A HANDY BOOK OF THE Game and Fishery Laws. INTRODUCTION. pal acts as to THE principal statutes which now relate to game, The princirabbits, &c., in England and Wales,1 and to the licens- game. ing of persons to kill them, and to deal in game, are: The Day Poaching Act, 1 & 2 Will. 4, c. 32 ;2 The Game Licences Act of 1860, 23 & 24 Vict. The latter act effected a great improvement in the grant of the necessary government authorities, enabling persons to kill and deal in game, by repealing the The 1 & 2 Will. 4, c. 32, excepts (by s. 48) Scotland and Ireland; the 11 & 12 Vict. c. 29, applies only to England and Wales (s. 8); the Night Poaching Acts apply to England and Scotland; but the 23 & 24 Vict. c. 90, extends to the United Kingdom. 2 Passed 5th Oct., 1831, and repealing by s. 1, all the previous statutes, twenty-seven in number; the provisions of which, or the alterations made in the law by 1 & 2 Will. 4, c. 32, it is not now, after the lapse of thirty years, necessary to comment upon. It took effect, generally, from the 1st Nov., 1831. B Fisheries, &c. What is "game." previous duties on game certificates, and certificates to deal in game, and imposing in lieu thereof a lower scale of duties on licences3 to kill game, woodcocks, snipes, quails, landrails, conies and deer, and on licences to deal in game, to be respectively granted by excise or inland revenue officers, instead of by the clerks to the commissioners of assessed taxes of the district. The new statute has swept away the authority of the surveyors of taxes, to make surcharges of game certificate duty, which formerly was so frequent a source of contention between them and the country commissioners, and of appeal to the judges for their decision, on which appeals, however, the commissioners. were as often pronounced to be "right" as wrong. 66 994 Other acts, relating to deer and rabbits, as well as to fish, dogs and birds, will be also referred to under appropriate chapters. The Salmon Fishery Act, 1861, will be given entire in a separate Chapter (XVI., p. 148, &c.). By 1 & 2 Will. 4, c. 32, s. 2, the word "game" is, for all the purposes of that act, to be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game and bustards.5 But rabbits or conies, woodcocks, snipes, quails and landrails, although not game, are protected as game is by various provisions of most of the acts, and, with few exceptions, 3 The term "licence to kill game" is substituted for the term 'game certificate" in the 1 & 2 Will. 4, c. 32 and 11 & 12 Vict. c. 29 (23 & 24 Vict. c. 90, s. 6, p. 31). The terms of the written judgments of the judges here alluded to, being simply-"We are of opinion that the determination of the commissioners is wrong [or is right]." Many of the decisions, however, on these appeals are still necessary to be referred to, and are given in their proper places in this work. 5 A similar definition is given in the Night Poaching Act, 9 Geo. 4, c. 69, s. 13; but there is none in the 23 & 24 Vict. c. 90. It is submitted, however, that this definition must be considered as applicable to all acts in which the word "game" is used. the excise licence must be obtained to enable persons property in game. As to the right of property in game, &c.: It will not The right of be within our purpose, or the limits assigned to this work, to go into this possessory interest in these animals at any length, for the law upon that subject must be sought for in the various elaborate treatises published." It is sufficient here to enumerate that lords of manors on the wastes and commons of the manors, and, in some cases, even where they have been inclosed, and as against the owners of cattle-gates, have the right to the game; also the owners of lands and occupiers thereof, except in certain cases it be reserved to the grantor or landlord, or there be a right of chase or free warren over the lands by prescription or express grant ; and these are respectively recog Locke's Game Laws, Woolrych's G. L. (1858); Bell's G. L. (1839). 7 See 1 & 2 Will. 4, c. 32, s. 10, Ewart v. Graham, Bart., and Bruce v. Helliwell, as to lords of manors; and Earl of Lonsdale v. Rigg, as to owners of cattle-gates, Chap. IV., post, p. 47. The franchises or royalties relating to game, preserved by the 1 & 2 Will. 4, c. 32, s. 10, are, the forest, the park, the free chase and the free warren. A forest is defined as a large tract of waste ground belonging to the king, replenished with all manner of beasts of chase or venery, which are under the king's protection for the sake of his royal recreation and delight (Manwood, 143; 1 Inst. 233; 4 Inst. 289, 303; Locke's G. L. xii. A park is an inclosed chase for the keeping of deer therein, and extending only over a man's own grounds. It is constituted by soil, inclosure and game, and is made by the king's grant, or by immemorial prescription (Co. Litt. 233; 2 Inst. 199; Wood's Inst. 207; Locke's G. L. xxiv). A chase is an extensive district uninclosed, and privileged by royal grant or immemorial usage, for the receipt of beasts of chase or royal game therein, with exclusive power of hunting therein, even against the owner of the land; and it is distinguished from a forest by having neither officers nor courts belonging to it (4 Inst. 314; 2 Bla. Comm. 38; Locke's G. L. xxiii.) Free warren is a franchise derived from What licences are to kill game, deer, &c. nized by various provisions in the 1 & 2 Will. 4, c. 32, treated of in Chapter II., p. 17, as to gamekeepers; and Chapter IV., as to the tenant's rights. Proprietors of warrens have the conies. Occupiers also have, when not reserved to their landlords, the right to authorize others to kill hares on the lands without such persons being liable to take out an excise licence to kill game. In all these cases the right cannot be exercised unless the game, rabbits or conies are on the proprietor's lands; for when they leave, and are not driven from thence, they cease to be his (except in the case of a free warren), and he cannot justify the taking of them. The same principles apply generally to deer as to game in this respect. Any person to be legally entitled to use any dog, now required gun, net, &c., for the purpose of taking or killing any game (in its restricted definition, p. 2), or any deer, whether or not he be entitled to it in whatever capacity, must take out an excise licence to enable him to do so, instead of the "game certificate" formerly granted; but there are certain exceptions and exemptions to this rule, viz., the coursing of hares (which are game), and the killing of them by those entitled to the game; the killing of deer by hunting or in inclosed lands by the owner or occupier, or by their direction; and persons aiding or assisting a licensed person using his own dog, &c., in so doing. royal grant, or from prescription, to preserve and kill all beasts and fowls of the warren, within the precincts of a manor or other known place (Manwood, 44; 1 Inst. 233; 3 Cruise, 284); and, if the right be derived by prescription, in exclusion of the owner of the soil, and the owner may maintain trespass against him for pursuing the game of warren, but not in respect to grouse (see Locke, G. L. xxv. to xxix; Woolrych, G. L. 25–42; the latter work especially treats of free warren). 8 11 & 12 Vict. c. 29, p. 48, Chap. IV. 9 See Woolrych, G. L., pp. 43-47; Locke, G. L. xxxii. |