L I B R.AFLY 
 
 OF THE 
 
 U N I VERS ITY 
 
 Of ILLI NOI5
 
 y 
 
 y
 
 THE GAME LAWS. 
 
 BY 
 
 G. SHAW LEFEYRE, M.P. 
 
 • 
 
 LONDON: 
 
 WILLIAM EIDGWAT, 160 PICCADILLY, W. 
 
 1874. 
 
 Price Six;pence.
 
 PREFACE. 
 
 Apology is scarcely needed for presenting to the 
 public, at the present time^ any observations on the 
 Game Laws, inasmuch as the numerous Bills 
 brought before Parliament in successive Sessions, 
 and the Report of the recent Committee of the 
 House of Commons, shew that while there is great 
 and pressing desire for legislation, there is still 
 greater diversity of views as to the best mode of 
 giving relief from the evils complained of, and 
 which to a great extent are admitted on all hands. 
 
 Whatever may be thought of the conclusions at 
 which I arrive, I hope that the historical and legal 
 illustrations may not be without their value in 
 determiaing the views of those who are interested 
 in this subject. 
 
 I have dealt mainly with the law of England 
 and Wales, and have only mentioned incidentally
 
 IV 
 
 some of the points in respect of which the law 
 of Scotland differs. There are other points of 
 difference in the Scotch law, but I believe that 
 substantially the general scope of my observations 
 and conclusions will apply equally to Scotland as 
 to England. 
 
 The question, however, of Deer Forests is a 
 distinct one, and is not touched upon in the 
 following pages. 
 
 G. S. L.
 
 The group of statutes which constitute the pre- 
 sent Game Law of England dates no further back 
 than the year 1831, when, with one exception, all 
 previous enactments relating to Game were re- 
 pealed, and the right to take or sell game was based 
 on a new principle. Previous to that year no 
 person was permitted to kill game unless qualified 
 either by the possession of freehold or leasehold 
 property of the annual value of £100, or by hold- 
 ing the status of esquire. Landowners by virtue 
 of this qualification and irrespective of agreement, 
 practically exercised the exclusive right of sporting 
 over their lands let to farming tenants. Lords of 
 Manors still claimed the right to game on the lands 
 of the copyhold tenants of their manors, and the 
 sale of Game was wholly illegal, and was punishable 
 by severe penalties. 
 
 These laws may be traced without difficulty to 
 the feudal principles which were introduced into 
 this country by the Norman conquerors. 
 
 Under the older Saxon law every freeholder had 
 the full liberty of sporting over his land, provided 
 he abstained from the King's forests. The Eoyal 
 forests were, doubtless, even then of great extent, 
 but the prerogative of the Sovereign did not ex- 
 tend beyond their limits, and in no way interfered 
 with the free exercise of rights by other land- 
 owners. We find; for instance, that Canute set 
 bounds and limits to the Eoyal forests^ and the 
 
 B
 
 better to have liis own preserved from offenders, he 
 
 made this law at Winchester in the first year of 
 
 his reign : — 
 
 " Volo lit omnis liber homo pro libito habeat venerem sive 
 viridem in planis suis super terras suas sine chacea tamen et 
 devitcnt omnes nieam ubicunque earn habere voluero." 
 
 This was also the ancient law of the Scandina- 
 vian continent whence Canute probably derived it : 
 
 " Cuique enim in proprio fundo quamlibet feram quo mode 
 venari perraissum." 
 
 And in the laws of Edward the Confessor it is 
 
 laid down: — 
 
 " Sit quilibet homo dignus venatione mea in sylva et in agris 
 propriis et in dominio suo ; et abstineat omnis homo a vena- 
 riis regiis ubicumque paeem eis habere voluerit." 
 
 After the Norman conquest, however^ a new doc- 
 trine was asserted, and the right of taking all 
 beasts of chase or venary, wherever they might be 
 found, and without regard to the ownership of the 
 soil, was claimed by the Sovereign for himself, or 
 for such only as he should duly authorize. 
 
 These restrictive laws relating to forests and 
 game had been introduced generally in Europe, at 
 the same time and by the same people, who were 
 the authors of the feudal system. The conquering 
 Generals of the northern invaders, when they 
 settled the economy of the countries they had 
 subdued, and partitioned them among their chiefs 
 and feudatories upon the condition of military ser- 
 vice, found it necessary to keep the natives of these 
 countries in as low a condition as f)Ossible, and espe- 
 cially to prohibit them the use of arms. Hunting
 
 and sporting were therefore prohibited, and the 
 generals reserved these rights to themselves or to 
 those chiefs immediatelv below them, to whom 
 they thought it safe to entrust such rights. 
 
 The Norman kings introduced this principle to 
 England after the conquest, and being themselves 
 mighty hunters, carried it out not only as matter 
 of state policy but of personal enjoyment. 
 
 In later times the Norman lawyers vindicated 
 this claim of the Sovereign, partly on the principle 
 that the King was the ultimate proprietor of all the 
 lands in the kingdom, which were held of him as 
 Lord paramount of the fee, and that therefore he 
 had the right to enter on any estate and take 
 all wild creatures at his pleasure, and partly on a 
 maxim of the law that such creatures were " bona 
 vacantia," and having no other owner, belonged to 
 the King by virtue of his prerogative. . Bracton 
 states the Royal prerogative thus : — 
 
 " Habet etiam Eex de jure gentium in manu sua quaa de 
 jure naturali deberunt esse communia; sicut feras bestias efc 
 aves non domesticos." 
 
 And Manwood, an early writer on the Forest 
 Laws, says: — 
 
 " In like manner wild beasts of yenary and beasts and fowls 
 of chase and warren being things of great excellency, they are 
 meetest for the dignity of a prince for his pastime and delight, 
 and therefore they do most properly belong unto the king 
 only." 
 
 It is probable, however, that these were rather 
 the after-thoughts of lawyers anxious to obtain 
 royal favour, than the true explanation of the ori- 
 gin of the claim asserted by the feudal sovereigns, 
 
 B 2
 
 and that the more probable cause is that already 
 alluded to, namely, that as conquerors of new ter- 
 ritory, they found it expedient as matter of state 
 policy to enforce this claim, a policy which also co- 
 incided with their predilections for the chase. 
 
 Whatever its origin, the prerogative thus claimed 
 on behalf of the Crown was exerted with the ut- 
 most vigour by the earlier Norman Kings, not only 
 in the ancient forests, but in new forests which the 
 Conqueror and his sons made, by laying together 
 large tracts of country, depopulated for this pur- 
 pose, and without the consent of the owners or 
 any compensation for the damage done. In these 
 forests great oppression and tyranny were exercised 
 by virtue of special forest laws, for the sake of 
 preserving the beasts of chase, and the killing of 
 any animal was punishable in the same manner as 
 the killing of a man. In the Anglo-Saxon Chro- 
 nicle of the year 1087 there is a piteous descrip- 
 tion of the result of the Forest laws of William 
 the Conqueror : — 
 
 " He made large forests for the deer, and enacted laws 
 therewith, so that whoever killed a hart or a hind should be 
 blinded. As he forbade killing the deer, so also the boars ; 
 and he loved the tall stags as if he were their father. He also 
 appointed concerning the hares that they should go free. The 
 rich complained, and the poor murmured; but he was so sturdy 
 that he recked nought of them. They must will all that the 
 King willed, if they would live or would keep their lands, or 
 would hold their possessions or be maintained in their rights." 
 
 Ordericus Yitalis, in the time of Henry I., said 
 of that monarch, " Omnem ferarum venationem 
 totius Anglia) sil^i peculiarem vindicavit et vix
 
 paucis nobilioribus ac familiaribus privilegium in 
 propriis saltibus venandi permisit." 
 
 Until the reign of King John this prerogative 
 applied only to four-footed game, but that monarch 
 extended it equally to winged game. In the words 
 of Matthew Paris, Anno 1209, " Rex Anglorum 
 Johannes ad natale Domini fuit apud BristoUeum 
 et ibi capturam avium per totam Angliam inter- 
 dixit." The hardships, vexations, and cruelties 
 resulting from these laws became at last wholly 
 insupportable to the general body of landowners, 
 and they pressed for a relaxation of the Forest laws 
 and for a limitation of the King's prerogative of 
 game with equal pertinacity as for Magna Charta 
 itself, and by the Charta de Foresta (9 Henry III.) 
 A.D. 1225, confirmed by Edward I. a.d. 1299, all 
 the lands which had been afforested by Henry II. 
 Richard I. and John, except the proper demesnes 
 of the Crown, w^ere disafforested and freed from 
 the Forest laws, and the Royal forests were stripped 
 of their most oppressive privileges and regulations. 
 
 The principal clauses of this famous charter are 
 worthy of attention, as, better than any description, 
 they shew what must have been the evils they were 
 intended to remedy. 
 
 Chap. 1. — First, all forests which King Henry our grand- 
 father afforested shall be viewed by good and lawful men, 
 and if he had afforested any other wood than his own 
 demesne to the damage of him whose wood that was, it 
 shall be disafforested, and if he had afforested his own 
 wood it shall remain forest, saving the common of herbage 
 and of other things in the same forest, to them wlio 
 before were accustomed to have it.
 
 6 
 
 Cliap. 3 extended the same measure to forests which had 
 been afforested by * King Richard our uncle, and King 
 John our father/ 
 
 Chap. 10. — No man from henceforth shall lose either life or 
 member for killing our deer. But if any man be taken 
 and convict for taking our venison he shall make a griev- 
 ous fine if he have anything thereof; and if he have 
 nothing to lose he shall be imprisoned a year and a day, 
 and after a year and a day expired, if he can find sufiicient 
 sureties he shall be delivered, and if not he shall abjure 
 the realm of England. 
 
 Chap. 12. — Every freeman may henceforth without hin- 
 drance make in his own wood or on his own land which 
 he hath in the forest, a mill, a fish pond, a pool, a marl 
 pit, a dike or arable land without the covert in arable 
 land, so that it be not to the annoyance of any neighbour. 
 
 Chap. 13.-— Every freeman may have in his own woods 
 ayries of hawks, sparrow hawks, faulcons, eagles and 
 herons, and shall also have the honey that may be found 
 in his woods. 
 
 Chap. 15. — All persons outlawed for our forest only from 
 the time of King Henry our grandfather, until our first 
 coronation, may come to our peace without let, and shall 
 find good sureties that henceforth they incur no forfeiture 
 unto us concerning our forest. 
 
 From the time of the Charta de Foresta, follow- 
 ing closely upon the more imj^ortant Magna Charta, 
 the prerogative of the Sovereign sensibly declined. 
 The right of the Crown to game over all lands, 
 irrespective of ownership, was still maintained as a 
 principle of law, but practically the Sovereign no 
 longer exercised this right, except in the ancient 
 forests and on his own demesnes, and it was no 
 longer legal for him to create a chase or forest over 
 the land of a subject without his consent. It was 
 still held, however, that no right of chase or free
 
 warren could be created witliout the sanction of the 
 Crown, and during the reigns of the first three 
 Edwards an infinite number of such grants were 
 made to the principal nobility, from which it may be 
 inferred that, by law^, the game still belonged to the 
 Crown. These grants appear to have extended not 
 only to the demesne lands of the feudal lords, but 
 also to all the freehold lands and copyhold or 
 customary holdings within their manors ; and 
 gradually it became understood that a grant of a 
 manor from the Crown, or a grant of a tract of land 
 with jurisdiction constituting it a manor, carried 
 with it the right of sporting; and for many genera- 
 tions it was held that this right of sporting vested 
 in the feudal lord, extended over the freehold and 
 copyhold lands within the manor. After the 
 Charta de Foresta however, it does not appear that 
 the Sovereign ever created a forest or chase for 
 himself without the consent of the owrier of the 
 soil, nor cauld he grant right of chase or free 
 warren to a person over the lands of another in a 
 separate manor. 
 
 It is recorded that Henry VIII, before making 
 a chase at Hampton Court, obtained the consent of 
 the freeholders or copyholders over whose land the 
 chase was to extend ; and although in later years 
 Charles I. endeavoured to extort money by the 
 enforcement of the Forest laws, extending the 
 limits of the Royal forests by high-handed pro- 
 ceedings, under the colour of inquests, for the 
 recovery of the Crown forestal rights, w^hich had 
 been allowed to sleep, and imposing enormous fines
 
 8 
 
 on those who were declared to have infrino-ed on 
 those rights, Parliament again interposed, and in the 
 16th year of his reign an Act was passed which 
 remedied this evil, and finally settled the extent of 
 all royal forests according to their boundaries in 
 the 20th year of James I, annulling all the peram- 
 bulations and inquests by which they had been 
 subsequently enlarged. 
 
 The feudal Lords, who had so successfully as- 
 serted their own rights as against their Sovereign 
 to kill game in their seignories, were not the more 
 inclined to be lenient to those below them. As 
 already explained, they obtained grants from the 
 Crown of chase and free warren in their manors, 
 and as against the freehold and copyhold tenants, 
 they exercised, until a much later date, the same 
 rigour, against which they had themselves rebelled. 
 Sir W. Blackstone, after tracing the origin of the 
 game laws, and explaining the early claims of the 
 Sovereign, adds — 
 
 " rrom this root has sprung a bastard slip, known by the 
 name of the Game Law, now arrived to a wantoning in its 
 highest vigour, both founded on 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 a mighty hunter throughout 
 the land, the game laws have raised a little Nimrod in every 
 manor," 
 
 As the feudal system gradually passed away the 
 rights and duties of feudal lords, or lords of 
 manors, almost imperceptibly diminished, the 
 freehold tenants of manors emancipated themselves 
 from the jurisdiction of their lords, and copyhold
 
 9 
 
 tenants by degrees acquired a right to their hokl- 
 ings, subject only to the payment of customary 
 rents, fines, or services. It was not, however, till 
 the reign of Queen Anne that a doubt was raised 
 as to the right of a lord of a manor to the game 
 on the lands of the freeholders of his manor, and 
 it was then said by some of the judges that a lord 
 of the manor could not enter on the freehold estate 
 of another, though situate within the bounds of 
 his manor, for the purpose of sporting. The ques- 
 tion, however, was never fully argued or finally 
 adjudged. Neither was the right of the lord to 
 sport over the copyhold lands within his manor 
 decided, but till a very late time the better opinion 
 was that the lord retained this right. Mr. Cruise, 
 one of the ablest lawyers of his day, said on this 
 subject : — 
 
 '' As to copyhold estates tliey still form a portion of the 
 demesnes of the manor of which they are held, and therefore 
 I presume that the lord has a right to huat over them unless 
 barred by a non-user. For considering the original baseness 
 of the tenure, it cannot be supposed that the lord relinquished 
 that royalty over these lands or that a right of hunting could 
 have been given to a mere villein. It is however very extra- 
 ordinary that this point has never been settled." 
 
