a term applicable to a code of laws calculated to preserve to certain qualified persons the exclusive privilege of sport in the destruction of the wild animals coming within the definition of game. It is perhaps, among all the social peculiarities of this country, that which retains in its present observance the most remarkable characteristics of its feudal origin. As the privilege of an extensive class, it appears to have no parallel in other social systems. Possibly it might be found that in many countries war against wild beasts, like war against foreign nations, was under the administration and control of the rulers of the people. It is as a well-guarded privilege of the sovereign's office that we find the earliest restraints in the pursuit of wild animals in the feudal laws. The spirit of this restrictive privilege could not be better expressed than in Manwood's definition of a forest, as "a certain territory, or circuit of woody grounds and pastures, known in its bounds, and privileged for the peaceable being and abiding of wild beasts and fowls of forest chase and warren, to be under the king's protection for his princely delight." In the Anglo-Saxon law, while the pursuit of game is treated as a mere adjunct of the possession of land, there are very special precautions against infringements of the monarch's right. In the secular ordinance of king Canute is this provision: "And I will that every man be entitled to his hunting in wood and in field on his own possession. And let every one forego my hunting: take notice where I will have it untrespassed on, under penalty of the full 'wite.'"

The progress made by the Norman kings in the establishment of hunting grounds, protected by cruel forest laws, is a portion of constitutional history involved in much doubt and dispute. Taking as an admitted point that pursuing wild animals was originally a royal privilege, Blackstone, in his Commentaries, gives a sketch of its extension to the landed gentry in a spirit strangely at variance with his usual laudation of existing institutions. Alluding to the royal privilege, he says,—"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 while the forest laws established only one mighty hunter throughout the land, the game laws have raised a little Nimrod in every manor" (Com. iv.416). To adjust the system to his general theory in English law, Blackstone presumed game to be property, and represented the monarch as possessed of the ultimate property in all feudal lands, retaining this right to himself, or communicating it to those whom he favoured. But all efforts to find a practical support for this subtle theory have only tended to show that the monarch arrogated to himself a monopoly in the higher class of field sports, because it was his will, and he had the power to do so; and that at a later period the landed gentry claimed a monopoly in the sports of the field for a similar reason. By the act of 13th Richard II., cap. 13 (1389), the possession of property was made a specific qualification for the privilege of killing game, and it was enacted that "no manner of artificer, labourer, nor any other layman, who hath not lands and tenements to the value of forty shillings by the year, nor any priest nor other clerk, if he be not advanced to the value of ten pounds by the year," shall keep hunting dogs, or use other methods of killing game, upon pain of one year's imprisonment.

The extent and character of the property qualification were modified from time to time during succeeding reigns. In Scotland, an act of the year 1600 (cap. 23) protests, in a true sportsmanlike spirit, against the slaughter of wild animals by the most effective means, and their sale by persons having regard to gain, and commodity to those who seek "their own inordinate appetite and gluttony." Hawking is the method of sport deemed legitimate by this act, and among the illegitimate methods of slaughter it is curious to perceive the accepted methods of the present day, by "hagbut" or fowling-piece, and "fowler dog," held as "indirect means," and "specially forbidden." The authors of this act seem to have placed their chief reliance on the withdrawal of game from legitimate commerce; but twenty-one years afterwards the English property qualification was adopted, in a very brief act, which simply enacts "that no man hunt nor hawk at any time hereafter who hath not a plough of land in heritage, under the pain of one hundred pounds." The extent of the "plough of land" was a practical question down to very late times. In fact the "landed qualification" still exists in Scotland, so that nominally the sports of the field are a privilege exclusively enjoyed by those who possess landed property in the country. In practice, however, the offensive character of the rule, as conferring a privilege on a class, is modified by the presumption that he who has permission from a landowner to sport over his property is invested with the owner's qualification.

In England the qualification from estate was abolished in 1831. Above forty years previous to that date (25th Geo. III., cap. 50) the enjoyments of the sportsman were considered a legitimate object of taxation, and the payment of a license-duty became the virtual qualification. The act of 1831 (1st and 2d Will. IV., cap. 32) is the leading statute on this subject, and contains the main substance of the English game law, enumerating the animals that come within its scope, adjusting close times and other restraints on the pursuit of game, limiting the commerce in dead game, and defining the special arbitrary powers necessary to the enforcement of the system. The general tenor of this act was followed in a general game act for Scotland (2d and 3d Will. IV., cap. 68). So lately as the year 1844 the peculiar restraints of the game law were extended by an act (7th and 8th Vict., cap. 29) directing many of the penalties of the trespassing poacher against unqualified persons pursuing game at night in the highways, and around the gates of inclosed places. A slight modification of the game laws, much solicited by farmers, was adopted in 1850, when the right of killing hares without a qualification was conceded to those who could do so without trespass or breach of contract.

