition merely excepts such pursuit from the law as to criminal game trespass, and fox-hunters and those who course hares or hunt stags are civilly liable for trespass if they pass over land without the consent of the occupier ( Paul v. Summerhaves, 1878, 4 Q.B.D. 9).
It is a maxim of the common law that things in which no one can claim any property belong to the crown by its prerogative: this rule has been applied to wild animals, and in particular to deer and what is now called "game." The crown rights may pass to a subject by grant or equivalent prescription. In the course of time the exclusive right to take game, &c., on lands came to be regarded as incidental to the ownership or occupation of the lands. This is described as the right to game ratione soli. In certain districts of England which are crown forests or chases or legal parks, or subject to rights of free warren, the right to take deer and game is not in the owner or occupier of the soil, but is in the crown by prerogative, or ratione privilegii in the grantee of the rights of chase, park or free warren, which are anterior to and superior to those of the owner or occupier of the lands over which the privilege has been granted. In all cases where these special rights do not exist, the right to take or kill wild animals is treated as a profit incidental to the ownership or occupation of the land on which they are found, and there is no public right to take them on private land or even on a highway; nor is there any method known to the law by which the public at large or an undefined body of persons can lawfully acquire the right to take wild animals in alieno solo. In the nature of things the right to take wild animals is valuable as to deer and the animals usually described as game, and not as to those which are merely noxious as vermin, or simply valueless, as small birds. Upon the rules of the common law there has been grafted much legislation which up till the end of the 18th century was framed for the preservation of deer and game for the recreation and amusement of persons of fortune, and to prevent persons of inferior rank from squandering in the pursuit of game time which their station in life required to be more profitably employed. These enactments included the rigorous code known as the Laws of the Forest (see Forest Laws), as well as what are usually called the Game Laws.
In England the older statutes relating to game were all repealed early in the 19th century. From the time of Richard II. (1389) to 1831, no person might kill game unless qualified by estate or social standing, a qualification raised from a 40s. freehold in 1389 to an interest of ioo a year in freehold or £150 in long leaseholds (1673). In 183.1 this qualification by estate was abolished as to England. But in Scotland the right to hunt is theoretically reserved to persons who have in heritage that unknown quantity a "plough-gate of land" (Scots Act 1621, c. 31); and in Ireland qualifications by estate are made necessary for killing game and keeping sporting dogs (Irish Act 1698, 8 Will. III. c. 8). In England the game laws proper consist of the Night Poaching Acts of 1828 and 1844, the Game Act of 1831, the Poaching Prevention Act 1862, and the Ground Game Acts of 1880 and 1906. From the fact that the right of landowners over wild animals on their land does not amount to ownership it follows that they cannot prosecute any one for stealing live wild animals: and that apart from the game laws the only remedy against poachers is by civil action for trespass. As between trespasser and landowner the law is peculiar (Blades v. Higgs, 1865, ii H.L.C. 621). If A starts and kills a hare on B's land the dead hare belongs to B ( ratione soli ) and not to A, though he has taken the hare by his own efforts (per industriam). But if A hunts the hare from B's land on to C's land and there kills it, the dead hare belongs to A and not to B or C. It is not B's because it was not taken on his land, and it is not C's because it was not started on his land. In other words the right of each owner is limited to animals both started and killed on his own land, and in the case of conflicting claims to the animal taken (made ratione soli ) the captor can make title (per industriam ) against both landowners. If he is a trespasser he is liable to civil or criminal proceedings by both landowners, but the game is his unless forfeited under a statute. Another peculiar result of the law is that where trespassers (e.g. poachers) kill and carry off game or rabbits as part of one continuous transaction they are not guilty of theft, but only of game trespass (R. v. Townley, 1871, L.R. i C.C.R. 315), but it is theft for a trespasser to pick up and carry off a pheasant killed by the owner of the land on his own land or even a pheasant killed by an independent gang of poachers. The young of wild animals belong ( propter impotentiam ) to the owner of the land until they are able to fly or run away. This right does not extend to the eggs of wild birds. But the owner can reduce the eggs into possession by taking them up and setting them under hens or in enclosures. And if this is done persons who take them are thieves and not merely poachers. A game farm, like a decoy for wild water-fowl, is treated as a trade or business; but a game preserve in which full-grown animals fly or run wild is subject to the ordinary incidents of the law as to animals ferae naturae. The classification of wild animals for purposes of sport in England is as follows: i. Beasts of forest are hart and hind (red deer), boar, wolf and all beasts of venery.