 It was not till 1831 that the question was finally 
 decided. The Act amending the Game Laws pro- 
 vided that lords of manors should have the ri2:ht 
 of sporting over the wastes of their manors, and 
 by implication this has been held to negative any 
 right of sporting over the freehold or copyhold 
 lands within the manor. Unless, therefore, the 
 lord of a manor can show that midcr the special
 
 10 
 
 customs of his manor he is clearly entitled to the 
 game on the copyholds within it, he cannot now 
 under the general law make claim thereto. 
 
 Landowners, however, have ever maintained, 
 either by law or by contract, the right to sport 
 over the lands of their ordinary farming tenants. 
 Till 1831 it was considered that this right was 
 irrespective of any reservation of game in the lease 
 or aofreement. The Act of 1831, however, reversed 
 this presumption, and in the absence of any reser- 
 vation, gave the game to the tenant, leaving the 
 parties free to make what agreement on the subject 
 they should think fit. The Act fully recognized 
 the power of the landlord to reserve the game and 
 the exclusive right of sporting, and the law has 
 from an early time recognized the possibility of a 
 separate estate being created in the game and the 
 land. Not only can the landlord reserve the game 
 in letting his land to a farmer, but he can separate 
 the right of sporting altogether from the ownership 
 of the land, and let or sell the one apart altogether 
 from the land itself. 
 
 From a very early date the rights thus vested in 
 the principal landowners by the Crown were sup- 
 ported by legislative enactments, which took the 
 form of requiring a property qualification as a 
 condition to the right of killing game. 
 
 The earliest trace of such qualification being- 
 required is to be found in the 13 Richard II, 
 chapter 13th, which provided as follows :— 
 
 " Eorasmuch as divers artificers, labourers and servants and 
 grooms keep greybouiids and other dogs, and on the Holy days
 
 11 
 
 when good Christian people be at Church hearing divine service, 
 they go hunting in Parks, Warrens and Connigeries of Lords 
 and others — to the very great destruction of the same, and 
 sometimes under such colour they make their assemblies, con- 
 ferences, and conspiracies for to rise and disobey their alle- 
 giance — it is ordained and assented that no manner of artificer, 
 labourer, nor any other layman which hath not lands or tene- 
 ments to the value of £iO by year, nor any priest nor other 
 clerk if he be not advanced to the value of £L0 by year, shall 
 have or keep from henceforth any greyhound, hound, nor other 
 dog to hunt — uor shall they use fyrets, keys, nets, harepipes, 
 nor cords, nor other engines for to take or destroy deer, hares, 
 nor conies, nor other gentleman's game, upon pain of one 
 year's imprisonment." 
 
 This statute is important in more than one 
 respect. The canting reference to attendance at 
 Divine service, the desire to make it appear that 
 the meeting of people in pursuit of game led to 
 dangerous assemblies, the description of ' gentle- 
 man's game,' are indicative of the state of public 
 opinion at the time, and of the necessity for justify- 
 ing the new law. 
 
 This statute was followed by many others in the 
 same direction. 
 
 The 21 Edward I, c. 2, provided that foresters, 
 porters, and their assistants, should not be troubled 
 if trespassers were killed by them withm their 
 liberty in cases of resistance. 
 
 The 19 Henry VII, c. 4, provided that no man 
 should shoot with a cross-bow without the King's 
 leave, except he be a lord or have 200 marks land ; 
 and in the 7th year of the same reign is the first 
 mention by statute of pheasants and partridges, and 
 a special provision wa>s passed for their preservation,
 
 12 
 
 which was subsequently strengthened by statutes of 
 Elizabeth and James I. 
 
 Even in the revolutionary days of the Common- 
 wealth no attempt appears to have been made to 
 reduce the harshness of the game laws, and the 
 only law passed relating to the subject, was one 
 putting a further penalty on the illegal killing of 
 deer. 
 
 A statute of Charles II. continued the monopoly 
 in favour of the landed gentry, and subsequent 
 Acts assisted in carefully shutting out not only the 
 persons who cultivated the soil as tenants, but 
 likewise inferior tradesmen and other persons not 
 endowed with a sufficient degree or estate to war- 
 rant them in pursuing beasts or biixls of game. 
 
 It is to be observed that from a comparatively 
 early time the qualification to pursue and kill game 
 was based upon property and not upon birth, as was 
 the case in many parts of the Continent, where the 
 feudal system was more rigidly followed to a later 
 date. 
 
 In France, for instance, the privilege of sporting 
 was, until the Eevolution of 1789, reserved exclu- 
 sively to the nobility. Ordonnances of the years 
 1395 and 1515 inflicted heavy penalties on the 
 ' roturiers ' who should indulge in the pleasure of 
 killing game, a privilege reserved solely to the 
 seigneurs. If the offence was committed in a royal 
 forest the delinquent was flogged at the gate of the 
 prison ; if the ofl*ence were repeated he was sent to 
 the galleys ; and if, after return, he shewed himself 
 incorrigible, he was subjected to capital punishment.
 
 13 
 
 In 1669 fin Ordonnance of Louis XI Y. declared 
 that the right to game belonged exclusively to the 
 King ; it gave permission however to seigneurs to 
 kill game on their own lands, provided these lands 
 were not inconveniently near to the royal forests, 
 and it forbade ' roturiers ' to indulge in any method 
 of killing game even on their own property. 
 
 De Tocqueville, in describing the Feudal Rights 
 which existed in France before the Revolution of 
 1789, says: — 
 
 " The right of the chase was not allowed to be farmed out 
 like that of fishing. It was a personal right arising from the 
 consideration that it belonged to the King, and that the nobles 
 themselves could not exercise it in the interior of their own 
 jurisdiction without the permission of the King. 
 
 " The right of shooting and hunting was more interdicted to 
 the non-noble than any other right. The fee fief of the non- 
 noble did not even bestow it. So closely observed was the 
 principle, and so rigorous was the right conside^^ed, that the 
 Seigneur was not allowed to give any permission to hunt. Tlie 
 Seigneur, Haut Justicier, possessed the faculty of hunting and 
 shooting on any part of his own jurisdiction, but alone. He 
 was allowed to make regulations and establish prohibitions upon 
 matters relating to the chase throughout its extent. Every 
 Seigneur de Fief, although not having the feudal power of 
 judicial courts, was allowed to hunt and shoot in any part of 
 his fief. Nobles who possessed neither fief nor jurisdiction 
 were allowed to do so upon the lands belonging to them in the 
 immediate neighbourhood of their dwelling houses. It was 
 decided that the non-noble possessing a park upon the terri- 
 tory of a Seigneur Haut Justicier was obliged to leave it open 
 for the diversion of the Lord. Nobles alone were allowed to 
 keep pigeons and even ferrets." 
 
 Arthur You.ng, in his description of the state of 
 French agriculture before the Revolution, has told
 
 14 
 
 us that the most important operations of agricul- 
 ture were fettered and prevented by these game 
 laws. Wild animals, such as boars, and herds of 
 deer, roamed at large through districts called 
 * capitaineries,' where no enclosures for the pro- 
 tection of the crops were permitted. In many 
 parts of the country hoeing and weeding was 
 prohibited, lest the young partridges should be 
 killed; mowing hay, lest the eggs should be de- 
 stroyed ; taking away the stubble, lest the birds 
 should be deprived of shelter ; manuring with night 
 soil, lest the flavour of the game should be im- 
 paired. Complaints for the infraction of these laAvs 
 were tried by the manorial courts, where every 
 species of oppression and fraud were practised. 
 
 These privileges and abuses were put an end to in 
 1789. In the memorable sitting of the Assembly 
 on the 4:th of August the noblesse were constrained 
 to abandon their exclusive privilege of sporting, 
 with all other feudal rights. 
 
 Even the rights of the Crown were not excepted, 
 notwithstanding the favour in which Louis XVI 
 was then held by the Assembly. The Royal 
 monopoly of sport extended for twenty leagues 
 round Paris, and was the cause of most crying 
 iniquities. After a powerful speech from Mirabeau, 
 and on the motion of the Duke of Orleans, all 
 Capitaineries, whether royal or not, and all reserves 
 for sport, under whatever denomination they may 
 have been, were from that moment abolished. 
 The seignorial right to Pigeons, which had been 
 one of the most hated of feudal privileges, was at
 
 15 
 
 the same time abolished, and it was provided that 
 thenceforward every person might keep pigeons, 
 subject to the rule, that the birds should be shut 
 up in their dovecotes during the seasons prescribed 
 by the Communes, in the interest of agriculture, or 
 if allowed to be at large during the seasons, might 
 be treated as game by others. 
 
 The decree which abolished the feudal privileges 
 to game appears to have intended that thencefor- 
 ward game should be property of the owners of the 
 soil, but it provided no remedy against those who 
 should trespass in pursuit of it. For a time, there- 
 fore, no game laws existed, and there resulted over 
 the whole of France a scene of confusion and 
 disorder. Crowds of artizans and mechanics issued 
 from the towns, and, joining the labourers in the 
 agricultural districts, spread themselves over the 
 fields in search of game. Enclosures were broken 
 down, woods were destroyed, and houses were 
 broken open. 
 
 The disorder which resulted from unrestrained 
 trespass was so great that in a few months it was 
 found necessary to repress it ; and in 1790 a 
 moderate game law was passed, based upon the 
 principle that every owner of property was allowed 
 the exclusive right of sporting on his own land, sub- 
 ject only to rules laid down in the general interest. 
 
 The principles adopted in 179(J were confirmed 
 in 1844 by the present Game Law of France; and 
 the bulk of the cultivators of the soil being 
 owners of the land, these laws, which in many 
 respects closely resemble our own, have not proved
 
 10 
 
 to be oppressive either to tlie cultivator of the soil 
 or to the public. 
 
 In Germany the same feudal laws prevailed until 
 a much later period. The right of sporting was 
 generally reserved from the proprietorship of the 
 land, and was vested in the feudal magnates. The 
 exercise of this right created the greatest dis- 
 content, and in 1848, the game laws, and all enact- 
 ments as to fence seasons, were abolished throughout 
 Germany by the Frankfort Parliament, which 
 however left the legislative bodies of the different 
 states to decide as to the mode in which the new 
 principle that the shooting should go with the land, 
 should be carried out. In a few states some little 
 compensation was given to the holders of the old 
 seignorial rights of shooting, in others, as in Prussia, 
 none. 
 
 There followed a brief period of lawlessness, 
 during which any peasant at any time of the year 
 was free to kill game. After a short experience of 
 disorder the several states separately proceeded to 
 re-enact game laws, the general effect of which 
 was that, whilst the sporting over large estates was 
 reserved to the proprietors, the sporting over small 
 estates was vested in the local communes, to be let 
 for the joint benefit of all. 
 
 In this country the feudal principle, modified in 
 favour of property as distinguished from birth, sur- 
 vived to a later period than in France. It was not till 
 1831 that a successful effort was made to reform 
 the Game Laws. The enquiries and debates which 
 took place in the House of Commons for many
 
 17 
 
 years previous to 1831 show how intolerable had 
 become the burthen of these laws. The change then 
 made was one of the first results of the great 
 Reform movement. The Game Law of that year 
 which swept away all the previous laws based upon 
 privilege, was passed by the Parliament which 
 had been elected under the popular agitation for 
 reform, and before the Reform Act itself became 
 law; but it was a Parliament in which Tenant 
 farmers were not represented ; the Liberal element 
 of the Country was mainly to be found in the 
 County representatives elected by the freeholders, 
 and not by tenants ; and the law bears evident 
 trace of the absence of the voice of the tenant 
 farmers in its preparation. It is much to be re- 
 STetted that at the time when the outburst of 
 feeling against the old laws was so great, the in- 
 terest of farmers was not better represented in the 
 measure which was passed as a substitute. There 
 were not wanting some who predicted that not 
 less evils would result from the Act of 1831, who 
 foresaw that while it abolished privilege and swept 
 away many cruel and arbitrary laws, it would lead 
 to much greater preservation of game, and to the 
 practice of subletting the right of sporting which 
 had previously been little known. 
 
 It is probable that had the revision of the Game 
 Laws been postponed till the Reformed Parliament 
 had come into existence, and when under the well 
 known Chandos clause, the tenant farmers had a 
 preponderating influence in County elections, the 
 amended Game Laws would have differed much
 
 18 
 
 from those which we now have. For although the 
 Act of 1831 abolished privilege, and opened the 
 door to tenant farmers, who were previously dis- 
 qualified as a class, it will be seen that it gave 
 great facilities for the reservation of game by 
 landlords, and by permitting the sale of game, it 
 gave the sanction of property to game in a sense 
 which was previously wanting, and gave further 
 inducements to that over-preservation of which we 
 now hear so many complaints. 
 
 It also led to a great extension of the practice 
 of subletting game by the landlords to game 
 tenants, w^ho have no common interest with the 
 farming tenants, a practice more opposed to the 
 interests of farmers, and more hateful to them than 
 the exclusive privileges of their landlords under 
 the old system. 
 
 Previous to 1831, also, little or nothing was 
 known of battue shooting, which if not having its 
 origin in the desire for profit by the sale of game, 
 at least owes much to the possibility of such sale, 
 and which in its present exaggerated form is in a 
 great measure due to the fashion set by the luxu- 
 rious and lavish Court of the Second French 
 Empire. 
 
 Whatever may be the defects of the Act of 1831, 
 it made bold and sweeping changes. It entirely 
 abolished all property qualification for the right of 
 sporting ; it repealed a great number of statutes 
 by which these property rights were enforced, and 
 by which the sale of game was prohibited. 
 
