GAME-LAW. See the article GAME.
Sir William Blackstone, treating of the alterations in our laws, and mentioning franchises granted of chase and free warren, as well to preserve the breed of animals, as to indulge the subject, adds, "From a similar principle to which, though the forest laws are now mitigated, and by degrees grown entirely obsolete; yet from this root has sprung a bastard slip, known by the name of the game law, now arrived to and wantoning in its highest vigour: both founded upon the same unreasonable notion of permanent property in wild creatures; and both productive of the same tyranny to the commons; but with this difference, that the forest laws established only one mighty hunter throughout the land; the game laws have raised a little Nimrod in every manor. And in one respect the ancient law was much less unreasonable than the modern; for the king's grantee of a chase or free warren, might kill game in every part of his franchise; but now, though a freeholder of less than 100l. a year is forbidden to kill partridge upon his own estate, yet nobody else (not even the lord of the manor, unless he hath a grant of free warren) can do it without committing a trespass and subjecting himself to an action."
Under the article GAME, the destroying such beasts and fowls as are ranked under that denomination, was observed (upon the old principles of the forest law) to be a trespass and offence in all persons alike, who have not authority from the crown to kill game (which is royal property) by the grant of either a free warren, or at least a manor of their own. But the laws called the game laws have also inflicted additional punishments (chiefly pecuniary) on persons guilty of this general offence, unless they be people of such rank or fortune as is therein particularly specified. All persons, therefore, of what property or distinction soever, that kill game out of their own territories, or even upon their own estates, without the king's licence expressed by the grant of a franchise, are guilty of the first original offence of encroaching on the royal prerogative. And those indigent persons who do so, without having such rank or fortune as is generally called a qualification, are guilty, not only of the original offence, but of the aggravations also 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 only rational footing upon which this offence, thus aggravated, can be considered as a crime, is, that in low and indigent persons it promotes idleness, and takes them away from their proper employments and callings: which is an offence against the public police and economy of the commonwealth.
The statutes for preserving the game are many and various, and not a little obscure and intricate; it being remarked, that in one statute only, 5 Ann. c. 14, there is false grammar in no fewer than six places, besides other mistakes: the occasion of which, or what denomination of persons were probably the penners of these statutes, it is unnecessary here to inquire. It may be in general sufficient to observe, that the qualifications for killing game, as they are usually called, or more properly the exemptions from the penalties
inflicted by the statute law, are, 1. The having a freehold estate of 100l. per annum; there being fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire. 2. A leasehold for 99 years of 150l. per annum. 3. Being the son and heir apparent of an esquire (a very loose and vague description) or person of superior degree. 4. Being the owner or keeper of a forest, park, chase, or warren. For unqualified persons transgressing these laws, by killing game, keeping engines for that purpose, or even having game in their custody, or for persons (however qualified) that kill game or have it in possession, at unreasonable times of the year, or unreasonable hours of the day or night, on Sundays or on Christmas day, there are various penalties assigned, corporal and pecuniary, by different statutes (after mentioned), on any of which, but only on one at a time, the justices may convict in a summary way, or (in most of them) prosecutions may be carried on at the assizes. And, lastly, by statute 28 Geo. II. c. 12. no person, however qualified to kill, may make merchandise of this valuable privilege, by selling or exposing to sale any game, on pain of like forfeiture as if he had no qualification.
The statutes above referred to are as follow: No person shall take pheasants or partridges with engines in another man's ground, without licence, on pain of 10l. stat. 11 Hen. VIII. c. 13. If any person shall take or kill any pheasants or partridges with any net in the night time, they shall forfeit 20s. for every pheasant, and 10s. for every partridge taken: and hunting with spaniels in standing corn, incurs a forfeiture of 40s. 23 Eliz. c. 10. Those who kill any pheasant, partridge, duck, heton, hare, or other game, are liable to a forfeiture of 20s. for every fowl and hare; and selling, or buying to sell again, any hare, pheasant, &c. the forfeiture is 10s. for each hare, &c. 1 Jac. I. c. 17. Also pheasants or partridges are not to be taken between the first of July and the last of August, on pain of imprisonment for a month, unless the offenders pay 20s. for every pheasant, &c. killed: and constables, having a justice of peace's warrant, may search for game and nets, in the possession of persons not qualified by law to kill game or to keep such nets, 7 Jac. I. c. 11. Constables, by a warrant of a justice of peace, are to search houses of suspected persons for game: and if any game be found upon them, and they do not give a good account how they came by the same, they shall forfeit for every hare, pheasant, or partridge, not under 5s. nor exceeding 20s. And inferior tradesmen hunting, &c. are subject to the penalties of the act, and may likewise be sued for trespass. If officers of the army or soldiers kill game without leave, they forfeit 5l. an officer, and 10s. a soldier; 4 and 5 W. and M. c. 23. Higglers, chapmen, carriers, innkeepers, victuallers, &c. having in their custody hare, pheasant, partridge, heath game, &c. (except sent by some person qualified to kill game), shall forfeit for every hare and fowl 5l. to be levied by distress and sale of their goods, being proved by one witness, before a justice; and for want of distress shall be committed to the house of correction for three months: one moiety of the forfeiture to the informer, and the other to the poor. And selling game, or offering the same to sale, incurs the like penalty; where-
