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COMPENDIUM OF THE GAME kill game: the circumstance of be

LAWS.

A New edition of a concise, but, we have no doubt, very useful little treatise on the Game Laws, has lately been advertised, which professes to embrace all the statutes on the subject, down to the new acts of 58 George III. respecting the buying and selling game, and the act for preventing the destruction of salmon spawn in the rivers of England. To those who have not time or inclination to examine minutely the Statutes at Large, such a breviary as this is always acceptable; and as the shooting season seldom fails to give occasion for reference to such books, we thought a notice of the publication useful at the present moment. From the following extract a fair judgment may be formed of the work:

CHAP. I.

Of the qualification by estate, entitling persons to kill game, and the penalties inflicted on persons not so qualified.

It may be observed, as a prelude to the substance of the present chapter, that the game laws do not, properly speaking, qualify or authorise any one, except in the single instance of a gamekeeper, to take or kill game; but in order to prevent the formal process, and other inconveniences of an action by the person injured (who might, perhaps, remit the penalties), the statutes made for the preservation of game, inflict additional penalties to be recovered by any of the King's subjects, from certain persons of inferior rank, who may be found offending in this particular; but it does not follow that persons, excused from these additional penalties, are therefore authorised to

VOL. IX. N. S.-No. 49.

ing possessed of 1001. per ann. for instance, is not so properly a qualification as an exemption; and persons so exempted from the penalties of the game laws are, notwithstanding, liable as well to actions of trespass, by the owners of land, as also, if they kill game within any royal franchise, to actions, by such as have the right of free warren therein.-See 2 Blackstone's Com. 188.

Having premised thus much, we shall proceed to connect together, and arrange in the plainest manner we are able, the substance of the several acts of Parliament relative to the head of " Qualification by Estate," and, as we go along, shall occasionally advert to. the constructions they have received from the courts.

The estate required to exempt the possessor from the penalties of the game laws has many times varied. In the reign of Richard the Second (which is the first time we meet with any defined qualification), it was only 40s.; in the reign of James the First it was advanced to 101. and in that of Charles the Second (when the last Qualification Act was passed), to 1001. per ann. This, however, has not been owing to any increasing spirit of monopolization in the Legislature, but to the gradual alteration of the value of money, which has decreased nearly in the above proportion. As these several acts are still in force, and the prosecutor may resort to either of them, accordingly as he is inclined to be more or less severe against the offender, it will be necessary to insert them all, though not at equal length.

The first qualification (as we have said) relating to the game, is

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found in statute 13 Richard II. c. 13. By this it is enacted that no layman who hath not lands or tenements of 40s. a year, or clergyman not being advanced to 101. a year, shall have any greyhound, hound, or other dog to hunt, nor shall use any ferrets, hays, nets, hare-pipes, cords, or other engines for taking or destroying hares or conies, or other gentleman's game, on pain of one year's imprisonment, to be inflicted by the justices, at their Quarter Sessions.

Then follows 1 Jac. I. c. 27 (but repealed by 48 George III. c. 93, so far as concerns hares), by which it is provided, that every person, unless seized in his own or his wife's right of an estate of iuheritance of 101. a-year, or a life estate of 301. a-year, or goods to the value of 2001. or unless he be the son of a lord or knight, or the son and heir apparent of an esquire, who shall keep any greyhound for coursing of deer or hare, or any setting-dog, or net to take pheasants or partridges, and be thereof convicted by confession, or oath of two witnesses before two justices, he shall be committed to gaol for three months, without he pay 20s. to the poor, or, after one

month's imprisonment, be bound with two sureties in 201. each, not to offend again.

And by 7 Jac. I. c. 11 (relating to partridges and pheasants only), there is an express provision, authorising every person having free warren, and every lord of a manor, and also every freeholder seized in his own or his wife's right of lands or hereditaments, of the clear yearly value of 401. by themselves or by their household servants duly authorised, to take pheasants and partridges in the day-time,between Michaelmas and Christmas, on their own or master's free-warren, manor, or freehold.