 In lieu it substituted a moderate day trespass
 
 19 
 
 law, directed only against persons wrongfully in 
 pursuit of game. 
 
 It definitely settled the law as to the rights of 
 Lords of manors, giving them the right to shoot 
 over the wastes of their manors, and by implication 
 refusing them the right to shoot over the lands of 
 their copyhold or freehold tenants. 
 
 Eecognizing the fact that hitherto tenant farmers 
 had no right to kill game, and that landowners as 
 a rule exercised this right over their lands, it re- 
 served to landlords the exclusive right of sporting 
 over all lands held under existing contracts, except 
 where the right had been expressly granted to the 
 tenant. 
 
 On the other hand, however, it provided that in 
 future lettings the right of sporting was to run with 
 the land, except where reserved by deed or agree- 
 ment. Whenever such reservation was made by the 
 landlord, it enforced the right of the landlord by im- 
 posing penalties of £1 for every head of game killed 
 by the tenant in contravention of such contract. 
 
 It gave permission for the first time for the 
 general sale of game ; but required that persons 
 should take out a license for such sale, and there- 
 fore retained a certain control over those engaged 
 in the trade in interests of game preservers. 
 
 It provided a close time for certain kinds of 
 game, excluding hares and rabbits from this cate- 
 gory, and finally it required licenses or game certi- 
 ficates from those who should in future shoot game. 
 
 The most important provision of this Act, how- 
 ever, is undoubtedly that which substitutes for pre- 
 
 c 2
 
 20 ^ 
 
 ■T 
 
 vious laws a moderate trespass law directed against 
 persons who should trespass in the day-time in 
 pursuit of game, and enforces it by a penalty of 
 4O5 and costs of the conviction; if five or more 
 persons should commit the trespass the penalty is 
 increased to £5. Power is also given to require 
 trespassers to give their names and places of abode, 
 and in the event of their refusing, to arrest them 
 for the purpose of taking them before a justice of 
 the peace, where upon conviction the penalty is in- 
 creased to £5. The penalty is further increased 
 by £5, where five or more persons, any of whom 
 being armed with guns, endeavour by violence or 
 intimidation to prevent any authorized person from 
 approaching them for the purpose of requiring 
 them to quit the land or of ascertaining their names 
 and abode. 
 
 This Act left unrepealed the Night Poaching 
 Act of 1828 (9 Geo. IV. c. 69). Under this Act, 
 which is still in force, any person unlawfully taking 
 game by night may, upon conviction before two 
 magistrates, be committed to gaol for three months 
 with hard labour, and at the expiration, in default 
 of finding sureties for not offending again for 
 the space of one year, may be imprisoned for a 
 further six months with hard labour. The pe- 
 nalties are doubled for a second offence, and for a 
 third offence, penal servitude for five years may be 
 awarded. Owners and occupiers of land or their 
 servants are empowered to arrest offenders, and if 
 resistance is made, the punishment may be increased 
 to penal servitude for five years ; and if three or
 
 21 
 
 more persons, any one of whom be armed, unlaw- 
 fully enter land for the purpose of taking game or 
 rabbits, they are liable to not less than five years 
 or more than ten years penal servitude. 
 
 Lastly, in the year 1862 the Act known as the 
 Poaching Prevention Act was passed by the united 
 support of the County members, and against the 
 strongest protest and opposition of the then Secre- 
 tary of State, Sir George Grey. This Act enables 
 policemen to arrest and search men going along the 
 high road whom they have reason to suspect of 
 having been illegally taking game, and gives 
 power to Magistrates to convict if they think that 
 the accused have wrongfully obtained the game 
 which is found upon them. 
 
 The object aimed at by this Act was to break up 
 the gangs of poachers, who were well known by the 
 police to make a trade of poaching, and who were 
 frequently met by the police on their return from a 
 raid on some neighbouring preserve, with all the 
 loot upon them, but who from want of evidence 
 could not be arrested and punished. 
 
 From this statement it will be seen that what 
 are called the Game Laws, now consist of three 
 groups of enactments. 
 
 1. Those in the interest of preserving the species, 
 forbidding the killmg and sale of certain species 
 during the breeding season ; the policy of this has 
 been greatly extended by the Act of 1869, which 
 made a close season for Sea Birds, and by the Act of 
 1872, which made a close season for a great variety 
 of small birds.
 
 22 
 
 2. Those protecting the right of sporting. 
 
 (a) By making trespass in the day time in pur- 
 suit of game, inckiding rabbits, punishable by 
 a fine of 405, the penalty to be increased to 
 £5, if five or more persons commit the offences, 
 and an additional £5 if any of them were 
 
 . arrested. 
 
 (5) By making trespass at night in pursuit of 
 game, punishable by three months imprison- 
 ment with hard labour, to be increased for 
 second and third offences, and further in- 
 creased to five or ten years penal servitude, if 
 three or more persons, of whom one be armed, 
 commit the offence. 
 
 (c) By making the breach of contract between 
 landlord and tenant for the reservation of 
 game, punishable in the case of the tenant 
 killing game, by a penalty of £1 for every 
 head of game (not, however, applicable to 
 rabbits). 
 
 (d) By giving power to the police to arrest and 
 search persons whom they suspect of having 
 been trespassing in pursuit of game, and power 
 to magistrates to convict where they have 
 reason to believe that such trespass has been 
 committed (applicable to rabbits, equally as 
 to game). 
 
 3. Those requiring licenses, partly in the interest 
 of the Excise and partly in the interest of pre- 
 serving game by restricting the number of persons 
 killing or selling it. 
 
 a. License required for sale of game.
 
 23 
 
 h. License required to shoot game. 
 
 c. The Gun Tax. 
 
 These various enactments do not all apply to the 
 same kinds of game, some include hares and 
 rabbits, others exclude them or either of 'them. 
 
 Before proceeding further to comment on the 
 policy and general results of these statutes, it may 
 be well to say a few words upon the legal status 
 of game, and to point out in what respects it differs, 
 on the one hand, from beasts or birds, which 
 having been appropriated and domesticated, are 
 invested with the attributes of property, and on 
 the other hand, from those which are so wild, use- 
 less, or noxious, that they have not even the pro- 
 tection afforded to Game. 
 
 It need hardly be pointed out that domesticated 
 animals, such as oxen, sheep, and poultry, have 
 all the true attributes of property. They have 
 been appropriated, bred, and reared, and can always 
 be fully identified. If they stray from the land of 
 their owner they do not cease to be his property, 
 nor can the occupier of adjoining land to which 
 they stray appropriate or kill them, even if they be 
 doing damage to his property ; he must drive 
 them back or pound them, and he can recover from 
 the owner any damage done by them. The really 
 wild beasts or birds on the other hand, such as 
 the Fox, Badger, Rat, or Carrion Crow and 
 Rook, have none of these attributes. They have 
 never been appropriated, they cannot be identified,
 
 24 
 
 they are not recognized as of any value, but rather 
 as destructive and noxious. The law therefore 
 declines to regard them as property, or to afford 
 them any protection, and if for the sake of the 
 sport of hunting, the fox has a fictitious value, and 
 receives a certain protection, in order that it may 
 afford sport to those who follow the hounds, it is 
 not such a value as is in any way recognized by 
 law. Midway between these and the domesticated 
 creatures lie those species which are generally 
 included in the term 'game.' They differ from 
 the domesticated species in. that they have not been 
 appropriated and cannot be identified. They differ 
 from the species at the opposite end of the scale in 
 that they have a value when captured. 
 
 More closely, however, to the domesticated 
 creature lies the pigeon or dove. The wild pigeon 
 does not come under the head even of game. The 
 domesticated pigeon, or dove, closely approxi- 
 mates to the condition of poultry. The law however 
 which applies to the latter is not altogether free 
 from difficulty and doubt. In feudal times pigeons 
 were, like game, the special right of the Feudal 
 Lord ; the erection of a dovecote was a ' liberty 
 seignorial ;' and it was not till a comparatively late 
 period that even a freeholder or a copyholder could 
 erect one without the consent of the Lord of the 
 Manor ; it followed that pigeons, often kept in 
 such numbers as to be a positive nuisance to the 
 neighbourhood, were fed at the expense of the 
 neighbouring farmers. Under the present state of 
 the law, pigeons are the property of the person
 
 25 
 
 who breeds them, they are for the most part capable 
 of identification, they frequent the same dovecote, 
 they fly in flocks together, they can be the sub- 
 ject of larceny, if taken in the dovecote, even where 
 they have the full opportunity of getting out and 
 enjoying themselves in the air ; if they wander ofl" 
 the land of their owner, they do not cease to be his 
 property, nor is it the right of any person on whose 
 land they light to kill and appropriate them. If 
 they do injury by taking his seed or corn, he may 
 drive them away, and only in the event of their 
 doing repeated and serious damage to an extent 
 which becomes a positive nuisance would it be 
 right in him to kill them, and even in such case 
 the dead birds remain, it is believed, the property 
 of their owner. The live birds do not appear to 
 have acquired fully the status of property so 
 as to be treated as personal property on the 
 death of the owner. They descend to the heir- 
 at-law with the land. It is not lawful for a man 
 to keep pigeons at the expense of his neighbours, 
 to feed on their crops and their recently sown corn ; 
 but if he keeps no more than is reasonable, having 
 regard to his own steading, and if he provides them 
 with food at home in reasonable sufliciency, he has 
 a right to expect that when they light on his neigh- 
 bour's land they will be treated as still his j^ro- 
 perty, and not be sacrificed either to a love of sport 
 or to the unreasonable alarm of petty damage. It 
 is doubtful, however, whether, except when in the 
 dovecote, they can be the subject of larceny, and 
 a special statute was passed (7 & 8 Geo. IV. c. 39)
 
 26 
 
 imposing a penalty upon persons who should unlaw- 
 fully and wilfully kill or take house doves or pigeons 
 under such circumstances as shall not amount to 
 larceny at common law. It appears also that the 
 excessive breeding of pigeons may be a common 
 nuisance, and be indictable as such. The case of 
 pigeons is the more worthy of attention, and has 
 been explained at length, because in many respects 
 pheasants, when reared by hand, as is now so often 
 the case, very closely approximate to them. 
 
 The Swan is another bird nearly allied to the 
 domesticated creature. If swans be reduced into 
 possession of a private person, they become his 
 property, but if the swans be at liberty on a river, 
 they are the prerogative of the Crown, and in some 
 cases have been granted by ancient charter from 
 the Crown, as in the case of the swans on the 
 Thames, which are the privilege of the Corporation 
 of London, although they have been bred on the 
 land of private owners and are often astray on 
 such land. 
 
 If a swan the property of a private person be 
 astray, but shows an intention of returning to its 
 own water, it is deemed to be private property. 
 It may be doubted, however, whether it can be the 
 subject of a larceny, except where it is taken 
 from the land of its owner under circumstances 
 which make it certain that it had been appropriated. 
 
 The case of Deer, again, presents some difficul- 
 ties and anomalies. In their wild and unappro- 
 priated state they are not property ; neither are 
 they game within the meaning of the game laws ;
 
 27 
 
 but they are the subject of special laws, directed 
 against persons who unlawfully kill them. If, how- 
 ever, they have been reduced into possession, and 
 tamed and reclaimed from their wild state, they 
 acquire the status of property, and will pass to the 
 executors of the deceased owner, or on his bank- 
 ruptcy, can be seized by his assignees and sold 
 away from the land, and in such case they are 
 the subjects of larceny. In large parks, how- 
 ever, where the deer are not tamed or reclaimed, 
 they cannot be said to be property; in such 
 cases they pass like rabbits in a warren, or like 
 pigeons in a dove house, with the land itself to the 
 heir at law, and cannot be treated as personal pro- 
 perty distinct from the land. 
 
 Ducks when domesticated are the subject of 
 property in the same manner as poultry, but in the 
 wild state, do not even come into the category of 
 game. It appears, however, that a decoy for ducks 
 is recognised by the law as a kind of trade, giving 
 to the owner a certain right, on the ground that 
 although it tends ' to spoil gentlemen's game, yet 
 it brings money into the land ' ; it is, therefore, 
 unlawful to fire off guns or otherwise to disturb 
 and injure a decoy, and whoever does so is liable to 
 an action at law for civil damage. 
 
 On the other hand Rooks are not recognized 
 at law as birds entitled to any protection, even 
 under the game laws. It is said of the rook, '' that 
 it is not supposed to cost anything for its main- 
 tenance ; its attributes are ' fera natura ' and de- 
 structiveness, and neither by common law nor by
 
 28 
 
 statute is it deemed as a profitable food." Rooks are 
 elsewhere spoken of as ' noyful fowl/ and though, 
 in modern times, a rookery has come to be con- 
 sidered as a pleasing accessory to a gentleman's 
 park, affording a certain amount of sport at the 
 time when the young rooks are just coming off the 
 nest, yet it does not appear that it has acquired any 
 status in the eye of the law, and no action will lie 
 for the disturbance or destruction of a rookery, 
 however wilful pr wanton. 
 
 Passing now to the further extreme, the law 
 gives no protection to such creatures as Squirrels 
 and Hedgehogs ; they are not property, and have 
 no protection under the game laws. Badgers and 
 Ferrets are considered such noxious animals that 
 not only is no protection afforded to them, but it is 
 held that no action of trespass is maintainable for 
 foUomng them on to the land of a stranger, digging 
 them out and killing them. So, also, it has been 
 held of the Fox ; but no more should be done than 
 is necessary to kill the fox, if it be followed into 
 the land of another ; and this law can only hold 
 good now in those parts of the country where the 
 fox is still considered to be a nuisance and not the 
 subject of the so-called noble sport of hunting. 
 It was endeavoured, on the same ground, to sus- 
 tain the right to follow the hounds over the lands 
 of those who objected to hunting; but Lord Ellen- 
 borough directed the jury, in an action for civil 
 trespass against a gentleman who was hunting the 
 fox for his own pleasure, that if they were satisfied 
 that the good of the public had not been the sole
 
 29 
 
 object, they should find for the plamtiff ; thus 
 negativing the right to follow the hounds over 
 another man's land. And in another case of the 
 same kind, where an action for trespass was 
 brought against the huntsman of the Berkeley 
 hunt, it was held that the damages for which he 
 was liable, did not extend merely to the individual 
 act of the huntsman himself, but to such mischief 
 as had been occasioned by those who followed him 
 in the hunt. 
 