in hare and other game found in a shop, &c. is adjudged an exposing to sale: killing hares in the night is liable to the same penalties: and if any persons shall drive wild fowls with nets, between the first day of July and the first of September, they shall forfeit 5s. for every fowl; 5 Ann. c. 14. 9 Ann. c. 25. If any unqualified person shall keep a gun, he shall forfeit 10l. 3s. and persons being qualified may take guns from those that are not, and break them; 21 and 22 Car. II. c. 25. and 33 Hen. VIII. c. 6. One justice of peace, upon examination and proof of the offence, may commit the offender till he hath paid the forfeiture of 10l. And persons, not qualified by law, keeping dogs, nets, or other engines to kill game, being convicted thereof before a justice of peace, shall forfeit 5l. or be sent to the house of correction for three months; and the dogs, game, &c. shall be taken from them, by the statute 5 Ann. If a person hunt upon the ground of another, such other person cannot justify killing of his dogs, as appears by 2 Roll. Abr. 567. But it was otherwise adjudged, Mich. 33 Car. II. in C. B. 2 Cro. 44. and see 3 Lev. xxviii. In actions of debt, qui tam, &c. by a common informer on the statute 5 Ann. for 1l. wherein the plaintiff declared on two several counts, one for 10l. for killing two partridges, the other for 5l. for keeping an engine to destroy the game, not being qualified, &c. the plaintiff had a verdict for 5l. only: this action was brought by virtue of the stat. 8 Geo. I. See stat. 9 Geo. I. c. 22. See likewise 24 Geo. II. c. 34. for the better preservation of the game in Scotland. By the stat. 26 Geo. II. c. 2. all suits and actions brought by virtue of stat. 8 Geo. I. c. 2. for the recovery of any pecuniary penalty, or sum of money, for offences committed against any law for the better preservation of the game, shall be brought before the end of the second term after the offence committed.
By 28 Geo. II. c. 12. persons selling, or exposing to sale, any game, are liable to the penalties inflicted by 5 Ann. c. 14. on higglers, &c. offering game to sale: and game found in the house or possession of a poulterer, salesman, fishmonger, cook, or pastry cook, is deemed exposing thereof to sale.
By 2 Geo. III. c. 19. after the first June 1762, no person may take, kill, buy or sell, or have in his custody, any partridge between 12th February and 1st September, or pheasant between 1st February and 1st October, or heath fowl between 1st January and 20th August, or grouse between 1st December and 25th July, in any year; pheasants taken in their proper season, and kept in mews, or breeding places excepted: and persons offending in any of the cases aforesaid, forfeit 5l. per bird, to the prosecutor, to be recovered, with full costs, in any of the courts at Westminster. By this act, likewise, the whole of the pecuniary penalties under the 8 Geo. I. c. 19. may be sued for, and recovered to the sole use of the prosecutor, with double costs; and no part thereof to go to the poor of the parish.
By 5 Geo. III. c. 14. persons convicted of entering warrens in the night time, and taking or killing coney there, or aiding or assisting therein, may be punished by transportation, or by whipping, fine, or imprisonment. Persons convicted on this act, not liable to be convicted under any former act. This act does
not extend to the destroying coney in the day time, on the sea and river banks in the county of Lincoln, &c. No satisfaction to be made for damages occasioned by entry, unless they exceed 1s. It may not be improper to mention an act lately made, and not yet repealed, viz. 10 Geo. III. c. 19. for preservation of the game, which shows the importance of the object. It is thereby enacted, That if any person kill any hare, &c. between sunsetting and sunrise, or use any gun, &c. for destroying game, he shall for the first offence be imprisoned for any time not exceeding six nor less than three months: if guilty of a second offence, after conviction of a first, to be imprisoned for any time not exceeding 12 months nor less than six; and shall also within three days after the time of his commitment, either for the first or for any other offence, be once publicly whipped.
By 25 George III. c. 50. and 31 George III. c. 21. every person in Great Britain (the royal family excepted), who shall, after July 1. 1785, use any dog, gun, net, or other engine, for the taking or destruction of game (not acting as gamekeeper), shall deliver in a paper or account in writing, containing his name and place of abode, to the clerk of the peace or his deputy, and annually take out a certificate thereof; and every such certificate shall be charged with a stamp duty of 2l. 2s. (and an additional 1l. 1s. by 31 George III. c. 21.) making in the whole 3l. 3s.—Every deputation of a gamekeeper shall be registered with the clerk of the peace, and such gamekeeper shall annually take out a certificate thereof; which certificate shall be charged with a stamp duty of 10s. 6d. (and an additional 10s. 6d. by 31 Geo. III. c. 21.), making in the whole 1l. 1s.—The duties to be under the management of the commissioners of the stamp office.