The last statute relating to this head, and that which is most wor thy of notice, is the 22d and 23d Car. II. c. 25, whereby it is enacted, that every person, not having lands or tenements, or some other estate of inheritance,* in his own or his wife's right,↑ of the clear‡ yearly value of 1001. or for a term of life, or having lease or leases of ninety-nine years, or for any longer term, of the yearly value of 1501. other than the son and heir apparent of an esquire, or other persons of higher degree, and the owners and keepers of forests,

A vicar, in respect of his church, has not an estate of inheritance, but for his life only. Caldecot's Cases, 188.

This is not to be understood of a tenant by the courtesy, but of one whose wife is living. See Coke Littleton, 551.

On this word it has been held, that the estate must be clear of all mortgages or incumbrances created by the owners, or by those under whom he claims. Caldecot's Cases, 230.-But an equitable estate of that value is sufficient. Ibid.

§ It has been determined, on this part of the act, that a tenant for life must have an estate of 1501. to exempt him from the penalties of the Game Laws. Ibid. 188.

Esquires are-1. The younger sons of noblemen, and their heirs male for ever. 2. The four esquires of the King's body. 3. The eldest sons of baronets, or knights of the bath, and knights bachelors, and their heirs male in the right line. A justice of the peace is also an esquire for the time he is in the commission, but no longer. Blount's Lare Dictionary.-Persons of higher degree than esquires are colonels, sergeants at law, and doctors in the three learned professions; but neither esquires, nor any of these, are qualified to kill game, unless they have the requisite estate mentioned in the preceding part of the act; though their sons are qualified without any estate. 1 Term Reports, 44.-This, however unreasonable it may seem, has been fully settled to be the true construction of the act.-A commission of captain of volunteers signed by the Lord Lieutenant of a county, does not give the degree of esquire; and therefore the son of such captain is not qualified to kill game. 1 Taunton's Reports, 510.

parks, chases, or warrens, being stocked with deer or conies for their necessary use, in respect of the said forests, parks, chases, or warrens, are declared to be persons, by the law of this realm, not allowed to have or keep for themselves, or any other person, guns, bows, greyhounds, setting-dogs, ferrets, coney-dogs, lurchers, hays, nets, low-bells, hare-pipes, gins, snares, or other engines, for the taking and killing of conies, hares, pheasants, partridges, or other game, but shall be prohibited to have, keep, or use the same.

From the inaccurate composition and punctuation of the above statute, it may be proper to give the reader an abstract of the qualification it requires, as determined by the resolutions of the

courts.

1. Every person having lands or tenements, or other estates of inheritance, of the clear yearly value of 1007.

* See 48 Geo. III. c. 93, page 43.

2. Or for a term of life, or lease or leases for ninety-nine years, or any longer term, of the clear yearly value of 1501.

3. The sons and heirs apparent of esquires, or other persons of high degree.

4. The owner or keeper of any forest, park, chase, or warren. 5. The lord of any manor or roÿalty.

6. The gamekeeper of any lord or lady of a manor.*

We now come to 5 Anne, c. 14, s. 4. (made perpetual by 9 Anne, c. 25), which is the act most frequently resorted to at this day, and indeed most efficacious in its tendency; for by this statute it is enacted, if any person, not qualified as above, shall keep or use ‡ any greyhounds, setting-dogs, hays, lurchers, tunnels, or any other engines, § to kill and destroy the game, and shall be thereof convicted, upon the oath of one witness, by the justice of the peace where