 Of the smaller birds not included under the 
 term game, with the exception of ' woodcock, snipe, 
 and quail,' the law till recently took no notice. 
 Mr. Auberon Herbert, however, in 1872 persuaded 
 ParHament to give protection during the breeding 
 season to a certain number of the feathered tribe, 
 such as robins, finches, and to most of the rarer 
 varieties of small birds ; but Parliament excluded 
 blackbirds, thrushes, sparrows, and even larks from 
 this protection. In respect, however, of both 
 classes, no other protection is given. They are in 
 no sense property, they have no protection under 
 the game laws, and no criminal proceedings can 
 issue for their destruction by trespassers during the 
 open season. 
 
 We now come to those birds and animals included 
 in the term game. Properly speaking the list is a 
 small one, and the definition of game in the Act of 
 1831 includes only hares, pheasants, partridges, 
 grouse, blackgame and bustards ; and does not 
 include rabbits, woodcock, snipe, and quail. These 
 latter, however, are included in the principal pro-
 
 9 
 
 
 
 vision which imposes a penalty for trespassing in 
 pursuit of game. Rabbits are also included in 
 the terms of the Night Poaching Act and the 
 Poaching Prevention Act of 1862 ; they are not 
 included, however, in the clause which imposes a 
 penalty on farmers who in breach of their agree- 
 ment with their landlords kill game on their farms. 
 
 It may be inferred that any civil contract also 
 which only specifies game does not include rabbits. 
 In this, therefore, and in the exclusion of rabbits 
 from the provision directed against farmers, con- 
 stitutes the onlv difference between rabbits and 
 other game. To all intents, therefore, rabbits may 
 be treated on the same footing as game, for prac- 
 tically they are accorded the same protection. 
 
 Now although game, and also rabbits, snipe, 
 quail, &c., are recognized by the law as of a certain 
 value, and are protected under the game law, they 
 are equally with the baser species already alluded to 
 and for the same reasons, not considered as property 
 by the law of England. They differ, it is true, in 
 this respect, that they have value when killed, but 
 they are wanting in the essential elements of pro- 
 perty, namely, appropriation and identification. 
 Game, in its wild nature, has ex hypotliesi not been 
 appropriated ; it wanders from field to field, regard- 
 less of ownership ; it cannot be identified. No 
 gamekeeper can swear to the identity of hares, 
 rabbits, partridge, or even, except in very rare 
 cases, of pheasants. The law, therefore, has rather 
 of necessity, arising from the stubborn facts of 
 nature, declined to recognize them as property,
 
 31 
 
 and a poacher who has wrongfully taken game 
 cannot be indicted for larceny. Game in a qualified 
 sense is the property of the owner of the land on 
 which it is taken, and not of the person who kills it ; 
 and under the Act of 1831, as already stated, the 
 remedy for wrongfully taking game is not larceny, 
 but trespass for going upon land in pursuit of it. 
 
 But for the fact that it appears to be so little 
 known, even to many who are in the habit of dis- 
 cussing the game laws, and that it is often suggested 
 that the trespass laws would suffice in lieu of 
 game laws, it would scarcely be necessary to point 
 out that by the law of England simple trespass is 
 not an offence for which a person can be subjected to 
 any criminal process, however small. To constitute 
 a criminal offence, trespass must be accompanied 
 by some malicious damage to property, such as 
 breaking down fences or trampling cropSj and the 
 offence then consists rather in the damage to the 
 property than in the trespass. The only means 
 landowners or occupiers have of dealing with tres- 
 passers is to warn them off their property, and if 
 the trespassers neglect or decline to go, it is then 
 permitted to the landowners or occupiers to eject 
 them forcibly, using such force only as is necessary 
 for the purpose. There is also a civil remedy 
 against a trespasser, but only the value of the 
 damage done can be recovered. So careful indeed 
 has the law been not to allow harm to be done to 
 innocent trespassers so long as they do no damage 
 to property, that it has been held to be illegal to 
 set spring guns or dangerous traps in woods or
 
 32 
 
 elsewhere in the hope of injuring trespassers, and 
 therefore of deterring others from entering. 
 
 The Act of 1831 is in the main a discriminatinor 
 trespass law. Trespass, otherwise not criminal, 
 becomes so if the person be in pursuit of game, and 
 is punishable, if in the day time, by a penalty of 
 4O5, and, if in the night time, by imprisonment 
 with hard labour. 
 
 It is important to observe that the offences 
 against the game laws are not in the nature of 
 public offences, but rather of private wrongs. It 
 does not at all follow because a man is in pursuit 
 of game on another man's land, that he is therefore 
 committing an offence against the law ; the offence 
 is in his doing so against the will of the occupier or 
 landowner ; the occupier or landowner, if he does 
 not preserve game, may be careless on the point 
 whether his grounds are entered or game taken or 
 not ; and if he cares not to enforce the penalty, it 
 is certainly not the duty of any other person to 
 prosecute for the trespass. It is an affair between 
 the landowner or occupier and the trespasser, and 
 it is not one in which the public are interested ; and 
 this is so far recognized that the information for 
 trespass must issue at the instance of the person 
 aggrieved, or by his authority, and the costs of 
 prosecutions under the game laws form an excep- 
 tion to nearly all other cases, and are never paid 
 by the public. The game laws, in fact, afford 
 the means of enforcing private rights, and the ^v^rong 
 committed by a trespasser in pursuit of game is 
 not in the nature of a public wrong which the com-
 
 9 
 
 3 
 
 munity is much interested in detecting, preventing, 
 or paying for. 
 
 The Poaching Prevention Act of 1862 appears 
 to have made an exception to this rule. It gave 
 for the first time power to the Police to act in game 
 cases, and has made them, to some extent, game 
 preservers. Under this Act the police are entitled 
 to arrest and search persons on suspicion that they 
 have been illegally upon land in search of game. 
 It also enables the justices to convict without 
 any direct evidence that the accused have actually 
 been trespassing on the land of some person who 
 objects, and practically throws the onus of proving 
 his innocence upon the accused. If, for instance, 
 tAvo or more men are observed by the police going 
 along the road, in the early morning, under any 
 circumstances which raise the suspicion that they 
 have been engaged in poaching, the police may 
 arrest and search them, and if game be found on 
 their persons, the justices are entitled to convict 
 them, upon the same grounds of suspicion, if the 
 accused should not be able to show that they law- 
 fully obtained possession of the game. The power 
 thus given to the police and to the justices is very 
 great, — greater than in the case of any other pro- 
 perty ; with the exception of a few cases in the 
 interest of the Revenue, or in the interest of the 
 public, such as that of Naval Stores, where the 
 accused may be called upon to prove his ignorance, 
 by shewing where he obtained the articles, the law 
 requires in all cases proof of guilt to be tendered by 
 the prosecutor, and does not put the accused to proof 
 
 D
 
 34 
 
 of his innocence. In this respect, therefore, the 
 Poaching Prevention Act has extended a greater 
 sanction to game than is given to most other pro- 
 perty. In Scotland, however, the judges have 
 interpreted the law differently, and have held that 
 neither the arrest nor the conviction is justified, 
 unless there be evidence to show that the accused 
 has been trespassing illegally on the land ot some 
 person who objects to it. Under this ruling of the 
 judges the Act has proved to be quite inoperative 
 in Scotland. 
 
 It might perhaps be presumed that as game is 
 not property, and as the only process, under which 
 it can be preserved against destruction by un- 
 authorized persons, is that of trespass, it would 
 follow the land on which it is to be found and on 
 whose crops it feeds, and that no right could be 
 asserted in it independent of the occupier of the 
 land^ who owns also the growing crops. It is not 
 so, however. The law fully recognizes the possi- 
 bility of severing the game from the occupation of 
 the land, and the right of sporting from the right 
 of cultivating the soil. It has already been pointed 
 out that by the Act of 1831, in the absence of any 
 reservation by the landlord in his lease, the game 
 and the right of sporting is the privilege of the 
 occupying tenant, but it is also possible for the 
 owner of the land, in any lease or contract for 
 letting the land, to reserve to himself the right or 
 privilege of entering upon the land for the purpose 
 of killing the game and rabbits, to the exclusion 
 not only of the public but of the occupier, lessee,
 
 Q 
 
 5 
 
 or tenant himself, and he can also assign this right 
 to any other person; thereby creating two tenants 
 in respect of the same holding, the one a farming 
 tenant, the other a game tenant, without any 
 privity between them or community of interests. 
 
 The Act of 1831 has also enforced this right of 
 reservation by making it a penal offence for a tenant 
 or occupier, where the landlord has reserved the 
 game, to take or destroy game upon his holding, 
 punishable by a fine of £1 for every head of game 
 then taken, or by imprisonment in default of pay- 
 ment. In this provision it has been already pointed 
 out that rabbits are not included. A tenant farmer 
 therefore may destroy rabbits on his farm without 
 being subject to any criminal proceedings, and sub- 
 ject only to the civil remedy which, under the terms 
 of his lease or holding, the landlord can resort to if 
 rabbits are named in the agreement which reserves 
 the game. 
 
 As regards the labourers at work on the farm, 
 who cannot be said to be there as trespassers, it is 
 held that if they neglect their duty and snare or 
 destroy game, they become ipso jacto trespassers, 
 and can be proceeded against under the Act of 
 1831, by the occupier of the land or by the landlord 
 if the right of sporting be reserved. 
 
 Kot only, therefore, can the landlord prosecute 
 an outsider for trespassing in pursuit of game on 
 land which is in the occupation of his tenant, but 
 he can prosecute the labourers at work on the farm 
 if they take game upon it, and he can prosecute 
 the occupying tenant himself for killing game bred 
 
 D 2
 
 o 
 
 G 
 
 upon the land and fed upon tlie result of his own 
 farming. 
 
 What the law thus permits and has thus for- 
 tified by unusual precautions (for in very few 
 cases can a breach of contract be punished crim- 
 inally) has become the custom. It may be said 
 that the all but universal practice throughout the 
 country is, that farming land is let with a reserva- 
 tion of game in favour of the landlord and with 
 more or less stringent covenants on the part of the 
 tenants, binding them to preserve the game or to 
 enforce the law against outsiders who trespass in 
 pursuit of game. 
 
 Judging from the tenor of the debates on the Act 
 of 1831, it would seem that it was intended, by 
 the passing of that Act, to benefit the tenant farmers 
 by securing to them the game on their farms where 
 there was no reservation, and it was evidently ex- 
 pected that in the majority of cases there would 
 be no reservation of game by the landlords. But 
 custom has prevailed against the intention of the 
 legislature and the all but universal rule is for 
 landlords to reserve the game on letting their 
 lands. 
 
 In many parts of the country it is almost im- 
 possible for a farmer to hire a farm where he 
 has control over the game; he would be shut 
 out from his profession if he insisted on this. The 
 severance of the enjoyment of game from the 
 occupation of the land is a well recognized fact 
 and almost a condition of the existing relations of 
 landlord and tenant. It may be traced directly to the
 
 '37 
 
 influence of the feudal laws, under which the right 
 of sporting was a seignorial privilege. The feudal 
 lords for long strove successfully to maintain their 
 hold over the hunt, the hawk and the sport, and even 
 when the feudal system was on its decline, the right 
 of sporting was for many centuries confined to the 
 gentry and their servants ; and although it can no 
 longer be claimed as aright by landlords independent 
 of contract, yet the custom w^hich had its origin in 
 right in former days has been stereotyped in our 
 social habits, and in the relations of landlords and 
 tenants. The prevalence of large landed properties, 
 and the all but universal custom for land to be cul- 
 tivated not by its owners, but by tenant farmers, 
 a class comparatively little known in any other 
 country than Great Britain, whether in the old or 
 new world, has also tended to sustain the custom 
 of game preserving and of game reservation by the 
 landlords, and has prevented the more natural 
 combination of occupation of the land and control 
 of the game over it. 
 
 To complete this review of the legal position of 
 game, it should be added, that the law of England 
 gives no remedy to the tenant farmer against his 
 landlord for damage done to his crops by game re- 
 served under the lease^ however great the damage, 
 and however much the game may have increased 
 beyond what it was at the commencement of the 
 tenancy, unless there be a special agreement on this 
 point. In the absence of such agreement the land- 
 lord or his game tenant may allow the game to 
 increase to any extent, and to do any damage to
 
 38 
 
 the crops of the farming tenant without fear of 
 having to make redress. In Scotland the law is dif- 
 ferent, and the tenant can claim compensation 
 where the game has increased beyond what it was 
 at the outset of the tenancy. The cases, however, 
 where such claims have been made good are most 
 rare, and there is admittedly the greatest diffi- 
 culty in estimating the damage done to growing 
 crops by game. The damage by game is not confined 
 only to the actual value of food consumed by it, 
 hares and rabbits spoil much more than they con- 
 sume, and the farmer is deterred from doing his 
 best to obtain produce from the soil by the fear 
 that he is only adding to the food for game and 
 wasting his capital and time. 
 
 In no case does the law recognize a claim against 
 an adjoining proprietor for damage done by his 
 game, unless it amounts to a common nuisance; 
 short of this, the only remedy is to shut out the 
 hares and rabbits by wire netting or to kill them. 
 
 The silence of our law on this most important 
 point is in striking contrast to the jurisprudence of 
 the Continent. In France, and in other countries, 
 where the Code Napoleon has been adopted, the 
 provisions of the Code have been construed, so as to 
 give most ample protection to landowners and 
 occupiers against damage done by game coming 
 from the lands of their neighbours. 
 