From and after the said 1st of July 1785, the clerk of the peace shall annually deliver to persons requiring the same, duly stamped, a certificate or license according to the form therein mentioned, for which he shall be entitled to demand 1s. for his trouble; and on refusal or neglect to deliver the same, forfeit 20l.—Every certificate to bear date the day when issued, and to continue in force to the 1st day of July then following, on penalty of 20l.
After the 1st day of July 1785, any person that shall use any grehound, hound, pointer, setting dog, spaniel, or other dog, or any gun, net, or engine, for taking or killing of game, without a certificate, is liable to the penalty of 20l. And if any gamekeeper shall, for the space of 20 days after the said 1st day of July, or if any gamekeeper thereafter to be appointed shall, for the space of 20 days next after such appointment, neglect or refuse to register his deputation and take out a certificate thereof, he is liable to the penalty of 20l.
The clerks of the peace are to transmit to the stamp office in London alphabetical lists of the certificates granted in every year before the 1st day of August under penalty of 20l. These lists are to be kept at the stamp office in London, and there to be inspected on payment of 1s. And the commissioners of the stamp duties are, once or oftener in every year, as soon as such lists are transmitted to them, to cause the same to be published in the newspapers circulating in each county, or such public paper as they shall think most proper.
Gamekeepers were first introduced by the qualification act, 22 and 23 Car. II. c. 25, and subsequent statutes have made a number of various regulations respecting them. This authorises lords of manors of the degree of esquire, to appoint gamekeepers, who shall have power, within the manor, to seize guns, nets, and engines, kept by unqualified persons to destroy game.
By 5 Ann. c. 14. f. 14. lords and ladies of manors are authorised to empower their gamekeepers to kill game; but prohibited the latter, under pain of three months imprisonment, from selling or disposing of the game so killed, without the consent of the lord or lady, under whose appointment they acted.
By 3 Geo. I. c. 11. no lord of a manor is to appoint any person to be a gamekeeper with power to take and kill game, unless such person be qualified by law so to do, or be truly and properly a servant to the lord, or immediately employed to take or kill game, for the sole use or benefit of the said lord. Offences against this act to be punished with pecuniary fines.
Gamekeepers are enumerated among the different descriptions of servants, chargeable with the duty under 25 Geo. III. c. 43.
If any gamekeeper, who shall have registered his deputation, and taken out a certificate thereof, shall be changed, and a new gamekeeper appointed in his stead, the first certificate is declared null and void, and the person acting under the same, after notice, is liable to the penalty of 20l. And any person in pursuit of game, who shall refuse to produce his certificate, or to tell his name or place of abode, or shall give in any false or fictitious name or place of abode to any person requiring the same, who shall have obtained a certificate, is liable to the penalty of 50l.
The certificates are not to authorize persons to kill game at any time prohibited by law, nor to give any person any right to kill game, unless such person shall be qualified so to do by the laws now in being, but shall be liable to the same penalties as if this act had not passed. [So that though by this act qualified and unqualified persons are equally included, yet having a certificate does not give an unqualified person a right to kill game: the point of right still stands upon the former acts of parliament; and any unqualified person killing game without a certificate, is not only liable to the penalty inflicted by this act, but also to all the former penalties relating to the killing of game, &c.]
Witnesses refusing to appear on justices' summonses, or appearing and refusing to give evidence, forfeit 10l. The certificates obtained under deputation, not to be given in evidence for killing of game by a gamekeeper out of the manor, in respect of which such deputation or appointment was given and made. Persons counterfeiting stamps to suffer death as felons.
Penalties exceeding 20l. are to be recovered in any of his majesty's courts of record at Westminster; and penalties not exceeding 20l. are recoverable before two justices, and may be levied by distress. The whole of the penalties go to the informer.
By 40 Geo. III. c. 50. persons to the number of two or more, found in any field, &c. or other open or inclosed ground, between eight at night and six in the morning, from the first day of October to the first of February, or between the hours of ten at night and four in the morning, from 1st February to 1st October.
ber, in each and every year, having any gun or engine to kill or take any hare, pheasant, partridge, heathfowl, commonly called black game, or grouse, commonly called red game, or any other game; or persons aiding them with offensive weapons, may be apprehended, and, on conviction before a justice, shall be deemed rogues and vagabonds, within the meaning of 17 Geo. III. c. 5. &c.
Military LAW. See MILITARY and MARINE.