+ In the case of Molton v. Rogers, 4 Espinasse's Reports, 115, it was held that an unqualified and unlicensed person may join in the sport with a person lawfully entitled to kill game, if he is not himself a principal, or using his own dogs.-In the King v. Taylor, an action against an unqualified person for going out with hounds of a qualified man, it was decided that such unqualified person might go with a qualified man. 15 East's Rep. 460.-And in Lewis v. Taylor, Easter T. 1812, an unqualified person going out with the qualified owner of dogs to course a hare, which was killed by the dogs, is not liable to the penalty for using a dog to kill game, although he took an active part in the sport by beating the bushes in order to find a hare, and took it up after it was killed.-Lord Ellenborough observing this is not a solitary amusement, and there is nothing to prevent a qualified person from taking others with him, to aid him in the pursuit of the game. 16 East's Rep. 49.—It is therefore now settled, that an unqualified person may course game in company with a qualified person, if the dog belongs to the latter, without being subject to any penalty for using a dog, being unqualified.

These words being in the disjunctive, the bare keeping of one of these dogs is an offence. 1 Strange's Reports, 496.-As to the using, it has been determined, that walking about with an intent to kill game, is a using within this statute. See 2 Williams's Justice, title GAME.-A farmer who keeps a setting-dog for his landlord, is not to be considered as keeping a dog for the destruction of the game within this statute. 2 Selwyn's Nisi Prius, 840. 4th edition.

§This being a penal act, must be construed strictly, and will not therefore extend, by any equitable construction, to other dogs, besides those here enumerated: a hound is therefore not within this statute, not being expressly mentioned. Strange's Reports, 1126.

It has been held that a gun is not such an engine, the bare keeping of which is penai; it must, moreover, be shewn to be used for the destruction of game. 2 Strange, 1008.—It is also observable, that though the using a gun and a dog are both separately penal, yet per Lord Kenyon, Ch. Justice, if a person go out with a gun and a dog the same day, he is subject but to one penalty. 7 Term Reports, 152.

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such offence is committed, he shall forfeit the sum of 51. one half to go to the informer, and the other half to the poor of the parish,t to be levied by distresst under the warrant of justice, and for want of distress, the offender shall be sent to the house of correction for three months for the first offence, and for every after offence four months and any justice of the peace or lord or lady of manors, within their manors, are allowed to take away any hare, or other game, from any higler, chapman, innkeeper, victualler, or carrier, and any person not qualified; and likewise any dogs, || nets, or any other engines, which shall be in the custody of any person not qua lified to keep the same, to their

own use.

And by the aforesaid stat. 22 and 23 Car. 2. c. 25. s. 2. it is provided, that gamekeepers or any other persons, by warrant of a justice of the peace, may, in the day time, search the houses or other places, of any such persons prohibited by this act to keep or use any dogs, nets, or other engines aforesaid, and the same seize and keep for the use of the lord of the manor, or otherwise to cut in pieces or destroy the things so prohibited.

every person who shall shoot at, kill, or destroy, with any gun, crossbow, stone-bow, or long-bow, any pheasant, partridge, pigeon, heron, mallard, duck, teal, wigeon, grouse, heath-cock, moor-game, or any such fowl, or any hare,** and the offences be proved, by the confession of the party, or by the testimony of two witnesses, upon oath before two justices where the offence shall be committed, the party apprehended shall be committed to the common gaol for three months, unless he pay to the churchwardens of the parish where the offence was committed, or where he was apprehended, 20s. for the use of the poor, for every pheasant, partridge, pigeon, duck, moor-game, &c. he shall so take or destroy, and also after one month after commitment become bound with two sureties in 201. a-piece, to the King, not to shoot at, kill, take, or destroy any of the said game, by the means aforesaid; and by the 7th of the same King, c. 11, s. 8, every person who shall take, kill, or destroy any pheasant or partridge with setting dogs or nets, or with any nets, snares, or engines, proved by confession of the party, or the testimony of one witness, taken as aforesaid, shall forfeit the like sum and enter into like sureties.

And by 1 Jac. I. c. 27. s. 1. An unqualified person standing in one county, shoots at game in another, the offence, under 5 Anne, c. 14, is committed in the county where he stands. 2 Burn's J. p. 427. ed. 20.