 It is fully recognized that it is the obligation of 
 the proprietor of a wood dr forest to keep down 
 the game, and especially rabbits, by all reasonable 
 means, so that his property may not become the
 
 39 
 
 harbour, from which the game may make incursions 
 upon the crops of neighbouring proprietors. If 
 the proprietor, by preserving the game, by abstain- 
 ing from shooting it, by putting down rabbits and 
 other game to breed, or by allowing old warrens 
 and rabbit holes to exist where rabbits may be 
 harboured, allows the game to be in excess, he 
 must pay the penalty by recompensing his neigh- 
 bours for any damage done by it ; and the game 
 tenant of a wood or forest stands in this respect in 
 the same position as his landlord. 
 
 It is recognized, however, that a certain quantity 
 of game is a necessary incident to a wood, and that 
 even extraordinary exertions will not entirely 
 remove the evil. To relieve himself of all possible 
 responsibility, it is advisable that the proprietor of 
 a wood should give leave to his neighbours to follow 
 the rabbits into the wood and there destroy them, 
 or should invite them to join in battues for their 
 destruction. 
 
 As between landlord and tenant the law is 
 equally explicit and just. If the farmer, by his 
 lease, has agreed to reserve the game to the pro- 
 prietor, he has no ground of complaint against the 
 latter, if the game, of which he complains, comes 
 from the land let to him, or the hedges or little 
 covers comprised in his holding ; but on the other 
 hand, the reservation of the right of sporting to 
 the proprietor does not prevent the farmer from 
 destroying the game which comes from beyond his 
 holding to ravage the produce of his land, and the 
 farmer may employ engines of destruction against
 
 40 
 
 such game, during the harvest time, without com- 
 mitting an offence against the game laws, or 
 infringing the contract with his landlord. 
 
 If on the other hand the game, of which he com- 
 plains, comes from woods in the hands of his 
 landlord, not included in his lease, he has the same 
 rights against his landlord as against any other 
 neighbouring landowner, with whom he has no 
 relations. It would appear also that even where 
 the game is reserved, if the landlord does not take 
 reasonable steps to keep it down, the tenant has a 
 claim against him for damage done to his crops ; 
 and even where, under his lease, the farmer has 
 renounced any action against his landlord, either 
 in respect of game bred on his farm, or in respect 
 of game coming from adjoining covers, yet if the 
 landlord, or his game lessee, does nothing to prevent 
 the ravages of the game, and the damage assumes 
 a great proportion, the law holds that the farmer 
 could never have consented to so terrible a con- 
 dition, which would make his position insupport- 
 able, and enables him to sustain a claim against his 
 landlord, notwithstanding the clause in his lease 
 excluding such claim. 
 
 Numerous cases have also established the prin- 
 ciples on which the measure of damages, in the case 
 of destruction of crops by game, is to be assessed^ 
 so as to cover not only the actual loss, but the 
 amount which would have been realized by the 
 farmer, if his land had not been overrun by game. 
 In Belgium a special law provides that the indem- 
 nity to be recovered by the farmer, in the event of
 
 41 
 
 damage to his crops or fruit by rabbits, shall be 
 estimated at double the actual loss. 
 
 The subject of the damages caused by game, as 
 treated by the French law, hns been ably dealt 
 with in a treatise by M. Sorel, which is well worthy 
 of the attention of those who interest themselves 
 in this branch of the subject, with reference to this 
 country. 
 
 Such being, briefly stated, the present law on 
 the subject of game audits historical derivation, we 
 may proceed to examine into its results. This task 
 is the more easy as twice within recent years 
 Committees of the House of Commons have taken 
 evidence on the subject at great length, and we 
 have the fullest and most comprehensive view of 
 all the evils which are complained of, whether by 
 the tenant farmers looking at the question from 
 their own point of view, or from others in the in- 
 terest of the general public. The latest Committee 
 sat throughout the sessions of the years 1872 and 
 1873, and comparing the evidence taken before it 
 with that taken by the Committee of 1845, it is 
 impossible not to come to the conclusion that the 
 preservation of game has increased in the interval, 
 and that all the evils complained of in the earlier 
 year have since been aggravated. The complaints 
 are twofold, those in the interest of the tenant 
 farmers and those in the interest of the more gene- 
 ral public. The complaint of the tenant farmers 
 is to the effect that preservation of game presents
 
 42 
 
 great and increasing obstacles to good farming and 
 to agricultural improvements, and that it is highly 
 unjust that game should be fed at their expense, 
 especially in the case of hares or rabbits, which 
 spoil far more produce than they consume. The 
 complaint from the more general public view 
 is, that preservation of game leads inevitably 
 to poaching, that the labouring class do not 
 and will not be persuaded to regard poaching 
 as a crime, and that consequently large numbers 
 of young men are tempted to break the law, and 
 are subsequently led on to more serious offences ; 
 and further, that by the obstruction to good farm- 
 ing, caused by over preservation of game, the gross 
 produce of the soil of the country is much less than 
 it ought to be. Making every allowance for the 
 highly coloured statements of many of the wit- 
 nesses, it must be admitted that there is much 
 ground for these complaints. 
 
 It is matter of common knowledge that the pre- 
 servation of game is on the increase, that the reser- 
 vation of game by landlords is almost universal, 
 and that leases contain often elaborately devised co- 
 venants, binding the tenants not only to refrain 
 from killing game themselves, but to assist in pre- 
 venting poachers coming upon the land for that pur- 
 pose ; it is also certain that the fashion for battues 
 has greatly extended, and that where some years ago 
 it was thought a good day's sport for a party of 
 gentlemen to kill 100 or at the utmost 200 head of 
 game, at the present time such bags are considered 
 below the average, and not unfrequently upwards
 
 43 
 
 of 1000 head of game are killed within the day. 
 The increase has undoubtedly been mainly in the 
 direction of winged game, and a tendency has been 
 manifested in many quarters to discourage the ex- 
 cessive preservation of ground game. The Com- 
 mittee of 1872-3, in which game preservers were 
 largely predominant, state that 
 
 " They are satisfied that the practice of keeping up an ex- 
 cessive quantity of grouud game is by no means general either 
 in England or in Scotlaod, and the evidence goes to show that 
 during the last few years there has been in parts of the country 
 a considerable diminution of both hares and rabbits on culti- 
 vated grounds." 
 
 They proceed to condemn in the strongest terms 
 the practice of keeping up a stock of ground game 
 on cultivated lands : — 
 
 " There can be no question that the existence of a large 
 number of hares and rabbits upon an arable farm is most pre- 
 judicial to its profitable occupation, and your Committee cannot 
 too strongly reprobate the practice of some landlords and their 
 shooting tenants of keeping up a large stock of those animals 
 on cultivated lands, to the injury of the crops of the farming 
 tenants." 
 
 They recommend also the exclusion of rabbits 
 from the laws protecting game, and hares were only 
 saved from the same treatment by a majority of 
 one. 
 
 A careful review of the evidence will convince 
 most readers that the Committee were over san- 
 guine in their belief that the excessive preservation 
 of hares and rabbits has been much diminished. It
 
 44 
 
 is true that many of the best landowners have 
 waged war upon their hares and rabbits, and that 
 some game preservers have devoted their energies 
 mainly to winged game; but it is clear that there 
 is still great ground for complaint on the part 
 of the tenant farmers, and the growing neces- 
 sity for improved and more scientific farming has 
 rendered the nuisance of ground game and of 
 excessive preservation yearly more felt. It is also 
 certain that the practice of letting the shooting 
 by the owner of the land has increased of late 
 years, and is the cause of greater complaints on 
 the part of the tenants. 
 
 As between themselves and their landlords the 
 tenant farmers do not always raise or feel the same 
 objections. They retain the hope that the interest 
 of their landlords where not obscured by an exces- 
 sive love of sport, may protect their tenants 
 from an overplus of game, but where the shooting 
 is let by the landlord, an outsider comes in who 
 has no relation with the tenant, who looks only to 
 his sport, to whom it is matter of indifference what 
 happens to the crops provided he gets his game, 
 and it need hardly be said that the farmer views 
 with aggravated bitterness the destruction of his 
 corn and turnips by the rabbits and hares bred for 
 the amusement, not even of his landlord but of an 
 outsider with whom he has no relation or sympathy. 
 Mr. Read, M.P., says there is no community of 
 interest between the game tenant and the agricul- 
 tural tenant, whose land is generally speaking his 
 means of livelihood. Colonel Robertson, the Chief
 
 45 
 
 Constable of Hertfordshire, alliuling to this subject, 
 said : — 
 
 " 278. Too many covers are let to extraneous people,who come 
 from all parts of the country, mostly from London, who do 
 not care one single pin about the farmer or his crops. If you 
 could do away with that there would be no complaint about 
 the game," 
 
 It is to be feared that the last statement must be 
 taken cum grano salts ^ but it is undoubtedly the 
 fact that the letting of the shooting by landlords 
 to game tenants is a great cause of discontent 
 among farmers. 
 
 On this point the Committee of 1872-3 speak as 
 follows : — 
 
 " In parts of Scotland it is a common practice for a landlord 
 (who, in addition to the reservation of game by law, reserves 
 rabbits by agreement) to let to a stranger the right of shooting 
 over cultivated farms when they are adjacent to his moors. 
 The shooting tenant, between whom and the agricultural 
 tenant there is no common bond of interest, having generally 
 to pay a considerable rent, not unfrequently keeps up an 
 excessive head of game, and the farmer whose crops are in- 
 jured by their depredations has no redress except by the 
 distasteful process of suing his landlord, and leaving him in 
 turn to recover from the shooting tenant. The same ground 
 of complaint exists in England where the shooting is let to a 
 third party, and in such case the grievance is aggravated by 
 the fact that the tenant has no legal claim against his landlord 
 except under special agreement." 
 
 The Committee appear to have been anxious to 
 throw the onus of the charge upon the Scotch 
 owners, but in fact the evil is by no means confined 
 to Scotland, it is equally prevalent in some parts 
 of England.
 
 46 
 
 It is not as it used to be in olden time, when 
 country gentlemen were more at home and had less 
 facilities for travel. Then the squire was content 
 if he could go out with a friend and shoot a mode- 
 rate head of game over his tenant's land, and take 
 the opportunity of talking with his tenants and 
 looking at their crops. In these days shooting has 
 become a more serious affair. The fashion of 
 battues has given a taste for blood, and in many 
 parts of the country sportsmen are not satisfied 
 unless game by the hecatomb fall to their guns ; 
 and it has resulted that not only pheasants, part- 
 ridges and" grouse are strictly preserved with a 
 view to secure these great bags, but in order to 
 fill up the day's sport hares and rabbits must be 
 equally prolific. But for hares and rabbits the 
 balance of evidence is to the effect that but little 
 complaint would be made by farmers. Partridges, 
 it is admitted, do little or no harm ; they probably 
 do more than an equivalent good in destroying 
 insects. Pheasants can only do harm during the 
 very short interval when the harvest is ripe ; at 
 other times if they are to be preserved in any 
 number they must be well and frequently fed in 
 the covers. Grouse only come down to the culti- 
 vated grounds for purposes of mischief during 
 a late harvest. The true enemies to the farmer 
 are the hares and rabbits. The rapid multiplication 
 of rabbits is well known, and has been from the 
 earliest times the subject of complaint by farmers. 
 Pliny tells us that the inhabitants of Minorca peti- 
 tioned the Emperor to send them troops to aid in
 
 47 
 
 ridding their island of the rabbits, who destroyed 
 their trees and undermined their houses ; and even 
 in these days on some soils the pest of rabbits can 
 only be kept, down by constant exertions and by 
 using every implement of destruction against 
 them. Not only is the amount of food they eat 
 very considerable, but they destroy a great deal 
 more. Where a farm is overstocked with hares and 
 rabbits, no excellence of farming will avail. 
 
 That farmers themselves are not averse alto- 
 gether to game is abundantly clear not only from 
 the evidence but to every one who has any know- 
 ledge of the class. In the rare cases where, holding 
 under corporations or under non-preserving land- 
 lords, they have the right to shoot over their own 
 farms, they generally become game preservers ; 
 but with this difference, as is alleged, that while 
 maintaining sufhcient for sport, they do not allow 
 their farms to be overrun with game. There is also 
 every diiFerence between the feeling that your own 
 game is eating your own crops and the feeling that 
 the crops which you raise fall the prey to the game 
 of others^ suggestive of the old line ; 
 
 ** Sic vos non vobis vellera fertis oves." 
 
 As a further illustration of this, it is stated that 
 where the farmer has a right to the game no man 
 looks better after the poachers ; in fact, no poacher 
 dare venture upon such farm. Poaching is mostly 
 done by the people in the immediate neighbourhood 
 of the farm. The farmer very soon finds out who 
 the poachers are, and can guard against them, and
 
 48 
 
 he can make it the interest of his own Labourers to 
 protect the farm against trespassers. 
 
 It is also admitted that where the game 
 is reserved under the farmer's lease, whatever 
 covenant there may be as to preserving the game 
 and warning off poachers, the farmers, as a rule, 
 trouble themselves very little about it. No one 
 ever hears of a farmer prosecuting a poacher for 
 killing the game of the landlord, he leaves all this 
 to the gamekeeper. In many parts of the country 
 the farmers look upon the poachers as their friends, 
 as the natural corrective to an overtendency to 
 accumulate game. The fact is, that in the artificial 
 condition of things, where the occupation of land is 
 severed from the right of sporting, the interest of 
 the person best able to watch and preserve the 
 game is lost ; the duty falls to the gamekeeper, 
 while the increase of game, the result of his exer- 
 tions, ends in increasing the number of poachers. 
 The more keepers, the more game; the more game, 
 the more poachers, and the less interest taken by 
 occupiers in resisting their attacks. Such is the 
 vicious circle which results from high preservation 
 of game, under the condition of its complete 
 severance from the land on which it is bred, and on 
 whose produce it is fed. 
 
