Game-laws. Since primeval days man has been a carnivorous animal, and has depended for his sustenance largely upon the flesh of the beasts of the field. At first, doubtless, the only thought was of the capture and destruction of animals whose flesh was agreeable to the taste, not of their preservation and protection for future use. But it is probable that at a very early age domestication was resorted to in order to meet the scarcity caused by the depletion of the forests and the increased wariness of the animals. There are, however, many animals which, though suitable for food, cannot readily be domesticated, and these still remained the objects of the chase in their natural wild condition. Doubtless for a time these latter were still mercilessly hunted down, but gradually the necessity came to be recognised of husbanding the stock even of wild animals against the future. The analogy of the animal kingdom suggests that the pleasures of the chase were just as keen amongst the nomad tribes in the primeval forests as amongst modern British sportsmen; but the primary object then was not the enjoyment of sport, but the collection of a supply of food, and the value of the wild animals was mainly an economic one. But gradually, as civilisation advanced, as cultivation increased, and other sources of food-supply were multiplied, the value of wild animals as food diminished, and protection came to be accorded to them rather as objects of sport than as a valuable food-provision. This condition had already been reached in England with regard to birds and quadrupeds when the Forest Laws were first promulgated, but the economic as superior to the sporting value of fresh-water fish long held its ground, and indeed still does so to a certain extent in the case of some of the larger rivers. Notwithstanding, however, the small value of game as an article of food in proportion to its value as an object of sport, there is still a utilitarian instinct in the pursuit of many kinds of game; the edibility of the animal is a condition of the enjoyment of sport; nothing grieves a sportsman more than to lose an animal he has killed; and no sportsman would go out to shoot old rooks or blackbirds, although these would supply just as difficult shooting as partridges and pheasants.
By the common law, both of England and of Scotland, following that of Rome, wild animals in a state of nature are common to mankind, and are not proper subjects of private ownership. But at an early stage it was recognised that a free right of hunting was incompatible with the preservation of game in such numbers as to afford ample sport to the monarch and the nobles. Accordingly a series of laws known as the Forest Laws (q.v.) were enacted, whereby certain districts of country were set apart for sport to the sovereign and his donees; and effective provision was made to reserve the exclusive right of pursuing game within the protected areas. But the increase of population and the enclosure of large parts of the country rendered protection necessary for the areas outside of the royal forests if the game was not to be totally extirpated, and the result has been a series of enactments known as the Game-laws.
'Game' includes hares, pheasants, partridges, grouse, black-game, ptarmigan, and bustards. But, in addition, there are a number of animals to which one or other of the game-statutes extends protection. These are rabbits, deer, roe, woodcock, snipe, quail, landrails, and wild duck.
Although there is no private property in wild animals, it is now fixed partly by statute, partly by consuetudinary law as interpreted by the decisions of the courts, that the right to pursue or take game is a private privilege. In the absence of express stipulation this privilege belongs in England to the occupier, in Scotland to the owner of the soil. It has sometimes been represented that, although a wild animal is not private property, the moment it is taken or slain it becomes the property of the person on whose land it is taken or slain. This is not strictly accurate, for if it were so then the poacher who picks up the partridge he has shot would be guilty of theft, which in the present state of the law he certainly is not. On the other hand, there is no doubt that the occupier or owner of the soil is entitled to recover the game from the poacher. The law, therefore, would seem to be most accurately expressed by the statement that the occupier or owner of the soil has a right to claim any game taken or slain upon his land.
The statutory provisions with reference to game are of four kinds—viz. (1) laws for the punishment of poaching; (2) close time provisions for the protection of game during certain seasons of the year; (3) provisions to enable farmers to protect their crops against the ravages of ground-game; (4) revenue and license laws imposing government duties upon the exercise of a right to take or to deal in game.
(1) Poaching.—The most important of the acts at present in force against poaching are the Day Poaching Act, 1831 (Scotland, 1832); the Night Poaching Acts, 1828 and 1844; and the Poaching Prevention Act, 1862. These statutes impose penalties for trespass by night or by day in pursuit of game, and for the illegal possession of game; and contain stringent provisions for the detection and punishment of offenders. Night-poaching is treated as a much more serious offence than day-poaching, the reason being that night-poaching, especially by large bands, is apt to lead to acts of serious violence. See the article POACHING.
(2) Close Time.—This is regulated in England by the Day Trespass Act, 1831, and in Scotland by the Preservation of Game Act, 1772. The close time in England is, for partridges, from 1st February to 1st September; for pheasants, from 1st February to 1st October; for black-game, from 10th December to 20th August (1st September in Somerset, Devon, and the New Forest); for grouse, from 10th December to 12th August; and for bustards, from 1st March to 1st September. The seasons in Scotland are the same, except that bustards are not mentioned in the act. By the Day Trespass Act (adopted for Scotland by the Game Certificates Act, 1860) it is also made illegal to deal in game more than ten days after the commencement of close time. It was recently held that this does not apply to game imported from abroad.