† See 2 Geo. III. c. 19. post. page 61.-Lord Kenyon, Chief Justice, said, that where several unqualified persons offend by going out and killing a hare, it has been determined that only one penalty can be recovered. 2 Term Rep. 713.

It may not be improper here to mention, that goods distrained for penalties under the Game Laws, are not repleviable. 1 Strange's Reports, 567.

§ The justice, therefore, cannot commit if the offender have effects sufficient to answer the penalty.

A magistrate, who convicts an unqualified person of killing game under the statute 5 Anne, c. 14, and causes his dog to be brought for the purpose of seizing it, may order the dog to be killed without any formal adjudication of seizure. Kingsworth v. Bretton, Taunton's Reports, 416.

It has been adjudged that gamekeepers, as well as others, must have a warrant to authorize them to search. Comberbach's Reports, 183.

**So far as concerns hares is repealed by 48 George III. c. 93, s. 1.

And by the annual Mutiny Act, if any officer or soldier shall, without leave of the lord of the manor, under his hand and seal, take, kill, or destroy any hare, coney, pheasant, partridge, pigeon, or any other sort of fowls, poultry, or fish, or his Majesty's game, and be thereof convicted before a justice, on the oath of one witness, every officer so offending shall forfeit 51. to the poor of the place; and every officer, commanding in chief upon the place, shall forfeit 20s. for every such offence committed by any soldier under his command; and if such officer, after demand by the constable or overseer, shall not pay the penalties within two days, he shall forfeit his commission.

And by 4 and 5 W. and M. c. 23, s. 3, every constable, headborough, and tything-man, being authorised by one justice of peace, is empowered to enter in and search* the houses of suspected persons not qualified; and in case any hare, partridge, pheasant, pigeon, fish, fowl, or other game, † shall be found, the offenders shall be carried before a justice of peace; and if such person do not give a good account how he came by such game, or shall not, in convenient time, to be named by the justice, produce the party of whom he bought the same, or procure some creditable person to depose upon oath, the sale thereof, he shall be convicted by the said justice of such offence, and shall forfeit for every hare, partridge, pheasant, pigeon, fish,

fowl, or other game, any sum not under 5s. nor more than 20s. one moiety to be paid to the informer, and the other to the poor of the parish where the offence is committed, to be levied by distress under warrant of the justice, and for want of distress the offender shall be committed to the house of correction, for a time not exceeding one month, nor less than ten days; there to be whipt and kept to hard labour.

And if any person so produced or charged with the offence shall not give sufficient evidence of his innocence, he shall be convicted in the same manner as the person first charged, and so from person to person until the first offender be discovered.

By the same act, s. 10, after taking notice that great mischiefs do ensue by inferior tradesmen, apprentices, and other dissolute persons, neglecting their trades and employments, who follow hunting, fishing, and other game, to the ruin of

themselves, and damage of their neighbours, it is enacted that if any inferior tradesman, apprentice, or other dissolute person, shall hunt, hawk, fish, or fowl (unless in company with the master of such apprentice duly qualified), such persons may be sued for their wilful trespass, on coming on any person's ground, and if found guilty shall pay the full costs.

The restrictions and penalties we have hitherto spoken of, it is to be observed, relate to such per

* Though constables, &c. are authorised to search for game, no power is given them to seize or take it away; but this is probably implied from the spirit of the act.

+ It was once doubted whether this act extended to rabbits kept in a private warren, and it was held that it did not. 1 Lord Raymond's Reports, 151.

It has been adjudged, that if a person be an inferior tradesman, within the meaning of this act, it makes no difference as to his qualification by estate. 1 Lord Raymond's Rep.142.; but who are, or who are not inferior tradesmen under this statute, is not fully determined: the better opinion, however, seems to be that the question should, when it occurs, be left to a jury; see 2 Wilson's Rep. 70.-A huntsman, however, has been held not to be within the meaning of the act. 2 Blackstone's Rep. 900.

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