 Looking at the effect of the Game Laws from 
 the more public point of view, it can scarcely be 
 denied that there is some truth in the complaint 
 that they lead many people into a course of crime 
 who would not otherwise be tempted. The same 
 feeling which is the essence of sport with gen-
 
 49 
 
 tlemen, which sanctions the kilhng of gfime when 
 it does not sanction the killing of domesticated 
 creatures, except wdth some eccentric tastes m 
 the case of pigeons, is also at the root of that 
 which makes the labouring classes, as a rule, 
 look upon game as a fair subject of capture. The 
 taking of game is not, in the public opinion of those 
 classes, a serious offence. The better class of w^ork- 
 men will generally refuse to work with a man who 
 has been convicted of theft. They do not consider 
 conviction for poaching in the same light. Poach- 
 ing, therefore, presents many attractions to the 
 active young men in the country districts. It 
 is restrained, not by any public opinion, but only 
 by the fear of detection and punishment. It 
 leads many men, therefore, into a course of action 
 which ends in worse company, and in the gaol ; 
 and once in gaol, they speedily become contami- 
 nated by contact with men of criminal habits. The 
 number of commitments to gaol, however, is not 
 so large as is often represented. The Statistics 
 laid before the Committee show that in England 
 and Wales on the average of three or four years — 
 
 7000 persons are annually fined for simple day 
 trespass in pursuit of game. 
 
 1500 are imprisoned for short periods of under 
 three months duration. 
 
 70 are imprisoned for uj^wards of six months. 
 
 10 are sentenced to penal servitude. 
 
 In Ireland the convictions under the Game Laws 
 average under 500 a year. 
 
 The convictions in England and Wales appear to 
 
 E
 
 50 
 
 be very steady in iiiiinber, and the Poaching Pre- 
 vention Act of 18G2^ whatever its other effect^ has 
 not reduced the number of these convictions. 
 
 Another serious result of the game laws, or 
 rather, it should be said, of excessive preservation 
 of game, is the very large number of persons who, 
 during many months of the year, successfully prac- 
 tice poaching as a means of livelihood. In the 
 County of Herts alone, there are stated by the 
 Chief Constable to be not fewer than 300 men who 
 for several months of the year, maintain themselves 
 in a great measure by the illegal taking of game. 
 If this be a fair specimen of other parts of the 
 country, the number of professional poachers must 
 be considerable. • 
 
 If hares and rabbits were kept down, by far the 
 greater proportion of the present cases of poaching 
 would not take place. If other game were only 
 preserved in moderation, it would certainly not 
 be worth while for men to make a living out of 
 poaching ; while if the sympathies of farmers were 
 enlisted on behalf of the game on their farms, we 
 should hear little of the poaching which is due to 
 the neighbouring labourers, and which could not 
 be carried on if the farmers were really in earnest 
 to prevent it. 
 
 Many of the ulterior effects of game preserving 
 in its exaggerated form are also very mischievous ; 
 it leads to cases of local tyranny, such as forcing 
 men out of the country w^ho are known or suspected 
 to be poachers. There is also some ground for 
 complaint of the administration of the law by the
 
 51 
 
 unpaid magistrates, who are so often themselves pre- 
 servers, and who at times impart into judgments 
 on the subject of game a degree of acrimony and 
 prejudice which results in injustice. 
 
 A further ulterior effect of exaggerated game 
 preserving is the impetus it gives to the aggrega- 
 tion of properties and to the squeezing out of small 
 freeholders. There is nothing so hateful to the 
 game preserver as the small freehold, where the 
 game may be taken in transitu. It is therefore a 
 great object with such men to buy up such small 
 freeholds even at extravagant rates wherever it be 
 possible, and this action accounts to some extent for 
 the diminution of the number of small freeholds. 
 
 Another indirect evil of the present state of 
 
 game preserving is that so many men of the upper 
 
 classes are brought up in the belief that sporting 
 
 is the great end and object of civilized life. 
 
 Hundreds of young men of the present generation 
 
 have been ruined by this folly. This country 
 
 is not large enough for them ; they ransack the 
 
 world for fresh fields for their gentle prowess; 
 
 they roam over the world to the centre of Africa 
 
 or the hills of India in search only of game ; and 
 
 all this enterprize and activity is thrown away upon 
 
 the most useless sport without leaving a trace of 
 
 any benefit to the actor or the world. It may be 
 
 doubted whether the sportsmen of England have 
 
 contributed a single fact of any importance to science 
 
 or to natural history. The same fashion has also 
 
 created a false ideal of life. It is considered by 
 
 many engaged in industrial pursuits that one of 
 
 E 2
 
 52 
 
 the highest objects of ambition which can be aimed 
 at in life, is to become a game preserving landowner 
 on a great scale. 
 
 The conclusion which is justified on review 
 of all that has been written and said about the 
 Game Laws, and especially from the evidence taken 
 before the Select Committee, is that the grievance 
 of the Game Laws is first and mainly a farmer's 
 grievance. 
 
 In Ireland, where the practice of strict j)reserva- 
 tion has never been followed, probably on account of 
 the very small extent of the farms and the number 
 o^ persons always on the land, there is no game 
 question. Game is by no means extinct, but no com- 
 plaints are made either by farmers or by the public. 
 
 In England, however, it is very different, and 
 there is strong ground for the Legislative inter- 
 ference. Excessive preservation has become a 
 great impediment to good farming, and therefore 
 to the production of food, while it has greatly in- 
 creased the inducements to poaching, aud the 
 putting in force of laws, some of which are still 
 very severe, and too often administered with harsh- 
 ness or carelessness. 
 
 To point out an evil, and to devise a remedy, are 
 two very distinct tasks, and to many the difficulties 
 of interfering with the existing Game Laws have 
 appeared so great, that it has seemed to them pre- 
 ferable to leave the question to the force of public
 
 53 
 
 opinion, acting slowly upon the customs and habits 
 of landowners and game preservers, rather than 
 attempt legislation which might, in its result, dis- 
 appoint those who are most interested. 
 
 The question, however, has passed beyond this 
 stage, and as the Select Committee has proposed many 
 and important, though it is believed inexpedient 
 changes, and as other schemes of legislation have 
 been proposed, and will doubtless be again proposed 
 in substitution for that of the Committee, it is 
 necessary to submit them to a careful scrutiny. 
 
 The proposals to deal with the Game Laws may 
 be ranged under three heads : — 
 
 1. — The repeal in whole or in part of the Game 
 Laws. 
 
 2.^The giving to game the status and sanction 
 of other property. 
 
 3. — The amendment of the Game Laws so far 
 as they affect the relations of landlord and 
 tenant. 
 
 1. — Proposal to repeal the Game Laws, 
 
 It is uncertain how far those who advocate the 
 total repeal of the Game Laws wish to see the entire 
 extinction of game, and whether they include in 
 their objects the repeal of those provisions which 
 protect game time during the breeding season. 
 
 It may be presumed, however, that they contem- 
 plate at least the repeal of those provisions which 
 make it penal for any person to trespass on the 
 land of others in pursuit of game, whether by day
 
 54 
 
 or night, and whether with or without guns, nets, 
 or other implements of destruction. 
 
 It is not difficult to foretell what would be the 
 effect of such a measure. The experience of France 
 and Germany has already been adverted to. It can 
 scarcely be doubted that the same results would 
 follow in this country. Multitudes of people from 
 both urban and rural districts would avail them- 
 selves of the license, and would wander freely over 
 the cultivated districts, woods and moors, in all 
 directions, with guns and other implements of de- 
 struction. If, within a reasonable time, all species 
 of game could be totally extinguished, this free 
 spirit of trespass might come to an end, and the or- 
 dinary trespass laws might suffice in the future ; but, 
 in fact, game is not likely to be wholly extinguished, 
 however great the number of persons in pursuit of 
 it. There are parts of the country where it is 
 impossible to exterminate rabbits ; there are some 
 species of game birds, such as snipe, w^oodcock, and 
 wild duck, which are only birds of passage, and 
 which, bred in remote countries, only visit our 
 shores for a brief season. It is also not pro- 
 bable that partridges would soon become extinct, 
 however great the exertions made to destroy them. 
 It would ther^^fore result that some of the induce- 
 ments to sport would remain; and we must look 
 forward to an indefinite prolongation of the dis- 
 orders which would result from unrestrained tres- 
 pass in pursuit of game. Some would pursue game 
 only for the sport, others for gain; and we might 
 expect to see gangs of unauthorized persons beating
 
 55 
 
 covers or netting fields in such numbers, as to 
 amount to a nuisance, not only to farmers, but also 
 to the rest of society. 
 
 There would also still remain the ordinary law 
 of trespass. The law, though it doe^ not visit 
 upon an ordinary trespasser who does no damage 
 to property, any penal consequences, gives full 
 power to the owner or occupier of the land to 
 drive trespassers off the land by the exercise of 
 such force as may be necessary for the j)urpose. 
 He might therefore still by manual force eject the 
 poacher from his ground, and it might be possible 
 in many of the more thinly-peopled districts, by 
 increasing the number of watchers and by arming 
 them with guns and life-preservers, to keep 
 strangers off the land, or to make it dangerous for 
 them to attempt a naid. It is^ however, certain 
 that such action would lead to constant and dan- 
 gerous conflicts, and the remedy might -therefore 
 soon prove worse than the disease. It would still 
 be possible for landlords to require covenants in 
 their leases, forbidding their tenants to kill game 
 or rabbits, and requiring them to drive off tres- 
 passers. The tenants might therefore find them- 
 selves in the condition that, while debarred them- 
 selves from killing game on their farms, they could 
 not prevent any number of disorderly persons from 
 coming on their land in pursuit of it. 
 
 To legalize the universal destruction of game 
 it would be necessary to do more than simply 
 repeal the existing game laws ; it would be neces- 
 sary to provide expressly that all the world might
 
 56 
 
 trespass anywhere and everywhere in pursuit of 
 game, so long as they should not do damage to 
 other property, and it would be further necessary to 
 make illegal, by express enactment, any contract 
 between landlord and tenant respecting game. 
 
 The Game LaAvs, as now constituted, not only pro- 
 tect game, but act as a very moderate trespass law. 
 It is a general presumption, that persons tres- 
 passing in woods or at night with nets and guns are 
 in search of game; and magistrates, not without 
 reason, refuse to believe that they are in search 
 only of sparrows, crows, or any other non- valuable 
 species, but under the new regime, persons would 
 have free license to trespass in pursuit of any 
 kind of bird or animal not included in the term 
 property* 
 
 It is, doubtless, in view of these probable results 
 of an unconditional repeal of the Game Laws, that 
 almost all those who advocate it, are also prepared, 
 when questioned on the point, to admit the 
 necessity of adopting a more stringent general 
 trespass law, as a sequel to the repeal of the special 
 game laws. 
 
 Mr. Arch, whose opinion, upon all subjects 
 affecting the interests of the agricultural labourers, 
 is worthy of the utmost respect, after stating his 
 conviction that the game laws should be abolished, 
 added, that he was quite prepared to enact a more 
 stringent general trespass law. 
 
 His answers on this point to the late Mr. Win- 
 terbotham, in the Committee of 1872, were as 
 follows : —
 
 57 
 
 " 8225. Supposing the game laws were abolished to-morrow, 
 and supposing that I am right in saying that they cannot 
 punish you for merely walking across the land, do you think 
 that it would be good to pass a law that an occupier should be 
 able to punish you and send you to prison for going across his 
 land if you did no harm to it ? — I do not see what right 
 people have to go trespassing across other people's grounds, or 
 why there should be that looseness in the law of the country 
 to allow a man to walk about just where he pleases without 
 restriction. 
 
 " 8183. Do you think it is necessary if you did away with 
 the Game Laws that the owner should be able to punish you if 
 you go across his land ? — He should be able to punish me if 
 caught trespassing on his land ; I think that is right ; I have 
 no right to go upon any man's land, unless I have his consent, 
 and should not presume to do it. 
 
 " Do you think there is no disposition on the part of labour- 
 ing men to go upon land unless they have business there ? — No 
 there is not. I believe that hares and rabbits tempt men to 
 go on to land by seeing them on it, who, if they had not seen 
 them, would not have gone there." 
 
 Evidence to the same effect was given^by many 
 other determmecl opponents to the Game Laws. 
 
 It has not, however, occurred to these witnesses 
 that a more stringent general trespass law would in 
 fact be a game law under another name. With a 
 stringent trespass law, game, as well as any other 
 product of the soil would be protected ; but 
 there would be this addition, that whereas at 
 present trespassers doing no damage cannot be 
 punished, under a stringent trespass law, innocent 
 persons, merely walking over open fields and 
 meadows, or wandering off a footpath, without 
 doing damage to any property, would be equally 
 liable to prosecution. It is not conceivable that such
 
 58 
 
 a law would be maintained ; if passed, it might be 
 the engine of greater oppression than the game 
 laws themselves, and would be a dangerous power 
 to put into the hands of an unpaid magistracy. 
 
 The Law of England most Avisely holds that a 
 person trespassing over land without doing an}^ 
 damage to property, is not liable to any penal 
 action. To alter this law and to subject sim- 
 ple and innocent trespassers to fine and imprison- 
 ment might be very agreeable to some landowners 
 and even farmers, and would give great facilities to 
 game preservers, but it would lead to much local 
 tyranny, it would be oppressive to the general 
 public, and it is not too much to say that it would 
 not long be endured. 
 
 It should never be forgotten that the essential 
 feature of the present game law is that it is a 
 tres23ass law directed against those trespassing on 
 land in pursuit of game ; as the greater contains the 
 less, a general trespass law would include the 
 main portions of the present game law, and would 
 also include a hundred other cases which are not 
 now subject to criminal process. 
 
 On the one hand, therefore, the repeal of the 
 Game Laws if coupled with a more stringent tres- 
 pass law would lead to intolerable strictness. On 
 the other hand, if without a tresj)ass law, it would 
 lead equally to intolerable license. 
 
 The same objections apply with more or less 
 force to the proposals of the Committee of 1872-3 : 
 
 " 1. That the Day Trespass clauses should be repealed, and 
 in lieu thereof a power should be given to an owner or occupier
 
 59 
 
 to apply for an interdict against any person trespassnig on the 
 land, which when once obtained could be enforced at any sub- 
 sequent period against such person by penal process in the 
 nature of contempt of court. 
 
 " 2. That rabbits should be excluded from the game laws." 
 