2. Beasts of chase and park are buck and doe (fallow deer), fox, marten and roe, or all beasts of venery and hunting.
3. Beasts of (free) warren are roe, hare, rabbit, partridge, pheasant, woodcock, quail, rail and heron.
4. Game, as defined by the Night Poaching Act of 1828 and the Game Act of 1831, is pheasant, partridge, black game, red grouse, bustard and hare. In France game (gibier ) includes everything eatable that runs or flies.
5. Wild fowl not in any of the previous lists which are nevertheless prized for sport, e.g. duck, snipe, plovers, &c.
6. Wild birds not falling within class 4 are more or less protected against destruction by the Wild Birds Protection Acts, which were, however, passed with quite other objects than the game laws. As regards class I no subject without special authority of the crown may kill within a forest or its purlieus or on adjacent highways, rivers or enclosures. The right to the animals in a forest does not depend on ownership of the land but on the royal prerogative as to the animals, i.e. it exists not ratione soli but ratione privilegii: and this right is not in any way altered by the Game Act 1831. A chase is a forest in the hands of a subject and a legal park (which is an enclosed chase) is created by crown grant or by prescription founded on a lost grant. The rights of the grantee are in substance the same as those of the crown in a forest, and do not depend on ownership of the soil. In the case of a free warren the grantee usually but not necessarily owns some or all of the soil over which the right of warren runs. The right of free warren depends on crown grant or prescription founded on lost grant, and involves a right of property over beasts and fowl of warren on all lands within the franchise. As will appear from the list above, some game birds are not fowl of warren, e.g. black game and red grouse ( Duke of Devonshire v. Lodge, 1827, 7 B. & C. 39). Free warren is quite different from ordinary warrens, in which hares or rabbits are bred by the owner of the soil for sport or profit. Ground game in such warrens is protected under the Larceny Act 1861, s. 17, as well as by the game laws. In manors, of which none have been created since 1290, the lord by his franchise had the sporting rights over the manor, but at the present time this right is restricted to the commons and wastes of the manor, the freehold whereof is in him, and does not extend to enclosed freeholds nor as a general rule to enclosed copyholds, unless at the time of enclosure the sporting rights were reserved to him by the Enclosure Act or award ( Sowerby v. Smith, 1873, L.R. 8 C.P. 514). In other words his rights exist ratione soli and not ratione privilegii. The Game Act 1831 gives lords of manors and privileged persons certain rights as to appointing gamekeepers with special powers to protect game within the district over which their rights extend (ss. 13, 14, 15, 16). The game laws in no way cut down the special privileges as to forest, park, chase or free warren (1831, s. 9), and confirm the sporting right of lords of manors on the wastes of the manor (1831, s. 10). As to all lands not affected by these rights, the right to kill or take game on the land is presumably in the occupier. On letting land the owner may, subject to the qualifications hereinafter stated, reserve to himself the right to kill or take "game" or rabbits or other wild animals concurrently with or in exclusion of the tenant. Where the exclusive right is in the landlord the tenant is not only liable to forfeiture or damages for breaches of covenants in the lease, but is also liable to penalties on summary conviction if without the lessor's authority he pursues, kills or takes any "game" upon the land or gives permission to others to do so (1831, s. 12). In effect he is made criminally liable for game trespass on lands in his own occupation, so far as relates to game, but is not so liable if he takes rabbits, snipe, woodcock, quails or rails.
The net effect of the common law and the game laws is to give theoccupier of lands and the owner of sporting rights over them the following remedies against persons who infringe their right to kill or take wild animals on the land. A stranger who enters on the land of another to take any wild animals is liable to the occupier for trespass on the land and for the animals started and killed on the land by the trespasser. He is also criminally liable for game trespass if he has entered on the land to search for or in pursuit of "game" or woodcock, snipe, quail, landrails or exceed 40s., unless five or more persons go together, in which case the maximum penalty is £5. If a single offender refuses his name or address or gives a false address to the occupier or to the owner of the sporting rights or his representatives, or refuses to leave the land, he may be arrested by them, and is liable to a penalty not exceeding £5, and if five or more concerned together in game trespass have a gun with them and use violence, intimidation or menace, to prevent the approach of persons entitled to take their names or order them off the land, they incur a further penalty up to £5.