As a peculiar feature in modern European jurisprudence, game laws have arisen out of the desire to preserve, in the midst of cultivation and civilization, the pursuits by which in earlier stages of society men sought their immediate subsistence, or opened the way to civilization by clearing the wilderness of its dangerous inhabitants. It has hence been an unfortunate peculiarity of such a code of laws that, directed to the support of conditions antagonistic to material progress, to produce the desired effect they require to be rendered more complex and rigid as cultivation and population advance. On the American prairie the most ardent game-preservation would scarcely dream of any restraint on the pursuit of the noblest beasts of the chase, while in highly cultivated England small birds are protected by armed bands of gamekeepers. In some of the remote parts of Scotland it has been in the present century deemed meritorious to entrap and kill a fox, while in the hunting districts of England such an act would be counted a deed of the most atrocious character, as the wanton destruction of an element of high enjoyment.

The social influence of a game law is so deeply interwoven with class prejudices and political feelings at the present day that it cannot be impartially appreciated. On the one side, it cannot be disputed that a vast amount of that punishment which should be awarded solely to guard the public from crime is inflicted for offences against the game laws, and that there are many afflicting punishments which would not have been necessary had no such laws existed. It is maintained, that in addition to the direct infliction thus imposed on society, the system is a sort of inclined plane, facilitating the progress towards other acts undoubtedly criminal. It is a necessary peculiarity of a game law that what it protects is not property but a privilege. The laws for the protection of game have their peculiar character from the impossibility of separating and appropriating the wild animals to which they apply, as ordinary common possessions are separated and appropriated. Hares, partridges, and grouse may be said to belong to the general body who are by law entitled to slay them, but no member of the class can claim any of them as his own property. The owner of extensive preserves can maintain that the birds he shoots within them are the growth of his property, and have been fed at his expense; yet he is not entitled to reclaim those which fly into his neighbour's preserves, as he might reclaim his sheep, his dogs, or his domestic fowls. Hence the principle of the law itself countenances the peasant who denies that game is property, and who, as a consequence, refuses to brand the poacher with the infamy of the thief. Thus that love of sport and adventure so much commended among the superiors whom he is taught to respect, makes the peasant suddenly find himself a criminal at war with the laws of the land, who, even if he be not directly contaminated by association in prison with thieves and housebreakers, cannot be expected to retain the same horror of the baser crimes which he may have felt before he was stamped as an offender. It is another unfortunate peculiarity of these laws, as the protection not of property but a privilege, that they cannot be enforced without arming man against man, and producing conflict and bloodshed. A piece of property which can be identified is an enduring silent witness of the crime by which it may have been removed from its owner. Hence, though it may be desirable to catch thieves and housebreakers in the act, it is not indispensable; but the produce of poaching, which is no one's property, is not thus capable of identification. The evidence of the crime is the capture of the committer of it in the act, and hence has arisen an armed game police, acting, not under public responsible authority, but commanded in each instance by their private employers and the owners of the soil. Farther still, the difficulty of proving the offence after it has been committed has suggested the necessity of attacking it in its preparatory steps. The laws for the protection of property only require to adopt this alternative in a few classes of crimes accomplished by distinct stages, as forgery and coining, where the preliminary process of preparing plates or instruments is made criminal. It has not been found necessary to punish persons for making arrangements to commit a housebreaking, or even starting on an expedition to accomplish it. But the evidence of each act of poaching is so fugitive, that a vigilant system of penal checks guards the progress towards it; and trespasses, or other actions in themselves even less culpable, become punishable as taking place with the intent to kill game. It is a farther aggravation of this necessary defect, that the fact of intention, so readily believed by a partial judge, but so difficult of proof to an impartial one, is decided on and punished like all other offences against the game laws by members of the class whose prejudices, if not their interests, favour a stringent application of the restrictive provisions of the code.

On the other hand, it is said that the sportsman, in the pursuit of game, experiences a legitimate enjoyment which ought to be protected, even at some cost to the community: that the sports of the field are favourable to health, strength, and high spirit, and should be encouraged by a wise legislature, looking beyond the more sordid objects of human exertion. By persons who have less sympathy with sportsmen it is sometimes held, that in a country where there is much superfluous wealth it is a sound arrangement to find some factious occupation or exciting recreation for its owners which may divert them from pursuits more dangerous to the peace of the community. It has been suggested, that if the principle of a qualification to kill game, and the consequent penal laws, were entirely abandoned, the destruction caused by the extensive invasion of landed property which would follow the general license to extirpate game would render necessary new and stringent laws of trespass afflicting a more inoffensive class of people than those checked by the laws which suppress poaching, and tending to suppress the innocent recreations of the community. It is said farther, that the privilege of following field sports no longer conveys the stigma of feudal subjection to those who do not enjoy it, since virtually it is open to purchase, and consequently all who by their industry and prudence succeed in obtaining wealth may procure it like any other luxury. In answer to those who rail at shooting as a destructive pursuit, wasteful of the produce of the soil, it is said that the owners of sporting grounds bring them into condition for a solid rent from tenants who, after enjoying the pursuit of the game, sell it in the best market. Should the force of such reasons be admitted against the entire abolition of a game law, the question remains, how far the existing game laws of the British empire are consistent with the general welfare of the community.