 The Committee do not propose to repeal the 
 Night Poaching Act or the Poaching Prevention 
 Act ; the concession, therefore, in the first proposal, 
 as regards day trespassing, is illusory. The change 
 in the form of proceeding would not really disguise 
 the real nature of the process, while it would create 
 a new remedy against ordinary trespassers for which 
 there is no demand . It has not been shown that there 
 is any ground for taking more severe measures 
 against ordinary .trespassers. It may be further 
 asked by whom this interdict is to be applied. Are 
 landowners to be permitted to use this new weapon 
 against all trespassers on the lands in the occupa- 
 tion of their tenants ? Are they in future to* decide 
 who shall come upon their tenants' farms ? Another 
 serious objection which has been urged against 
 this proposal is, that as the interdict could only be 
 obtained after a first trespass, it would be possible 
 for organised bands to sweep the game off particular 
 districts, avoiding a repetition on the same land. 
 
 The proposal to exclude rabbits from all men- 
 tion in the Game Laws will probably be equally 
 illusory. It is not proposed that they should cease 
 to be the subject of contract between landlord and 
 tenant. It would still be open to a landlord to 
 forbid the destruction of rabbits by the farmer and 
 his men ; and when men shoidd thereafter be found
 
 60 
 
 trespassing on land with nets and guns, it is not 
 probable that magistrates will consider that their 
 object was only rabbits and not other game. It is 
 probable, therefore, that the Game Laws would 
 continue to give protection to rabbits as well as to 
 
 other game. 
 
 2. — Proposal to make Game jproperty. 
 
 It is thought by some that to make game pro- 
 perty, would give it a greater sanction in the public 
 estimation, and lessen the inducement to take it 
 unlawfully. 
 
 The question, however, at once arises, whose 
 property is it to be ? Is it to be considered the 
 property of the person on whose land it is bred, or 
 on whose land it is found ? is it to be the property 
 of the owner of the land, or of the occupier ? 
 
 Game is now, in some sense, the property of the 
 person on whose ground it is found, but it is not 
 vested with all the sanction of other property. 
 To call it property while it changes ownership in 
 going from one person's land to another, and to 
 give it the same sanction as other property, would 
 involve changing the game trespass law into a 
 game larceny law; in other words it would greatly 
 strengthen the penalties for taking game. 
 
 If, on the other hand, game is to be the property 
 of the person on whose land it is bred, we are met 
 at once by all the difficulties of identification. 
 Pheasants that are reared by hand, and afterwards 
 turned out into a wood for «port, closely approxi-
 
 61 
 
 mate to the condition of domestic [>igeons, and 
 might possibly be so treated. They would then 
 continue the property of the person who bred 
 them, although wandering on to the land of a 
 neighbour ; but if the neighbour were himself a 
 breeder and preserver of pheasants, there would 
 at once arise the difficulty of identification. It 
 would generally be impossible to distinguish the 
 pheasants of the one from those of the other, 
 and disputes of a serious difficulty would occur. 
 If difficult, however, as regards pheasants, how 
 much more so with other descriptions of game, 
 such as partridges, hares, and rabbits. The idea 
 of treating these creatures, as pigeons are now 
 treated, may be at once discarded as impossible. 
 
 In a speech delivered at an agricultural dinner, 
 in the course of the past winter, Mr. Walter, M.P., 
 is reported to have said — 
 
 " A good deal was said in the Keport of the Committee 
 about the impossibility iu the nature of things of attaching 
 any proprietary rights to game. In his opinion, the whole 
 mischief had arisen from the old feudal theory that ferce 
 natures were incapable of being made the subject of property. 
 He could never see the justice of this theory. Could any 
 quality whatever that pertained to an animal constitute so 
 good a proprietary right as the feeding of it ? If you saw a 
 number of hares eating your turnips, and running off with 
 your turnips in their bellies, they were running off with your 
 property, and the man who took them, took your property. 
 He contended that game was the property of the person upon 
 whose land it was for the time being. It might belong to this 
 landlord to-day and to another landlord to-morrow, but quite 
 clearly could not belong to a person who had no property in 
 land and with nothing to feed it."
 
 62 
 
 The premises are sound, hut they appear to 
 justify a very different concUision, namely, that 
 hares and rabbits should be the property of the 
 person who feeds them, that is, of the farmer 
 whose crops they eat, and not of the landowner. 
 The argument used would also justify the giving 
 permission to the farmer to follow the hares and 
 rabbits which are gorged with his turnips into the 
 neighbouring wood from which they issued forth to 
 feed, and there to kill and appropriate them. If, 
 however, it is really intended by the speaker that 
 game is to be the property of the landowner on 
 whose land it happens to be, the only effect of such 
 a proposal would be to increase the penalties of 
 the game laws, and to make game the subject of 
 larceny, notwithstanding that it cannot be identi- 
 fied. 
 
 3. — Proposal to amend the Law of Game as 
 between Landlord and Tenant. 
 
 It has already been shown that the main objec- 
 tion to the Game Laws from the public point of 
 view is not so much due to their existence as to 
 their abuse — to the multiplication of game to such 
 an extent that good farming is hindered, and the 
 inducements to poaching greatly increased. 
 
 It has also been shown that the practice of exces- 
 sive preservation has greatly increased, and is 
 mainly due to the complete separation which exists 
 in this country between the right of sporting and 
 the occupation of land ; that this separation is the 
 cause of wrong to the farming tenant, in that the
 
 63 
 
 produce of his labour is consumed by the game 
 wliich is for the benefit of another. 
 
 It can scarcely be doubted that if the farmers, 
 as a rule, had control over the game, there would 
 be no complaint of over preserving, they would 
 preserve only so far as was consistent with their 
 farming interests, and they would also protect the 
 game against unauthorized trespassers in a far 
 more effectual manner than any keeper could do ; 
 and the preservation of game being less, there 
 would be less inducements to poach. 
 
 The question therefore arises, whether, by any 
 legal process, the game may be annexed more 
 closely to the land, and whether it is just or expe- 
 dient to take this course ? 
 
 The law, undoubtedly, now recognizes a separate 
 estate and interest in the game apart from the 
 ownership and occupation of land. It has been 
 shown that this is itself an inheritance of the feudal 
 laws. It is enforced by the penalties which the Act 
 of 1831 imposes on the tenant who, in breach of 
 his agreement under which the game is reserved 
 by the landlord, takes game when feeding on his 
 crops. It is recognized in the validity of all con- 
 tracts reserving the right of sporting, and it is 
 further confirmed by the power which the law gives 
 to the owner of the land, or his assignee, who has 
 parted with the possession of the land, to prosecute 
 a poacher for trespassing on the land in pursuit of 
 game. 
 
 Although, therefore, the owner has parted with 
 the possession of the land, the law enables him to
 
 G4 
 
 retain dominion over it so far as tlie game is con- 
 cerned ; and it fully, therefore, recognizes a sepa- 
 rate estate in the game and the land, in the farming 
 produce and the game produce. 
 
 It would be possible in many ways to legislate 
 so as to prevent this separation, or at all events to 
 give no legal sanction to it. 
 
 It would not be inconsistent with legal principles 
 to forbid the separation of the game from the 
 ownership or occupation of ground, on the ground 
 of public policy, or on the principle that the sepa- 
 ration of these two interests results in bad culti- 
 vation, in over preservation of game, and in the 
 consequent increase of oiFences. 
 
 To effect this object in the most complete 
 manner, it would be necessary to enact that the 
 sale of land and the letting of a farm should 
 always carry with it the game, that no interest in 
 the game separate from the land should be acknow- 
 ledged by the law, or be the subject of any con- 
 tract. It might be further necessary to enact that 
 any prosecution under the Game laws should issue 
 at the instance only of the occupier of the land; 
 and it would further follow that the penalty by 
 which the Act of 1831 enforces the reservation of 
 sporting should be repealed. 
 
 It would be said, of course, that such enactments 
 would be opposed to the freedom of contract; but 
 Mr. Read, M.P. (4233), when arguing in favour of 
 applying this jDrinciple to hares and rabbits only, 
 pointed out with great force that the law inter- 
 feres ali'eady in a multitude of cases with the
 
 65 
 
 freedom of contract, between parent and child, 
 master and servant, solicitor and client, debtor and 
 collector, guardian and ward, agent and principal, 
 buyer and seller^ carrier and consigner, doctor and 
 patient, innkeeper and tippler, pawnbroker and 
 pledger, patron and presentee, captain and seamen, 
 sailors and ships, mortgagor and mortgagee, and, 
 in the case of Ireland, between landlord and 
 tenant. No general dictum, therefore, of inter- 
 ference with contracts can be opposed to such a 
 measure. It must be dealt with on general prin- 
 ciples of expediency, and though we may be 
 unwilling to interfere with contracts, where other 
 remedies are applicable, yet where, in the public 
 interest, an end has to be aimed at, contracts 
 between individuals are not so sacred or inviolable 
 as that no action in constraint of them can be 
 entertained. 
 
 In the present case it would be for the law to 
 say that no such right or property can exist 
 separate from the land itself as the right of sporting, 
 and that therefore no contract for its enforcement 
 can be good or valid. To admit the contract is to 
 create the property or right independent of the 
 soil ; and if it be desired to prevent the separation 
 of the right of sporting from the right of farming, 
 the only mode of securing this is to prevent the en- 
 forcement by law of any contract having this object. 
 
 It would not follow that the landlords would lose 
 all sport over their lands. It is probable that the 
 tenants would in many cases continue to agree with 
 their landlords to reserve for the latter the right of
 
 CG 
 
 sporting, or to allow them to shoot over their farms ; 
 but these agreements would not be binding at law, 
 and the tenants would have this security, that they 
 would retain dominion over their farms, and control 
 over the game on them ; and could at any time 
 interfere to prevent an excessive quantity of game. 
 
 It may be that in many cases landlords would 
 succeed in controlling their tenants, by declining to 
 continue the tenancies if the game were inter- 
 fered with or reduced; but the law prescribed by 
 the State would rule at least on those numerous 
 estates in the hands of trustees, in the Court of 
 Chancery, in the ownership of Corporations, or 
 where owners are under disabilities, and from these 
 there would gradually gi'ow up a different relation 
 between landlord and tenant on the subject of game 
 which would powerfully and speedily affect the 
 whole country. It may also be presumed that if, 
 notwithstanding the change proposed, it was still 
 found that the habit of excessive preserving was 
 maintained to the damage of good farming, it 
 would become hereafter necessary to adopt wider 
 and more stringent measures. 
 
 A change of this nature, although, it must be 
 admitted^ af a radical character, would be in har- 
 mony with the historic changes which have been 
 made in times past, as illustrated first by the decay 
 and destruction of the King's prerogative of sport 
 over the lands of his subjects ; secondly, by the 
 emancipation of the freehold and copyhold tenants 
 from the same pretensions of lords of manors ; and 
 lastly, by the abolition of privilege and qualifica-
 
 67 
 
 tion. These changes have been all m the dh'ection 
 of preventing the separation of game from the 
 ownership of land. It is but a step further in the 
 same direction to prevent the se]3aration of game 
 from the occupation of land. 
 
 It would appear then that the ultimate end 
 which should be aimed at in any modification of 
 the Game laws is the annexation of game to the 
 land, the preventing of any severance at law be- 
 tween the occupation of land and the right of 
 ^porting. There are, however, degrees of legis- 
 lation short of this, though in the same direction, 
 which are worthy of consideration; and as in this 
 country compromises are often come to between 
 rival principles, it is not improbable that some half 
 measure may be found more acceptable to all 
 parties than the more complete and logical one sub- « 
 mitted above. The tenant farmers of England and 
 Scotland have not generally put forward a claim to 
 all the game on the farms they occupy, but to the 
 hares and rabbits only ; and they appear to be 
 content that their landlords should have the power 
 to sever the right of sporting in respect of winged 
 game from the occupation of land. They ask that 
 they may be invested with an inalienable right, 
 concurrently with their landlords, to take and de- 
 stroy hares and rabbits on their farms. It is from 
 these animals that damage accrues to their crops ; 
 and their special grievance is confined to them. On 
 farms of moderate size the partridge shooting would 
 not be of much value from their narrow limits ; 
 and the sport could scarcely be enjoyed except over 
 
 F 2
 
 G8 
 
 an extent of land which embraces many farms of 
 moderate size. Pheasants are not commonly reared 
 except in woods and plantations, which are usually 
 in the hands of the landlords ; without the plan- 
 tations the farmers would not be able to breed or 
 retain pheasants, while the landlords on the other 
 hand could not secure their pheasants from wan- 
 dering out of the woods on to the fields of the 
 tenants. 
 
 The tenant farmers, therefore, do not lay much 
 stress upon the winged game, they rest their case 
 mainly upon the grievance of hares and rabbits. It 
 would then be quite consistent with the principles 
 already indicated, and would be a long step towards 
 the full realization of them if legislation as between 
 landlords and tenants were confined in the first 
 instance to hares and rabbits. Instead, however, 
 of making illegal any contract between landlord 
 and tenant respecting rabbits and hares, the better 
 course would be to define strictly what species 
 of game could be reserved by the landlord and 
 severed from the occupation of land, and to pro- 
 vide that while the right of killing hares and 
 rabbits may be reserved, such right shall only be 
 in exclusion of other persons, but not of the 
 occupying tenant or his servants. The effect of 
 such a provision would be to give to the landlord, 
 where the right of sporting is reserved, the exclu- 
 sive right to winged game and the concurrent right 
 with the tenants to hares and rabbits, and the 
 latter would retain the right to kill and destroy 
 these animals, notwithstanding any contract.
 
 69 
 
 Such a remedy, if adopted, would have this fur* 
 ther advantage, that it would bring the law into 
 harmony with the existing practice on the best 
 managed estates. There are many Landlords who 
 do now concede to their Tenants the right of killing 
 hares and rabbits, reserving only the exclusive 
 right of winged game, and this practice is decidedly 
 on the increase among these Landlords, who have 
 the interest of their estates and of their tenants 
 really at heart. There is no safer guide for legis- 
 lation than the growing practice, which a higher 
 morality, or better experience is inculcating among 
 those for whom it is intended to legislate. But, as 
 in the case of the Irish Land Act, those who most 
 honestly and rigidly follow the practice which they 
 feel to be imposed on them by the dictates of 
 morality or expediency, often most strongly object 
 to its being enforced by law, and imposed upon 
 those who have not followed the practice or recog- 
 nized the moral obligation. 
 