If the trespass is in search or pursuit of game or rabbits in the nighttime, the maximum penalty on a first conviction is imprisonment with hard labour for not over three months; on a second, imprisonment, &c., for not over six months, and the offender may be put under sureties not to offend again for a year after a first conviction or for two years after a second conviction. For a first or second offence the conviction is summary, subject to appeal to quarter sessions, but for a third offence the offender is tried on indictment and is liable to penal servitude (3-7 years) or imprisonment with hard labour (2 years). The offenders may be arrested by the owner or occupier of the land or their servants, and if the offenders assault or offer violence by firearms or offensive weapons they are liable to be indicted and on conviction punished to the same extent as in the last offence. In 1844 the above penalties were extended to persons found by night on highways in search or pursuit of game. If three or more trespass together on land by night to take or destroy game or rabbits, and any of them is armed with firearms, bludgeon or other offensive weapon, they are liable to be indicted and on conviction sentenced to penal servitude (3-14 years) or imprisonment with hard labour (2 years). By "day" time is meant from the beginning of the first hour before sunrise to the end of the first hour after sunset, and by "night" from the end of the first hour after sunset to the beginning of the first hour before sunrise (act of 1828, s. 12; act of 1831, s. 34). The time is reckoned by local and not by Greenwich time.
The penalties for night poaching are severe, but encounters between the owners of sporting rights and armed gangs of poachers have often been attended by homicide. It is to be observed that it is illegal and severely punishable to set traps or loaded spring guns for poachers (Offences against the Person Act 1861, s. 31), whereby any grievous bodily harm is intended or may be caused even to a trespasser, so that the incursions of poachers can be prevented only by personal attendance on the scene of their activities; and it is to be observed also that the provisions of the Game Laws above stated are, so far as concerns private land, left to be enforced by private enterprise without the interference of the police, with the result that in some districts there are scenes of private nocturnal war. Even in the Night Poaching Act 1844, which applies to highways, the arrest of offenders is made by owners, occupiers or their gamekeepers. The police were not given any direct authority as to poachers until the Poaching Prevention Act 1862, under which a constable is empowered "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 persons 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 conveyance 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 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 a petty sessional court, on conviction before which he may be fined not more than £5, and forfeits the game, guns, &c., found in his possession. In this act "game" includes woodcock, snipe and rabbits, and the eggs of game birds other than bustards; and the act applies to poaching either by night or byday. In all cases of summary conviction for poaching an appeal lies to quarter sessions. In all cases of poaching the game, &c., taken may be forfeited by the court which tries the poacher.
| England. | Ireland. | Scotland. | Hare . | None | April 21 to Aug. 11 1 | None | Red deer (male). . | None | Jan. I to June 9 | None | Fallow deer.. . | None | Sept. 29 to June 10 | None | Roe deer.. . | None | None | None | Pheasant.. . | Feb. 1 to Sept. 30 | Feb. 1 to Sept. 30 | Feb. 1 to Sept. 30 | (1845) | Partridge.. . | Feb. 1 to Aug. 31 | Feb. 1 to Aug. 31 | Feb. I to Aug. 31 | (1899) | Black game.. . | Dec. 10 to Aug. 20 2 | Dec. 10 to Aug. 20 | Dec. 10 to Aug. 20 | Red grouse.. . | Dec. Jo to Aug. 12 | Dec. 10 to Aug. 12 | Dec. 10 to Aug. 12 | Ptarmigan . | None | Dec. 10 to Aug. 20 | Dec. 10 to Aug. 12 | Bustard (wild turkey) . | March 1 to Sept. 1 | Jan. 10 to Sept. I | None 1 Close Time 2 Licences 3 Deer 4 Eggs 5 Damage to Crops by Game 6 Scotland 7 Ireland 8 British Possessions Abroad Close TimeOn certain days, and within periods known as "close time," it is illegal to kill deer or game. The present close times are as follows: - rabbits. If the trespass is in the daytime (whether on lands of the 1 Unless varied by order of lord-lieutenant. subject or in royal forests, &c.), the penalty on conviction may not I 2 Except in Devon, Somerset and New Forest, where to Sept. I. In England and Ireland the winged game above named and hares may not be killed on Sundays or Christmas Day. It is illegal to sell or expose for sale hares or leverets in March, April, May, June and July. It is illegal throughout the United Kingdom to buy or sell winged game birds after ten days from the beginning of the close season as fixed by the English law (1831, s. 4; 1860, s. 13). This prohibition applies to the sale of live game, British or foreign, and to the sale of British dead game. It is illegal to lay poison for game or rabbits except in rabbit holes, and it is illegal to kill game by firearms at night. Wild birds not within the list above given but of interest for sport are protected by close times fixed under the Wild Birds Protection Acts, which may vary in each county of each kingdom.
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