(3) Protection of Crops.—By the Ground Game Act of 1880 an inalienable right to destroy hares and rabbits found upon his land is given to the occupier. In order to minimise the interference with legitimate sport, it is provided that steel traps shall not be used, except in rabbit holes; that the occupier shall not be entitled to delegate the right to shoot to any person other than one member of his household, specially authorised by him in writing; and that the occupier of moorlands shall be entitled to take hares only between 11th December and 31st March.
(4) Revenue and License Laws.—The different duties and licenses in connection with taking and the dealing in game are embodied in a series of revenue statutes, which it is unnecessary to enumerate. A game-license for the whole year costs £3; but a license may be taken for half a year to 1st November, or for half a year thereafter at £2; or a license may be taken for a period of fourteen continuous days at £1. A gamekeeper's license costs £2. Dealers in game must annually obtain a license from the justices, upon production of which and payment of £2 of duty they obtain an Inland Revenue license to deal in game.
Strong exception is taken to the game-laws by many. It is urged that the provisions for the detection of poachers are harsh and inquisitorial, and there can be no doubt that the difficulty of detecting this offence (arising mainly from the impossibility of identifying the articles taken) has led to the enactment of certain provisions of a very stringent character. Although, however, the provisions are harsh on their face, it may be doubted if it has often happened that any person who had come properly in possession of game, and was able to give an honest account of it, has been subjected to serious inconvenience by the operation of these laws. A much more formidable objection is that the laws are out of harmony with the general sense of a large section of the community; that in the eyes of many respectable persons and of most poachers poaching is no crime; and that many men have by the operation of these statutes been made criminals who would scorn to stoop to any act of ordinary dishonesty. There is force in this objection, for there can be no doubt that, whatever be the explanation, poaching is looked upon by many in quite a different light from any other offence. Prison governors and chaplains tell that they never find a poacher penitent or willing to admit that he has done wrong. The community of the right to game, either as a primitive tradition or as a legal theory handed down from the Roman law, prevails singularly enough in the popular mind contrary to the constant practice of centuries.
The game-laws are, on the other hand, defended on the ground of vested proprietary interest, to which great commercial value now attaches, and as affording protection against trespass, which would lessen the agricultural value and the amenity of property. But the strongest plea in favour of the laws affording protection to game is that without such protection game would soon cease to exist. In an enclosed and thickly-settled country, amidst a crowded population devoted to sport, game would soon become extinct if the public enjoyed a free right to pursue it. In Switzerland, where the only protection is a close time, notwithstanding the numerous natural retreats for wild animals, game is all but extinct; indeed, it is considered a good day's sport for a large party if a single hare is killed. Again, the concession to the occupier of an inalienable right to ground-game by the Act of 1880 has already led to the hare becoming virtually extinct in many parts of Great Britain. In the opinion of some, no doubt, the total extirpation of game would be a benefit to the country; but, on the other hand, it is urged that not only does the pursuit of game give zest and variety to rural life, and afford healthful enjoyment in the autumn to a considerable section of the community, many of whom are engaged in sedentary occupations for the greater part of the year, but that it also leads to the diffusion of much wealth throughout the poorer districts of the country, and keeps a great deal of money at home which would otherwise be spent abroad.
In the United States any one is free to capture or kill wild animals, subject to the laws of trespassing; save where, as in several states, laws have been passed protecting game during certain seasons, so as to prevent its extirpation.
Perhaps the most feasible suggestion which has yet been made for a reform of the game-laws without withdrawing protection from game is that all the statutes against poaching should be repealed, and a simple provision substituted whereby game should be declared to be the property of the person on whose lands it is found. The effect of this would be to render the taking of game theft, and trespass in pursuit of game an attempt to steal. It is urged in favour of this change that it would simplify the law, remove many harsh and anomalous provisions from the statute-book, and tend to disabuse the popular mind of that theory of the common right to take game which creates disaffection with restraining law. In an unenclosed and sparsely-peopled country wild animals roam at freedom and care for themselves, and they are not therefore appropriate subjects of private ownership. But in an enclosed, highly-cultivated, and thickly-peopled country, game is just as much dependent for its existence as are flocks and herds upon the protection and care of the owners or occupiers of the soil, and may therefore, it is said, appropriately be made the subject of private property of those who maintain it. See Alex. Porter, The Gamekeeper's Manual (2d ed. Edin. 1889).