 The concurrent right of Landlord and Tenant 
 would have this further advantage, that the land- 
 lord could prevent the undue multiplication of 
 rabbits and hares upon the holding of any of his 
 tenants, which might result either from the negli- 
 gence or love of sport of such tenant, or which 
 might, in its turn, become a nuisance to neighbour- 
 ing tenants or an obstruction to good farming. 
 
 The Committee of 1873-4 deal with this ques- 
 tion as follows : — 
 
 " They consider that no landlord should object to the in- 
 eci'iion of such engagements in his leases or agreements as will
 
 70 
 
 ensure the keeping down of ground game within moderate 
 limits, and that no tenant should enter upon a farm without 
 securing protection from loss by such engagements on the 
 part of the landlord, and they are satisfied that no means so 
 efficient for the purpose can be devised as the concession to 
 the tenant of the power to kill the ground game upon his 
 farm either exclusively or concurrently with his landlord. 
 
 " The opinion has been strongly pressed upon us by some 
 witnesses that a concurrent inalienable right to kill hares and 
 rabbits should be given to the tenant by law. They are con- 
 vinced, however, that means would be found of evading such a 
 law by some understanding between the parties ; and in corro- 
 boration of the inadequacy of such a remedy, they would call 
 attention to the evidence of Mr. Matthews, who stated to us 
 that he quitted his farm owing to the damage done to his crops 
 by rabbits and hares, notwithstanding that he had the privilege 
 of killing the former, and that for years he did not exercise 
 that privilege because he thought that his landlord would not 
 approve it." 
 
 The weakness or submissiveness of one tenant 
 farmer is hardly sufficient ground on which to gene- 
 ralize for the whole class ; nor have the Committee 
 stated the reasons which induced them to think that 
 the law would be evaded. Even if the majority of 
 farmers were as submissive as Mr. Matthews, it is 
 impossible not to believe that many would avail 
 themselves of the new law, and, having experienced 
 benefit, it would soon become the general custom of 
 farmers to follow the law rather than evade its benefit 
 by secret contract or through fear of their landlords. 
 Having the power at law to destroy hares and 
 rabbits, it would at least be no longer open to them 
 to complain if they should not avail themselves of 
 it. 
 
 The arguments produced by the Committee could
 
 71 
 
 be used with far greater effect against their own 
 proposals, and are therefore no reason for preferring 
 a remedy which is admittedly less perfect. 
 
 A considerable minority of the Committee were 
 not satisfied with these arguments, and suggested 
 the following amendment : — 
 
 " I^early all the English tenant farmer witnesses, and many 
 of those from Scotland, are agreed in recommending that such 
 a right (an inalienable right to kill hares and rabbits) should 
 be given by law to the tenant. The difficulties of enforcing 
 such a statutory provision are no doubt considerable, but by 
 no means insuperable. Against it is the natural repugnance 
 to interfere with freedom of contract between landlord and 
 tenant, and the opportunity which may exist for evasion of 
 the provisions by collusion between the parties interested. 
 On the other hand, your Committee have already recognized 
 the advantages of such an arrangement, when voluntarily 
 entered into, and have recommended it as the best means of 
 amicably settling the question; and in the belief that this 
 remedy for the existing grievances meets the wishes of the 
 class most seriously affected and most directly interested in 
 the operation of the Game Laws, and recognizing the fact that 
 the Legislature has already interfered by law with freedom of 
 contracts in many other relations of life, they are of opinion 
 that it should be enacted that no contract by lease or other- 
 wise, by which a tenant purports to forego the privilege of 
 killing or taking hares and rabbits on lands in his own occupa- 
 tion, shall be valid or enforceable by law." 
 
 Had these members of the Committee approached 
 the question from a slightly different point of view 
 they would not perhaps have felt the difficulty of what 
 is called interference with freedom of contract. The 
 question is what should be the subject of contract 
 apart from the land ? Should the law recognize an 
 interest in hares and rabbits apart from the land,
 
 72 
 
 or should these creatures be considered as essentially 
 a product of the land which should pass with the 
 land under any deed or agreement, whether of sale 
 or hiring? Supposing a custom were to grow up 
 under which in contracts for the letting of farms 
 covenants were inserted that no hoeing should take 
 place, could it be contended that such contracts 
 should not be forbidden in the interest of the gene-, 
 ral public. It may as a general rule be unwise to 
 interfere with the freedom of contract, but there 
 are already many exceptions to the rule, and where 
 the public interest is directly in the opposite direc- 
 tion, or where an ancient custom of a hurtful cha- 
 racter has prevailed, it may be very expedient and 
 proper to put an end to it by interfering with the 
 right of contract. In every case it must be a 
 question of broad and general expediency. 
 
 If this partial remedy should be adopted, the 
 main provisions of the existing Game Law would 
 still remain. The law would still prohibit trespass 
 on land in pursuit of game against the will of the 
 owner or occupier. The day trespass law would 
 remain unaltered. The Night Trespass Act would 
 need a careful revision ; the penalties attached to it 
 are too severe. It is reasonable enough that men 
 who go about in armed bands at night should be 
 punished with more severity than simple unarmed 
 trespassers in the day time ; but the punishments 
 of the Act are too severe, and should not be 
 administered by justices. 
 
 The Poaching Prevention Act of 1860 should 
 also be repealed. The Act is founded on a wrong
 
 73 
 
 principle. It enables the Police to act on suspicion, 
 and authorizes the magistrates to condemn on sus- 
 picion only. It introduces a principle novel to the 
 law, in throwing the onus of proof of innocence on 
 the accused. If the principle be worthy of trial, 
 game offences are not those which should be se- 
 lected for the experiment. Further, there is the 
 great objection that it turns the County police into 
 gamekeepers. It is most important that the prin- 
 ciple should be maintained that it is no part of the 
 duty of the State to preserve game for landowners. 
 It does not at all follow that all landowners object 
 to their game being taken, or would desire to pro- 
 secute trespassers. The offence should in no way 
 be treated as one of public interest. 
 
 It is true the Act as construed and applied in 
 England has effected its purpose. It has to 
 some extent put down the larger gangs of poachers. 
 It has resulted that game preserving is carried on 
 to a far greater extent than before. The true re- 
 medy for the wholesale poaching was reduced pre- 
 servation, or better watching ; with better watching 
 the offenders could be identified and followed; 
 with less preservation there would be no employ- 
 ment for such gangs. 
 
 The new " Charta de Foresta" would then em- 
 brace the following changes in the existing law. 
 1. The severance of the right of sporting from 
 the occupation of land should be confined to 
 winged game ; and contracts for the reserva- 
 tion of hares and rabbits should be declared 
 illegal as between landlord and tenant.
 
 74 
 
 2. The penalties under the Night Poaching Act 
 should be reduced. 
 
 3. The Poaching Prevention Act of 18G1 should 
 be repealed. 
 
 4. The Police should be prohibited from acting 
 in any way as game preservers. 
 
 5. The law with reference to damage caused by 
 undue multiplication of game, and especially of 
 rabbits, to the crops of adjoining owners or 
 occupiers, should be carefully reviewed and 
 placed on a more satisfactory footing. 
 
 6. The right of sporting should be made incap- 
 able of permanent severance from the owner- 
 ship of land. 
 
 7. Power should be given to landowners to re- 
 deem the right of sporting over their lands 
 where now permanently severed from them, 
 upon payment of an amount to be decided 
 by a jury. 
 
 In what has been hitherto said care has been taken 
 to avoid any expression of opinion as to the merit 
 of the institution known as sport. It is sufficient 
 for the purpose to acknowledge that game now 
 exists in large quantities, that numerous persons 
 are interested in its preservation and derive great 
 pleasure in searching for it themselves or by their 
 beaters, and in destroying it. It is also a not 
 unimportant article of food; though hares and 
 rabbits, if excessive in number displace a greater 
 value of animal food of better quality, and phea-
 
 75 
 
 sants as a rule cost more to rear than they sell for 
 when dead. It is scarcely possible to justify the 
 maintenance of the Game Laws on the ground put 
 forward by Lord Airlie before the Committee that 
 sport is necessary to the preservation of health 
 of our leading politicians, who require the relaxation 
 and bracing air of the moors, after the hard 
 work of a session, a theory which is not quite con- 
 sistent with the fact that out of nine members of 
 the late Cabinet in the House of Commons, only 
 one was a sportsman. Equally impossible is it 
 to accept the theory of others that the game laws 
 should be maintained on the ground that game is 
 the only inducement to country gentlemen to live 
 in the country. Considerable numbers of gentle- 
 men do now contrive to pass their time and to 
 enjoy themselves in the country without sport, and 
 all ladies are not less fond of country life^. 
 
 It may, however, be admitted that sport, as it used 
 to be indulged in, or such as it is now for the most 
 part on the moors, consisting in the search for game 
 aided perhaps by dogs, and which is only obtained by 
 considerable exertion and the exercise of some 
 skill and knowledge of the country, that such sport 
 has exerted no bad influence, but has given a taste 
 for active life, which may have reacted to advantage 
 upon the habits and life of many families. 
 
 But when for sport of this kind is substituted 
 the modern battue, with its army of beaters, its 
 massacre of hares, or its bouquet of pheasants, and 
 where the sportsmen line the wood and have all 
 the labour done for them, it is difficult to avoid the
 
 76 
 
 conclusion that true sport has vanished, and that the 
 pastime has become little better than that described 
 by an eminent novelist and statesman as the tour- 
 nament of doves. The element of sport has passed 
 away. There is no longer the uncertainty of the 
 chase, or the exercise of skill in finding the game. 
 It has degenerated into a system where the sports- 
 man can prescribe the number of head of game he 
 wishes to be driven into the shambles, and where 
 the only skill is in killing in rapid succession at 
 what is called a hot corner. 
 
 On behalf of such sport the public is little in- 
 terested in giving any great facilities for preserva- 
 tion. On the contrary, there are strong reasons 
 for not giving protection to property which is 
 allowed to be so exposed in such profusion. If 
 householders were to expose their purses on 
 their door steps, they would not be surprised if 
 their property should speedily disappear ; nor 
 would the State be interested in placing a police- 
 man before every door specially to guard such 
 property so rashly exposed. 
 
 Similarly, game preservers who stock their 
 woods and fields with thousands of head of game, 
 have no great claim for protection on the part of 
 the State. They offer too great a temptation to 
 wrong-doers. They have no right to call upon the 
 State to fill its gaols with people who give way to 
 such temptations, or to treat their hares and rab- 
 bits as it treats sheep or oxen. The onus of pro- 
 tection must rest with themselves. 
 
 That the craze for sport of this kind will con-
 
 77 
 
 tinue we cannot believe. It is contrary to the 
 better instincts of English gentlemen and true 
 sportsmen. The fashion came to us from the Con- 
 tinent, and is known under foreign names. Let us 
 hope that the fall of the Empire in France may 
 tend to bring this, and many other fashions of the 
 same level into disrepute. 
 
 It has often been said that Shakespeare has, in 
 the course of his great dramas, left nothing unno- 
 ticed of the varying phases of life, and of the 
 customs of his days ; not the least happy among 
 his descriptions is that where he expresses his manly 
 contempt for the battue shooting of his period, 
 which was directed against deer. 
 
 In "Love's Labour Lost," the Princess of France 
 goes out for a day's sport, and says to the 
 Forester — 
 
 " Shew me the bush 
 Where I may stand and play the murderer. 
 
 The Forester. — Here by upon the edge of yonder 
 coppice, 
 A stand where you may make the fairest shoot. 
 
 The Frincess. — Come for the bow, now mercy goes to 
 kill, 
 And shooting well is here accounted ill ; 
 Thus will I show my credit in the shoot, 
 Not wounding, pity would not let me do it. 
 If wounding, then it was to show my skill, 
 That more for praise than purpose meant to kill ; 
 And out of question so it is sometimes, 
 Glory grows guilty of detested crimes. 
 When for fame's sake, for praise, an outward part, 
 W^e bend to that the working of the heart. 
 So I, for praise alone, now seek to spill 
 The poor deer's blood, that ne'er my heart meant ill.'*
 
 78 
 
 The irony of these lines was not improbably 
 directed against Queen Elizabeth, who was much 
 addicted to killing deer which were driven past a 
 stage, specially erected for her and her retinue. 
 Her butcheries on these occasions must often have 
 shocked public opinion, as they did still more the 
 sensitive mind of Shakespeare, himself a sports- 
 man of a truer type, who has shown in his 
 touching and beautiful description of the hunted 
 hare in Venus and Adonis how keenly he could 
 feel for brute nature. 
 
 The rebuke he thus administered to the ignoble 
 sport of the day would apply equally in the present 
 day to those who indulge either in tournaments of 
 doves or in battues of pheasants or hares. 
 
 Whatever theoretical views, however, may be 
 entertained by the few as to sport, it is certain that 
 the great majority of Englishmen have no wish to 
 see the extermination of game. The Act passed 
 in 1872, with general assent, for the protection of 
 wild birds during the breeding season, is proof of 
 this. They have equally little objection to, if not 
 a love of true sport. They will not however treat 
 with much consideration that right of sporting 
 which is carried to excess at the expense of suffer- 
 ing tenants, to the discouragement of good farm- 
 ing, and resulting in diminished produce of the 
 soil. The public it is equally certain will not 
 readily give up any freedom which they now prac- 
 tically enjoy, of wandering freely over land where 
 they do no damage, or agree to substitute a severe 
 general trespass law, for a game law which is di-
 
 79 
 
 rected against trespassers who are in pursuit only 
 of game. It is therefore in the relation of landlord 
 and tenant that we must look for a remedy of ad- 
 mitted evils. The ground for such change will 
 not be any theoretical objection to game laws in 
 the abstract, but the more solid one that as now 
 constituted they do grave injustice to a great body 
 of tenant farmers, not only in causing destruction 
 to their crops, but in making it impossible for 
 them to put forth those exertions to increase the 
 produce of the soil, from which we may hope for 
 increased results to labour in this country, and for 
 the consequent improvement of the condition of 
 the labouring class. 
 
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